Ogle v. Greco ( 2015 )


Menu:
  • [Cite as Ogle v. Greco, 
    2015-Ohio-4841
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    HOCKING COUNTY
    MELANIE OGLE,                    :   Case No. 15CA2
    :
    Plaintiff-Appellant,        :
    :
    vs.                         :   DECISION AND JUDGMENT
    :   ENTRY
    BRETT GRECO, et al.,             :
    :
    Defendants-Appellees.       :   Released: 11/16/15
    ____________________________________________________________
    APPEARANCES:
    Melanie A. Ogle, Rockbridge, Ohio, Pro Se Appellant.
    Brett Greco, New Philadelphia, Ohio, Pro Se Appellee.
    Greco’s Electronic Monitoring Service, LLC, New Philadelphia, Ohio, Pro
    Se Appellee.1
    _____________________________________________________________
    McFarland, A.J.
    {¶1} Melanie Ogle appeals the December 19, 2014 judgment entry of
    the Hocking County Court of Common Pleas, General Division, which
    dismissed her amended complaint against Brett Greco and Greco Electronic
    Monitoring Service, LLC, and further found her suit to be frivolous conduct
    under R.C. 2323.51 and Civ.R. 11. Appellant sets forth seven assignments
    of error which all relate to the dismissal of her claims against Brett Greco
    1
    Neither Bret Greco nor Greco’s Electronic Monitoring Service, LLC has entered an appearance in this
    appeal.
    Hocking App. No. 15CA2                                                      2
    and Greco’s Electronic Monitoring, LLC. Upon our review of the record,
    we find the trial court did not err. As such, we overrule Appellant’s
    assignments of error and affirm the judgment of the trial court.
    FACTS
    {¶2} We generally recount the facts as previously set forth in this
    court’s decision in State v. Ogle, 4th Dist. Hocking No. 13CA18, 2014-
    Ohio-2251, at paragraphs 2-6 as follows:
    “In August 2011, Melanie Ogle (hereinafter “Appellant”) was
    convicted by a jury in the Hocking County Court of Common
    Pleas of assault on a peace officer. Various appeals have
    followed Appellant's felony conviction. The events serving as a
    backdrop to Appellant's felony conviction and the instant
    appeal are set forth in detail in State v. Ogle, 4th Dist. Hocking
    Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, 12CA19,
    
    2013-Ohio-3420
    . Pursuant to the assault conviction, Appellant
    was sentenced to six months in a county jail, a fine, and
    restitution.
    Appellant was also required to wear an ankle monitor as part of
    her sentence on the assault conviction. Appellant executed a
    contract with Greco's Electronic Monitoring Service for ankle
    monitoring equipment and service. On or about November 25,
    2011, Appellant submerged the ankle monitor in water causing
    irreparable damage to the equipment. Appellant was
    subsequently indicted on February 24, 2012, of one count of
    vandalism of the ankle monitor in violation of R.C.
    2909.05(B)(1)(b), a felony of the fifth degree.
    Appellant was arraigned and pleaded not guilty to the
    indictment. Discovery ensued. Appellant and her counsel filed
    various pretrial motions. The case was set for change of plea
    on May 11, 2012. On that date, Appellant entered an “Alford
    Plea” to a reduced charge of criminal damaging, a violation of
    Hocking App. No. 15CA2                                                                              3
    R.C. 2909.06(A)(1) and a second-degree misdemeanor.
    Appellant executed a waiver which advised her that by entering
    the Alford Plea, she was waiving substantial constitutional,
    statutory, and procedural rights. The trial court accepted the
    plea, found Appellant guilty, and sentenced her to thirty (30)
    days in jail, all suspended. She was also placed on non-
    reporting probation for eighteen (18) months, ordered to make
    restitution of $1,300.00, and ordered to pay court costs. On
    May 25, 2012, the trial court filed a nunc pro tunc entry of
    sentence.2
    {¶3} While Appellant’s vandalism/criminal damaging case was
    pending appeal, on November 28, 2012, Appellant filed a complaint in the
    Athens County Court of Common Pleas against Brett Greco and Greco’s
    Electronic Monitoring Service (hereinafter “Greco”) for breach of contract.
