[Cite as Waller v. Menorah Park Ctr. for Senior Living, 2019-Ohio-671.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


MARIE A. WALLER                                   :            JUDGES:
                                                  :            Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellant                     :            Hon. Craig R. Baldwin, J.
                                                  :            Hon. Earle E. Wise, J.
-vs-                                              :
                                                  :
MENORAH PARK CENTER FOR                           :            Case No. 2018CA00083
SENIOR LIVING, ET AL.                             :
                                                  :
        Defendants - Appellees                    :            OPINION



CHARACTER OF PROCEEDING:                                       Appeal from the Stark County Court
                                                               of Common Pleas, Case No. 2015
                                                               CV 02064


JUDGMENT:                                                      Affirmed


DATE OF JUDGMENT:                                              February 19, 2019


APPEARANCES:

For Plaintiff-Appellant                                        For Defendant-Appellee Menorah
                                                               Park Center for Senior Living
JENNIFER L. LAWTHER
DANIEL A. KIRSCHNER                                            R. MARK GOTTFRIED
COREY J. KUZMA                                                 Meyers, Roman, Friedberg & Lewis
Nager, Romaine & Schneiberg Co. LP.A.                          28601 Chagrin Boulevard, Suite 600
27730 Euclid Avenue                                            Cleveland, Ohio 44122
Cleveland, Ohio 44132

For Bureau of Workers’ Compensation

SCOTT W. JOHNSON
Office of the Attorney General
20 Federal Plaza West, 3rd Fl.
Youngstown, Ohio 44503
Stark County, Case No. 2018CA00083                                                  2



Baldwin, J.

        {¶1}   Appellant Marie A. Waller appeals from the June 4, 2018 Judgment Entry

of the Stark County Court of Common Pleas granting appellee’s request for attorney’s

fees.

                       STATEMENT OF THE FACTS AND CASE

        {¶2}   Appellant Marie A. Waller was an employee of appellee Menorah Park

Center for Senior Living. After she slipped and fell into a tub while cleaning it while in

appellee’s employment, appellant filed a worker’s compensation claim. Her claim was

allowed for bilateral knee contusion, right shoulder contusion and sprain right thumb.

        {¶3}   On August 1, 2013, appellant filed a motion requesting additional

allowances for right shoulder sprain/strain, right knee Baker’s cyst and sprain right knee

and leg. She later withdrew her request for the additional allowance of right knee Baker’s

cyst. On or about September 10, 2013, appellant filed a motion requesting the additional

allowance of right knee chondral injury. The Industrial Commission of Ohio ultimately

disallowed appellant’s claim for the additional allowances of right shoulder sprain/strain,

right knee chondral injury and sprain right knee and leg. Appellant, after exhausting her

administrative appeal, filed an appeal with the Stark County Court of Common Pleas

pursuant to R.C. 4123.512. The case was assigned Case No. 2014 CV 00798. Appellant

filed a notice of dismissal without prejudice on October 10, 2014 pursuant to Civ.R. 41(A).

        {¶4}   Appellant refiled her Petition and Complaint in the Stark County Court of

Common Pleas on October 6, 2015. The case was assigned Case No. 2015 CV 02064.

Appellee filed an answer on October 23, 2015. The Administrator of the Bureau of

Workers’ Compensation filed an answer on November 9, 2015.
Stark County, Case No. 2018CA00083                                                     3


       {¶5}      The trial court, on April 20, 2016, filed a Judgment Entry indicating that the

case had been settled by agreement of the parties and dismissing the case. The trial

court, in its Judgment Entry, ordered that “A final agreed upon judgment entry approved

by counsel for all parties shall be filed with the Court within 30 days of the filing of the

within entry.”

       {¶6}      On February 9, 2018, appellant filed a Motion to Enforce Settlement.

Appellant, in her motion indicated that on or about December 4, 2017, she had mailed all

executed settlement documents to appellee’s counsel and that on or about December 20,

2017, her counsel had received a call from appellee’s counsel indicating that appellee

“would no longer honor the parties’ settlement agreement.” Appellant requested that a

hearing be scheduled. In response, appellee, on February 22, 2018, filed a brief in

opposition to appellant’s motion and a request for attorney fees pursuant to R.C. 2323.51.

