State ex rel. Right to Life Action Coalition of Ohio v. Capital Care of Toledo, L.L.C.

[Cite as State ex rel. Right to Life Action Coalition of Ohio v. Capital Care of Toledo, L.L.C., 2022-Ohio-3266.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State ex rel. Right to Life Action Court of Appeals No. L-21-1177
Coalition of Ohio, et al.
Trial Court No. CI0202101942
Appellants
v.
Capital Care of Toledo, LLC, et al. DECISION AND JUDGMENT
Appellees Decided: September 16, 2022
*****
Eugene F. Canestraro, for appellants.
Peter Pattakos, B. Jessie Hill, and Freda J. Levenson, for appellees.
*****
ZMUDA, J.
{¶ 1} This matter is before the court upon appeal of the judgment of the Lucas
County Common Pleas Court, dismissing the complaint of appellants Right to Life
Action Coalition of Ohio, Greater Toledo Area Right to Life, and Jeffrey Barefoot
(collectively, Right to Life), and awarding sanctions to appellees Capital Care of Toledo,
LLC and Amelia Stower (collectively, Capital Care). For the reasons that follow, we
reverse, in part, and affirm, in part.
I. Background and Procedural History
{¶ 2} On July 21, 2021, Right to Life filed a verified complaint and motion for ex
parte injunctive relief in the Wood County Court of Common Pleas. Right to Life alleged
that jurisdiction and standing were proper under R.C. 4731.341(B), without the condition
precedent of an administrative hearing. Right to Life further alleged that Capital Care
provided medical abortions without a license to perform medical services, and sought an
injunction to prevent Capital Care from providing medical abortions or any information
regarding medical abortions, or from advertising or soliciting prospective patients or
selling or delivering abortifacients to prospective patients. The complaint articulated
claims for unauthorized practice of medicine in violation of R.C. 4731.34; practicing
medicine without a license in violation of R.C. 4731.41; and injunctive relief pursuant to
R.C. 4731.341. Added to the pleading following the prayer for relief, Right to Life
included this paragraph:
Declaratory Relief
Should this Court determine extraordinary Injunctive Relief is not in
order, Plaintiffs petition the Court to find a justiciable controversy and
issues of fact and law exists as presented, which permits and/or requires
2.
this court to rule on the claims presented pursuant to the Court’s inherent
Declaratory Judgment powers identified within RC 2721. et seq., As such,
Plaintiff request [sic.] Declaratory Relief on the issues presented herein.1
Right to Life filed a contemporaneous motion seeking an ex parte temporary restraining
order. Right to Life did not notify the state medical board prior to filing the verified
complaint and motion.
{¶ 3} The trial court in Wood County denied the request for an ex parte temporary
restraining order on two bases: “(1) that [Right to Life et al.] have failed to satisfy the
notice provision contained in R.C. 4731.341; and (2) that [Right to Life et al] have failed
to establish that the grant of an ex parte TRO is appropriate due to emergency
circumstances.” As to the first finding, the trial court noted that “notification is separate
and apart from the proceedings,” relying on the authority of State Medical Bd. of Ohio v.
Mt. Sinai Hosp., 8 Ohio App.3d 105, 108, 456 N.E.2d 577 (8th Dist.1983).
{¶ 4} On March 15, 2021, Right to Life filed a notice of filing a complaint with
the State Medical Board, pursuant to R.C. 4731.341.
{¶ 5} Capital Care appeared in the case in Wood County and requested a transfer
of venue to Lucas County, with a request for legal fees under Civ.R. 3(D)(2). Right to
Life opposed the motion, arguing the venue provisions of Civ.R. 3 did not apply to an
1
This additional language, included at the end of the pleading, was not addressed by the
trial court and the parties did not raise the issue in the trial court of separate standing,
independent of the statutory grant of standing under R.C. 4731.341.
3.
action under R.C. 4731.341, as a special statutory proceeding. On May 4, 2021, the
Wood County court granted the motion, with the decision on legal fees deferred to the
transferee court in Lucas County.
{¶ 6} In Lucas County, the case was assigned to the docket of a non-commercial
docket judge. Right to Life sought a transfer to the commercial docket pursuant to
Sup.R. 49.05(E), alleging false advertising as the “commercial” claim. The assigned
judge addressed the motion, finding Right to Life’s claim did not meet the threshold
requirement of a dispute between two business entities under section (E) of Sup.R. 49.05,
and denied the motion to transfer. Specifically, the trial court determined that there was
no dispute between two business entities or individuals relative to a business relationship.
Right to Life did not seek review of this decision to the administrative judge as provided
by Lucas C.P. 5.08(D)(1). The trial court continued the matter for briefing on Capital
Care’s motion to dismiss, filed in conjunction with their motion for transfer of venue on
May 4, 2021.
