Lamar Advantage GP Co., L.L.C. v. Cincinnati

[Cite as Lamar Advantage GP Co., L.L.C. v. Cincinnati, 2021-Ohio-2422.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
LAMAR ADVANTAGE GP COMPANY, : APPEAL NO. C-200157
LLC, d.b.a. LAMAR ADVERTISING OF TRIAL NOS. A-1804105
CINCINNATI, OH, : A-1804125
and : O P I N I O N.
NORTON OUTDOOR ADVERTISING, :
INC.,
:
Plaintiffs-Appellees,
:
vs.
:
CITY OF CINCINNATI, OHIO,
:
NICOLE LEE, TREASURER OF THE
CITY OF CINCINNATI, OHIO, :
ART DAHLBERG, DIRECTOR OF THE :
DEPARTMENT OF BUILDINGS AND
INSPECTIONS FOR THE CITY OF :
CINCINNATI, OHIO,
:
and
:
REGINALD ZENO, FINANCE
DIRECTOR FOR THE CITY OF :
CINCINNATI, OHIO,
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 16, 2021
OHIO FIRST DISTRICT COURT OF APPEALS
Strauss Troy Co., LPA, R. Guy Taft and Stephen E. Shilling, for Plaintiff-Appellee
Lamar Advantage GP Company, LLC, d.b.a. Lamar Advertising of Cincinnati, OH,
Robbins, Kelly, Patterson & Tucker, LPA, Michael A. Galasso and Esther M. Norton,
for Plaintiff-Appellee Norton Outdoor Advertising, Inc.,
Andrew W. Garth, City Solicitor, Marion E. Haynes, III, and Kevin M. Tidd,
Assistant City Solicitors, for Defendants-Appellants.
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OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} This appeal considers whether a request for a financial sanction against a
political subdivision premised upon allegations of frivolous conduct is precluded by the
immunity from tort liability established by R.C. Chapter 2744.
Jurisdiction
{¶2} We have jurisdiction in this interlocutory appeal to review the propriety of
the trial court’s order denying the political subdivision the benefit of an alleged immunity
from liability. See R.C. 2744.02(C). Our jurisdiction, however, is limited to determining
the immunity issue, including those issues intertwined with that immunity determination.
See, e.g., Kurz v. Great Parks of Hamilton Cty., 2016-Ohio-2909, 65 N.E.3d 96 (1st Dist.)
(considering whether there was sufficient evidence of a park employee’s negligence in
order to determine whether the park district was entitled to immunity). Mindful of this
circumstance, we provide only the facts and procedure necessary for the disposition of this
appeal.
Background Facts and Procedure
{¶3} The case involves consolidated lawsuits filed in July 2018 by two
advertising companies, plaintiffs-appellees Lamar Advantage GP Company, LLC, d.b.a.
Lamar Advertising of Cincinnati, OH, and Norton Outdoor Advertising, Inc., (collectively
the “advertising companies”). The advertising companies filed complaints against
defendants-appellants the city of Cincinnati, Ohio, Nicole Lee, treasurer of the city of
Cincinnati, Art Dahlberg, director of the department of buildings and inspections for the
city of Cincinnati, and Reginald Zeno, finance director for the city of Cincinnati
(collectively “the city”) challenging the same two ordinances affecting outdoor advertising
in Cincinnati—Ordinance No. 167-2018 and Ordinance No. 163-2018.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In November 2018, the trial court entered a judgment that adjudicated
claims related to Ordinance No. 167-2018 and contained a Civ.R. 54(B) “final judgment”
certification. The city appealed that judgment. This court affirmed in part, reversed in
part, and remanded the cause for further proceedings. The Ohio Supreme Court has
accepted the case for review. Lamar Advantage GP Co., LLC v. City of Cincinnati, 2020-
Ohio-3377, 155 N.E.3d 245 (1st Dist.) (“Lamar I”), appeal allowed, 160 Ohio St.3d 1418,
2020-Ohio-4811, 154 N.E.3d 98.
The Order Appealed
{¶5} Two days before the trial court entered the judgment at issue in Lamar I,
the advertising companies filed “amended and supplemental” complaints. Under what
the companies labelled as an “Eleventh Cause of Action,” they alleged the city had engaged
in “frivolous conduct” when defending against their challenges to Ordinance No. 163-
2018. The advertising companies sought an award of their reasonable attorney’s fees,
costs, and other expenses against the city pursuant to division (B)(1) and (4) of R.C.
