[Cite as Isaac v. Malott, 2019-Ohio-3210.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STEVEN R. ISAAC, et al., :
: Case Nos. 18CA9
Plaintiffs-Appellants/ : 18CA101
Cross-Appellees, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
ALICE MALOTT, Individually :
and as POA and as Executor, :
:
Defendant-Appellee/ :
Cross-Appellant. : Released: 08/07/19
_____________________________________________________________
APPEARANCES:
William T. Bonham and Mark E. Phillips, Mularski, Bonham, Dittmer &
Phillips, LLC, Gahanna, Ohio, for Appellants/Cross-Appellees.
James R. Kingsley, Kingsley Law Office, Circleville, Ohio, for
Appellee/Cross-Appellant.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from the findings of fact and conclusions of
law entered by the Court of Common Pleas for Pickaway County, Ohio,
following a bench trial from April 10-12, 2018. These cases arise out of a
dispute between Appellants Steven Isaac, Jerry Isaac and Charles Isaac
(together, “Appellants”) and their sister, Appellee Alice Malott
1
These appeals were consolidated August 20, 2018.
Pickaway App. Nos. 18CA9 and 18CA10 2
(“Appellee”), regarding her management of their father’s affairs pursuant to
a Power of Attorney (“POA”) before his death and her administration of
their father’s estate, as its Executor, after his death. The trial court entered
judgment for Appellee and against Appellants on all of their claims.
{¶2} On appeal, Appellants assert five assignments of error.
Specifically, they contend the trial court erred in finding (1) their father, Ray
Isaac, signed the POA granting Appellee the right to manage his affairs, (2)
Appellee’s attorney never received Appellant Steven Isaac’s email
containing an offer to purchase certain real estate from their father’s estate,
(3) an exhibit purporting to contain a summary of Appellants’ damages was
a statistical model based upon an inference upon an inference, (4) Appellants
were not entitled to damages under R.C. 1337.37, and (5) that the estate
liquidation company retained by Appellee itemized every item in decedent
Ray Isaac’s house. Because the trial court’s challenged factual findings
were not against the manifest weight of the evidence, all of Appellants’ first,
second and fifth assignments of error are overruled. Appellants’ third and
fourth assignments of error are overruled because the trial court did not
commit any legal error in its consideration of Appellants’ exhibit.
{¶3} As Cross-Appellant, Appellee asserts three assignments of error.
She contends that the trial court erred by (1) awarding sanction fees against
Pickaway App. Nos. 18CA9 and 18CA10 3
Appellee for failure to produce her tax returns in response to a discovery
request, (2) denying Appellee’s motion for sanctions against Appellants for
frivolous conduct, and (3) failing to hold a hearing before denying
Appellee’s motion for sanctions for frivolous conduct. As Appellee waived
her right to appeal the award of sanctions against her, her first assignment of
error is overruled. Appellee’s second and third assignments of error are
overruled because the trial court’s denial of her motion for sanctions without
conducting a hearing was not an abuse of discretion. Accordingly, the
judgment of the trial court is affirmed.
FACTS
{¶4} Ray Isaac died testate in Pickaway County, Ohio, on June 15,
2015. Appellants Steven Isaac, Jerry Isaac, and Charles Isaac, Appellee
Alice Malott, and non-party Glenna Hisong are Ray Isaac’s natural children.
{¶5} On November 1, 2013, Ray Isaac underwent surgery for a neck
fracture, which involved the insertion of wires into the C1 and C2 vertebras
at the base of his skull. On November 5, 2013, he was discharged from the
hospital and taken to Appellant Steven Isaac’s house to recuperate.
{¶6} Due to his injury, Ray Isaac was unable to attend to his financial
affairs, including the collection of rent for his many residential real estate
properties. The trial court found that Ray Isaac signed a Power of Attorney
Pickaway App. Nos. 18CA9 and 18CA10 4
(“POA”) naming Appellee as his attorney-in-fact so she could manage these
tasks on his behalf. The trial court specifically found that on November 6,
2013, Appellee’s husband, Wayne Malott, picked up the unsigned POA from
Ray Isaac’s attorney and took it to Steven Isaac’s house. On the same day,
Steven Isaac, Wayne Malott and Ray Isaac drove to Steven Isaac’s bank in
Grove City, where Ray Isaac signed the POA before a bank employee who
was a notary public. Wayne Malott then delivered the signed POA to
Appellee. Appellants contend that Ray Isaac never left the house on
November 6, 2013 and never signed the POA.
{¶7} The trial court found that Appellee assisted Ray Isaac in
managing his financial affairs pursuant to the POA. Appellee’s husband
collected rents on Ray Isaac’s behalf for a period of time and Appellee
assisted Ray Isaac in writing checks and making deposits into his bank
account.
{¶8} In June 2014, Ray Isaac became an inpatient at Pickaway Manor
Nursing Home. In June 2015, Ray Isaac’s family decided that, due to his
declining health, they would return him to his home to live with the
assistance of hospice care. Appellee and her sister, Glenna Hisong, cleaned
their father’s home in anticipation of his arrival. However, on June 15,
Pickaway App. Nos. 18CA9 and 18CA10 5
2015, Ray Isaac died before his planned departure from Pickaway Manor.
He was 87 years old.
{¶9} On June 25, 2015, Ray Isaac’s Last Will and Testament was
admitted to probate in Pickaway County Probate Court. Appellee was
appointed the Executor of Ray Isaac’s estate. Appellant Steven Isaac filed a
complaint for an accounting in Probate Court and Appellants later filed
objections to the inventory for Ray Isaac’s estate. After issues relating to the
accounting and objections were resolved, Steven Isaac voluntarily dismissed
his accounting complaint. Appellants then filed additional objections to the
inventory, which were withdrawn in August 2017.
{¶10} On April 1, 2016, Appellants brought this action in Pickaway
County Common Pleas Court alleging that Appellee misappropriated assets
from Ray Isaac before his death and from his estate after his death. They
asserted claims for intentional interference with right of inheritance, breach
of fiduciary duty, conversion and fraud. Appellee filed an Answer denying
the complaint’s material allegations and the case proceeded to discovery.
{¶11} During discovery, Appellee refused to produce her tax returns
in response to Appellants’ discovery requests. Appellants filed a motion to
compel production of the tax returns, which the trial court granted. The trial
court also granted Appellants their attorney fees in bringing the motion to
Pickaway App. Nos. 18CA9 and 18CA10 6
compel under Civ.R. 37. The trial court set the award of attorney fees for a
hearing. Before the hearing date, however, Appellee paid Appellants the
requested fee amount. As a result, Appellants withdrew their request for
attorney fees and the hearing was canceled.
{¶12} On February 12, 2018, Appellee filed a motion for summary
judgment, which was denied on March 23, 2018. From April 10 through
April 12, 2018, the trial court held a bench trial on Appellants’ claims. Post-
trial the parties submitted proposed findings of fact and conclusions of law
for the trial court’s consideration. On June 11, 2018, the trial court entered
an Order adopting Appellee’s findings of fact and conclusions of law,
subject to certain revisions, and finding that Appellants were not entitled to
any relief on their claims.