    Appellant alleged that she entered into a contract with Greco by way of two
    documents identified as “Release, Conditions & Contract Greco’s Electronic
    Monitoring Service” and “Offender Instructions & Rules,” attached to her
    complaint. Plaintiff generally alleged that Greco breached the contract by
    failing to electronically monitor and compile electronic data, for failing to
    send her invoices for monitoring service, by not accepting payment of
    $255.00, by failing to request payment, and for filing a criminal report for
    damages against her. Appellant requested recovery of payments made,
    2
    On June 13, 2012, Appellant filed a Notice of Appeal in the vandalism case, 12CR00038. The
    appellate case was 12CA12 and it was later consolidated with several other pending appeals filed
    by Appellant. On July 26, 2013, this court entered its decision, affirming the trial court on the
    consolidated appeals in State v. Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32, 12CA2, 12CA11,
    12CA12, 12CA19, 
    2013-Ohio-3420
    .”
    Hocking App. No. 15CA2                                                          4
    attorney fees and court costs for defending false criminal charges prosecuted
    against her, monetary relief for her emotional distress and mental anguish,
    and any other relief as the court deemed equitable, as a result of the breach
    of contract and criminal report filed against her. Greco was eventually
    served but failed to file an answer.
    {¶4} On March 18, 2013, Appellant filed a motion for default
    judgment. Greco still failed to file a responsive pleading. The trial court set
    the motion for default for a hearing on April 18, 2013. On April 23, 2013,
    the trial court denied the motion for default. The trial court noted Appellant,
    her husband, and Brett Greco were present and gave testimony. The trial
    court further observed that the parties made references to proceedings in
    Hocking County which suggested the trial court had no jurisdiction to
    entertain the contract claim. The trial court also extended Greco twenty-one
    days to file an answer or counter claim.
    {¶5} On July 17, 2013, the trial court sua sponte transferred venue to
    Hocking County. On June 2, 2014, the Athens County Court of Common
    Pleas filed a transfer order for unpaid court costs. On July 23, 2014, the
    Hocking County Common Pleas Court accepted transfer of the matter. A
    status conference was scheduled for August 20, 2014.
    Hocking App. No. 15CA2                                                           5
    {¶6} On August 21, 2014, Appellant filed a second motion for default
    judgment. The matter was set for hearing on September 10, 2014. On
    September 11, 2014, the trial court filed a judgment entry in which it
    acknowledged that the court had received a letter from Greco denying
    liability and claiming Appellant’s suit to be frivolous. The trial court urged
    both parties to obtain lawyers. On September 12, 2014, Appellant filed a
    “Renewed Motion for Default Judgment.” The matter was set for hearing on
    October 8, 2014. On October 16, 2014, the trial court granted Appellant’s
    motion for default judgment and renewed motion for default judgment
    against Greco’s Electronic Monitoring, LLC. A damages hearing was
    scheduled.
    {¶7} On November 26, 2014, the trial court filed a judgment entry
    stating that unless there was an objection, as of December 10, 2014 the trial
    court would take judicial notice of the nunc pro tunc entry of sentence in the
    case styled State v. Ogle, Hocking County Common Pleas No. 12CR0038.
    The court noted both parties had referenced the criminal case during the
    damages hearing. The entry pertained to Appellant’s May 11, 2012
    conviction for criminal damaging, in which Appellant was ordered to pay
    restitution of $1,300.00 to the victim, Greco Electronic Monitoring Co. On
    December 8, 2014, Appellant filed an objection to judicial notice, arguing
    Hocking App. No. 15CA2                                                                                       6
    that the entry is void for the reason that “the Court accepted an Alford plea
    agreement that included a non-waiver document of the defendant’s right to
    appeal any possible conviction.”3
    {¶8} On December 16, 2014, the trial court filed a judgment entry
    stating it would take judicial notice of the nunc pro tunc entry. The trial
    court noted Appellant’s objection to the judicial notice was based on the
    same arguments she raised in the prior criminal case, State v. Ogle,
    12CR0038. On December 19, 2014, the trial court dismissed Appellant’s
    complaint against Greco. This timely appeal followed.
