Zamlen-Spotts v. Keco , 2019 Ohio 5048 ( 2019 )

[Cite as Zamlen-Spotts v. Keco, 2019-Ohio-5048.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
JUDY K. ZAMLEN-SPOTTS, : OPINION
Plaintiff-Appellant, :
CASE NO. 2018-G-0186
- vs - :
JOY KECO, :
Defendant-Appellee. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2017 P 000822.
Judgment: Reversed and remanded.
Mark S. O’Brien, 2460 Fairmount Boulevard, Suite 301B, Cleveland Heights, Ohio 44106
(For Plaintiff-Appellant).
Robert N. Farinacci, 65 North Lake Street, Madison, Ohio 44057 (For Defendant-
Appellee).
MARY JANE TRAPP, J.
{¶1} Appellant, Judy K. Zamlen-Spotts (“Ms. Zamlen-Spotts”), appeals the
judgment of the Geauga County Court of Common Pleas finding that she engaged in
frivolous conduct in her civil action against appellee, Joy Keco (“Ms. Keco”). She also
appeals the trial court’s judgment ordering her to pay $48,346.68 in attorney’s fees and
expenses to the extent they were incurred in relation to her previously dismissed civil
action against Ms. Keco.
{¶2} We find that the trial court erred in determining Ms. Zamlen-Spotts engaged
in frivolous conduct pursuant to R.C. 2323.51(A)(2)(a)(iii) and (iv). Contrary to popular
opinion and despite efforts over the years to enact changes to the law, Ohio has long
adhered to the “American rule” with respect to recovery of attorney fees: a prevailing
party in a civil action may not recover attorney fees as a part of the costs of
litigation. Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306,
¶7, citing Nottingdale Homeowners’ Assn., Inc. v. Darby, 33 Ohio St.3d 32, 33-34
(1987). While the General Assembly has provided for some exceptions to this general
rule, including the so-called “frivolous conduct” statute, our state is not a “loser-pays”
state.
{¶3} This case brings to mind two law school maxims: “bad cases make bad
law” and “there are always three sides to every story.” The jury in this case heard
testimony about the common knowledge in Geauga County that Geauga Park District
Board of Commissioners’ meetings have engendered impassioned public comment,
letters to the editor, and social media posts, along with the need to have a park ranger
posted in order to “keep the peace.” But when passion devolves into incivility,
confrontation, and then allegations of wrongdoing, which lands the parties before a jury
of their peers, and that jury decides the claimant did not prove the allegations by a
preponderance of the evidence, case law demands sanctions for frivolous conduct in
bringing the lawsuit must be based upon a total lack of supporting evidence.
{¶4} The frivolous conduct statute authorizes a trial court to sanction only if there
is no evidentiary support. The legal test to be followed is whether the party has minimal
evidentiary support for its allegations or factual contentions. In this case, the trial court
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had two opportunities to dismiss the case by directed verdict if it found there was no
evidence to support Ms. Zamlen-Spotts’ claims. But at both points in the trial when it
could have found in Ms. Keco’s favor, it denied motions for directed verdict, stating “[a]fter
hearing the testimony the Court cannot say that after construing it most strongly in favor
of one side or the other that a reasonable jury could come to but one conclusion.” The
trial court necessarily found there was some evidence supporting each of Ms. Zamlen-
Spotts’ claims; enough evidence to give the jury an instruction of law on each claim and
to allow the jury, as the trier of fact, to determine whom they believed.
{¶5} The record before us establishes that there was a negative interaction
between Ms. Zamlen-Spotts and Ms. Keco during the public meeting. The record also
establishes there was an altercation between Ms. Zamlen-Spotts and Ms. Keco after the
public portion of the park district meeting. Ms. Keco admitted she approached Ms.
Zamlen-Spotts and physically blocked her exit from the building with her arm in order to
speak with her about allegations Ms. Zamlen-Spotts made to another about Ms. Keco
and her friend, who was seated next to her at the meeting. Multiple witnesses did hear
some “loud voices,” described variously as a “commotion” or a “hub bub.” On the evening
of the incident Ms. Keco denied touching Ms. Zamlen-Spotts and said, “I should have
beat the shit out of her, but, no, I didn’t touch her.” But at trial and despite the fact that a
lawsuit was not filed against her until almost a year later, Ms. Keco explained “[t]he reason
why I said that is because she is suing me for something I did not do and I never put a
hand on her and then I said that because I was hot.”
{¶6} Ms. Zamlen-Spotts produced some, albeit weak and exaggerated,
evidentiary support for her allegations and factual contentions in the form of her own
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sworn testimony, sworn testimony from other witnesses who observed her physical
injuries as well as her physical and emotional state directly before and after the incident,
documentary evidence, such as photographs and medical records, and expert medical
testimony regarding the existence of her medical conditions. Most critically, her treating
experts causally related her injuries to trauma from this incident.
{¶7} Because we find there was no basis for sanctions, Ms. Zamlen-Spotts’
second assignment of error is moot.
{¶8} Thus, we reverse the judgment of the Geauga County Court of Common
Pleas finding that Ms. Zamlen-Spotts engaged in frivolous conduct and remand for
determination of costs to be awarded to Ms. Keco as the prevailing party pursuant to
Civ.R. 54(D).
Substantive History and Procedural Background
{¶9} This case involves an alleged physical assault following a meeting of the
Geauga Park District Board of Commissioners at the Meyer Center in Chardon, Ohio.
{¶10} On April 14, 2015, Ms. Keco, a 73-year-old woman and a member of the
Ohio Horseman’s Council, attended a park board meeting with her friend, Elinor Stanton
(“Ms. Stanton”). During the meeting, they were sitting behind a person who they later
learned was Ms. Zamlen-Spotts. On two occasions during the meeting, Ms. Zamlen-
Spotts turned around and gave Ms. Keco and Ms. Stanton mean looks. According to Ms.
