[Cite as Weaver v. Pillar, 2013-Ohio-1052.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
BRIAN WEAVER, ET AL                           :       Hon. W. Scott Gwin,, P.J.
                                              :       Hon. William B. Hoffman, J.
Plaintiffs-Appellants/Cross-Appellees         :       Hon. John W. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 2012-CA-32
MILES PILLAR                                  :
                                              :
Defendant-Appellee/Cross-Appellant            :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Tuscarawas County
                                                  Court of Common Pleas, Case No.2010-
                                                  CT-0247



JUDGMENT:                                         Reversed



DATE OF JUDGMENT ENTRY:                           March 18, 2013

APPEARANCES:

For Plaintiff-Appellant                           For Defendant-Appellee

DAN GUINN                                         MATTHEW MULLEN
118 West High Avenue                              Krugliak, Wilkins, Griffiths & Dougherty
New Philadelphia, OH 44663                        Co., L.P.A.
                                                  158 North Broadway
                                                  New Philadelphia, OH 44663
[Cite as Weaver v. Pillar, 2013-Ohio-1052.]


Gwin, P.J.

        {¶1}     Appellant Dan Guinn appeals from the April 9, 2012 Judgment Entry

issued by the Tuscarawas County Court of Common Pleas. Appellee Miles Pillar filed a

Cross-Appeal.

                                     FACTS & PROCEDURAL HISTORY

        {¶2}     Miles Pillar (“Pillar”) is the owner of NCG/Red Hill Crane, a company that

operates a crane and equipment rental service. At some point in the fall of 2008, Brian

Weaver, on behalf of his business Number One Affordable Tree Service, rented some

heavy equipment from Red Hill to use in his business. Thereafter, a heated dispute

arose between the two entities as to payment for the use of the equipment.

        {¶3}     Pillar made multiple calls to the residence of Weaver and Jennifer Paisley,

Weaver’s fiancée. Pillar contends the calls were all to the business phone number in

furtherance of collecting the debt Weaver owed him. Weaver and Paisley state the calls

were frequent and caused them to fear for their safety. Pillar was found guilty of three

counts of telecommunications harassment after he repeatedly called Weaver in August

of 2009, after the Dover police told Pillar to cease making the calls. This court affirmed

the trial court’s decision finding Pillar guilty in State of Ohio v. Pillar, 5th Dist. No. 2012

AP 01 0007, 2012-Ohio-3926.

        {¶4}     Paisley and Weaver state Pillar drove by their home on several occasions.

Weaver’s business is located in their home. Pillar admits to driving by the home and

business, but states this is because the house fronts a main street in Dover.

        {¶5}     In August of 2009, Pillar removed Weaver’s wood chipper from Weaver’s

property. Pillar states he did not know this was a criminal activity; he only did so to
Tuscarawas County, Case No. 2012-CA-32                                                       3


encourage Weaver to pay his debt, and did not damage the wood chipper. Weaver

contends Pillar tampered with the wood chipper by removing a gas line and placing an

unknown substance in the gas tank. In August of 2010, Pillar pled guilty to an amended

indictment of one count of theft based upon his removal of Weaver’s wood chipper from

Weaver’s property.

       {¶6}   In November of 2009, Pillar filed a small claims suit against Weaver in the

New Philadelphia Municipal Court. The magistrate issued a decision finding Weaver

failed to pay for services rendered and awarded judgment for $1,828.00 plus interest on

January 25, 2010. Weaver filed objections to the Magistrate’s decision on February 5,

2010. The trial court approved and adopted the magistrate’s decision on December 29,

2011. Weaver appealed the trial court’s order on January 30, 2012, arguing the trial

court abused its discretion in finding that he did not satisfy the terms of the contract

between the parties. This Court affirmed the trial court’s decision on October 30, 2012,

in NCG/Red Hill, Inc. v. Weaver, 5th Dist. No. 12 AP 01 0008, 2012-Ohio-5093.