{¶13} On June 14, 2018, Appellee filed a motion for sanctions for
frivolous conduct under Civ.R. 11 and R.C. 2323.51. She argued Appellants
should be sanctioned because they pursued their claims long after they knew
they had no basis in fact. On July 23, 2018, the trial court overruled
Appellee’s motion for sanctions, which was the final appealable order
immediately preceding this appeal.
Pickaway App. Nos. 18CA9 and 18CA10 7
APPELLANTS’ ASSIGNMENTS OF ERROR
“I. THE COURT ORDER FINDING DECEDENT, RAY ISAAC,
SIGNED A POWER OF ATTORNEY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT COMMITTED ERROR BY FINDING THAT
ATTORNEY TOOTLE NEVER RECEIVED THE EMAIL
CONTAINING STEVEN ISAAC’S OFFER TO PURCHASE THE
PROPERTY LOCATED AT 226 LOGAN STREET. THE
MANIFEST WEIGHT OF THE EVIDENCE INDICATES TO THE
CONTRARY.
III. THE TRIAL COURT COMMITTED ERROR WHEN IT FOUND
THAT PLAINTIFFS’ DAMAGES FOR MISAPPROPRIATION OF
RENT WAS BASED UPON A STATISTICAL MODEL, AND
BASED UPON AN INFERENCE UPON AN INFERENCE.
IV. THE COURT ABUSED ITS JUDICIAL DISCRETION IN FINDING
THAT DEFENDANT IS NOT LIABLE FOR DAMAGES UNDER
ORC § 1337.37.
V. THE COURT ERRED WHEN IT FOUND THE PARKERS
ITEMIZED EVERY ITEM IN THE HOUSE. THIS FINDING IS
AGAINST THE WEIGHT OF THE EVIDENCE.”
ASSIGNMENT OF ERROR I
{¶14} In their first assignment of error, Appellants contend the trial
court’s finding that Ray Isaac signed the POA should be reversed because it
was against the manifest weight of the evidence.
STANDARD OF REVIEW
{¶15} “We will not reverse a trial court’s judgment as against the
manifest weight ‘if it is supported by some competent, credible evidence.’ ”
Pickaway App. Nos. 18CA9 and 18CA10 8
Hardert v. Neumann, 4th Dist. Adams No. 13CA977, 2014-Ohio-1770, ¶ 18,
quoting Nolen v. Rase, 4th Dist. Scioto No. 13CA3536, 2013-Ohio-5680,
¶ 9, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 14. When we review whether a trial court’s decision is
against the manifest weight of the evidence, we weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether in resolving conflicts in the evidence, the factfinder clearly lost its
way and created such a manifest miscarriage of justice that we must reverse
the judgment. Martin v. Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶ 68 (4th
Dist.). We will reverse a judgment as being against the manifest weight of
the evidence only in the exceptional case where the evidence weighs heavily
against the judgment. Pinkerton v. Salyers, 4th Dist. Ross No. 13CA3388,
2015-Ohio-377, ¶ 18.
LEGAL ANALYSIS
{¶16} The trial court’s finding that Ray Isaac signed the POA
appointing Appellee as his attorney-in-fact was based in large part on its
assessment of witness testimony. The trial court explained:
“Steven’s testimony that [the signing of the POA] never
happened is not credible. Plaintiff’s witnesses testified that Ray
was highly medicated and could do nothing. Defendant’s
witnesses testified that he was alert, aware and ambulatory.
The day before, on 11/5/13, Ray signed three checks at
Steven’s house, including one for Steven’s granddaughter,
Pickaway App. Nos. 18CA9 and 18CA10 9
Scarlett Abbitt[,] as a birthday gift. No handwriting expert
provided testimony to this Court. To the untrained eye Ray’s
signature on the POA appears to match other documents in
evidence. Presumably, if Ray was in such a deteriorated
condition his handwriting would be affected. Plaintiffs did not
challenge the deposition of Notary Melissa Wagner that she
identified the signer by drivers license. Alice, in charge of
notary tests in Pickaway County, anticipated identification
would be necessary and provided Wayne with Ray’s drivers
license or a copy of it. Alice had Ray’s drivers license having
obtained the same when Ray entered the hospital. Steven’s
recollection is suspect as Plaintiffs’ case is based upon the
premise that the POA was forged. Ray Isaac was unexpectedly
released from the hospital on November 5, 2013. The POA was
signed on November 6, 2013. To find that the POA was forged,
it is necessary to believe that the Defendant and/or Wayne
Malott secured an impostor, arranged for him to travel to Grove
City on November 6, 2013 where he then convinced the Notary
he was Ray Isaac and provided, at least, a similar looking
signature to the other documents in evidence. Alternatively, it
is assumed that Wayne Malott could have gone to the bank in
Grove City and impersonated his 85 year old father in law
sufficiently convincing the Notary, and signed the POA in a
similar looking signature to the other documents in evidence.
Lastly, the Notary Melissa D. Wagner could have been part of
the forgery plan. There was no proof of such involvement
presented to this Court. Based upon the testimony provided,
this Court is not willing to accept any of the three above stated
scenarios, but rather find[s] that Ray Isaac appeared before the
Notary on November 6, 2013 and signed the POA as her
notarial attestation so provides.”
{¶17} As demonstrated by the above, witness credibility weighed
heavily in the trial court’s finding that Ray Isaac signed the POA. In
reviewing that finding, this Court must be mindful that “the credibility of
witnesses and the weight given to the evidence are issues for the trier of
Pickaway App. Nos. 18CA9 and 18CA10 10
fact.” Britton v. Gibbs Assocs., 2009-Ohio-3943, ¶ 46; see also State v.
DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967) (“In either a
criminal or civil case the weight to be given the evidence and the credibility
of the witnesses are primarily for the trier of the facts.”). As the Court has
observed, “[t]he trier of fact is better suited than an appellate court to view
the witnesses and observe their demeanor, gestures, and voice inflections
and to use those observations in weighing credibility. Thus, the trier of fact
is free to believe all, part, or none of the testimony of any witness who
appears before it.” Britton at ¶ 46. The trial court’s finding that Steven
Isaac and Appellants’ witnesses were not credible and, conversely, that
Appellee’s witnesses were credible on this issue will not be disturbed.
{¶18} Having accepted the trial court’s credibility determinations,
there is little evidence left to support the contention that the trial court’s
finding is against the manifest weight of the evidence. Appellants cite
testimony that Ray Isaac was heavily medicated for at least two weeks after
his surgery and that he required assistance to move within Steven Isaac’s
house. However, the trial court also found credible testimony that Ray Isaac
was “alert, aware and ambulatory” and had signed three checks the day
before he signed the POA. In addition, the trial court accepted Wayne
Malott’s testimony that he and Steven Isaac accompanied Ray Isaac to the
Pickaway App. Nos. 18CA9 and 18CA10 11
bank. Ray Isaac therefore had assistance to get to the bank and meet with
the notary public.