Zamlen-Spotts, they had disrupted the meeting by making rude comments about certain
board members, calling Commissioner Gertz “senile” and Commissioner Mary Ruth
Shumway “stupid.” Ms. Keco and Ms. Stanton denied making any such comments. Ms.
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Zamlen-Spotts, Ms. Keco, and Ms. Stanton did not know each other before this board
meeting.
{¶11} After the meeting, the board members went into executive session, and
many of the attendees left the meeting room and entered the reception area. While in the
reception area, another attendee approached Ms. Keco and told her that Ms. Zamlen-
Spotts was complaining that she and Ms. Stanton were making rude comments during
the meeting.
{¶12} According to Ms. Keco, she approached Ms. Zamlen-Spotts as Ms. Zamlen-
Spotts was leaving the building so she could ask her about the complaint. The women
were inside the vestibule area leading outside the building. There were no others present
in the vestibule during this encounter. The small vestibule has two sets of double doors—
one set leading out of the reception area and the second set leading outside of the
building. At the time of the encounter, Ms. Keco and Ms. Zamlen-Spotts were inside the
vestibule area with the inside set of doors closed behind them.
{¶13} Seeing that Ms. Zamlen-Spotts was not going to stop to speak with her,
Ms. Keco put her hand on the door jamb blocking Ms. Zamlen-Spotts’ exit. Without
touching Ms. Zamlen-Spotts, Ms. Keco asked why she was “trying to make trouble” for
her and Ms. Stanton. Ms. Keco claims that Ms. Zamlen-Spotts threatened to call the park
ranger if she did not take her arm down. According to Ms. Keco, she told Ms. Zamlen-
Spotts to “just go.” She then drove Ms. Stanton home, and they stopped for ice cream
on the way.
{¶14} Ms. Zamlen-Spotts had a very different recollection of their encounter.
According to Ms. Zamlen-Spotts, Ms. Keco “slammed” into her, making her head snap
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back and causing her to see flashing lights. She also claimed Ms. Keco yelled at her
while digging her thumbs into Ms. Zamlen-Spotts’ arms, causing her right arm to “pop,”
and shook her. Eventually, Ms. Zamlen-Spotts was able to get away and leave the
building.
{¶15} Ms. Zamlen-Spotts drove home and called Geauga Park District Ranger
James Kailburn (“Ranger Kailburn”), and Commissioner Shumway to report the incident.
Both arrived at her house shortly after the call. Ranger Kailburn took photographs of
bruises and red marks on Ms. Zamlen-Spotts’ arms.
{¶16} Ranger Kailburn spoke with Ms. Keco later that evening. She denied
touching Ms. Zamlen-Spotts and made the “I should have beat the shit out of her”
statement.
{¶17} Ranger Kailburn was on duty to “keep the peace” at the April 15 board
meeting. He did not see any altercation and could not see the vestibule from where he
was standing. During the investigation of the incident, no attendees saw physical contact
between the two women, but some reported hearing “loud voices.”
{¶18} After the visit by Commissioner Shumway and the ranger, Ms. Zamlen-
Spotts went to the emergency room where she gave a history of being “grabbed by the
arms and squeezed and then shook.” She also reported being “punched with fists in the
upper arms as well as verbally threatened.” The physician noted “contusions on both
arms and the “back of [the] right arm does have a small ecchymotic area and is tender.”
Ms. Zamlen-Spotts received x-rays of her shoulders, which did not demonstrate any
injury. She was ultimately diagnosed with a concussion, acute cervical strain, bilateral
shoulder pain, and contusions.
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{¶19} The next morning, Diane Jones (“Ms. Jones”), a friend of Ms. Zamlen-
Spotts, became concerned during a telephone call with her and called 911 on her behalf.
Ms. Zamlen-Spotts was taken to the hospital in an ambulance, where she complained of
a dislocated shoulder, headache, confusion, memory loss, nausea, vomiting, and right
shoulder pain. She also received a CT scan of her head, which showed normal results.
A few days later, Ms. Zamlen-Spotts obtained an MRI of her right shoulder upon orders
of her primary care physician, which showed changes in the rotator cuff consistent with
partial tearing or tendinitis.
{¶20} Ms. Zamlen-Spotts subsequently received treatments from several
professionals, including her primary care physician, an ophthalmologist, an orthopedic
surgeon, an occupational therapist, and a psychological counselor.
{¶21} After receiving various treatments to her right shoulder, Ms. Zamlen-Spotts
continued to complain of pain. She consulted with Dr. Matthew Levy (“Dr. Levy”), a board-
certified orthopedic surgeon, on June 1, 2015 and ultimately underwent surgery to repair
conditions present in her shoulder, including a type two SLAP tear.
{¶22} Ms. Zamlen-Spotts filed a complaint against Ms. Keco in the Geauga
County Court of Common Pleas under Case No. 16 P 000192 alleging that Ms. Keco
“viciously attacked, assaulted and battered” her “without any provocation,” “lunged” at
her, and “beat” her “head, arms, and torso.” Ms. Zamlen-Spotts further alleged that she
sustained injuries, including “a severe right shoulder and rotator cuff injury,” a “Type 2
right shoulder SLAP tear,” “a concussion,” “injuries to her eyes and resulting migraine
headaches,” and “psychological injuries.” She asserted claims for relief of assault,
battery, and intentional infliction of emotional distress.
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{¶23} Shortly before trial was scheduled to begin, Ms. Zamlen-Spotts voluntarily
dismissed her complaint because one of her expert witnesses was unavailable.
{¶24} Five days later, Ms. Zamlen-Spotts filed a second complaint against Ms.
Keco under Case No. 17 P 000822, which contained similar allegations and the same
three claims for relief of assault, battery, and intentional infliction of emotional distress.
{¶25} The case was ultimately tried to a jury over three days.