       {¶7}    On February 23, 2010, Attorney Dan Guinn (“Appellant”) filed a complaint

on behalf of his clients, Brian Weaver dba Number One Affordable Tree Service, LLC

and Jennifer Paisley (“Plaintiffs”) against Miles Pillar for conversion, intentional infliction

of emotion distress, invasion of privacy, and defamation.           Pillar filed a Motion for

Summary Judgment, covering all of Plaintiffs’ claims, on February 11, 2011. The trial

court held an oral hearing on Pillar’s Motion for Summary Judgment. Neither Plaintiffs

nor Appellant appeared at the hearing or responded to the Motion for Summary

Judgment. Therefore, the trial court granted Pillar’s Motion for Summary Judgment.
Tuscarawas County, Case No. 2012-CA-32                                                    4

This court affirmed the trial court’s entry granting summary judgment in Weaver v. Pillar,

5th Dist. No. 2011 AP 03 0017, 2012-Ohio-33, on January 4, 2012.

       {¶8}   On March 11, 2011, Pillar filed a motion for sanctions pursuant to R.C.

2323.51, stating that Plaintiffs and Appellant filed a complaint with false statements

merely to harass or maliciously and financially injure him, the claims were not warranted

under existing law and cannot be supported by a good faith argument for an extension,

modification, or reversal of existing law, and contained false allegations with no factual

support. Pillar requested the trial court order Plaintiffs and Appellant to jointly and

severally pay $5,041.25 to Pillar for legal fees expended and costs. On April 8, 2011,

Appellant filed a motion for relief from the summary judgment entry pursuant to Rule

60(B) and a response to the motion for sanctions. The trial court deferred consideration

of the motions until this court ruled on the appeal of the summary judgment entry.

       {¶9}   A hearing was held on Plaintiffs’ Motion for Relief pursuant to Rule 60(B)

and Pillar’s Motion for Sanctions on February 21, 2012. Neither party presented any

testimony or witnesses during the hearing.        Pillar submitted the deposition of his

previous Attorney Steven A. Anderson regarding the reasonableness of his bill and fees

requested.

       {¶10} On April 9, 2012, the trial court issued a judgment entry denying Plaintiffs’

motion for relief pursuant to Rule 60(B) and granting Pillar’s motion for sanctions. The

trial court found “that some of the claims in Plaintiffs’ Complaint were frivolous, and that

Plaintiffs have engaged in frivolous conduct.” The trial court further found that Pillar was

adversely affected by frivolous conduct. After reviewing the billing statement attached

to the motion for sanctions and the deposition of Attorney Steven Anderson, the court
Tuscarawas County, Case No. 2012-CA-32                                                      5


found an additional $1,000.00 in attorney fees were reasonably incurred by Pillar in

defense of Plaintiffs’ frivolous claims and appropriate pursuant to R.C. 2323.51. The

trial court granted Pillar’s motion for sanctions, in part, requiring Plaintiffs and Appellant

to jointly and severally pay $1,000.00 in attorney’s fees to Pillar.

       {¶11} Attorney Guinn filed an appeal of the trial court’s April 9, 2012 judgment

entry. Plaintiffs did not file an appeal of the trial court’s judgment entry requiring them to

pay $1,000.00 in attorney fees to Pillar.

       {¶12} Appellant Guinn now raises the following assignments of error on appeal:

       {¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING

THAT FRIVOLOUS CONDUCT OCCURRED UNDER ORC 2323.51 SINCE THERE

WAS A VALID BASIS FOR EACH CLAIM UNDER THE LAW.

       {¶14} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING

THAT THE DEFENDANT WAS ADVERSELY AFFECTED BY DEFENDING THIS

LAWSUIT.

       {¶15} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING

THAT ATTORNEY FEES SHOULD BE AWARDED AGAINST THE PLAINTIFFS’

COUNSEL SINCE IT WAS REASONABLE FOR COUNSEL TO PURSUE THIS

LAWSUIT BASED UPON THE EVIDENCE PRESENTED TO HIM.”

       {¶16} Appellee/Cross-Appellant Miles Pillar assigns a single error on cross-

appeal:
Tuscarawas County, Case No. 2012-CA-32                                                    6


                                   Cross-Assignment of Error

      {¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING

THAT APPELLEE WAS ONLY ENTITLED TO $1,000.00 IN DAMAGES ON ITS CLAIM

OF FRIVOLOUS CONDUCT UNDER O.R.C. 2323.51.”

                                                   I.

      {¶18} R.C. 2323.51 provides that 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. In R.C. 2323.51(A)(2)(a), “frivolous conduct” is defined as follows:

             “(i) * * * [conduct that] 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) * * * [conduct that] is not warranted under existing law and

      cannot be supported by a good faith argument for an extension,

      modification, or reversal of existing law.