Appellee, in its motion, argued, in relevant part, as follows:

                 The law on enforcement of workers’ compensation settlements is

       well-settled. Defendant [appellee] had the absolute right to withdraw from

       the settlement and there is no binding or enforceable agreement. Plaintiff

       [appellant] has asserted no case law nor statutory authority to justify her

       Motion. Counsel has asserted an allegation that is not warranted under

       existing law and has made allegations that have no evidentiary support. As

       a result, Defendant [appellee] has been forced to incur unnecessary legal

       costs in defending this Motion. Such costs must be borne by Plaintiff’s

       [appellant’s] counsel.
Stark County, Case No. 2018CA00083                                                    4


       {¶7}   A hearing was scheduled on the Motion to Enforce Settlement for March 16,

2018. The trial court, in a Judgment Entry filed on June 4, 2018, noted that after

appellant’s counsel realized that there was no legal basis for her motion, appellant

retracted her argument that the settlement was valid and made an oral motion to withdraw

the Motion to Enforce, which was granted by the trial court on the record. The trial court

granted appellee’s request for attorney fees and ordered that counsel for appellant pay

the sum of $1,277.50 to appellee, “representing attorney fees that Defendant [appellee]

incurred from the filing of the Plaintiff’s [appellant’s] Motion to Enforce Settlement through

the date of the hearing on the same.”

       {¶8}   Appellant now appeals from the trial court’s June 4, 2018 Judgment Entry,

raising the following assignment of error on appeal:

       {¶9}   “I. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING

MENORAH PARK CENTER FOR SENIOR LIVING’S REQUEST FOR ATTORNEY

FEES.”

                                              I

       {¶10} Appellant, in her sole assignment of error, argues that the trial court abused

its discretion in awarding attorney fees to appellee. We disagree.

       {¶11} R.C. 2323.51 provides a court may award court costs, reasonable attorney

fees, and other reasonable expenses incurred in connection with the civil action or appeal

to any party to the civil action or appeal who was adversely affected by frivolous conduct.

       {¶12} A motion for sanctions brought under R.C. 2323.51 requires a three-step

analysis by the trial court. The trial court must determine (1) whether the party engaged

in frivolous conduct, (2) if the conduct was frivolous, whether any party was adversely
Stark County, Case No. 2018CA00083                                                  5

affected by it, and (3) if an award is to be made, the amount of the award. Bear v. Troyer,

5th Dist. Guernsey Nos. 15 CA 17, 15 CA 24, 2016-Ohio-3363, ¶ 55. The presence of

one of the following factors supports a finding of frivolous conduct under R.C.

2323.51(A)(2)(a):

       {¶13} (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.

       {¶14} (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.

       {¶15} (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.

       {¶16} (iv) The conduct consists of denials or factual contentions that are not

warranted by the evidence or, if specifically so identified, are not reasonably based on a

lack of information or belief.

       {¶17} In the case sub judice, appellee, in its brief in opposition to appellant’s

Motion to Enforce Settlement, cited to Gibson v. Meadow Gold Dairy, 88 Ohio St.3d 201,

203, 724 N.E.2d 787 (2000). In Gibson, the Supreme Court of Ohio considered whether

a trial court may enforce an oral settlement of an appeal under R.C. 4123.512 between a

workers' compensation claimant and a self-insured employer. The Supreme Court held

that pursuant to R.C. 4123.65, settlements of claims against self-insured employers

reached during the pendency of a 4123.512 appeal are not binding until a final settlement
Stark County, Case No. 2018CA00083                                                     6

agreement is signed by the parties and thirty days have passed thereafter. Id. at 204.

Accordingly, the Supreme Court held that where a claimant reached an oral agreement

with his former employer to settle his claim but then withdrew his consent and refused to

execute the settlement documents, the trial court erred in sanctioning the claimant with

dismissal of his case for his failure to sign and comply with the oral settlement agreement.

The Supreme Court stated that “the oral settlement never legally bound [the claimant]

and thus could not be enforced because [the claimant] had not signed the agreement,

and, moreover, would have had thirty days from signing to withdraw his written consent.”

Id. at 203.

       {¶18} In the case sub judice, appellee, in its motion, noted            there was no

settlement agreement signed by both parties which had been submitted to the Industrial

Commission and which remained pending for 30 days and that,”[i]n short, there is no

binding agreement between the parties” and therefore nothing for the court to enforce.