Ms. Zamlen-Spotts’ Case
{¶26} At trial, Ms. Zamlen-Spotts presented the testimony of Ms. Keco upon
cross-examination, her own testimony, the deposition of Ms. Stanton, who had since
passed away, the testimony of Ms. Shumway, Ranger Kailburn, and Ms. Jones, expert
testimony from Justin Simons (“Mr. Simons”), a licensed professional clinical counselor,
and videotaped medical testimony from Dr. Levy. She also presented photographs of her
injuries, medical records, and invoices.
{¶27} At trial, Ms. Zamlen-Spotts testified regarding her own personal
observations of Ms. Keco’s alleged physical assault and abandoned the claims that Ms.
Keco “beat” her “head,” “arms,” or “torso,” as alleged in her complaint and the emergency
room history. At trial she testified that as she was leaving the building, she heard her
name being called, and she put her hand up and said “I am not interested. Leave me
alone or I’ll call the ranger.” Then she claimed she was “slammed” into by someone in
the portion of the lobby between the reception desk and the vestibule doors. According
to Ms. Zamlen-Spotts, she then saw the person assaulting her was one of the women
sitting behind her during the meeting. She claims Ms. Keco “grabbed her and pulled her
forward,” and she felt her right arm pop. Ms. Keco was shaking her and kept saying “you
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are not going anywhere.” Ms. Zamlen-Spotts testified that the Wohlkens were standing
nearby, watching, but failed to respond to her call to summon the ranger. When they got
to the door, Ms. Keco was blocking it so she could not get out. She also testified regarding
medical and psychological symptoms, subsequent treatments, and her inability to work
for a period of time.
{¶28} Because of her passing, Ms. Zamlen-Spotts offered Ms. Stanton’s
testimony from her deposition, the transcript of which was read into open court. Ms.
Stanton generally confirmed Ms. Keco’s version of events. She “understood” there had
been a “confrontation” at the park board meeting. Ms. Stanton also confirmed that during
the meeting, Ms. Zamlen-Spotts had turned around and “glared” at her on two occasions.
She had been mingling with the attendees after the board went into executive session,
and as she was making her way through the crowd, she saw Ms. Keco approach Ms.
Zamlen-Spotts and speak with her. She said Ms. Zamlen-Spotts “didn’t seem to want to
be communicating with” Ms. Keco. Ms. Zamlen-Spotts “marched out the lobby doors.”
Ms. Keco followed her and “put her hand up like this to try to stop her.” Ms. Stanton saw
no contact between the two women and did not hear their interaction.
{¶29} Ms. Shumway testified regarding Ms. Zamlen-Spotts’ report of being
physically assaulted at the meeting, left in a voicemail message that she retrieved after
leaving the meeting. Ms. Shumway and Ms. Zamlen-Spotts know each other from their
work with Geauga County CASA (Court Appointed Special Advocate) program. She went
to Ms. Zamlen-Spotts’ house soon after the meeting adjourned, where she observed
physical injuries to the upper arms and heard her complaint of right shoulder pain. Ms.
Shumway confirmed that Ms. Zamlen-Spotts had complained to her at the meeting of the
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two women making comments about Ms. Shumway and Mr. Gertz. She told Ms. Zamlen-
Spotts to “forget it. Consider the source and move on.” She also confirmed that Ms.
Zamlen-Spotts did not appear to be suffering from any physical injuries when they spoke
at the meeting and that she was “excited about the outcome of the meeting.”
{¶30} As noted earlier, Ranger Kailburn testified that while he was present at the
meeting, he did not personally observe any altercation between Ms. Zamlen-Spotts and
Ms. Keco. He also testified regarding Ms. Zamlen-Spotts’ subsequent report of being
physically assaulted at the meeting and his visit to Ms. Zamlen-Spotts’ house shortly after
the meeting, where he observed physical injuries and took photographs. He stated that
during the course of his investigation of the incident, no one he spoke to corroborated Ms.
Zamlen-Spotts’ version of events.
{¶31} Ms. Jones testified that during a telephone conversation with Ms. Zamlen-
Spotts the day after the incident, Ms. Zamlen-Spotts was “incoherent” and her “words
were slurred.” She called for an ambulance to take Ms. Zamlen-Spotts to the hospital.
She also testified regarding her personal observations of “massive,” “purple” bruising on
Ms. Zamlen-Spotts’ arms.
{¶32} Dr. Levy testified regarding his treatment of Ms. Zamlen-Spotts’ right
shoulder, which began a month and a half after the incident, and his surgical repair of a
type two SLAP tear. He opined, within a reasonable degree of medical probability or
certainty, that the condition was caused by trauma, namely, an assault on April 14, 2015.
When asked whether his surgical findings were caused by a trauma event or natural
degenerative aging, he explained that the fraying he observed is degenerative, but the
“peel back sign” was not caused by degeneration but was a “traumatic injury.” Dr. Levy
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also testified that there was no indication of any trauma to her shoulder after the date of
the incident.
{¶33} Finally, Mr. Simons testified regarding his counseling sessions with Ms.
Zamlen-Spotts. He initially diagnosed her with acute stress disorder, which he described
as a reaction to an incident or a series of incidents that results in mental health symptoms
of anxiety, depression, nightmares, and potentially flashbacks. He eventually changed
his diagnosis to posttraumatic stress disorder, which he described as having more
symptoms and being more severe than acute stress disorder. He opined, based on a
reasonable degree of licensed professional clinical certainty, that Ms. Zamlen-Spotts’
psychological conditions were caused by the incident of April 14, 2015.
{¶34} After the close of Ms. Zamlen-Spotts’ case and the presentation of Ms.
Keco’s first witness, her medical expert, Dr. James Brodell (“Dr. Brodell”), who disputed
that Ms. Zamlen-Spotts’ injuries were caused by an assault, the trial court ruled on the
admission of Ms. Zamlen-Spotts’ exhibits. The trial court then observed, “Considering a
motion for directed verdict would require me to determine based on the evidence I have
heard that no reasonable jury could rule in favor of the plaintiff. Are you making such a
motion Mr. Farinacci?” Ms. Keco’ counsel then moved for a directed verdict, which the
trial court denied.