{¶19} Appellants also argue that no one testified to having seen Ray
Isaac sign the POA or anyone giving Ray Isaac’s drivers license to the
notary. Only four people could have witnessed these acts: Steven Isaac,
Wayne Mallot, the notary, and Ray Isaac himself. Steven Isaac claimed that
it never happened. Wayne Mallot testified that he was with Steven and Ray
Isaac at the bank when the POA was signed, but, from his vantage point,
Wayne Mallot could not see Ray Isaac physically sign the POA or the notary
receive Ray Isaac’s drivers license. The notary could not recall the specific
event but was adamant that she did not vary from her standard operating
procedure in witnessing Ray Isaac’s signature on the POA. That procedure
involved (1) requiring a driver’s license identification, (2) administering the
oath, (3) inquiring about the document, (4) witnessing the signature, (5)
signing as a notary and (6) placing her seal on the document. The trial court
found that the notary witnessed Ray Isaac’s signature, as stated in the
notarial attestation on the POA. Thus, in context, the fact that no one
recalled seeing Ray Isaac sign the POA or the notary receiving Ray Isaac’s
drivers license does not carry significant weight.
Pickaway App. Nos. 18CA9 and 18CA10 12
{¶20} The trial court was reasonable in its evaluation of the
contention that Ray Isaac’s signature on the POA was forged. The trial
court noted that no handwriting expert testified in the case and, based on its
review, the signature on the POA appeared to match Ray Isaac’s signature
on other documents. On appeal, Appellants argue that the trial court was
“not qualified to render an opinion on this matter.” This argument
misconstrues the trial court’s role in this case. In a bench trial, the trial
judge assumes the jury’s role as the trier of fact. The trial judge did not offer
any opinion on the facts in this case; it entered findings of fact. One of those
findings was that Ray Isaac’s signature on the POA was authentic. Cutshall
v. Green, 8th Dist. Cuyahoga No. 62447, 1993 WL 146562 (May 6, 1993).
{¶21} The trial court was also reasonable in finding Appellants’
alternative theories implausible. In order to find Ray Isaac’s signature was
forged, the trial court would also have to find one of the following scenarios
occurred: (1) that Wayne Mallot signed the POA by impersonating Ray
Isaac before the notary, (2) that Wayne Mallot found a doppelganger for Ray
Isaac to present to the notary, or (3) that the notary lied in her attestation and
later when testifying under oath at her deposition. As the trial court noted,
there was no evidence to support a finding that any of these things happened.
Pickaway App. Nos. 18CA9 and 18CA10 13
{¶22} In summary, the trial court’s finding that Ray Isaac signed the
POA before the notary, as stated in the notary’s attestation, is reasonably
supported by competent and credible evidence. Accordingly, Appellants’
first assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶23} In their second assignment of error, Appellants contend the
trial court erred by finding that the attorney for Ray Isaac’s estate never
received an email containing Steven Isaac’s offer to purchase certain real
estate. This finding may be reversed only if it is against the manifest weight
of the evidence.
ANALYSIS
{¶24} Among Ray Isaac’s real estate was a property located at 226
Logan Street, Circleville, Ohio, 43113. Appellant Steven Isaac testified that
on January 20, 2016, he sent an email to the estate’s attorney offering to
purchase the 226 Logan Street property for $47,500.00, less the six percent
commission for realtor’s fees and the twenty percent that he would receive
as a beneficiary of his father’s estate. Steven Isaac testified that the offer
was to remain open for five days, but he never received a response from the
estate’s attorney.
Pickaway App. Nos. 18CA9 and 18CA10 14
{¶25} The estate’s attorney testified that he did not know about
Steven Isaac’s offer, but admitted that he later found Steven Isaac’s email, or
at least portions of it, in his files while preparing for trial. On direct
examination, the estate’s attorney testified regarding whether the email was
properly addressed to his office:
Q. So from appearances, does it look like – that the email
was correctly addressed to your office?
A. Well, I’m not very astute when it comes to emails. Now,
this does not have tootlelawoffice@gmail.com. It just says to
Tootle Law Office. I don’t know.
Q. Okay. All right. They’re –
THE COURT: Let me see it here. Thanks.
All right. Well, I’m not the best at this either, but I’ll bet your
secretary would know.
My question is, when you receive emails, does it say Tootle
Law Office or tootlelawoffice@hotmail.com or – you don’t
know that?
THE WITNESS: I – I think it does, but I don’t know.
THE COURT: Well –
THE WITNESS: Actually, I don’t even have a computer
in my office. My secretary receives those.
THE COURT: Just as an example, at the top, it says
from Steve Isaac. That part makes sense. But then it says
where it’s actually from. It’s – maybe this is how they are, but
it just seemed strange that there’s not actually a real email
address title to it. Maybe that’s how they receive it. That’s
something that the Court probably should know to know where
this went; whether you got it, whether anybody got it at your
place. I don’t know. I’ve just never seen anything – I mean, I
Pickaway App. Nos. 18CA9 and 18CA10 15
don’t think I can just type in Tootle Law Office and send you
something. It just doesn’t seem like the way I could do it.
Okay. That would be interesting.
{¶26} While it expressed doubt in this exchange, the trial court never
found that the estate’s attorney did not receive Steven Isaac’s email.
Appellants and Appellee both assume the trial court made such a finding, but
neither cites where that finding appears in the record. Appellee’s Proposed
Findings of Fact and Conclusions of Law, which the trial court incorporated
by reference, does not contain a finding that the estate’s attorney never
received the email. In the Findings of Fact section, it states “Mr. Tootle [the
estate’s attorney] says he never received the email so he never told Alice.”
Similarly, among the Conclusions of Law, it repeats the assertion that
“Attorney Tootle stated he never received [Steven’s email].” The recital of
testimony is not an adoption of the facts asserted therein.
{¶27} Instead, the trial court relied on the fact that there was no
evidence the estate’s attorney communicated Steven Isaac’s offer to
Appellee. Appellee’s Proposed Findings of Fact and Conclusions of Law
contained the following statement adopted by the trial court: “Steven cannot
claim Alice defaulted when Steven admits that the email was directed to Mr.
Tootle and not Alice and Mr. Tootle states he never informed Alice of the
offer because he was unaware of it.” In the Order adopting these findings of
Pickaway App. Nos. 18CA9 and 18CA10 16
fact, the trial court further wrote: “There was no evidence that Attorney
Tootle communicated Steven’s offer to the Defendant. Steven did not
follow up on his email. Jerry and Charles did not testify at trial.” The trial
court added in a section regarding damages: “The only evidence presented
that Steven, or anyone, was damaged was that he was not given the
opportunity to purchase Logan Street for $47,500.00 which was handled
appropriately by the Defendant with the information that was made available
to her and pursuant to law.” This statement underscores that, in the trial
court’s view, the material fact was that Appellee was not made aware of
Steven Isaac’s offer.