    ASSIGNMENTS OF ERROR
    “I. THE TRIAL COURT ERRED IN FINDING THAT ‘THIS
    IS A CASE INVOLVING TWO PRO SE LITIGANTS.’
    II. THE TRIAL COURT ERRED IN FINDING THAT ‘THE
    SUBJECT OF THIS SUIT WAS ALSO THE SUBJECT OF
    THE RESTITUTION ORDER IN STATE V. OGLE.’
    III. THE TRIAL COURT ERRED IN FINDING THAT ‘THIS
    CASE IS A COLLATERAL ATTACK ON THE
    RESTITUTION ORDER.’
    IV. THE TRIAL COURT ERRED IN FINDING THAT ‘MR.
    GRECO AND HIS BUSINESS WERE THE VICTIMS IN
    STATE V. OGLE.’
    3
    By this time, Appellant’s appeal of her conviction for criminal damaging, 12CR0038, based upon her
    argument that the trial court erred in accepting her plea was affirmed in State v. Ogle, 4th Dist. Hocking
    Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19, 
    2013-Ohio-3420
    , on July 26, 2013.
    Furthermore, her appeal of the trial court’s denial of her motion to withdraw her Alford plea had been
    decided and affirmed on May 21, 2014 in State v. Ogle, 4th Dist. Hocking No. 13CA18, 
    2014-Ohio-2251
    .
    Hocking App. No. 15CA2                                                          7
    V. THE TRIAL COURT ERRED IN FINDING THAT
    DEFENDANTS-APPELLEES ARE ‘VICTIMS’ PURSUANT
    TO R.C. SECTION 2929.18 AND IN R.C. SECTIONS
    2930.01 to 2930.19.
    VI. THE TRIAL COURT ERRED IN FINDING “THIS SUIT
    TO BE FRIVOLOUS UNDER R.C. SECTION 2323.51 and
    OHIO RULE CIV. PRO. 11.”
    VII. THE TRIAL COURT ABUSED ITS DISCRETION AND
    ERRED IN DISMISSING PLAINTIFF-APPELLANT’S
    CLAIMS AS TO DEFENDANTS-APPELLEES.”
    {¶9} “It is well established that pro se litigants are held to the same
    rules, procedures, and standards as litigants who are represented by counsel,
    and must accept the results of their own mistakes and errors.” Cooke v.
    Bowen, 4th Dist. Scioto No. 12CA3497, 
    2013-Ohio-4771
    , ¶ 40, quoting
    Selvage v. Emnett, 
    181 Ohio App.3d 371
    , 
    2009-Ohio-940
    , 909 NE.2d 143
    ¶ 13 (4th Dist.) (Internal citations omitted.) “Leniency does not mean that
    we are required ‘to find substance where none exists, to advance an
    argument for a pro se litigant or to address issues not properly raised.’ ”
    Cooke, 
    supra,
     quoting State v. Healee, 4th Dist. Washington No. 08CA6,
    
    2009-Ohio-873
    , ¶ 6, quoting State v. Nayar, 4th Dist. Lawrence No. 07CA6,
    
    2007-Ohio-6092
    , ¶ 28.
    STANDARD OF REVIEW
    {¶10} For ease of analysis, we will review Appellant’s seventh
    assignment of error first. Appellant’s seventh assignment of error states:
    Hocking App. No. 15CA2                                                          8
    “The trial court abused its discretion and erred as a matter of
    law in dismissing plaintiff’s-appellant’s claims as to
    defendants-appellees.”
    For the reasons which will follow, we will review the dismissal of
    Appellant’s claims on a de novo basis.
    {¶11} A court may sua sponte dismiss a complaint without notice and
    an opportunity to respond, pursuant to Civ.R. 12(B)(6), if “the complaint is
    frivolous or the claimant obviously cannot prevail on the facts alleged in the
    complaint.” State ex rel. Fogle v. Steiner (1995), 
    74 Ohio St.3d 158
    , 161,
    
    656 N.E.2d 1288
     (citation omitted). The trial court indicates it dismissed
    Appellant's complaint because she had no damages. As such, this is akin to
    a Civ.R. 12(B)(6) dismissal because Appellant could not prevail on the facts
    alleged in her complaint.