{¶ 7} On July 21, 2021, Capital Care filed a notice of the medical board’s July 19,
2021 disposition of Right to Life’s R.C. 4731.341 complaint. The medical board
determined “that no further action was required by the Board and the complaint has been
closed.” This notice identified the authority for the board investigation, R.C. 4731.22,
governing disciplinary and complaint processes.
4.
{¶ 8} On September 1, 2021, the trial court granted Capital Care’s motion to
dismiss and entered a dismissal pursuant to Civ.R. 12(B)(6), for failure to state a claim.
The trial court also directed Capital Care to submit evidence of its attorney fees for an
award of costs and fees under Civ.R. 3(D)(2), in relation to Right to Life’s original filing
in an improper venue. On September 30, 2021, Right to Life filed an appeal of the
judgment of dismissal On October 26, 2021, we stayed the appeal and remanded for the
purpose of addressing the issue of the award of costs and fees under Civ.R. 3(D)(2).
{¶ 9} On October 27, 2021, Capital Care filed a motion for sanctions, arguing
frivolous conduct under R.C. 2323.51 and Civ.R. 11. As support, Capital Care attached
documentary evidence that supported the claim that Right to Life filed suit despite
knowledge that their underlying claim lacked any legal basis, as well as evidence to
support the contention that Right to Life employed the strategy of litigation to pressure
Capital Care out of business.
{¶ 10} On December 16, 2021, the trial court granted attorney fees pursuant to
Civ.R. 3(D)(2) in the amount of $4,815.00,2 after Right to Life waived objections and
hearing regarding the documents produced by Capital Care. Capital Care’s new motion
for sanctions remained pending.
{¶ 11} On December 22, 2021, we extended our remand of the case for the trial
court’s consideration of the motion for sanctions. Right to Life opposed the motion for
2
The trial court stated an amount of $4,715.00 in the December 16, 2021 entry, but
corrected the typographical error with a nunc pro tunc entry on January 12, 2022.
5.
sanctions, and on January 31, 2022, Right to Life filed its own motion for sanctions,
arguing the application for sanctions by Capital Care constituted a frivolous motion,
sanctionable in accordance with R.C. 2323.51 and Civ.R. 11.
{¶ 12} The trial court held a hearing on the Capital Care motion for sanctions on
February 8, 2022. As part of that hearing, Edward Sitter, the executive director of
Greater Toledo Right to Life, and Jeffrey Barefoot testified regarding the basis for the
lawsuit. Additionally, Sitter and Barefoot testified that Right to Life filed suit in Wood
County as the preferred venue. Sitter also acknowledged he had spoken at a rally in
October and characterized the trial court as “another political hack for the Democratic
party.” The trial court took Capital Care’s motion under advisement at the close of the
hearing, and scheduled hearing on Right to Life’s sanctions motion for March 11, 2022,
to permit time for the parties to complete briefing on the motion.
{¶ 13} On February 22, 2022, we extended the period of remand for a final,
appealable order related to attorney fees under Civ.R. 3(D)(2) and to address new
motions for sanctions upon the request of Capital Care. The remand was extended for the
trial court’s consideration of the R.C. 2323.51 and Civ.R. 11 motions until March 24,
2022.
{¶ 14} On March 9, 2022, the trial court denied Right to Life’s motion for
sanctions, finding hearing unnecessary. The trial court granted the motion of Capital
Care, in part, awarding $1,288.00 for fees and costs incurred in opposing Right to Life’s
6.
motion to transfer the matter to the commercial docket. The trial court found no cause
for sanctions based on the filing of the case by Right to Life, but found “the attempt to
move the case to the commercial docket was frivolous and an attempt to get a jurist other
than this Court to hear the matter.”
{¶ 15} On March 21, 2022, we reinstated the appeal and granted Right to Life
leave to file an amended notice of appeal. On May 6, 2022, Right to Life filed an
amended notice of appeal, challenging the final judgment entered December 16, 2021,
and amended by nunc pro tunc on January 12, 2022, awarding fees pursuant to Civ.R.
3(D)(2), and appealing the judgment awarding attorney fees as a sanction for frivolous
conduct, entered March 9, 2022.
II. Assignments of Error
{¶ 16} The trial court dismissed the complaint for lack of standing, awarded
attorney fees under Civ.R. 3(D)(2), and awarded sanctions under R.C. 2323.51 and
Civ.R. 11. In challenging these judgments, Right to Life asserts the following
assignments of error:
1. The Trial Court Erred within the August 31, 2021, Judgment Entry
when it found, under a 12(B)(6) review, that Plaintiffs did not have
standing to sue under R.C. 4731.341 since 4731.341 specifically identifies
Appellants/Plaintiffs, who claim to be “knowledgeable persons,” as a class
of persons with standing. [Emphasis sic.]