Ms. Keco’s Defense
{¶35} In defense, Ms. Keco presented her own testimony, the expert medical
testimony of Dr. Brodell, an orthopedic surgeon, as well as the testimony of James
Wohlken (“Mr. Wohlken”), Kathleen Webb (“Ms. Webb”), Katherine Hanratty (“Ms.
Hanratty”), and Joseph Koziol (“Mr. Koziol”), who all attended the park board meeting.
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{¶36} Dr. Brodell opined, to a reasonable degree of medical certainty, that based
on his review of Ms. Zamlen-Spotts’ medical records, the conditions shown in the MRI of
her right shoulder were not caused by an assault, and three of the conditions repaired
during surgery were degenerative, age-related conditions that were not caused by an
assault. He further opined that the type two SLAP tear was not the result of an assault
but could have been caused by age, “marine-type” workouts (Ms. Zamlen-Spotts is a
retired Marine), bench pressing, and pushups. He also suggested that the marks on Ms.
Zamlen-Spotts’ arms were self-inflicted. Dr. Brodell testified that “[n]one of the records
have any evidence, if you will, of significant injury.” Dr. Brodell did not examine Ms.
Zamlen-Spotts nor did he review the actual x-ray or MRI films.
{¶37} Mr. Wohlken testified that as he walked outside the Meyer Center after the
meeting, there was a “big hub bub.” He observed a woman come through the door, turn
her back towards the vestibule doors, and shout “You evil hags.” He testified that the
woman walked to her vehicle “very straight” and “almost like marching.”
{¶38} Ms. Webb testified that at least 30 people were present in the lobby of the
Meyer Center after the meeting and that she did not hear anything unusual that
interrupted the conversation she was having in the lobby area.
{¶39} Ms. Hanratty testified that she did not recall Ms. Keco being disruptive
during the meeting, but after the meeting she heard a “commotion” consisting of “voices
raised” lasting five to ten seconds.
{¶40} Finally, Mr. Koziol testified that he did not notice any disruption from Ms.
Keco during the meeting. After the meeting, he noticed a “raising of voices, a little
commotion” for about “five seconds.”
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{¶41} At the close of her defense, Ms. Keco again moved for a directed verdict,
which the trial court denied.
{¶42} Following deliberations, the jury returned its verdict finding in favor of Ms.
Keco and against Ms. Zamlen-Spotts on all three claims for relief. The jury’s votes on
battery and intentional infliction of emotional distress were unanimous, while its vote on
assault was seven to one.
Motion for Attorney Fees and Expenses
{¶43} Following the trial, Ms. Keco filed a motion for attorney fees and expenses
pursuant to Civ.R. 11 and R.C. 2323.51(A)(2)(a)(i), (iii), and (iv). The trial court held a
hearing on the motion for sanctions, at which counsel presented argument, but the parties
introduced no additional evidence.
{¶44} The trial court subsequently issued a judgment entry finding that by filing
her complaint and testifying as she did, Ms. Zamlen-Spotts engaged in frivolous conduct
pursuant to R.C. 2323.51(A)(2)(a)(iii) and (iv).1 Specifically, the trial court found (1) at
trial, “other than her own testimony,” Ms. Zamlen-Spotts presented “no evidence
whatsoever” that Ms. Keco attacked her and caused injury, (2) none of the witnesses who
testified substantiated her claims of a physical assault, (3) Ms. Zamlen-Spotts presented
“no testimony or evidence from anyone other than herself” that Ms. Keco caused her
injuries.
{¶45} The trial court also found it to be “incredible” that “a person could be
viciously and brutally attacked, grabbed by her arms and shaken back and forth,
screamed at in the vestibule or entryway of the Meyer Center with more than thirty people
1. Although the trial court’s citations contain typographical errors, it is clear the trial court intended to
reference R.C. 2323.51(A)(2)(a)(iii) and (iv).
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nearby without one single person seeing the assault or hearing the screams,” and that “a
person who had been viciously and brutally attacked would go to her car and leave; rather
than return to the meeting room to report the attack to the Park Ranger, Geauga County
Park Board members, and other persons present.”
{¶46} The trial court determined that the conduct of Ms. Zamlen-Spotts’ counsel
was not shown to have been willful under Civ.R. 11.
{¶47} The trial court scheduled the matter for a further hearing to determine costs,
attorney’s fees and expenses, and whether an award should also be made against Ms.
Zamlen-Spotts’ counsel under R.C. 2323.51.
{¶48} At the subsequent hearing, Ms. Keco presented testimony and evidence
regarding the costs and expenses she incurred.
{¶49} Following the hearing, the trial court issued a judgment entry ordering Ms.
Zamlen-Spotts to pay Ms. Keco the sum of $48,346.68 for attorney’s fees and expenses.
It determined that the attorney’s fees incurred in the first case that Ms. Zamlen-Spotts
voluntarily dismissed were reasonably and necessarily related to Ms. Keco’s defense in
the second case. It also found it would not be appropriate to make Ms. Zamlen-Spotts’
counsel responsible for payment of attorney fees or expenses.
{¶50} The trial court subsequently issued a nunc pro tunc judgment entry
correcting its reference to the date the hearing was held.
{¶51} Ms. Zamlen-Spotts now appeals, asserting the following two assignments
of error:
{¶52} “[1.] The trial court erred by determining that Plaintiff-Appellant engaged
in frivolous conduct under O.R.C. §§ 2323.51(A)(2)(a)(iii) and (iv).
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{¶53} “[2.] The trial court erred by ordering Plaintiff-Appellant to pay to
Defendant-Appellee attorney’s fees and expenses relating to an earlier case that was
dismissed by Plaintiff-Appellant when Defendant-Appellee did not file a motion for
sanctions under O.R.C. § 2323.51 within 30 days of Plaintiff-Appellant’s dismissal of the
earlier case.”
Frivolous Conduct
{¶54} Under her first assignment of error, Ms. Zamlen-Spotts contends the trial
court erred in finding that she engaged in frivolous conduct under R.C.