    {¶12} This court's review of a trial court's decision to dismiss a case
    pursuant to Civ.R. 12(B)(6) is de novo. Singleton v. Adjutant General of
    Ohio, 10th Dist. Franklin No. 02AP-971, 
    2003-Ohio-1838
     at ¶ 16, citing
    State ex rel. Drake v. Athens County Bd. of Elections, 
    39 Ohio St.3d 40
    , 
    528 N.E.2d 1253
    (1988). In reviewing a complaint upon a motion to dismiss
    pursuant to Civ.R. 12(B)(6), “it must appear beyond doubt from the
    complaint that the plaintiff can prove no set of facts entitling him to
    recovery.” O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d
    Hocking App. No. 15CA2                                                           9
    242, 
    327 N.E.2d 753
     (1975), syllabus. The court must presume all factual
    allegations in the complaint to be true and draw all reasonable inferences in
    favor of the non-moving party. Bridges v. Natl. Engineering & Contracting
    Co., 
    49 Ohio St.3d 108
    , 112, 
    551 N.E.2d 163
     (1990).
    LEGAL ANALYSIS
    {¶13} In this matter, the trial court initially granted default judgment
    on all elements of Appellant’s breach of contract complaint, except
    damages, due to Greco’s failure to appear or defend in the matter. When the
    matter did come on for a hearing on damages, after review, the trial court
    found no damages and dismissed Appellant’s claims. Appellant’s pro se
    appeal assigns seven errors arguing the trial court’s dismissal of her breach
    of contract complaint was in error.
    {¶14} We begin by noting Appellant filed a motion for default and
    renewed motion for default, which necessitated the trial court’s review of
    her complaint. Civ.R. 55(A), entry of judgment, provides:
    “When a party against whom a judgment for affirmative relief
    is sought has failed to plead or otherwise defend as provided by
    these rules, the party entitled to a judgment by default shall
    apply in writing or orally to the court therefore * * *.”
    {¶15} “Civ.R. 55(A) permits a party to move for default judgment if
    the party against whom a judgment is sought has failed to plead or otherwise
    defend.” Vikoz Ent. LLC. v. Wizards of Plastic Recyling Inc., 9th Dist.
    Hocking App. No. 15CA2                                                          10
    Summit No. 25759, 
    2011-Ohio-4486
    , ¶ 7, quoting Haley v. DCO Internatl.,
    Inc., 9th Dist. Summit No. 24820, 
    2010-Ohio-1343
    , at ¶ 7. Yet, default
    judgment is not appropriate “when the complaint fails to state a claim
    against the defendant.” Ross v. Shively, 9th Dist. Summit No. 23719, 2007-
    Ohio-5118, at ¶ 10. Accord Perkins v. Nocum, 9th Dist. Summit No.
    10CA0098-M, 
    2011-Ohio-4167
    , at ¶ 9. However, failure to respond to a
    complaint which does not state a claim upon which relief can be granted
    should not always result in a default judgment against the defendant. A
    plaintiff still needs to allege a valid claim in order to prevail, even against a
    neglectful defendant. Beach Body Tanning LLC v. Kovach, 8th Dist.
    Cuyahoga No. 85142, 
    2005-Ohio-2659
    , ¶ 26.
    {¶16} We also conduct our de novo review by reviewing the
    allegations contained in Appellant’s complaint. Plaintiff’s Complaint
    alleges in pertinent part:
    “3. Greco breached said contract by failing to electronically
    monitor and compile electronic data in regard to Plaintiff during
    September, October, and November, 2011.
    ***
    5. Greco breached said contract by failing to send Plaintiff any
    invoices for monitoring service.
    ***
    Hocking App. No. 15CA2                                                    11
    7. Greco breached said contract by not accepting payment of
    $255.00 on November 28, 2011 for monitoring services through
    December 27, 2011.
    ***
    9. Greco breached said contract when Greco failed to request
    of Plaintiff payment for alleged damages.
    ***
    11. Greco breached said contract when Bret Greco filed a
    criminal report for damages against Plaintiff on November 25,
    2011.”