7.
2. Within the August 31, 2021, Judgment Entry the Trial Court Erred
when it failed to discuss and acknowledge that Plaintiffs have a separate
and distinct “standing” to sue, with or without injunctive relief, under their
RC 2721 Claim/Prayer, through RC 4731 and RC 2919 – all as identified
within Appellants/Plaintiff’s Verified Complaint. [Emphasis sic.]
3. Within the August 31, 2021, Judgment Entry the Trial Court’s
refusal to address Plaintiffs’ RC 2721 claims for Declaratory Relief before
Dismissing Plaintiff’s Verified Complaint creates “plain error” qualifying
as an exceptional miscarriage of justice, having substantial adverse impact
on the integrity of and the public’s confidence in judicial proceedings.
[Emphasis sic.]
4. Within the March 9, 2022, Judgment Entry the Trial Court Erred
in not permitting Plaintiffs [sic.] Motion for Sanctions to proceed to
Hearing once it was shown to have “arguable merit.” [Emphasis sic.]
5. Within the March 9, 2022, Judgment Entry, the Trial Court Erred
in awarding Defendants’ legal fees upon the determination – Plaintiff’s act
of filing a Motion to Transfer to the Commercial Docket was “frivolous.”
[Emphasis sic.]
6. The Trial Court Erred and abused its discretion when it awarded
Defendants $4,815.00 in legal fees (within the Nunc Pro Tunc ORDER,
8.
“NPT,” January 12, 2022) after determining, without hearing, discussion
or finding under Civ.R. 3(d) – the original filing of the pleading in Wood
County, Ohio was improper. [Emphasis sic.]
III. Analysis
{¶ 17} Right to Life’s first assignment of error challenges the trial court’s
dismissal for lack of standing under R.C. 4731.341. The second and third assignments of
error challenge the trial court’s failure to address the request for declaratory judgment as
a separate claim under R.C. 2721, arguing plain error based on a right to access to the
courts to consider a verified complaint. Right to Life’s fourth and fifth assignments of
error challenge the March 9, 2022 judgment awarding attorney fees under R.C. 2323.51,
and denying the reciprocal motion for sanctions. The final assignment of error challenges
the award of attorney fees and costs under Civ.R. 3(D)(2). We address the assignments
of error according to the issues presented: (1) standing to pursue claims and (2) attorney
fees/costs under R.C. 2323.51 and Civ.R. 11, or under Civ.R. 3(D)(2).
A. Standing
{¶ 18} In the first assignment of error, Right to Life challenges the trial court’s
finding of lack of standing to pursue a claim under R.C. 4731.341, based on a failure to
comply with the 30-day notice provision as construed by the trial court to be contained
within the statute. In their second assignment of error, Right to Life argues the trial court
erred in failing to address the issue of standing based on a separate right to sue under
9.
R.C. 4731. and R.C. 2919., through a declaratory judgment action under R.C. 2721. In
their third assignment of error, Right to Life argues the trial court committed plain error
in not proceeding to the merits of their verified complaint after finding no standing. We
address each assignment of error in turn.
{¶ 19} Right to Life alleged standing, in the name of the State of Ohio, as
provided by R.C. 4731.341(B), which states:
The attorney general, the prosecuting attorney of any county in
which the offense was committed or the offender resides, the state medical
board, or any other person having knowledge of a person who either
directly or by complicity is in violation of division (A) of this section, may
on or after January 1, 1969, in accord with provisions of the Revised Code
governing injunctions, maintain an action in the name of the state to enjoin
any person from engaging either directly or by complicity in the unlawful
activity by applying for an injunction in the Franklin county court of
common pleas or any other court of competent jurisdiction.
Prior to application for such injunction, the secretary of the state
medical board shall notify the person allegedly engaged either directly or
by complicity in the unlawful activity by registered mail that the secretary
has received information indicating that this person is so engaged. Said
person shall answer the secretary within thirty days showing either that the
10.
person is properly licensed or certified for the stated activity or that the
person is not in violation of Chapter 4723. or 4731. of the Revised Code. If
the answer is not forthcoming within thirty days after notice by the
secretary, the secretary shall request that the attorney general, the
prosecuting attorney of the county in which the offense was committed or
the offender resides, or the state medical board proceed as authorized in this
section.
***
R.C. 4731.341(B) (emphasis added.). R.C. 4731.341(A) prohibits the practice of
medicine, including providing therapeutic drugs, unless the practitioner has a “valid and
current license or certificate as provided by Chapter 4723., 4725., or 4731. of the Revised
Code[.]”