2323.51(A)(2)(a)(iii) and (iv).
Standard of Review
{¶55} An appellate court’s standard of review of rulings pursuant to R.C. 2323.51
varies and is contingent upon the basis for the trial court’s decision. (Citations omitted.)
Keith-Harper v. Lake Hosp. Sys., Inc., 11th Dist. Lake No. 2015-L-137, 2017-Ohio-7361,
¶23. A trial court’s decision that conduct was frivolous under R.C. 2323.51(A)(2)(a)(iii)
and (iv) is a factual determination. See Grimes v. Oviatt, 8th Dist. Cuyahoga No. 107122,
2019-Ohio-1365, ¶31. Some deference is appropriate in reviewing a trial court's factual
determinations. Stevenson v. Bernard, 11th Dist. Lake No. 2006-L-096, 2007-Ohio-3192,
¶38. Therefore, we will not disturb the trial court's findings of fact if they are supported
by competent, credible evidence. (Citation omitted). Keith-Harper at ¶24.
{¶56} This standard of review of factual determinations is similar to that employed
in a review of the manifest weight of the evidence. Stevenson at ¶38, citing Crooks v.
Consol. Stores Corp., 10th Dist. Franklin No. 98 AP-83, 1999 WL 52981, *4 (Feb. 4,
1999). See C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus
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(“Judgments supported by some competent, credible evidence going to all the essential
elements of the case will not be reversed by a reviewing court as being against the
manifest weight of the evidence”).
R.C. 2323.51
{¶57} R.C. 2323.51 serves to deter abuse of the judicial process by penalizing
sanctionable conduct that occurs during litigation. Filonenko v. Smock Constr., LLC, 10th
Dist. Franklin No. 17AP-854, 2018-Ohio-3283, ¶14. The statute was designed to chill
egregious, overzealous, unjustifiable and frivolous action. (Citations omitted.) Ferron v.
Video Professor, Inc. 5th Dist. Delaware No. 08-CAE-09-0055, 2009-Ohio-3133, ¶45. In
determining whether conduct is frivolous, courts must carefully apply the statute so that
legitimate claims are not chilled. (Citation omitted.) Id.{¶58} Pursuant to R.C. 2323.51(B)(1), “at any time not more than thirty days after
the entry of final judgment in a civil action or appeal, any party adversely affected by
frivolous conduct may file a motion for an award of court costs, reasonable attorney’s
fees, and other reasonable expenses incurred in connection with a civil action * * *.” The
award may be made “against a party, the party’s counsel of record, or both.” R.C.
2323.51(B)(4).
{¶59} “Conduct” includes, in relevant part, “[t]he filing of a civil action, the assertion
of a claim, defense, or other position in connection with a civil action, the filing of a
pleading, motion, or other paper in a civil action, * * * or the taking of any other action in
connection with a civil action.” R.C. 2323.51(A)(1)(a).
{¶60} “Frivolous conduct” means the conduct of a party or the party’s attorney that
satisfies any of the following:
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{¶61} “(i) It obviously serves merely to harass or maliciously injure another party
to the civil action or appeal or is for another improper purpose, including, but not limited
to, causing unnecessary delay or a needless increase in the cost of litigation.
{¶62} “(ii) It is not warranted under existing law, cannot be supported by a good
faith argument for an extension, modification, or reversal of existing law, or cannot be
supported by a good faith argument for the establishment of new law.
{¶63} “(iii) The conduct consists of allegations or other factual contentions that
have no evidentiary support or, if specifically so identified, are not likely to have
evidentiary support after a reasonable opportunity for further investigation or discovery.
{¶64} “(iv) The conduct consists of denials or factual contentions that are not
warranted by the evidence or, if specifically so identified, are not reasonably based on a
lack of information or belief.” R.C. 2323.51(A)(2)(a)(i) through (iv).
{¶65} R.C. 2323.51 uses an objective standard in determining whether sanctions
may be imposed for frivolous conduct. (Citation omitted.) Stevenson, supra, at ¶41.
Thus, a finding of frivolous conduct under R.C. 2323.51 is decided without inquiry as to
what the individual knew or believed. (Citation omitted.) Omerza v. Bryant & Stratton,
11th Dist. Lake No. 2006-L-147, 2007-Ohio-5216, ¶15.
R.C. 2323.51(A)(2)(a)(iii) and (iv)
{¶66} R.C. 2323.51(A)(2)(a)(iii) involves “conduct [that] consists of allegations or
other factual contentions that have no evidentiary support or, if specifically so identified,
are not likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery.” Similarly, R.C. 2323.51(A)(2)(a)(iv) involves “conduct [that]
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consists of denials or factual contentions that are not warranted by the evidence or, if
specifically so identified, are not reasonably based on a lack of information or belief.”
{¶67} The Tenth District has noted that the language of subsection (a)(iii) is similar
to the language used in Fed.R.Civ.P. 11(b)(3), which states that, by presenting a pleading
to the court, an attorney or unrepresented party certifies that “the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery.” Carasalina L.L.C. v.
Bennett, 10th Dist. Franklin No. 14AP-74, 2014-Ohio-5665, ¶32, citing Fed.R.Civ.P.
11(b)(3). According to the drafters, the “certification is that there is (or likely will be)
‘evidentiary support’ for the allegation, not that the party will prevail with respect to its
contention regarding the fact.” See Advisory Committee Notes on the 1993 amendments
to Fed.R.Civ.P. 11(b)(3).
{¶68} With respect to what constitutes sufficient “evidentiary support,” the drafters
stated: “[t]hat summary judgment is rendered against a party does not necessarily mean
* * * that it had no evidentiary support for its position. On the other hand, if a party has
evidence with respect to a contention that would suffice to defeat a motion for summary
judgment based thereon, it would have sufficient ‘evidentiary support’ for purposes of
Rule 11.” Id. See also Merino v. Salem Hunting Club, 7th Dist. Columbiana No. 11 CO
2, 2012-Ohio-4553, ¶17 (“[T]he fact that Appellant survived summary judgment * * *
should be proof that Appellant’s claims were not frivolous, even though his evidence
ultimately fell short”); Wrinch v. Miller, 183 Ohio App.3d 445, 2009-Ohio-3862, ¶55 (9th
Dist.) (“Although not determinative, the fact that summary judgment was denied
18
demonstrates that [plaintiff-appellant] provided at least some factual basis to support the
claims”).