    {¶17} To prevail on a breach of contract claim, the claimant must
    demonstrate each of the following: (1) the existence of a contract; (2)
    performance by the claimant; (3) breach by the opposing party; and (4)
    damage or loss to the claimant that resulted from the opposing party's
    breach. Portsmouth Ins. Agency v. Med Mutual., 4th Dist. Scioto No.
    10CA3405, 
    2012-Ohio-2406
    , ¶ 81. E.g., Spectrum Benefit Options, Inc. v.
    Medical Mut. Of Ohio, 
    174 Ohio App.3d 29
    , 
    2007-Ohio-5562
    , 
    890 N.E.2d 926
    , ¶ 25. Attached to Appellant’s Complaint is a copy of “Release,
    Conditions & Contract” which she acknowledged execution of on September
    16, 2011. The second paragraph of the contract contains the following
    language:
    “I understand that I will be held responsible for any damage,
    other than normal wear and tear, to the equipment. In the event
    that the GPS tracking phone or ankle bracelet is damaged by
    Hocking App. No. 15CA2                                                        12
    my negligence, I will be charged for replacement or repair of
    the equipment. If I fail to do so, I may be subject to criminal
    prosecution. I agree that abbreviated Co. Name (sic) its agents
    and employees, are not liable for any damages as a result of
    wearing or tampering with the monitoring device and that any
    damages associated with wearing or tampering with the
    monitoring device are a result of my own negligence.”
    {¶18} We find Appellant’s “breach of contract” complaint was
    properly dismissed by the trial court, sua sponte, for failure to state a claim
    upon which relief could be granted. The only element Appellant was able to
    demonstrate was that a contract existed. Appellant failed to show that she
    performed her part of the contract and she failed to show she incurred
    damages.
    {¶19} In fact, the contract terms reveal that Appellant agreed she
    would be subject to criminal prosecution for damage to Greco’s equipment.
    That is exactly what happened. Appellant was convicted of criminal
    damaging and ordered to make restitution to Greco in the amount of
    $1,300.00. Appellant’s conviction for criminal damaging has been affirmed.
    {¶20} Appellant failed to demonstrate any breach by Greco and any
    damages to herself. As such, her complaint fails to state a claim and was
    properly dismissed by the trial court. Appellant’s seventh assignment of
    error is without merit and is hereby overruled. We affirm the trial court’s
    decision.
    Hocking App. No. 15CA2                                                        13
    {¶21} We will briefly address Appellant’s remaining assignments of
    error.
    1. The trial court erred in finding that “This is a case involving
    two pro se litigants.”
    {¶22} Based on the above resolution of Appellant’s appeal, this
    assignment of error is rendered moot and is hereby overruled.
    2. The trial court erred in finding that “The subject of this suit
    was also the subject of the restitution order in State v. Ogle.”
    {¶23} Based on our resolution above, this assignment of error is also
    moot and hereby overruled. However, we pause to point out the facts in
    State v. Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32, 12CA2, 12CA11,
    12CA12, 12CA19, 
    2013-Ohio-3420
    , ¶ 77, demonstrate that Appellant was
    ordered to make restitution to the victim, Greco’s Electronic Monitoring
    Service, LLC, in the amount of $1,300.00. In her civil action, Appellant
    asked for a judgment in the amount of $1,910.00 against Greco. Attached to
    her motion for default judgment filed March 18, 2013 and to the affidavit of
    Charles Ogle were receipts for amounts paid to Greco, during the time
    period of November 27, 2011 and March 15, 2013, reflecting case number
    CR000038. It is incredible that Appellant would attempt to make a straight-
    faced argument that the subject of the suit was not also the subject of the
    restitution order in her criminal case.
    Hocking App. No. 15CA2                                                           14
    3. The trial court erred in finding that “This case is a collateral
    attack on the restitution order.”
    {¶24} This argument is also moot by our resolution above, and as
    such, Appellant’s third assignment of error is overruled. However, we again
    pause to point out Appellant’s complaint requested relief as a result of
    Greco’s criminal report against Plaintiff. It would appear that Appellant’s
    civil complaint was an attempt to evade the cost of restitution and/or the
    sanction of her crime of criminal damaging, although she agreed to an order
    of restitution. It appears the trial court correctly deemed her civil action a
    “collateral attack” on the restitution order.