{¶ 20} The trial court dismissed the action pursuant to Civ.R. 12(B)(6), for failure
to state a claim, based on a lack of sufficient allegations to demonstrate standing as the
trial court read into the language of R.C. 4731.341. We apply de novo review in
addressing the both dismissal under Civ.R. 12(B)(6) and to the trial court’s interpretation
of the statute. See Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362,
814 N.E.2d 44, ¶ 5, citing Cincinnati v. Berretta U.S.A. Corp, 95 Ohio St.3d 416, 2002-
Ohio-2480, 768 N.E.2d 1136, ¶ 4-5 (“An order granting a Civ.R. 12(B)(6) motion to
dismiss is subject to de novo review.”); Wayt v. DHSC, L.L.C., 155 Ohio St.3d 401,
11.
2018-Ohio-4822, 122 N.E.3d 92, ¶ 15 (“The standard of review for questions of statutory
interpretation is de novo.”).
{¶ 21} “In construing a complaint upon a motion to dismiss for failure to state a
claim, we must presume that all factual allegations of the complaint are true and make all
reasonable inferences in favor of the non-moving party.” Mitchell v. Lawson Milk Co.,
40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756 (1988). Dismissal is only appropriate
where it appears “beyond doubt from the complaint” that there are no facts alleged that, if
true, would support the relief sought. (Citation omitted.) O’Brien v. University
Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). A
complaint need not contain every fact necessary to prove the case, but a plaintiff must
still allege sufficient facts to support the cause of action. Haas v. Stryker, 6th Dist.
Williams No. WM-12-004, 2013-Ohio-2476, ¶ 8, citing Beretta at ¶ 5.
{¶ 22} As an initial matter, we note the very narrow, procedural issue on appeal
relative to standing, whether the grant of standing under R.C. 4731.341 is contingent on
notice prior to injunctive relief.3 The trial court looked to the pleadings in making its
determination, and noted the lack of an allegation that Right to Life filed a complaint
with the state medical board. Based on the trial court’s interpretation of R.C. 4731.341,
the trial court found Right to Life did not satisfy the statutory requirement, mandating a
3
The parties argue the merits of the Right to Life complaint, in addition to addressing the
procedural issue before this court. The merits are not before the court in the present
appeal.
12.
report to the state medical board so that Capital Care could receive the required notice
and have 30 days to respond to Right to Life’s allegations, prior to suit. Relying on the
decision in State Medical Bd. of Ohio v. Mt. Sinai Hosp., 8 Ohio App.3d 105, 107, 465
N.E.2d 577 (8th Dist.1983), the trial court noted the statute contemplates the 30-day
response period prior to seeking injunctive relief, finding this procedure eliminated “any
unnecessary litigation by providing the alleged offender an opportunity to show that he is
not in violation of R.C. Chapter 4731.” Mt. Sinai at 107. The trial court interpreted this
language as stating a standing requirement, rather than a procedural step.
{¶ 23} In Mt. Sinai, the state medical board sent a 30-day letter to Mt. Sinai
Hospital, challenging the administration of anesthesiology by anesthesiology assistants,
requiring the hospital to demonstrate the assistants were properly licensed to administer
anesthesia to patients or otherwise not acting in violation of R.C. Chapter 4731. Mt.
Sinai at 105. The board filed its complaint 4 days later in the common pleas court. Id.The hospital responded to the letter, providing information to demonstrate no violation of
R.C. Chapter 4731. The hospital requested a hearing before the board to present their
position. Id at 106. After negotiations between the parties ended without resolution, the
board filed a motion for preliminary injunction, and the hospital filed a motion to dismiss,
citing the board’s failure to follow the procedure outlined by R.C. 4731.341. The trial
court dismissed the action, and the board appealed. Id.
13.
{¶ 24} In reversing, the Eighth District Court of Appeals noted the procedure,
requiring a 30-day response period prior to bringing an action against an alleged offender
of R.C. 4731.341. Id. at 107. However, while the procedure was not followed prior to
filing suit in Mt. Sinai, the Eighth District found no prejudice to the hospital, as the
hospital provided a response within the 30 days and the board did not pursue injunctive
relief until after that 30-day period had expired. Mt. Sinai at 108. The Eighth District
determined that “[a]lthough it would certainly be preferable to give [the hospital] the full
[30]-day notice, the fact remains that in order for an injunction to issue, the State Medical
Board must still prove in the court of common pleas that [the alleged offenders] are
engaged in the unlawful practice of medicine.” Id.
{¶ 25} The facts in the present case, relative to notice, are slightly different.