{¶28} The question of whether Appellee can be held liable for failing
to act on information that the estate’s attorney either knew or should have
known is a legal, not factual, issue. It is evident that the trial court
concluded Appellee could not be held liable based on her imputed
knowledge of such information. This legal conclusion, however, was not
identified as an assignment of error. As a result, it has not been properly
briefed and is not before the Court. App.R. 16(A)(3) (appellant’s brief must
include “[a] statement of the assignments of error presented for review, with
reference to the place in the record where each error is reflected”).
Appellants’ second assignment of error is overruled.
Pickaway App. Nos. 18CA9 and 18CA10 17
ASSIGNMENT OF ERROR III
{¶29} In their third assignment of error, Appellants contend the trial
court committed a legal error by finding an exhibit summarizing their
alleged damages for misappropriation of rent was a statistical model based
upon an inference upon an inference.
STANDARD OF REVIEW
{¶30} A trial court has broad discretion in the admission or exclusion
of evidence. Oyer v. Adler, 2015-Ohio-1722, ¶ 14, 33 N.E.3d 71 (4th Dist.).
Accordingly, the Court will not reverse the trial court’s judgment on
evidentiary matters absent a clear showing of an abuse of discretion with
material prejudice. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991); State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126
(1967). “A finding that a trial court abused its discretion implies that the
court acted unreasonably, arbitrarily, or unconscionably.” Oyer at ¶ 14.
When applying the abuse of discretion standard, the Court must not
substitute its judgment for that of the trial court. Id.
ANALYSIS
{¶31} At trial, Appellants introduced an exhibit, marked Plaintiffs’
Exhibit 16, summarizing their analysis of Ray Isaac’s bank accounts,
Appellee’s and her husband’s bank accounts, and the actual and maximum
Pickaway App. Nos. 18CA9 and 18CA10 18
potential income from Ray Isaac’s rental properties. Appellants relied on
Exhibit 16 to support their allegation that Appellee stole cash rental
payments from Ray Isaac, including the amount allegedly stolen.
{¶32} Under the heading “Evidence” in the Order adopting
Appellee’s Findings of Fact and Conclusions of Law, the trial court wrote:
At trial, Plaintiffs attempted to prove that Alice stole rents in
the amount of $61,861.00 from 2012 until 2016. Proof was
using an annual, statistical model, which started with possible
rents less rents declared on the tax return compared to cash
deposits into Ray’s and into Alice’s and Wayne’s account.
The trial court again referred to Exhibit 16 in its analysis of Appellants’
claim for misappropriation of rents:
Plaintiffs’ theory that rents were stolen by Alice fails not only
because Alice did not collect the rents in 2012, but also because
it is based upon a statistical model which is based upon an
inference upon an inference and, in fact, many inferences.
Further, the basic fact from which an inference is drawn was
not proven – that money was missing. . . .”
Appellants object to the trial court’s referral to Exhibit 16 as a “statistical
model” and the finding that it was based upon multiple inferences.
{¶33} Appellants first observe that they are permitted to introduce a
summary of voluminous information or evidence in the record under Evid.R.
1006. While this is an accurate statement of the rule, the trial court did not
find that it was improper for Appellants to summarize the multiple checks
and deposit entries produced in discovery in a single demonstrative exhibit.
Pickaway App. Nos. 18CA9 and 18CA10 19
See Evid.R. 1006 (“The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in court may be
presented in the form of a chart, summary, or calculation.”). Appellants’
position appears to be that, if Exhibit 16 was a summary of evidence under
Evid.R. 1006, it was improper to refer to it as a statistical model.
{¶34} The significance of referring to Exhibit 16 as a statistical
model is not clear from Appellants’ memorandum. Appellants do not define
the term “statistical model” or explain why referring to Exhibit 16 as a
statistical model would render it any less persuasive as a matter of law. An
unrestricted Westlaw search for the term “statistical model” in all Ohio cases
delivers just three results. See State v. Warren, 11th Dist. Trumbull No.
2010–T–0027, 2011-Ohio-4886, ¶ 16; State v. Lane, 1st Dist. Hamilton No.
C-970776, 1998 WL 906350, at *2 (Dec. 31, 1998); State v. Clark, 101 Ohio
App.3d 389, 417, 655 N.E.2d 795 (8th Dist. 1995). Warren and Lane
involve the analysis of DNA testing results. Clark cites the use of a
statistical model in its discussion of the admissibility of computer-generated
simulations or reconstructions. None of these cases held that statistical
models are inadmissible or are not probative as a matter of law. Thus, the
fact that the trial court called Exhibit 16 a statistical model instead of a Rule
16 summary has no effect on its admissibility or the weight that it may be
Pickaway App. Nos. 18CA9 and 18CA10 20
afforded. Consequently, rather than determine if the trial court appropriately
used that term, the Court finds any such error, if an error were indeed made,
was harmless. See Civ.R. 61.
{¶35} The second question presented under Appellants’ third
assignment of error goes to the actual weight the trial court afforded Exhibit
16. Appellants argue that the trial court should not have dismissed Exhibit
16’s probative value because it was based upon an inference upon an
inference. They argue its conclusions were grounded in fact and therefore
entitled to substantial weight.
{¶36} Addressing this issue in Hurt v. Charles J. Rogers
Transportation Co., 164 Ohio St. 329, 120 N.E.2d 820 (1955), the Supreme
Court of Ohio held that “[a]n inference which is based solely and entirely
upon another inference and which is unsupported by any additional fact or
another inference from other facts is an inference upon an inference and is
universally condemned.” Hurt at 333. In contrast, “[a]n inference which is
based in part upon another inference and in part upon factual support is
called a parallel inference and is universally approved provided it is a
reasonable conclusion for the jury to deduce.” Id.
{¶37} Appellants cite Steven Isaac’s testimony for an explanation of
Exhibit 16, which covers the period from 2012 to 2016. He testified the first
Pickaway App. Nos. 18CA9 and 18CA10 21
line of Exhibit 16 contains deposits into Ray Isaac’s US Bank account. The
second line contains the rental income reported in Ray Isaac’s tax returns.
The third line contains the maximum potential rental income from Ray
Isaac’s rental properties on an annual basis, which was calculated by
multiplying the estimated monthly rent for all of his properties times twelve
(the number of months in a year). Steven Isaac testified that he adjusted this
calculation each year to account for properties sold during the period.
Steven Isaac calculated the figure in the fourth line of the exhibit by
subtracting the reported rental income from the maximum potential rental
income, and then stating that sum as a percentage of reported rental income.
He referred to this rate as the vacancy rate, which was intended to reflect the
percentage of properties that were not rented (or at least not producing
income).
{¶38} Exhibit 16 juxtaposes the above information against the cash
deposits into Appellee’s and her husband’s bank accounts during the same
period. Appellants argued that the decrease in rental income from 2012 to
2016 corresponds with an increase in cash deposits into Appellee’s and her
husband’s accounts. The reason for this “pattern”—according to
Appellants—was that Appellee was stealing cash rental payments from Ray
Isaac before and after his death.