{¶69} We have previously recognized this principle in reviewing a trial court’s
finding of frivolous conduct under subsection (a)(iii). In Michael A. Shore Co. L.P.A. v.
Estate of Hards, 11th Dist. Geauga No. 2015-G-0038, 2017-Ohio-7123, we held that a
law firm’s claim for relief alleging an oral contract for attorney fees was not frivolous. Id.
at ¶40. Even though the trial court granted summary judgment to the defendant, we noted
that the law firm could have “provided some evidence, via, e.g., an affidavit made on
personal knowledge” to create a genuine issue of material fact regarding the existence of
an oral contract. Id.
{¶70} Thus, the Tenth District has construed subsection (a)(iii) to mean that “a
party only needs minimal evidentiary support for its allegations or factual contentions to
avoid a frivolous conduct finding.” Carasalina at ¶36. See Eastwood v. Eastwood, 9th
Dist. Summit No. 25310, 2010-Ohio-6492, ¶15 (“R.C. 2323.51(A)(2)(a)(iii) authorizes the
trial court to sanction the filing of a motion only if it has no evidentiary support”).
(Emphasis sic.)
Analysis
{¶71} The trial court found that Ms. Zamlen-Spotts’ filing of her complaint and
testimony at trial constituted frivolous conduct under R.C. 2323.51(A)(2)(a)(iii) and (iv).
Specifically, the trial court determined that during the trial, Ms. Zamlen-Spotts (1)
“presented no evidence whatsoever” regarding a physical assault from Ms. Keco “other
than her own testimony,” and (2) “presented no testimony or evidence from anyone other
than herself” that Ms. Keco caused her injuries.
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{¶72} The filing of the complaint constituted “conduct” under R.C.
2323.51(A)(1)(a) as the “filing of a civil action”, the “assertion of a claim * * * in connection
with a civil action,” or the filing of a pleading * * * in a civil action.” Ms. Zamlen-Spotts’
trial testimony also constituted “conduct” under R.C. 2323.51(A)(1)(a) as the “assertion
of a claim * * * in connection with a civil action” or “the taking of any other action in
connection with a civil action.” In addition, both the complaint and testimony consisted of
“allegations or other factual contentions” under R.C. 2323.51(A)(2)(a)(iii) and “factual
contentions” under R.C. 2323.51(A)(2)(a)(iv). However, the record does not support a
finding that Ms. Zamlen-Spotts’ complaint and testimony had “no evidentiary support” or
were “not warranted by the evidence.”
{¶73} The definition of “evidence” is “[s]omething (including testimony,
documents, and tangible objects) that tends to prove or disprove the existence of an
alleged fact; anything presented to the senses and offered to prove the existence or
nonexistence of a fact.” Black’s Law Dictionary (11th Ed.2019). Similarly, the trial court
instructed the jury that “evidence” includes “testimony received from the witnesses,” and
that “direct evidence” is “the testimony given by a witness who has seen or heard the
facts to which that witness testifies.”
{¶74} Ms. Zamlen-Spotts’ own testimony, by definition, constitutes “evidence,”
and it supports the claims for relief set forth in her complaint. There is no legal
requirement in a civil case that alleged eyewitness testimony be corroborated by a third
party to constitute “evidence.” See Felton v. Felton, 79 Ohio St.3d 34, 44 (1997) (holding
that a witness’ eyewitness testimony, standing alone, may be sufficient to establish proof
by a preponderance of the evidence). The weight or the preponderance of the evidence
20
is not determined by the number of witnesses on either side but by the impression which
their testimony makes upon the jury, the manner of the witnesses, the circumstances
attending the transactions, and the character of the testimony itself. Rice v. Cleveland,
144 Ohio St. 299, 302 (1944). As the trial court instructed the jury in this case, “you will
assign to the testimony of each witness such weight as you deem proper” after applying
“the tests of truthfulness that you are accustomed to apply[ing] in your daily lives.”
{¶75} Further, the trial court’s determinations are not supported by the trial record
and appear to have resulted from an application of a subjective standard rather than the
required objective standard. In addition to her own testimony, Ms. Zamlen-Spotts’
evidence at trial included: (1) sworn testimony from Ranger Kailburn and Ms. Shumway
regarding their personal observations of injuries to her arms on the evening of the alleged
physical assault, (2) photographs from Ranger Kailburn depicting the injuries on her arms
on the evening of the alleged physical assault, (3) emergency room medical records from
the evening of the alleged assault documenting diagnoses of a concussion, acute cervical
strain, bilateral shoulder pain, and contusions, (4) sworn testimony from Ms. Jones, who
called an ambulance for her the day after the alleged physical assault after speaking to
her on the telephone and later observed her physical injuries, (5) medical records from
the day after the alleged physical assault when she was taken to the hospital by
ambulance, (6) medical records documenting various treatments for her physical and
psychological conditions and surgery to repair a type two SLAP tear, (7) testimony from
Mr. Simons opining that her acute stress disorder and subsequent posttraumatic stress
disorder were caused by the incident on April 14, 2015, and (8) videotaped testimony
21
from her treating surgeon, Dr. Levy, opining that the SLAP tear was a direct and proximate
result of an assault on April 14, 2015.
{¶76} Although the parties did not engage in summary judgment practice prior to
trial, Zamlen-Spotts would have likely defeated a motion for summary judgment by
properly presenting this evidence pursuant to Civ.R. 56(E).