While Right to Life filed their suit for injunction and other relief without notice, the trial
court in Wood County denied the ex parte TRO as untimely and without evidence of
proper notice. The Wood County court also acknowledged that notice prior to seeking
injunction was separate from the substantive matters within the pleading. Furthermore,
Right to Life did file a complaint with the state board, and Capital Care had a 30-day
period to respond before the trial court took any action.
{¶ 26} In granting the dismissal, the trial court determined the lack of a 30-day
notice prior to suit resulted in a lack of standing on the part of Right to Life. In doing so,
14.
the trial court construed the 30-day notice requirement as a standing requirement. We
read no such standing requirement into the statute.
{¶ 27} In construing a statute, we begin with legislative intent. State ex rel. Clay
v. Cuyahoga County Medical Examiner’s Office, 152 Ohio St.3d 163, 2017-Ohio-8714,
94 N.E.3d 498, ¶ 14, citing Caldwell v. State, 115 Ohio St. 458, 466, 154 N.E. 792(1926). To discern this intent, we first look to the words the legislature used. Id., citing
United States v. Wiltberger, 18 U.S. 76, 95-96, 5 Wheat. 76, 5 L.Ed. 37 (1820). “Where
there is no ambiguity, we must abide by the words employed by the General Assembly, *
* * and have no cause to apply the rules of statutory construction.” Id. at ¶ 15, citing
State v. Waddell, 71 Ohio St.3d 630, 631, 646 N.E.2d 821 (1995); Hulsmeyer v. Hospice
of Southwest Ohio, Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903, ¶ 22-23.
{¶ 28} A plain reading of the statute demonstrates no requirement for “any other
person having knowledge” to provide notice as part of the grant of standing. Instead,
R.C. 4731.341(B) expressly permits “any other person having knowledge” to “maintain
an action in the name of the state to enjoin any person from engaging either directly or by
complicity in the unlawful activity by applying for an injunction in the Franklin county
court of common pleas or any other court of competent jurisdiction.” In a separate
paragraph, the statute outlines procedure, requiring the secretary of the state medical
board to notify the alleged offender and provide a 30-day period for response, prior to
application for an injunction under the statute. R.C. 4731.341(B).
15.
{¶ 29} Consistent with the interpretation in Mt. Sinai, the procedure for seeking
injunctive relief required notice by the medical board and a 30-day response period. The
statutory grant of standing to “any other person” is not conditioned on this notice, with no
language within the statute linking this notice obligation to the standing of “any other
person.” On the issue of standing, accordingly, the statute is not ambiguous, and the
plain meaning must be applied. We therefore find the trial court erred in reading a
standing requirement into the procedural step, and basing the dismissal on that error.
Right to Life’s first assignment of error is well-taken.
{¶ 30} In the second and third assignments of error, Right to Life argues the trial
court erred in failing to “discuss and acknowledge” separate standing under R.C. 2721,
and erred in failing to address the merits of a claim for declaratory relief.4 Although we
determined the trial court erred in finding R.C. 4731.341 did not confer standing, we find
it necessary to address this claimed error regarding standing to pursue declaratory
judgment.
{¶ 31} It is well settled law that a “person or entity seeking relief must establish
standing to sue” with a minimal showing of “(1) an injury that is (2) fairly traceable to
the defendant’s allegedly unlawful conduct, and (3) likely to be redressed by the
4
Right to Life argues separate standing under R.C. Chapter 2721 and R.C. 2919.123.
Right to Life’s statement of standing was limited to R.C. 3741.431, with mention of a
court’s “inherent Declaratory Judgment powers” and no reference to standing under R.C.
2919.123.
16.
requested relief.” (Citations omitted) ProgressOhio.org., Inc. v. JobsOhio, 139 Ohio
St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 7. The Declaratory Judgment Act
contains provisions identifying persons who may seek declaratory relief, including “any
person interested under a deed, will, written contract, or other writing constituting a
contract or any person whose rights, status, or other legal relations are affected by a
constitutional provision, statute, rule as defined in section 119.01 of the Revised Code,
municipal ordinance, township resolution, contract, or franchise.” R.C. 2721.03. One
bringing suit on behalf of a trust, an infant, a decedent’s estate, an incompetent person, or
an insolvent person to seek a declaration of rights and legal relations of the person
represented may also have standing. See R.C. 2721.05.
{¶ 32} In this case, Right to Life’s pleading is devoid of any facts to demonstrate
standing under any section of R.C. Chapter 2721. The brief statement within the
pleading regarding declaratory judgment, moreover, generally references “the issues
presented herein” and does not identify the specific relief sought by Right to Life,
separate from the relief requested under R.C. 4731.431. However, most significantly,
Right to Life failed to address this separately claimed standing in opposing Capital Care’s
motion to dismiss, arguing only standing under R.C. 4731.431. Thus, Right to Life
waived any claim to standing under R.C. Chapter 2721. See ProgressOhio at ¶ 17
(finding failure to raise claim of standing in the trial court results in waiver on appeal).