2323.51, Ohio’s “frivolous conduct” statute.
{¶6} The city moved to dismiss the “Eleventh Cause of Action” from the
complaints, arguing that the immunity afforded political subdivisions in R.C. Chapter
2744 precluded a “claim” for “damages” under the frivolous-conduct statute. The
advertising companies countered by filing a “combined motion for partial summary
judgment, motion for sanctions under [the frivolous conduct statute], and response in
opposition to defendant’s motion to dismiss.” In pertinent part, they explained that the
purported “claim” for frivolous conduct was simply their effort to move for an award of
financial sanctions against the city under the frivolous-conduct statute. In other words,
they acknowledged the use of the phrase “cause of action” was a misnomer. They further
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OHIO FIRST DISTRICT COURT OF APPEALS
contended that the immunity afforded to political subdivisions under R.C. Chapter 2744
did not extend to a financial award imposed against a political subdivision as a sanction
for frivolous conduct during a civil action.
{¶7} The trial court, by an order entered on February 28, 2020, denied the city’s
motion to dismiss.1 The city now appeals.
Analysis
{¶8} In its sole assignment of error, the city argues the trial court erred in
holding “that R.C. Chapter 2744 does not immunize the city from liability under R.C.
2323.51.” We recast the assignment of error to assert that the trial court erred by not
dismissing the request for fees and costs under the frivolous-conduct statute because R.C.
Chapter 2744 provided the city with immunity. This is an issue of law that we review de
novo.
Immunity under R.C. Chapter 2744
{¶9} The city asserts immunity under the provisions of R.C. Chapter 2744.
Those statutes codify Ohio’s Political Subdivision Tort Liability Act (“the Act”). The Act
was the General Assembly’s response to the judiciary’s abrogation of common-law
sovereign immunity, a doctrine that restricted the institution of civil actions for tort
damages against political subdivisions. See, e.g., Wilson v. Stark Cty. Dept. of Human
Servs., 70 Ohio St.3d 450, 453, 639 N.E.2d 105 (1994); Zents v. Bd. of Commrs. of
Summit Cty., 9 Ohio St.3d 204, 459 N.E.2d 881 (1984); Schenkoleski v. Cleveland
Metroparks Sys., 67 Ohio St.2d 31, 33, 426 N.E.2d 784 (1981). The purpose of the Act is
“the preservation of the fiscal integrity of political subdivisions” from the “burdens
imposed by litigation and damage awards.” Wilson at 453.
1 At the same time, the court denied the advertising companies’ “motion” for sanctions.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} In determining whether R.C. Chapter 2744 affords immunity to a political
subdivision such as the city, we follow a three-tiered analysis. The first step is a threshold
one and asks whether the general grant of immunity found in R.C. 2744.02(A)(1) applies.
Brown v. Cincinnati, 2020-Ohio-5418, 162 N.E.3d 1274, ¶ 10-11 (1st Dist.). That general
grant of immunity applies only to tort actions for damages. Id. at ¶ 11, citing Barton v.
Cty. of Cuyahoga, 8th Dist. Cuyahoga No. 105008, 2017-Ohio-7171, ¶ 25.
Frivolous Conduct Sanctions under R.C. 2323.51
{¶11} The advertising companies sought an award of fees and costs against the
city pursuant to the frivolous-conduct statute. The relevant provisions read:
[A]t 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 the civil action
or appeal. The court may assess and make an award to any party to the
civil action or appeal who was adversely affected by frivolous conduct, as
provided in division (B)(4) of this section.
An award may be made pursuant to division (B)(1) of this section upon the
motion of a party to a civil action or an appeal * * * or on the court’s own
initiative * * *.
R.C. 2323.51(B)(1) and (2).
{¶12} On its face, the frivolous-conduct statute does not create a separate cause of
action for damages that may be raised by claim or counterclaim in a civil action. See Vogel
v. Albi, 1st Dist. Hamilton No. C-190746, 2020-Ohio-5242, ¶ 52-54; Wochna v. Mancino,
9th Dist. Medina No. 07CA0059-M, 2008-Ohio-996, ¶ 29; Shaver v. Wolske & Blue, 138
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio App.3d 653, 673, 742 N.E.2d 164 (10th Dist.2000) (applying similarly worded
former statute), quoted in Scrap Yard, LLC v. City of Cleveland, 513 F.Appx. 500, 506
(6th Cir.2013), fn.1.