{¶77} In addition, and critical to our analysis, the trial court denied two motions
from Ms. Keco for a directed verdict. Courts have held that a denial of a motion for a
directed verdict weighs against a finding of frivolous conduct. See, e.g., Rossman & Co.
v. Donaldson, 10th Dist. Franklin Nos. 94APE03-338, et al., 1994 WL 694985, *15 (Dec.
6, 1994) (“[C]laims which withstand a directed verdict have arguable merit and ordinarily
are not frivolous”); Baker v. Beachwood Villas Condominium Owners Assn., 6th Dist. Erie
No. E-03-11, 2004-Ohio-682, ¶23 (“[T]he trial court’s denial of directed verdict at the
conclusion of appellant’s case-in-chief is at least arguably a determination that appellant’s
lawsuit is not legally unwarranted”).
{¶78} A trial court may not grant a directed verdict unless the evidence, when
construed in the light most favorable to the nonmoving party, leads reasonable minds to
only one conclusion, and that conclusion is adverse to the nonmovant. (Citation omitted.)
Bliss v. Chandler, 11th Dist. Geauga No. 2006-G-2742, 2007-Ohio-6161, ¶47; Civ.R.
50(A)(4). In denying the first motion at the conclusion of Ms. Zamlen-Spotts’ case and
after hearing the testimony of Ms. Keco’s medical expert who disagreed with Ms. Zamlen-
Spotts’ orthopedic surgeon as to the cause of the SLAP tear, the trial court acknowledged
that “[c]onsidering a motion for a directed verdict would require me to determine based
on the evidence I have heard that no reasonable jury could rule in favor of the plaintiff.”
22
In denying the second motion at the conclusion of Ms. Keco’s defense, the trial court
stated:
{¶79} “There will be no directed verdict. After hearing the testimony the Court
cannot say that after construing it most strongly in favor of one side or the other that a
reasonable jury could come to but one conclusion. So any motions for directed verdict
are denied.”
{¶80} Although Ms. Keco presented evidence that directly contradicted Ms.
Zamlen-Spotts’ evidence, the trial court necessarily determined that Ms. Zamlen-Spotts’
evidence was sufficient to lead reasonable minds to find in her favor. In fact, the record
reflects that the evidence persuaded at least one juror to find in Ms. Zamlen-Spotts’ favor
on her assault claim. While the jury ultimately found Ms. Keco’s evidence to be more
persuasive, this does not compel a conclusion that Ms. Zamlen-Spotts’ offered no
evidentiary support for her allegations or that her allegations were not warranted by the
evidence.
{¶81} The trial court further based its finding of frivolous conduct on its
assessment that Ms. Zamlen-Spotts allegations were “incredible.” Some courts have
reversed a trial court’s finding of frivolous conduct where the trial court’s conclusion
resulted from weighing the evidence or determining credibility. See Eastwood, supra, at
¶15 (“Sanctions are not warranted under R.C. 2323.51 merely because [appellant] was
unable to persuade the trial court to grant her motion after it weighed the evidence”);
Wrinch, supra, at ¶55 (“While evidence may have been offered at trial to contradict
[appellant]’s claims, leaving the jury to weigh the evidence and determine the credibility
of the witnesses, neither the presence of conflicting evidence nor an unsuccessful
23
outcome on the claims compel the conclusion that [appellant]’s claims were frivolous”).
See also Estate of Cain, 10th Dist. Franklin No. 93AP-11, 1993 WL 460584, *4 (Nov. 9,
1993) (“The trial court apparently equated a merit finding of insufficient evidence with an
action being frivolous”).
{¶82} However, at least two courts have accepted a trial court’s determinations
where the claimant’s allegations were demonstrably false. For instance, in Nithiananthan
v. Toirac, 12th Dist. Warren Nos. CA2014-02-021, et al., 2015-Ohio-1416, the Twelfth
District affirmed a finding of frivolous conduct under subsection (a)(iii) where the
defendants filed a counterclaim against the plaintiffs (their neighbors), alleging that they
engaged in the unauthorized “filming” and “surveillance” of them. Id. at ¶8. The court’s
decision was based on the magistrate’s findings that a defendant’s testimony lacked
credibility, contained increasingly “exaggerated” assertions, and contained allegations
that “had become so florid as to be fantastical.” Id. at ¶69-71.
{¶83} Further, in Martell v. Martell, 5th Dist. Stark No. 2018CA00017, 2018-Ohio-
4927, the Fifth District affirmed a finding of frivolous conduct under subsection (a)(iii)
where a former spouse filed a motion requesting relief from a decree of divorce and
separation agreement based, in part, on her alleged lack of the requisite mental capacity
to contract. Id. at ¶4-6. In support of her motion, the former spouse filed affidavits from
her primary care physician and her therapist that stated she was not competent to enter
into a contract. Id. at ¶7-8. However, both professionals contradicted their affidavits
during their deposition testimony, and counsel did not confer with them before filing the
motion. Id. at ¶18. The court stated that while the affidavits arguably provided “minimal
evidentiary support for her allegations and factual contentions,” it was “eliminated” by the
24
professionals’ testimony and “a review of their contemporaneous medical records.” Id. at
¶50.
{¶84} Ms. Zamlen-Spotts’ allegations are distinguishable from those presented in
Nithiananthan and Martell. In Nithiananthan, the counterclaimants’ allegations regarding
their neighbors’ surveillance were particularly outlandish, including claims of a
“surveillance van” and a floating “globe.” Id. at ¶71. The court noted that the
counterclaimants never presented “any photographs or other evidence to substantiate”
the alleged surveillance. Id. at ¶72.
{¶85} Here, even if Ms. Zamlen-Spotts’ versions of events seem implausible and
even exaggerated, she presented photographs and medical records documenting injuries
on the day of the alleged physical assault as well as professional opinions that her medical
conditions were consistent with and caused by a physical assault on that day. Further,
while Ms. Keco presented evidence that contradicted Ms. Zamlen-Spotts’ allegations and
ultimately persuaded the jury, unlike in Martell, Ms. Zamlen-Spotts’ allegations were not
“eliminated.” The defense offered no evidence of a pre-existing condition of her right
shoulder or of an accident or injuries occurring before or after the date of this incident that
would explain the objective findings of injury.