    4. The trial court erred in finding that “Mr. Greco and his
    business were victims in State v. Ogle.”
    5. The trial court erred in finding that defendants-appellees are
    “victims” pursuant to “R.C. Section 2929.18 and in R.C.
    Sections 2930.01 to 2930.19.
    {¶25} These assignments of error are related and we join them for
    brief consideration. Again, Appellant’s arguments here are moot based on
    our resolution above. Therefore, both assignments of error are overruled.
    However, we would point out that a victim of crime, pursuant to R.C.
    2930.01(H) is:
    {¶26} R.C. 2930.01(H) "Victim" means * * *:
    “(1) A person who is identified as the victim of a crime or
    specified delinquent act in a police report or in a complaint,
    Hocking App. No. 15CA2                                                                                       15
    indictment, or information that charges the commission of a
    crime and that provides the basis for the criminal prosecution
    * * *.”
    {¶27} Appellant was convicted of damaging property belonging to
    Greco. As such, Greco is a victim of her crime. If Appellant had any doubt,
    the nunc pro tunc entry of her conviction in State v. Ogle, 12CR0038, lists
    “Greco” as the victim.4
    6. The trial court erred in finding that “This suit to be frivolous
    conduct under R.C. section 2323.51 and Ohio Rule Civ. Pro.
    11.”
    {¶28} “Frivolous conduct” is the conduct of a party to a civil action or
    of the party's counsel that satisfies any of the following four criteria:
    “(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.
    (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.
    (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.
    4
    This entry is part of this court’s record in this appeal, as it is attached to a journal entry filed November
    26, 2014.
    Hocking App. No. 15CA2                                                          16
    (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)-(iv).”
    {¶29} Frivolous conduct implicated by R.C. 2323.51(A)(2)(ii)
    involves proceeding on a legal theory which is wholly unwarranted in law.
    State Auto Mut. Ins. Co. v. Tatone, 2nd Dist. Montgomery No. 21753, 2007-
    Ohio-4726, ¶ 8. “Whether a claim is warranted under existing law is an
    objective consideration.” (Citations omitted.) Hickman v. Murray, 2nd Dist.
    Montgomery No. CA 15030, 
    1996 WL 125916
    , *5 (Mar. 22, 1996). The
    test is “whether no reasonable lawyer would have brought the action in light
    of the existing law. In other words, a claim is frivolous if it is absolutely
    clear under the existing law that no reasonable lawyer could argue the
    claim.” 
    Id.
    {¶30} “[N]o single standard of review applies in R.C. 2323.51 cases.”
    Wiltberger v. Davis, 
    110 Ohio App.3d 46
    , 51, 
    673 N.E.2d 628
     (10th Dist.
    1996). When the question regarding what constitutes frivolous conduct calls
    for a legal determination, such as whether a claim is warranted under
    existing law, an appellate court is to review the frivolous conduct
    determination de novo, without reference to the trial court's decision. Natl.
    Check Bur. v. Patel, 2nd Dist. Montgomery No. 21051, 
    2005-Ohio-6679
     at
    Hocking App. No. 15CA2                                                                                    17
    ¶ 10; accord Riverview Health Inst., L.L.C. v. Kral, 2nd Dist. Montgomery
    No. 24931, 
    2012-Ohio-3502
    , ¶ 33.