{¶13} Instead, the frivolous-conduct statute provides a court with discretion to
award sanctions as a penalty for frivolous conduct occurring in a civil action. See, e.g.,
State ex rel. Davis v. Metzger, 145 Ohio St.3d 405, 2016-Ohio-1026, 49 N.E.3d 1293, ¶ 10;
Shertok, D.D.S. v. Wallace Group General Dentistry for Today, Inc., 1st Dist. Hamilton
Nos. C-190457 and C-190464, 2020-Ohio-4369, ¶ 31; Siemientkowski v. State Auto Mut.
Ins. Co., 8th Dist. Cuyahoga No. 87299, 2006-Ohio-4122, ¶ 6.
{¶14} The city argues the general grant of immunity applies because the
advertising companies are seeking to impose liability for damages—fees and costs—
incurred as a result of the city’s allegedly frivolous conduct. Moreover, the advertising
companies are seeking those “damages” in a civil action they initiated.
{¶15} The city’s argument relies in part on Village of New Lebanon v. Krahn,
2015-Ohio-4791, 50 N.E.3d 291 (2d Dist.). In Krahn, a village filed an action against
Krahn and his establishment for “malicious prosecution of a frivolous claim,” but later
dismissed the action. Id. at ¶ 4 and 8. Krahn and his establishment then timely filed a
motion in the case for their attorney’s fees to be awarded against the village under the
frivolous-conduct statute. Id. at ¶ 8.
{¶16} The village asserted immunity under R.C. Chapter 2744, but was
unsuccessful and appealed. The court of appeals affirmed, holding that the immunity
“conferred” by R.C. Chapter 2744 “specifically applies in civil actions initiated against a
political subdivision or its employees for damages, and not to [Krahn’s] motion for
attorney fees pursuant to R.C. 2323.51.” Id. at ¶ 67.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} According to the city, Krahn recognizes that the general grant of immunity
afforded by R.C. Chapter 2744 is triggered when, as here, the party requesting the
financial award for frivolous conduct also initiated the underlying civil action in which that
financial award is sought. We are not persuaded. The Krahn court simply used the
procedural posture of that case to highlight why Krahn’s motion was not affected by any
immunity from civil liability or defenses established in R.C. Chapter 2744. If Krahn
implies otherwise, it does so in dicta, and we disagree with that dicta.
{¶18} The frivolous-conduct statute does not afford tort damages; it affords the
court presiding over a civil action the ability to protect the integrity of judicial proceedings
by imposing a financial sanction for frivolous conduct. That sanction is a coercive
measure. See Siemientkowski, 8th Dist. Cuyahoga No. 87299, 2006-Ohio-4122, at ¶ 6.
(defining sanction as “ ‘A penalty or coercive measure that results from failure to comply
with a law, rule or order,’ ” quoting Black’s Law Dictionary 1341 (7th Ed.1999.)) The
sanction for frivolous conduct is categorically different from the tort liability contemplated
by the immunity statute.
{¶19} Admittedly, the advertising companies deviated from the proscribed
statutory procedure for requesting the sanction by placing the request in a pleading. See
Vogel, 1st Dist. Hamilton No. C-190746, 2020-Ohio-5242, at ¶ 51-53 (rejecting authority
from other courts allowing a request for sanctions under R.C. 2323.51 to be raised by claim
or counterclaim). The advertising companies also mislabeled the request as a “cause of
action.” But these irregularities could not transform the request for sanctions into a cause
of action for tort damages, triggering the shield of statutory immunity under R.C. Chapter
2744.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Consequently, we conclude that the city’s claim of immunity fails under the
first tier of the R.C. Chapter 2744 analysis. The immunity under R.C. Chapter 2744 for
political subdivisions is limited to liability for damages in tort and does not apply to a R.C.
2323.51-based financial sanction imposed against a political subdivision for frivolous
conduct during a civil action. Accordingly, we overrule the assignment of error.
Conclusion
{¶21} Because tort immunity under R.C. Chapter 2744 does not apply to the
advertising companies’ request for sanctions under R.C. 2323.51, we affirm the trial
court’s judgment denying the city’s motion to dismiss.
Judgment affirmed.
MYERS, P.J., and SUNDERMANN, J., concur.
J. HOWARD SUNDERMANN, JR., retired, from the First Appellate District, sitting by
assignment.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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