       {¶19} The trial court, in its June 4, 2018 Judgment Entry, stated, in relevant part,

that “[a]t the hearing on the motion to enforce settlement, Plaintiff’s counsel stated that

after speaking with counsel for Defendant and reviewing the Defendant’s brief in

opposition to the motion to enforce, he realized that the was no legal basis upon which to

file the motion. Thus, Plaintiff retracted her argument that the settlement was valid and

made an oral motion to withdraw the Motion to Enforce, which the Court granted on the

record at the hearing.” The trial court, in awarding attorney fees, further stated, in relevant

part, as follows:

       {¶20} “What is now before the Court is the Defendant’s [appellee’s] motion for

sanctions and request for fees in having to respond to the Plaintiff’s [appellant’s] motion
Stark County, Case No. 2018CA00083                                                    7


to enforce settlement and attend the hearing. The Court is presented with a situation

where Plaintiff’s [appellant’s] counsel admitted that there was no legal basis for the motion

to enforce settlement to be filed. It is every attorney’s duty to know the laws that apply to

his or her case. Even after this mistake was made, Plaintiff [appellant] had three weeks

in between the filing of the brief in opposition and the hearing date in which she could

have withdrawn her motion to enforce. Rather than doing so, Plaintiff’s [appellant’s]

actions caused the Defendant [appellee] to prepare for and travel to the hearing on the

motion.’

       {¶21} We note that no transcript of hearing before the trial court has been filed. It

is well settled that when portions of the transcript necessary to resolve issues are not part

of the record on appeal, we must presume regularity in the trial court proceedings and

affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980).

Without such a transcript, we must, therefore, presume that the trial court was correct in

its findings.

       {¶22} Based on the foregoing, we find that the trial court did not abuse its

discretion in finding frivolous conduct and awarding attorney fees to appellee.

       {¶23} Appellant’s sole assignment of error is, therefore, overruled.

       {¶24} Appellee, in its brief, further argued that it is entitled to additional attorney

fees and expenses for appellant’s filing a frivolous appeal pursuant to App.R. 23. App.R.

23 states as follows: “If a court of appeals shall determine that an appeal is frivolous, it

may require the appellant to pay reasonable expenses of the appellee including attorney

fees and costs.”
Stark County, Case No. 2018CA00083                                                 8

       {¶25} In Burdge v. Supervalu Holdings, Inc., 1st Dist. No. C–060194, 2007-Ohio-

1318, 2007 WL 865483, ¶ 22, the First District Court of Appeals noted the following:

       {¶26} “App.R. 23 provides a court of appeals with authority to order an appellant

or his attorney to pay the reasonable expenses of the appellee, including attorney fees

and costs, where the court determines that the appeal is frivolous. An appeal is deemed

frivolous * * * when it does not present a reasonable question for review. The function of

App. R. 23 is to compensate a non-appealing party for the expenses incurred in having

to defend a frivolous appeal and to deter frivolous appeals in order preserve the appellate

calendar and limited judicial resources for cases that are truly worthy of the court's

consideration.” (Citations omitted).

       {¶27} Upon review, we find that the issues raised in this appeal are frivolous; no

reasonable argument can be advanced to support appellant assignment of error.

Accordingly, the application for an award of appellee's attorney fees and expenses is

granted. Appellee has attached an itemized bill to its brief showing that it incurred

$1,358.75 in fees and expenses with respect to the appeal. We note that appellant did

not file a reply brief. The same is, therefore, unrebutted, and appears, on its face, quite

reasonable. Therefore, we award appellee its attorney fees and expenses, pursuant to

App.R. 23, in the amount of $1,358.75.

       {¶28} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed. Furthermore, this court having concluded that this appeal is frivolous, in

accordance with App.R. 23, appellee is awarded its attorney fees and expenses in the

amount of $1,358.75.
Stark County, Case No. 2018CA00083                                             9


       {¶29} Accordingly, the judgment of the Stark County Court of Common Plea is

affirmed.

       {¶30} JUDGMENT IS HERE ENTERED pursuant to App.R. 23 in favor of the

defendant-appellee, and against the counsel for appellant in the sum in the sum of One

Thousand Three Hundred Fifty Eight Dollars and Seventy Five Cents ($1,358.75).

Dollars) and appellant is ordered to pay the costs of this action.

By: Baldwin, J.

Gwin, P.J. and

Wise, Earle, J. concur.