    {¶31} As explained above, Appellant’s “breach of contract action”
    failed to state a claim for which relief could be granted. Appellant agreed to
    criminal prosecution if she damaged Greco’s property. She was ordered to
    pay restitution to Greco. No reasonable attorney would have brought the
    civil action against Greco for breach of contract in light of existing law and
    the circumstances herein. Furthermore, Appellant’s complaint for breach
    against Greco appears to be an attempt to harass or maliciously injure Greco,
    in retaliation for his filing of the criminal report against her, as indicated in
    her prayer for relief.5 Based upon our review of the record, we find the trial
    court did not err in determining Appellant’s civil lawsuit against Greco to be
    frivolous. As such, we overrule Appellant’s sixth assignment of error and
    affirm the judgment of the trial court.6
    5
    In addition, Appellant attached various documents to her motion for default judgment filed March 18,
    2013, including a printout from the New Philadelphia Municipal Court of traffic, criminal, and civil cases
    against Greco from 1992 to 2012; a criminal indictment and entries of judgment from the Tuscarawas
    Common Pleas Court against Greco from 1990 to 2013; a residential real estate transfer to Greco from the
    Tuscarawas County Auditor’s site; a copy of a voluntary Chapter 7 bankruptcy proceeding petition naming
    Greco; and articles of organization filed with the Ohio Secretary of State’s office for Greco’s Electronic
    Monitoring Service, LLC. She asserted these documents in the public records in Tuscarawas County and
    with the Ohio Secretary of State identified the same “Brett Greco” who filed a criminal report for damages
    against her. It is difficult to see any purpose to obtaining these documents and filing them with a civil
    pleading but for the purpose of harassing Greco.
    6
    If a trial court determines that a violation under R.C. 2323.51 or Civ.R. 11 exists, the trial court's
    imposition of sanctions for said violation will not be disturbed absent an abuse of discretion. State ex rel.
    Fant v. Sykes, 
    29 Ohio St.3d 65
    , 
    505 N.E.2d 966
     (1987); Lewis v. Powers, 2nd Dist. Montgomery No.
    15461, 
    1997 WL 335563
    , *4 (June 13, 1997); Namenyi v. Tomasello, 2nd Dist. Greene No. 2013-CA-75,
    Hocking App. No. 15CA2                                                                                 18
    {¶32} “Frivolous conduct” is related to “vexatious conduct,” which
    means, pursuant to R.C. 2323.52(A)(2), conduct of a party in a civil action
    that satisfies any of the following:
    “(a) The conduct obviously serves merely to harass or
    maliciously injure another party to the civil action.
    (b) The conduct is not warranted under existing law and cannot
    be supported by a good faith argument for an extension,
    modification, or reversal of existing law.
    (c) The conduct is imposed solely for delay.”7
    {¶33} In distinguishing remedies available under the vexatious
    litigator statute from those available under the frivolous conduct statute,
    R.C. 2323.51 (frivolous conduct) and R.C. 2323.52 (vexatious litigator)
    offer complementary remedies, but the remedies are not the same. Helfrich
    v. Allstate Ins. Co., 10th Dist. Franklin No. 12AP-559, 
    2013-Ohio-4335
    ,
    ¶ 14. See Roo v. Sain, 10th Dist. Franklin No. 04AP-881, 
    2005-Ohio-2436
    ,
    ¶ 15. Although the two statutes share the same definition of reprehensible
    conduct, R.C. 2323.51 allows attorney fees for past frivolous conduct in a
    civil action, while R.C. 2323.51 is a protective remedy in the form of a
    restriction on future frivolous filings. 
    Id.
    2014-Ohio-4509
    , ¶ 20. Appellant is fortunate that Greco did not request or the trial court did not impose
    sanctions against her.
    7
    See R.C. 2323.52(A)(3) for “vexatious litigator” defined, and (A)(3) (B) for who may bring action to have
    a person declared a “vexatious litigator.”
    Hocking App. No. 15CA2                                               19
    {¶34} Accordingly, and based on the foregoing, we affirm the
    judgment of the trial court.
    JUDGMENT AFFIRMED.
    Hocking App. No. 15CA2                                                         20
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT IS AFFIRMED. Costs assessed to
    Appellant.
    The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court directing
    the Hocking County Common Pleas Court to carry this judgment into
    execution.
    Any stay previously granted by this Court is hereby terminated as of
    the date of this entry.
    A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    Abele, J.: Concurs in Judgment Only.
    Harsha, J.: Dissents.
    For the Court,
    BY: ______________________________
    Matthew W. McFarland,
    Administrative Judge
    NOTICE TO COUNSEL
    Pursuant to Local Rule No. 14, this document constitutes a final
    judgment entry and the time period for further appeal commences from
    the date of filing with the clerk.