17.
{¶ 33} Because Right to Life waived any claim to standing under R.C. Chapter
2721, we need not address claims of error related to the merits of a declaratory judgment
action, as Right to Life may only pursue this claim if it demonstrates it has standing to
sue. ProgressOhio at ¶7. Accordingly, we find Right to Life’s second and third
assignments of error not well-taken.
B. Attorney Fees and Costs
{¶ 34} Right to Life’s remaining assignments of error address the trial court’s
judgment related to an award of attorney fees and costs, after consideration of the various
motions pursuing such awards. Capital Care first requested attorney fees and costs
pursuant to Civ.R. 3(D)(2), as part of the motion seeking a change of venue. After we
remanded the matter for consideration of an award under Civ.R. 3(D)(2), Capital Care
sought additional sanctions pursuant to R.C. 2323.51 and Civ.R. 11. Right to Life
responded with its own motion for sanctions pursuant to R.C. 2323.51 and Civ.R. 11.
Right to Life now challenges the trial court’s partial grant of sanctions to Capital Care,
the summary denial of Right to Life’s motion for sanctions, and the award of attorney
fees and costs pursuant to Civ.R. 3(D)(2), out of chronological order. We address the
remaining assignments of error in turn.
1. R.C. 2323.51 and Civ.R. 11
{¶ 35} Right to Life’s fourth and fifth assignments of error challenge the trial
court’s determination regarding sanctions awarded to Capital Care and the trial court’s
18.
summary denial of sanctions to Right to Life. Capital Care sought sanctions for frivolous
conduct pursuant to R.C. 2323.51 and sanctions under Civ.R. 11, citing numerous issues.5
In response, Right to Life sought sanctions, arguing Capital Care’s sanctions motion was
frivolous pursuant to R.C. 2323.51 and improper under Civ.R. 11. The trial court denied
all relief, with the exception of an award to Capital Care for frivolous conduct involved in
Right to Life’s motion to transfer the suit to the commercial docket. The trial court
denied Right to Life’s motion for sanctions without hearing.
{¶ 36} Our standard for review differs depending on whether we are reviewing
sanctions under R.C. 2323.51 or Civ.R. 11. Sanctions awarded pursuant to R.C. 2323.51
present a mixed question of law and fact on appeal, while an award of sanctions under
Civ.R. 11 is subject to abuse of discretion review. (Citations omitted.) Tillimon v.
Pennington, 6th Dist. Lucas No. L-19-1157, 2019-Ohio-1031, ¶ 25-26.
{¶ 37} The parties each sought sanctions pursuant to R.C. 2323.51 which permits
an award, after notice and hearing, as sanction for frivolous conduct. R.C. 2323.51(B).
“Under R.C. 2323.51(B)(1), a court may award costs, reasonable attorney fees, and other
reasonable expenses incurred by a party adversely affected by the frivolous conduct.”
State ex rel. Bell v. Madison Cty. Bd. of Commrs., 139 Ohio St.3d 106, 2014-Ohio-1564,
9 N.E.3d 1016, ¶ 13.
5
Capital Care’s motion for sanctions argued three bases for an award under R.C.
2323.51: (1) Right to Life’s lawsuit was wholly unwarranted under Ohio Law; (2) Right
to Life filed the lawsuit based on facts known to lack evidentiary support; and (3) Right
to Life filed suit for an improper purpose, to harass and maliciously injure Capital Care.
19.
{¶ 38} Frivolous conduct, under the statute, is defined as conduct satisfying any of
the following:
(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.
(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).
{¶ 39} The parties also each sought sanctions under Civ.R. 11, arguing the
opposing party’s attorneys had actual knowledge that the claims and/or motions could not
20.
be maintained under Ohio law. Capital Care, specifically, argued that Right to Life
continued to litigate its claims despite actual knowledge of adverse law, and actively
sought more favorable judges by filing first in Wood County and then seeking to transfer
the matter to the commercial docket. This conduct, Capital Care argued, demonstrated
personal animus and the type of willful misconduct that merits sanctions under Civ.R. 11.
{¶ 40} In response, Right to Life argued Capital Care presented “fictionalized”
facts and “manipulate[d] the records they brazenly and insolently offer[ed]” to the trial
court “in order to spin or create ‘facts’ to fit their improper mission of denigration.”
Right to Life argued that Capital Care’s conduct in seeking sanctions, alone, was “a
current day attempt of throwing the opposition into Jeremiah’s Cistern,” meriting an
award of sanctions.