Pickaway App. Nos. 18CA9 and 18CA10 22
{¶39} Based on the above explanation, Exhibit 16 contains a
combination of empirical facts and calculations based in part on those
empirical facts and in part on estimates provided by Steven Isaac.
Appellants’ conclusion that Appellee stole Ray Isaac’s cash rental payments
is based on inferences from these empirical facts and calculations.
{¶40} The first inference necessary to reach this conclusion is
incorporated into the calculation of the vacancy rate. To determine the
maximum potential rental income per year, Appellants had to infer the
amount of rent that could be charged for all of Ray Isaac’s rental properties,
even those properties that were not in fact rented. Steven Isaac testified that
he determined these hypothetical monthly rent numbers based on known
data, but this determination was nonetheless an inference from that data
because Ray Isaac never rented all of his properties in any single year.
{¶41} Appellants also inferred that the increasing vacancy rate, which
incorporates their assumptions regarding maximum potential rental income,
was the result of theft. This inference was based on the fact that, as the
vacancy rate increased (or rental income decreased), the cash deposits into
Appellee’s and her husband’s accounts increased. In addition, Appellants
were suspicious of Appellee based on the fact that she was her father’s
attorney-in-fact from 2013 until his death and executor of his estate.
Pickaway App. Nos. 18CA9 and 18CA10 23
{¶42} The trial court therefore did not err in finding that the evidence
of theft contained in Exhibit 16 was based upon an inference upon an
inference. Since the inferences have some, albeit spare, factual support, they
are permissible so long as they are “reasonable conclusion[s] for the jury to
deduce.” Hurt, 164 Ohio St. at 333. The trial court essentially found that it
was not reasonable for the trier of fact to deduce that Appellee stole cash
rental payments from Ray Isaac based on Exhibit 16. This finding was not
an abuse of discretion.
{¶43} The facts supporting the theft allegation were quite spare. Put
simply, there was no direct evidence of theft. There was not any evidence, a
paper trail for instance, connecting any monies paid as rent and the deposits
into Appellee’s or her husband’s accounts. As the trial court noted, there
was not even evidence that any money was missing from the collection of
rental payments. During a colloquy with the trial court, Steven Isaac
acknowledged that the expense of maintaining aging rental properties and
the fact that low-income rental properties have higher turnover rates could
decrease rental income. These factors were not incorporated into the
vacancy rate, however, because Steven calculated the numbers only “with
the facts that have been provided.”
Pickaway App. Nos. 18CA9 and 18CA10 24
{¶44} Appellants also did not reconcile their theory with the actual
receipts issued for rental payments, even though there was testimony that
receipts were always issued. Appellee also cites testimony showing that the
alleged “pattern” of decreasing rental income and increasing cash deposits in
Appellee’s and her husband’s accounts existed since 2010—three years
before she was responsible for managing her father’s affairs under the POA.
Finally, Appellee and her husband both testified that they did not steal rent
payments and explained the deposits into their accounts. The trial court,
which was in the best position to assess that testimony, found it credible.
{¶45} In light of the above, the trial court did not abuse its discretion
in rejecting the inference upon an inference that Appellee misappropriated
Ray Isaac’s rental payments. Accordingly, Appellants’ third assignment of
error is overruled.
ASSIGNMENT OF ERROR IV
{¶46} In their fourth assignment of error, Appellants contend that the
trial court abused its discretion in finding that Appellee was not liable for
damages under R.C. 1337.37. Appellants concede that this assignment of
error is moot if the Court finds that the trial court did not err in its
consideration of Exhibit 16. Having so found, the Court overrules
Appellants’ fourth assignment of error.
Pickaway App. Nos. 18CA9 and 18CA10 25
ASSIGNMENT OF ERROR V
{¶47} In their fifth assignment of error, Appellants contend the trial
court’s finding that every item in Ray Isaac’s home was itemized was
against the manifest weight of the evidence.
ANALYSIS
{¶48} In connection with the administration of Ray Isaac’s estate,
Appellee retained an estate liquidation company called Tag Sale Solutions,
which was run by Jim and Dawn Parker, to do a tag sale. The trial court
found that the Parkers provided “a complete inventory of every itty-bitty
item” in Ray Isaac’s house and that Appellee “prepared a chart of who got
everything before and after.”
{¶49} Appellants argue that the manifest weight of the evidence
establishes that the Parkers did not, in fact, itemize every item in Ray Isaac’s
house. They cite Megan Isaac’s testimony regarding the days before Ray
Isaac’s death, when his family was preparing to bring him home from
Pickaway Manor Nursing Home so that he could be at his own home before
passing. Megan Isaac testified that there was a focus on cleaning the back
room and the kitchen during that time. The family was planning on setting
up the hospital bed for him in the back room. People were sitting items next
to the front door, taking boxes out and going through closets. She did not
Pickaway App. Nos. 18CA9 and 18CA10 26
know exactly what left the house, but people were taking things out.
Appellants note that the Parkers were not hired until January 2016, after Ray
Isaac’s death. Thus, they could not have itemized the property removed
from Ray Isaac’s home before his death.
{¶50} Appellants also note that the trial court cited Appellee’s
Exhibit O as containing both the “complete inventory” provided by the
Parkers and the chart prepared by Appellee showing “who got everything
before and after.” Appellants contend that this is further evidence of the trial
court’s error because the Parkers could not have itemized the items disposed
of before Ray Isaac’s death.
{¶51} The trial court’s finding that the Parkers itemized everything in
the house was not against the manifest weight of the evidence. There was
competent, credible evidence at trial that many of the items taken from Ray
Isaac’s home in preparation for his return were of little to no value. A lot of
the activity involved cleaning Ray’s home and removing trash. Glenna
Hisong, Ray Isaac’s youngest daughter, testified that Ray Isaac was lucid
and competent right up to his death. She discussed with him the topic of
giving some things away from the house, to which he gave his consent.
Items that were given away with Ray Isaac’s consent were not part of his
Pickaway App. Nos. 18CA9 and 18CA10 27
estate. Therefore, there was no reason for them to be included in the
itemization.
{¶52} The trial court’s reference to Exhibit O as containing both the
Parkers’ itemization and Appellee’s chart is not inherently contradictory. It
stands to reason that the Parkers’ itemization was incorporated into
Appellee’s chart, which explains the information contained therein. In sum,
there was substantial evidence supporting the trial court’s finding—it was
not against the manifest weight of the evidence.
{¶53} Appellants’ fifth assignment of error also lacks merit because,
as the trial court noted, Appellants failed to show that any of the items
allegedly excluded from the itemization caused any damages. Appellants
therefore failed to show the trial court’s finding prejudiced them. For both
of these reasons, Appellants’ fifth assignment of error is overruled.
APPELLEE/CROSS-APPELLANT’S ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANTS WHEN IT AWARDED SANCTION FEES FOR
FAILURE TO PRODUCE TAX RETURNS.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANTS WHEN IT DENIED SANCTIONS FOR
FRIVOLOUS CONDUCT.
III. THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANTS WHEN IT FAILED TO HOLD A HEARING
BEFORE DENYING SANCTIONS FOR FRIVOLOUS
CONDUCT.”
Pickaway App. Nos. 18CA9 and 18CA10 28
ASSIGNMENT OF ERROR I
{¶54} In Cross-Appellant’s first assignment of error, she contends the
trial court erred when it awarded sanction fees against her for failure to
produce her tax returns.
ANALYSIS
{¶55} Cross-Appellant raises four issues for review under her first
assignment of error. The Court need not consider any of them, however,
because it is apparent that Cross-Appellant waived her right to appeal the
award of sanction fees in this case. Indeed, Cross-Appellant’s assertion that
the trial court awarded sanction fees is procedurally inaccurate. The trial
court never had the opportunity to enter a final ruling on Cross-Appellees’
request for fees because Cross-Appellant paid them before the scheduled
hearing on the matter, rendering the request moot.
{¶56} The relevant timeline is as follows. On September 1, 2017,
Cross-Appellees filed a motion to compel production of Cross-Appellant’s
tax returns. The motion to compel included a request for payment of their
reasonable expenses, including attorney fees, in bringing the motion under
Civil Rule 37(A)(5)(a). On September 27, 2017, Cross-Appellant filed a
Pickaway App. Nos. 18CA9 and 18CA10 29
memorandum in opposition to the motion to compel. Cross-Appellant
argued that she should not be required to produce her tax returns, but did not
directly address the request for reasonable expenses, including attorney fees,
if the motion were granted. On October 25, 2017, the trial court granted the
motion to compel and scheduled a hearing on the request for attorney fees, at
which all parties were required to personally appear, for January 18, 2018.
{¶57} The hearing on the request for attorney fees never occurred.
On January 15, 2018, Cross-Appellees’ counsel received a letter from Cross-
Appellant’s counsel indicating that a check for the requested attorney fees
($890.00) was being sent. On January 17, 2018, Cross-Appellees’ counsel
received the check and filed a motion to withdraw the request for attorney
fees. On January 18, 2018, the trial court granted the motion to withdraw,
stating that the issue was moot.
{¶58} By paying the requested fees prior to the hearing on the matter,
Cross-Appellant waived her right to appeal the payment of those fees.
Under Civ.R. 37, if a motion to compel is granted, “the court shall, after
giving an opportunity to be heard, require the party [. . .] whose conduct
necessitated the motion, the party or attorney advising that conduct, or both
to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees.” Civ.R. 37(A)(5) (emphasis added). Cross-
Pickaway App. Nos. 18CA9 and 18CA10 30
Appellant could have raised any objections to the award of fees to the trial
court at the scheduled hearing. Cross-Appellant declined to do so, thereby
waiving her right to appeal her payment of those fees.
{¶59} Appellate courts “will not consider any error which counsel for
a party complaining of the trial court’s judgment could have called but did
not call to the trial court’s attention at a time when such error could have
been avoided or corrected by the trial court.” State v. Awan, 22 Ohio St.3d
120, 122, 489 N.E.2d 277 (1986). “It is axiomatic that issues not presented
for consideration below will not be considered on appeal.” Dailey v. Uhrig,
4th Dist. Ross No. 06CA2911, 2008-Ohio-1396, ¶¶ 22-23. Accordingly,
Cross-Appellant’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶60} In her second assignment of error, Cross-Appellant contends
the trial court erred when it denied her motion for sanctions against Cross-
Appellees for frivolous conduct.
STANDARD OF REVIEW
{¶61} Civ.R. 11 provides that for pleadings, motions, and other
documents signed by attorneys representing parties in a case, the signature
of an attorney “constitutes a certificate by the attorney * * * that the attorney
* * * has read the document; that to the best of the attorney’s * * *
Pickaway App. Nos. 18CA9 and 18CA10 31
knowledge, information, and belief there is good ground to support it; and
that it is not interposed for delay.” The rule further provides that “[f]or a
willful violation of this rule, an attorney * * *, upon motion of a party or
upon the court’s own motion, may be subjected to appropriate action,
including an award to the opposing party of expenses and reasonable
attorney fees incurred in bringing any motion under this rule.” Capital One
Bank v. Day, 176 Ohio App.3d 516, 2008-Ohio-2789, 892 N.E.2d 932, ¶ 9
(4th Dist.).
{¶62} “We will not reverse a court’s decision on a Civ.R. 11 motion
for sanctions absent an abuse of discretion. State ex rel. Fant v. Sykes, 29
Ohio St.3d 65, 505 N.E.2d 966 (1987). An abuse of discretion occurs when
a decision is unreasonable, arbitrary, or unconscionable. State ex rel.
Worrell v. Ohio Police & Fire Pension Fund, 112 Ohio St.3d 116, 2006-
Ohio-6513, 858 N.E.2d 380, ¶ 10.” Capital One Bank at ¶ 8, quoting State
ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874
N.E.2d 510, ¶ 18.
{¶63} “R.C. 2323.51 provides for an award of attorney fees to a party
harmed by ‘frivolous conduct’ in a civil action.” Rose v. Cochran, 4th Dist.
Ross No. 14CA3445, 2014-Ohio-4979, ¶ 35, quoting Moss v. Bush, 105
Ohio St.3d 458, 2005-Ohio-2419, 828 N.E.2d 994, ¶ 18 fn. 3. “The General
Pickaway App. Nos. 18CA9 and 18CA10 32
Assembly vests the decision whether to award sanctions, including an award
of reasonable attorney fees, in the court.” State ex rel. Striker v. Cline, 130
Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19, ¶ 10; see R.C.
2323.51(B)(1) (“The court may assess and make an award to any party to the
civil action or appeal who was adversely affected by frivolous conduct”).
The trial court’s decision whether to award sanctions under R.C. 2323.51
will not be reversed absent an abuse of discretion. Striker at ¶ 11.
{¶64} 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. Ogle
v. Greco, 4th Dist. Hocking No. 15CA2, 2015-Ohio-4841, ¶ 30; Natl. Check
Bur. v. Patel, 2nd Dist. Montgomery No. 21051, 2005-Ohio-6679, ¶ 10;
accord Riverview Health Inst., L.L.C. v. Kral, 2nd Dist. Montgomery No.
24931, 2012-Ohio-3502, ¶ 33.
ANALYSIS
{¶65} “Civ.R. 11 employs a subjective bad-faith standard to invoke
sanctions by requiring that any violation must be willful. Riston v. Butler,
149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857 (1st Dist.), at ¶ 9;
Ransom v. Ransom, 12th Dist. Warren No. 2006-03-031, 2007-Ohio-457
Pickaway App. Nos. 18CA9 and 18CA10 33
[2007 WL 313465], at ¶ 25.” Day at ¶ 10, quoting Dreamer, 2007-Ohio-
4789, ¶ 19. Thus, any violation must be willful; negligence is insufficient to
invoke Civ.R. 11 sanctions. Oakley v. Nolan, 4th Dist. Athens No. 06CA36,
2007-Ohio-4794, ¶ 13.
