[Cite as Guerrieri v. Brys, 2014-Ohio-1178.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
RICHELLE GUERRIERI, )
)
PETITIONER-APPELLEE, )
) CASE NO. 13 MA 7
V. )
) OPINION
DAVID A. BRYS, M.D., )
)
RESPONDENT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 12CV368
JUDGMENT: Affirmed
APPEARANCES:
For Petitioner-Appellee Attorney Marshall D. Buck
100 Federal Plaza East, Suite 926
Youngstown, Ohio 44503
For Respondent-Appellant David A. Brys, M.D., Pro-se
2785 Timbercreek Dr., N147 N. Mecca
St.
Cortland, Ohio 44410
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: March 17, 2014
[Cite as Guerrieri v. Brys, 2014-Ohio-1178.]
DONOFRIO, J.
{¶1} Respondent-appellant, David Brys, appeals from a Mahoning County
Common Pleas Court judgment overruling his motion for sanctions against petitioner-
appellee, Richelle Guerrieri, and her counsel.
{¶2} On February 8, 2012, appellee filed a “petition for protection order in
menacing by stalking” against appellant. According to her petition, appellee is a
court stenographer for the Trumbull County Common Pleas Court and, because of
her position and the outcome of a civil trial in which appellant was involved, was
threatened by appellant. The trial court issued an ex parte stalking civil protection
order the same day.
{¶3} Months later, appellee filed a withdrawal of her petition. The trial court
granted the withdrawal of the petition, withdrew the ex parte stalking civil protection
order, and dismissed the case on October 10, 2012.
{¶4} On November 7, 2012, appellant, acting pro se, filed a motion for
sanctions against appellee, appellee’s counsel Marshall Buck, and Atty. Buck’s law
firm. In his motion, appellant alleged “the most extreme form of frivolous conduct
imaginable in the filing and maintaining of a fraudulent ex-parte stalking order for over
seven (7) months for the purpose of covering up criminal misconduct for which the
Respondent is one of several victims.”
{¶5} The trial court overruled appellant’s motion for sanctions in a one-line
judgment entry.
{¶6} Appellant filed a timely notice of appeal on February 4, 2013.
{¶7} Appellant, still acting pro se, now raises two assignments of error. Due
to the similarity between the assignments of error, we will address them together.
They state:
THE TRIAL COURT COMMITTED A PROCEDURAL ERROR IN
VIOLATION OF A STATUTORY MANDATE IN NOT GRANTING
APPELLANT’S REQUEST FOR A HEARING ON HIS R.C. 2323.51
MOTION FOR “REASONABLE EXPENSES” WHERE APPELLANT’S
MOTION DEMONSTRATED UNDISPUTED AND UNOPPOSED
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PRIMA FACIE MERIT.
IF DISCRETION BE STATUTORILY ALLOWED THE TRIAL
COURT ABUSED SUCH DISCRETION WHEN IT ARBITRARILY
DENIED APPELLANT’S UNOPPOSED REQUEST FOR A HEARING
ON HIS R.C. 2323.51 MOTION FOR “REASONABLE EXPENSES.”
{¶8} Appellant argues that the trial court erred in overruling his motion
without first holding a hearing on the matter. He claims that R.C. 2323.51 mandates
that the court hold a hearing. Appellant asserts that appellee misused the civil
protection order (CPO) process as part of a scheme to cover up criminal activity of
public officials in Trumbull County.
{¶9} A trial court has sound discretion to determine whether to award
sanctions under R.C. 2323.51. State ex rel. Striker v. Cline, 130 Ohio St.3d 214,
2011-Ohio-5350, 957 N.E.2d 19, ¶10. We cannot reverse the trial court’s decision on
this matter absent an abuse of that discretion. Id. at ¶11. Abuse of discretion
connotes more than an error of law or judgment; it implies that the trial court’s attitude
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶10} R.C. 2323.51 governs the award of attorney fees and costs for frivolous
conduct. It allows for an award of attorney fees incurred by a party who was
subjected to frivolous conduct. R.C. 2323.51(B)(1). The statute provides the trial
court must hold a hearing before awarding attorney fees for frivolous conduct.
(Emphasis added); R.C. 2323.51(B)(2).
{¶11} But the statute does not require the court to hold a hearing when it
determines, in its discretion, that the motion lacks merit. Bigelow v. Nguyen, 7th Dist.
No. 08 CO 48, 2009-Ohio-3325, ¶24. A trial court abuses its discretion by denying a
motion for sanctions without holding a hearing if the “record clearly evidences
frivolous conduct” or if “an arguable basis exists for an award of sanctions.” Bikkani
v. Lee, 8th Dist. No. 89312, 2008-Ohio-3130, ¶31.
{¶12} “Frivolous conduct” includes conduct of a party to a civil action that
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satisfies 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)(a).
{¶13} In her initial petition for a CPO, appellee asserted the following.
Appellee was the court reporter in the Trumbull County Common Pleas Court case of
Harris, et al. v. Engin Tech Corp., Case No. 2004 CV 648. Appellant and Reggie
Huff were the owners of Engin Tech. The trial resulted in a verdict against Engin
Tech for defrauding investors. After the trial, appellant and Huff instituted criminal
investigations and other proceedings against the trial court judge, the judges of the
Eleventh District Court of Appeals, and appellee. Appellant and Huff attempted to
have an arrest warrant issued against appellee. Appellant and Huff threatened to
abduct appellee by force and against her will. Appellant and Huff have gone to
appellee’s place of business and attempted to harass appellee and her co-workers.
The harassment and threats presented by appellant and Huff caused appellee to fear
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for her safety. Appellee attached a copy of a letter marked “confidential” to her
petition. The letter was directed to the attention of the Warren City Law Director and
detailed how “the lawful citizens arrest” of appellee “can and will occur” and is signed
by appellant and Huff. The letter also states appellee will be “taken by force if
necessary to the Warren Municipal Court.”
{¶14} Based on this petition, the trial court granted the ex parte stalking CPO
on February 8, 2012.
{¶15} Seven months later, appellee filed a motion to withdraw the CPO as to
appellant. She noted that she was not moving to withdraw the CPO in another case
against Huff.
{¶16} The trial court put on a judgment entry stating appellee had filed to
withdraw her petition for a CPO against appellant in case 12 CV 367. The court
noted it should have been filed in this case, 12 CV 368. The court then granted
appellant’s request and dismissed the case.
{¶17} Given the allegations set out in appellee’s petition, her conduct in
requesting a stalking CPO was not frivolous conduct. At the time she filed her
petition, appellee believed appellant and Huff had threatened to abduct her against
her will and had made their intentions known to the Warren City Law Director and
appellant had shown up at her workplace and attempted to harass appellee and her
co-workers. These actions caused appellee to fear for her safety. Appellee even
attached “proof” of appellant’s threat to “take her by force” in the form of a copy of the
letter appellant had signed and given to the Warren City Law Director. Given
appellee’s beliefs and fears at the time she filed her petition, her conduct was not
frivolous.
{¶18} Furthermore, once appellee no longer considered appellant a threat,
she moved to withdraw her petition. She was sure to note that she was not
withdrawing her petition for a protective order against Huff.
{¶19} Thus, we cannot conclude that the trial court abused its discretion in
denying appellant’s motion for sanctions without holding a hearing. Based upon the
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above considerations, the record does not clearly evidence frivolous conduct.
{¶20} Accordingly, appellant’s first and second assignments of error are
without merit.
{¶21} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., concurs.
DeGenaro, P.J., concurs.