{¶ 41} We note that the only sanctions awarded by the trial court were for Right to
Life’s frivolous conduct in pursuing a transfer to the commercial docket, with no finding
of any willful violation, relevant to an award of sanctions pursuant to Civ.R. 11. Capital
Care raised no challenge to the trial court’s failure to address willful conduct on appeal.
Accordingly, we limit our consideration to the determination of frivolous conduct,
relative to Right to Life’s fifth assignment of error.
{¶ 42} A trial court’s determination of frivolous conduct pursuant to R.C. 2323.51
is reviewed de novo, without deference to the trial court’s findings. Tillimon at ¶ 26,
citing Krohn v. Krohn, 2017-Ohio-408, 84 N.E.3d 249, ¶ 28 (6th Dist.) (additional
21.
citations omitted.) If frivolous conduct occurred and sanctions are appropriate, however,
we do not disturb the award absent an abuse of discretion. Id. An abuse of discretion
connotes an unreasonable, arbitrary, or unconscionable attitude on the part of the trial
court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 43} Frivolous conduct is considered based on the reasonable attorney standard,
an objective consideration of what a reasonable lawyer would have done. “If no
reasonable lawyer would have pursued an action, based on existing law, that action is
frivolous.” Tillimon at ¶ 31, citing Middlebrooks v. Bank of Am., 6th Dist. Lucas No. L-
12-1093, 2013-Ohio-1592, ¶ 14. The purpose of R.C. 2323.51 is to “deter abuse of the
judicial process by penalizing sanctionable conduct that occurs during litigation.”
Zamlen-Spotts v. Keco, 2019-Ohio-5048, 150 N.E.3d. 363, ¶ 57 (11th Dist.).
{¶ 44} In addressing the issue of sanctions under R.C. 2323.51, we balance the
goal of deterrence against the danger of chilling legitimate claims. Ohio Civil Rights
Comm. v. Hartlett, 132 Ohio App.3d 341, 347, 724 N.E.2d 1242 (6th Dist.1999). Thus,
sanctions are proper for egregious conduct and not for mere error. “Merely proving that a
party’s factual assertion was incorrect is not sufficient to demonstrate that the party’s
conduct was frivolous.” Tillimon at ¶ 33, quoting State ex rel. Bristow v. Wilson, 6th
Dist. Erie Nos. E-17-060, E-17-067, E-17-070, 2018-Ohio-1973, ¶ 28 (additional citation
omitted.).
22.
{¶ 45} In this case, Right to Life’s counsel filed a motion to transfer the matter to
the specialized commercial docket, as provided by rule. See Sup.R. 49; Lucas C.P. Local
Rule 5.08. Capital Care filed a brief in opposition. After the trial court denied the
motion, counsel pursued the matter no further. See Local Rule 5.08 (permitting further
review of a denial of a motion to transfer by the court’s administrative judge). The
purpose of the specialized commercial docket is to place business disputes before a
commercial docket judge, or a jurist other than the assigned, non-commercial docket
judge.
{¶ 46} At hearing on the motion for sanctions, Capital Care elicited testimony
from Edward Sitter, the executive director of Greater Toledo Right to Life, that he
considered the trial court a “political hack” and wanted a different judge to hear Right to
Life’s case. In determining Right to Life’s conduct as frivolous, the trial court referenced
the “political hack” sentiment, but made no finding of egregious conduct based on the
transfer motion filing, otherwise permitted by local rule, and failed to address any
adverse effect on Capital Care as a consequence of that filing. Considering this record,
we find no support for the trial court’s factual determination regarding frivolous conduct.
Accordingly, we find Right to Life’s fifth assignment of error well-taken.
{¶ 47} As to Right to Life’s fourth assignment of error, however, we find no error.
Right to Life argues they were entitled to sanctions pursuant to R.C. 2323.51 and Civ.R.
11, and entitled to hearing on the matter, because Capital Care’s motion for sanctions was
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frivolous and willful. Nothing in the record supports this assertion, applying either the
subjective, reasonable attorney standard or the objective, “willful conduct” standard.
Furthermore, “[i]t is well-settled that R.C. 2323.51 requires a hearing only on those
motions which demonstrate arguable merit,” and the decision to hold a hearing is within
the trial court’s sound discretion. (Citations omitted.) Gitler v. Cadle, Co., 6th Dist.
Lucas No. L-03-1129, 2004-Ohio-220, ¶¶ 13-14. Based on the record, we find Right to
Life’s fourth assignment of error not well-taken.