{¶66} “The United States Supreme Court has observed that the
purpose of Fed.R.Civ.P. 11, which is analogous to Civ.R. 11, is to curb
abuse of the judicial system because ‘[b]aseless filing puts the machinery of
justice in motion, burdening courts and individuals alike with needless
expense and delay.’ Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 398,
110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). The court noted that the specter of
Rule 11 sanctions encourages civil litigants to ‘“stop, think and investigate
more carefully before serving and filing papers.’” Day, supra, at ¶ 11,
quoting Amendments to Federal Rules of Civil Procedure (1983), 97 F.R.D.
165, 192 (March 9, 1982 letter from Judge Walter Mansfield, Chairman,
Advisory Committee on Civil Rules).” Moss v. Bush, 105 Ohio St.3d 458,
2005-Ohio-2419, 828 N.E.2d 994, ¶ 21.
{¶67} Frivolous conduct implicated by R.C. 2323.51(A)(2)(ii)
involves proceeding on a legal theory which is wholly unwarranted in law.
Ogle, supra, at ¶ 29; State Auto Mut. Ins. Co. v. Tatone, 2nd Dist.
Montgomery No. 21753, 2007-Ohio-4726, ¶ 8. “Whether a claim is
Pickaway App. Nos. 18CA9 and 18CA10 34
warranted under existing law is an objective consideration.” Hickman v.
Murray, 2nd Dist. Montgomery No. CA 15030, 1996 WL 125916, *5 (Mar.
22, 1996) (citations omitted). 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. Frivolous conduct subject to
sanctions includes conduct by a party’s counsel that “obviously serves 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” or “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.” R.C.
2323.51(A)(2)(a)(i) and (ii).
{¶68} On June 14, 2018, after the trial court’s entry of judgment,
Cross-Appellant filed a motion to impose sanctions on Cross-Appellees
pursuant to Civ. R. 11 and R.C. 2323.51. Cross-Appellant argued sanctions
were appropriate because Cross-Appellees’ claims were not well-founded
from the outset and they continued to pursue them even after discovery
confirmed their lack of factual support. In opposition, Cross-Appellees
Pickaway App. Nos. 18CA9 and 18CA10 35
argued their claims were viable under the applicable statutes, as
demonstrated by the trial court’s denial of Cross-Appellant’s motion for
summary judgment. They also argued that it was reasonable for Cross-
Appellees’ counsel to rely on their representations in litigating their claims.
{¶69} On July 23, 2018, the trial court denied the motion for
sanctions. In its order, the trial court found that “the actions of the Plaintiffs
and Plaintiffs’ counsel do not rise to the level of frivolous conduct pursuant
to RC 2323.51. The case presented by the Plaintiffs, though being
insufficient to meet their burden of proof on any claim, did not portray
frivolous conduct or bad faith such that a Motion for Sanctions is required
herein.”
{¶70} In evaluating the denial of Cross-Appellant’s motion, it is
important to recognize that she sought sanctions for filing the action and
continuing to litigate the action—not a discrete claim or motion. The trial
court therefore considered the entire case, not individual actions by Cross-
Appellees and their counsel. On appeal, Cross-Appellant focuses on
particular legal theories and allegations, instead of the broader question of
whether Cross-Appellees acted in bad faith or frivolously in bringing and
pursuing this action through trial. Upon consideration of the entire case and
Pickaway App. Nos. 18CA9 and 18CA10 36
all of the evidence relevant to Cross-Appellees’ claims, the trial court did not
abuse its discretion in denying the motion for sanctions.
{¶71} Cross-Appellees’ complaint included four claims long
recognized under Ohio law, namely intentional interference with expectancy
of inheritance, breach of fiduciary duty, conversion and fraud. The trial
court found that Cross-Appellees’ presented sufficient evidence on these
claims to survive Cross-Appellants’ motion for summary judgment. In light
of that ruling, it was reasonable for Cross-Appellees to take their claims to
trial. In addition, although the trial court ultimately rejected much of Cross-
Appellees’ evidence as not credible, their counsel cannot be faulted for
relying on his clients’ representations. See Kozar v. Bio-Med. Applications
of Ohio, Inc., 9th Dist. Summit No. 21949, 2004-Ohio-4963, ¶ 12 (“An
attorney’s reasonable reliance on the client’s representations does not
constitute bad faith.”).
{¶72} Cross-Appellant cites Runfola & Assocs., Inc. v. Spectrum
Reporting II, Inc., 88 F.3d 368 (6th Cir. 1996) for the proposition that
frivolous conduct may exist even though a case survives summary judgment.
Runfola, however, does not stand for that proposition.
{¶73} Runfola involved a dispute between competing court reporting
businesses. Two of the plaintiff’s most utilized court reporters left
Pickaway App. Nos. 18CA9 and 18CA10 37
plaintiff’s business and formed their own court reporting firm. Runfola, 88
F.3d at 370. After losing clients and staff to the new firm, plaintiff sued the
new firm, called Spectrum, and another court reporting firm, named PRI, for
violations of the Sherman Antitrust Act, 15 U.S.C. § 1, and unfair business
practices in violation of state law. Id. at 371. Spectrum and PRI moved to
dismiss the lawsuit, which the court denied. In overruling the motion,
however, the court warned that plaintiff would need to discover facts
sufficient to maintain its civil action. Id. at 370. A few months later, the
court sustained a dispositive motion on all but one of the counts, which
alleged breach of a covenant not to compete.
{¶74} Despite the court’s warning, for the next 15 months, the
plaintiff failed to pursue any discovery. Plaintiff then served thirteen notices
of deposition, but the depositions never went forward. Defendants filed
motions for summary judgment, which plaintiff responded to over six
months later. In its opposition, plaintiff offered only one exhibit, the fifteen-
page affidavit of its principal. Granting the motions for summary judgment,
the court found plaintiff produced no evidence of any harm to competition to
support an antitrust violation. The court later granted defendants’ motion for
sanctions under Fed. R. Civ. P. 11.
Pickaway App. Nos. 18CA9 and 18CA10 38
{¶75} On appeal, the Sixth Circuit affirmed the award of sanctions.
It noted that sanctions were imposed “for the manner in which plaintiff
excessively lengthened the discovery process yet failed to voluntarily
dismiss this action after becoming aware of their inability to assert any
competent evidence to support their claims.” Id. at 373. It further noted
“plaintiff was given over two and one half years to conduct enough
discovery to defeat a motion for summary judgment. However, the only
evidence plaintiff presented was a fifteen-page affidavit which was stricken
by the district court for its baselessness. Plaintiff's tactics forced defendants
to expend significant time and money in defense of a meritless action.” Id.
{¶76} Runfola does not stand for the proposition that sanctions may
be imposed for failure to voluntarily dismiss claims that have survived a
motion for summary judgment—as Cross-Appellee argues. Instead, Runfola
upholds the award of sanctions where a plaintiff survives a motion to
dismiss but then abandons its claims.
