Ogle v. Greco

[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.