{¶86} Ms. Keco argues that our decision in Lozada v. Lozada, 11th Dist. Geauga
No. 2012-G-3100, 2014-Ohio-5700, supports the trial court’s finding of frivolous conduct.
In Lozada, a wife filed a petition for domestic violence civil protection order (“CPO”)
alleging that her husband threatened her, threatened to take custody of their child, and
that she was in fear of him. Id. at ¶2. After a hearing, a magistrate denied the petition
and found that the wife had made materially false statements in her affidavit, that she was
25
not a credible witness, and that virtually all of her evidence was based on unclear
generalizations and unspecified claims. Id. at ¶3. The husband then filed for sanctions.
Id. at ¶4. Based on the evidence presented at the CPO hearing, the magistrate concluded
that the wife had engaged in frivolous conduct under R.C. 2323.51(A)(2)(a)(i), (ii), and (iii)
and awarded the husband attorney fees. Id. at ¶6. The trial court adopted the
magistrate’s finding of frivolous conduct, which we affirmed. Id. at ¶7, 70.
{¶87} Lozada is distinguishable in two crucial respects. First, we noted that the
magistrate’s determinations were premised upon its decision in the underlying CPO case.
Id. at ¶21. We found that the determinations were rendered final when the trial court
adopted the magistrate’s decision and were accorded preclusive effect when no appeal
was taken. Id. at ¶15.
{¶88} Second, we expressly limited our holding to the trial court’s finding under a
different section of the statute at issue. We specifically based our decision on R.C.
2323.51(A)(2)(a)(i), which involves “conduct” that “obviously serves merely to harass or
maliciously injury another party to a civil action.” Id. at ¶23. Although the magistrate had
also found frivolous conduct under subsection (a)(iii), we determined that any additional
analysis was moot. Id.
{¶89} Ms. Keco also argues that our decision in Law Office of Natalie F. Grubb v.
Bolan, 11th Dist. Geauga No. 2010-G-2965, 2011-Ohio-4302, supports the trial court’s
finding of frivolous conduct. In Grubb, a law firm sued Bolan for unpaid legal fees. Id. at
¶2. Bolan filed a counterclaim alleging that Attorney Grubb of the law firm had committed
malpractice while representing her in a prior domestic relations case. Id. It was later
26
determined that Attorney Grubb had never met Bolan nor represented her in any previous
matter. Id. at ¶40.
{¶90} The law firm and Attorney Grubb filed a motion for sanctions against Bolan’s
attorney under Civ.R. 11 and R.C. 2323.51, which the trial court ultimately denied. Id. at
¶12, 16. We reversed the trial court’s judgment in part and found the conduct of Bolan’s
attorney was frivolous under subsection (a)(iii). Id. at ¶40. We noted that there was
nothing in the record indicating Bolan’s attorney attempted to refute or otherwise explain
his reasons for leveling the allegations. Id.
{¶91} Grubb involves a distinguishable type of allegation. In Grubb, the
counterclaim was based on demonstrably incorrect information, i.e., that an attorney who
allegedly committed malpractice had represented the client. Here, Ms. Zamlen-Spotts’
claims are based on her alleged eyewitness observations. Even if Ms. Zamlen-Spotts’
allegations of physical assault are implausible in light of the contrary evidence, they are
not demonstrably false.
{¶92} Ms. Zamlen-Spotts consistently maintained that she was physically
assaulted and presented some evidentiary support for this allegation, which is sufficient
to avoid a finding of frivolous conduct under subsection (a)(iii) and (iv). See Radvansky
v. W. & S. Fin. Group, 1st Dist. Hamilton No. C-070470, 2008-Ohio-4472, ¶25 (finding of
frivolous conduct under subsections (a)(iii) and (a)(iv) reversed where plaintiff consistently
maintained allegation and presented evidentiary support in the form of responses to
interrogatories and affidavits). See also Michael A. Shore Co. L.P.A., supra, at ¶40
(allegations were not frivolous under subsection (a)(iii) where plaintiff could have provided
an affidavit made on personal knowledge).
27
{¶93} The record establishes that Ms. Zamlen-Spotts produced at least “minimal
evidentiary support” for her allegations and factual contentions and they were “warranted
by the evidence.” Thus, the trial court’s finding that Ms. Zamlen-Spotts engaged in
frivolous conduct pursuant to R.C. 2323.51(A)(2)(a)(iii) and (iv) is not supported by
competent, credible evidence.
{¶94} Ms. Zamlin-Spotts’ first assignment of error has merit.
Award of Attorney’s Fees and Expenses
{¶95} Under her second assignment of error, Ms. Zamlen-Spotts contends the
trial court erred in ordering her to pay attorney’s fees and expenses relating to her prior
action against Ms. Keco that she voluntarily dismissed.
{¶96} Because we have determined that the trial court’s finding of frivolous
conduct was not supported by the record, there was no basis for any sanctions. This
assignment of error is overruled as moot.
{¶97} Based on the foregoing, the judgment of the Geauga County Court of
Common Pleas is reversed and remanded for determination of costs to be award to Ms.
Keco as the prevailing party pursuant to Civ.R. 54(D).
THOMAS R. WRIGHT, P.J., concurs.
TIMOTHY P. CANNON, J., dissents with a Dissenting Opinion.
____________________
TIMOTHY P. CANNON, J., dissenting.
{¶98} I respectfully dissent and would affirm the order of the trial court. The trial
court sat through all of the pretrial discussions and trial, and it was in the best position to
28
review and consider the request for sanctions. It appears clear the trial court felt strongly
that the entire claim of injury was fabricated or, at the very least, incredibly exaggerated
and overstated. That being the case, it was within the discretion of the trial court to award
sanctions. Based on our highly deferential standard of review in these types of cases, I
would affirm.
29