{¶77} This case is also distinguishable from Runfola because, here,
Cross-Appellees vigorously pursued discovery. When Cross-Appellant
refused to respond to their requests, Cross-Appellees filed and obtained
relief through a motion to compel. If there were any delay in this case, a
substantial portion of it may be rightfully attributed to Cross-Appellant. In
Pickaway App. Nos. 18CA9 and 18CA10 39
any event, the fact that Cross-Appellees survived a motion for summary
judgment is a significant barrier to Cross-Appellant’s motion for sanctions.
It is a holding by the trial court that Cross-Appellees mustered sufficient
evidence to proceed to trial on their claims.
{¶78} Bear in the mind that the Court does not hold that a party that
survives summary judgment can never be subject to sanctions under Civ.R.
11 or R.C. 2323.51. Here, however, Cross-Appellant has not shown that
Cross-Appellees or their counsel were objectively unreasonable in relying on
their evidence, or did so in bad faith, in light of the trial court’s ruling.
Cross-Appellant argues there was no evidence of waste or damages from the
allegedly forged POA, but Cross-Appellees believed that Exhibit 16 would
be persuasive on these issues. Cross-Appellant similarly argues there was
no evidence that Cross-Appellant made any gifts prohibited by the POA,
only evidence that Glenna Hisong made gifts with Ray Isaac’s consent.
However, Cross-Appellees presented testimony, for example, from a witness
who saw items removed from Ray Isaac’s house while Cross-Appellant
appeared to be in control of the activity there. Unlike the plaintiff in
Runfola, Cross-Appellees had evidence to support their claims. It was
simply not as persuasive as Cross-Appellant’s evidence.
Pickaway App. Nos. 18CA9 and 18CA10 40
{¶79} The legal errors cited by Cross-Appellant also do not require
reversal of the trial court’s decision on sanctions. Cross-Appellant argues
that Cross-Appellees’ counsel failed to file a complaint in probate court to
recover concealed assets under RC 2109.50 and was incorrect in contending
Cross-Appellant required the probate court’s consent to sell real estate and to
spend more than $100.00 on the rental properties. Cross-Appellant has not
shown that these errors were made in bad faith or that they were so material
that they rendered Cross-Appellees’ pursuit of their civil action unreasonable
as a matter of law.
{¶80} For the above reasons, Cross-Appellant’s second assignment of
error is overruled.
ASSIGNMENT OF ERROR III
{¶81} In her third assignment of error, Cross-Appellant contends the
trial court erred because it failed to hold a hearing before denying Cross-
Appellant’s motion for sanctions for frivolous conduct.
ANALYSIS
{¶82} Cross-Appellant does not explain why the trial court erred by
failing to hold a hearing on her motion for sanctions. She merely cites one
case, State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699,
978 N.E.2d 188, and represents that it is applicable here. Cross-Appellant’s
Pickaway App. Nos. 18CA9 and 18CA10 41
reference to “frivolous conduct” in her assignment of error implies her
argument is based upon R.C. 2323.51.
{¶83} R.C. 2323.51(B)(2) provides that an award of sanctions for
frivolous conduct may be made only after the court conducts a hearing “to
determine whether particular conduct was frivolous, to determine, if the
conduct was frivolous, whether any party was adversely affected by it, and
to determine, if an award is to be made, the amount of that award.” R.C.
2323.51(B)(2)(a). On its face, the statute appears to make a hearing
mandatory only before an award of sanctions may be made, not when a
request for such an award is denied.
{¶84} Cross-Appellant’s citation to Ricketts is inapposite because that
case dealt with the granting of a motion for sanctions under Civ.R. 11.
Ricketts at ¶ 24-25 (“Because Ricketts sought and was granted an award of
fees and expenses pursuant to Civ.R. 11, the court of appeals erred in
imposing sanctions under the rule without holding an evidentiary hearing.”).
{¶85} Cross-Appellees, however, cite a case directly on point, State
ex rel. Ward v. The Lion’s Den, 4th Dist. Ross No. 1867, 1992 WL 487197
(Nov. 25, 1992). In that case, after entering summary judgment for the
appellant, the trial court denied appellant’s motion for sanctions under
Civ.R. 11 and R.C. 2323.51. On appeal, the appellant argued the trial court
Pickaway App. Nos. 18CA9 and 18CA10 42
erred because it failed to hold a hearing before denying the motion. This
Court noted a split of authority among appellate districts regarding the
necessity of holding hearings under R.C. 2323.51(B)(2) where the trial court
overrules the motion for sanctions. Lion’s Den, 1992 WL 487197, at *2.
Some cases held a hearing is required only if attorney fees are to be
awarded, while others held a hearing is required regardless of the outcome of
the motion for sanctions. Id.
{¶86} The Court acknowledged it had held in another case, Shaffer v.
Mease, 66 Ohio App.3d 400, 584 N.E.2d 77 (4th Dist. 1991), that “the trial
court may award attorney fees only after conducting a hearing that allows
the parties to present evidence in support or opposition to such award.”
Lion’s Den, 1992 WL 487197, at *3. The Court distinguished this holding
in Shaffer, however, because it was an appeal from an award of attorney fees
rather than a denial. The Court further distinguished Shaffer because, unlike
in that case, there was no claim by either party that a factual dispute existed
regarding whether sanctions should be entered. Rather, the motion was
framed as a legal issue—whether or not sanctions were appropriate when a
statutory agent is named as a defendant in a nuisance action. Id. The Court
also noted, “although appellant requested a hearing on the amount of
attorney fees if the trial court granted its motion for sanctions, it never
Pickaway App. Nos. 18CA9 and 18CA10 43
requested an evidentiary hearing on the propriety of an award of attorney
fees, essentially conceding that the issue could be decided without any
hearing.” Id. (emphasis in original). Finally, the Court noted that the
appellant’s written argument on appeal failed to address the issue. For all
these reasons, the Court held the trial court did not abuse its discretion in
failing to hold an evidentiary hearing on the appellant’s motion for
sanctions.
{¶87} This case is remarkably similar to Lion’s Den. It involves the
denial of a motion for sanctions under Civ.R. 11 and R.C. 2323.51. Since
Cross-Appellant brought the motion for sanctions post-judgment, all of the
facts necessary to decide it were already before the trial court. Additionally,
as in Lion’s Den, Cross-Appellant only requested a hearing on the amount of
reasonable attorney fees if the trial court granted her motion. She never
requested a hearing on the propriety of awarding sanctions. Finally, Cross-
Appellant has failed to support her assignment of error with pertinent
argument, instead citing an inapposite case involving an award of sanctions
under Civ.R. 11.
{¶88} For these reasons, as in Lion’s Den, the Court finds the trial
court did not abuse its discretion in denying the motion for sanctions without
a hearing. Cross-Appellant’s third assignment of error is overruled.
Pickaway App. Nos. 18CA9 and 18CA10 44
{¶89} Accordingly, after thorough review of the record and based on
the foregoing, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Pickaway App. Nos. 18CA9 and 18CA10 45
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Costs are
assessed to Appellants/Cross-Appellees.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Pickaway 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.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, 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.