2. Civ.R. 3(D)(2)
{¶ 48} In the sixth and final assignment of error, Right to Life argues the trial
court erred in awarding legal fees under Civ.R. 3(D)(2) “without hearing, discussion or
finding” that the Wood County filing was improper. Right to Life waived hearing in the
trial court after learning it would be “limited to only contesting time sheets, not the
merits, as the Trial Court skipped right to demanding time sheets and affidavits.” Right
to Life argues their choice of venue in Wood County was not frivolous or actionable,
meriting attorney fees. However, Right to Life does not raise, as part of this appeal, any
error in the decision concerning venue. See Civ.R. 3(H)(providing venue is not
jurisdictional for purposes of collateral attack, but “nothing here shall affect the right to
appeal an error of court concerning venue.”). The Wood County Court of Common Pleas
determined venue was improper, after addressing the merits of Right to Life’s argument,
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and all that remained was a determination of whether fees would be awarded under
Civ.R. 3(D)(2).
{¶ 49} We review a decision to award legal fees and costs under Civ.R. 3(D)(2)
for an abuse of discretion. Premier Assoc., Ltd. v. Loper, 149 Ohio App.3d 660, 2002-
Ohio-5538, 778 N.E.2d 630, ¶ 58 (2d Dist.). An abuse of discretion requires more than
an error of law or judgment, and necessitates a finding that the trial court acted
unreasonably, arbitrarily, or unconscionably. Tracy v. Merrell Dow Pharmaceuticals,
Inc., 58 Ohio St.3d 147, 152, 569 N.E.2d 875 (1991).
{¶ 50} As provided by Civ.R. 3(D)(2), “When an action is transferred to a county
which is proper, the court may assess costs, including reasonable attorney fees, to the
time of transfer against the party who commenced the action in a county other than stated
to be proper in division (C) of this rule.” The rule permits a sanction as a “curb upon the
party who deliberately or heedlessly files an action in a county where venue is not proper
thereby causing these additional expenses.” Premier Assoc. at ¶ 57, quoting State ex rel.
Paul v. Ohio State Racing Comm., 60 Ohio App.3d 112, 120-121, 574 N.E.2d 587 (10th
Dist.1989).
{¶ 51} Right to Life argues the trial court needed to find their choice of venue was
frivolous to merit fees, but Civ.R. 3(D)(2) contemplates a sanction separate from that
provided for frivolous conduct under R.C. 2323.51. Simply put, Civ.R. 3(D)(2) permits
attorney fees and costs against a party commencing action in an improper venue. The
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parties briefed the issue of proper venue in Wood County, and Capital Care requested
attorney fees and costs under Civ.R. 3(D)(2), based on Right to Life’s filing in an
improper venue. The Wood County court determined Right to Life commenced the suit
in an improper venue, a decision not immediately appealable, but capable of review by
this court upon appeal. See Civ.R. 3(H).
{¶ 52} We find no authority that would have permitted the trial court to review the
Wood County court’s decision, finding venue improper in Wood County. Instead, Civ.R.
3(D)(2) granted the trial court discretion to consider and award fees and costs related to
the transfer of venue. See Atwood Resources, Inc. v. Lehigh, 98 Ohio App.3d 293, 298,
648 N.E.2d 548 (5th Dist.1994) (“This rule unambiguously gave the [trial court] the
necessary authority to enter its award of reasonable attorney fees against appellant for
appellees’ successful challenge of venue[.]”).
{¶ 53} Right to Life, while objecting to any award of legal fees, raised no
objection to the amounts claimed in fees by Capital Care, finding hearing on their
“spreadsheet” unnecessary. With no dispute regarding the itemization of attorney fees,
and no challenge to the finding that venue in Wood County was improper, we find no
abuse of discretion by the trial court in awarding attorney fees and costs under Civ.R.
3(D)(2) in the amount of $4,815.00. Right to Life’s sixth assignment of error,
accordingly, is not well-taken.
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IV. Conclusion
{¶ 54} Based on the foregoing, we find the trial court erred in entering dismissal
of Right to Life’s complaint under R.C. 4731.431, and erred in awarding sanctions to
Capital Care for frivolous conduct, relative to the Right to Life motion seeking transfer to
the commercial docket.
{¶ 55} The judgment of dismissal of the Lucas County Court of Common Pleas,
entered August 31, 2021, is reversed and vacated as to the claim under R.C. 2731.341,
and the judgment entered March 9, 2022 awarding attorney fees as a sanction for
frivolous conduct under R.C. 2323.51 is reversed and vacated. The denial of sanctions to
Right to Life is affirmed, and the judgment awarding attorney fees and costs in the
amount of $4,815.00, pursuant to Civ.R. 3(D)(2), is affirmed. The parties are ordered to
split the costs of this appeal as provided by App.R. 24.
Judgment reversed
and vacated, in part,
and affirmed, in part.
27.
State ex rel., Right to Life Action
Coalition of Ohio, et al.
v. Capital Care of Toledo, LLC, et al.
L-21-1177
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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