             (iii) * * * [conduct that] consists of allegations or other factual

      contentions that have no evidentiary support or, if specifically identified,

      are not likely to have evidentiary support after a reasonable opportunity for

      further investigation or discovery.”

      {¶19} A motion for sanctions pursuant to R.C. 2323.51 requires a three-step

analysis by the trial court: (1) whether the party engaged in frivolous conduct, (2) if the

conduct was frivolous, whether any party was adversely affected by it, and (3) if an
Tuscarawas County, Case No. 2012-CA-32                                                7

award is to be made, the amount of award. Ferron v. Video Professor Inc., 5th Dist. No.

08-CAE-09-0055, 2009-Ohio-3133. The question of what constitutes frivolous conduct

may be either a factual determination, or a legal determination. Pingue v. Pingue, 5th

Dist. No. 06-CAE-10-0077, 2007 WL 2713763 (Sept. 18, 2007), citing Wiltberger v.

Davis, 110 Ohio App.3d 46, 673 N.E.2d 628 (10th Dist. 1996). A determination that the

conduct is not warranted under existing law and cannot be supported by a good faith

argument for an extension, modification, or reversal of existing law requires a legal

analysis. Lable & Co. v. Flowers, 104 Ohio App.3d 227, 661 N.E.2d 782 (9th Dist.

1995). Thus,

               While the abuse of discretion standard is appropriate when

      reviewing a trial court’s determination of whether a party has engaged in

      conduct merely to harass or maliciously injure another, an issue that

      necessarily involves factual considerations, it is improper for a reviewing a

      trial court’s determination whether a party has pursued a legally

      groundless claim. Because legally groundless frivolous conduct involves

      a question of law, we review it de novo.

      {¶20} Riston v. Butler, 149 Ohio App.3d 390, 397-398, 2002-Ohio-2308, 777

N.E.2d 857 (1st Dist). A purely legal issue is reviewed de novo. Wiltberger, 110 Ohio

App.3d 46, 673 N.E. 2d 628 (10th Dist. 1996). However, some degree of deference is

appropriate in reviewing a trial court’s factual determinations and we will not disturb

factual determinations where the record contains competent, credible evidence to

support these findings. Id.
Tuscarawas County, Case No. 2012-CA-32                                                      8


       {¶21} R.C. 2323.51 was designed to chill egregious, overzealous, unjustifiable

and frivolous actions, not to chill legitimate claims or punish misjudgment or tactical

error. Ferron, 5th Dist. No. 08-CAE-09-0055, 2009-Ohio-3133; Riston, 149 Ohio App.3d

390, 2002-Ohio-2308, 777 N.E.2d 857. The test in determining whether the claim itself

is frivolous is whether no reasonable lawyer would have brought the action in light of the

existing law. Riston, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, citing

Hickman v. Murray, 2nd Dist. No. CA 15030, 1996 WL 125916 (March 22, 1996). “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. at 400, quoting Hickman v. Murray.

Further, simply because a claim is unsuccessful, a finding of frivolous conduct for

bringing the claims is not automatically warranted. Ferron, 5th Dist. No. 08-CAE-09-

0055, 2009-Ohio-3133; See also Lable & Co., 104 Ohio App.3d 227, 661 N.E.2d 782

(9th Dist. 1995) (finding sanctions were not appropriate even though summary judgment

was granted).

                                     R.C. 2323.51(A)(2)(a)(i)

       {¶22} In his motion for sanctions, Pillar argues he is entitled to attorney fees

pursuant to R.C. 2323.51 because Appellant engaged in conduct that 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.

       {¶23} The trial court found that “some” of the claims in Plaintiffs’ complaint were

frivolous. However, it is unclear what the trial court determined was frivolous and there

is no specific finding by the trial court that the filing of the complaint was done to “harass
Tuscarawas County, Case No. 2012-CA-32                                                     9


or maliciously injure” Pillar. Further, there is no evidence in the record that Plaintiffs or

Appellant intended to harass or maliciously injure Pillar.        Accordingly, we cannot

conclude that the trial court based its decision to impose sanctions on R.C.

2323.51(A)(2)(a)(i).

                                            Conversion

       {¶24} Pillar states the filing of a claim for conversion and the failure to make a

reasonable inquiry of the facts of the complaint regarding conversion by Appellent

constitutes frivolous conduct because there is no physical evidence Pillar tampered with

the wood chippers. We disagree. Conversion is defined as the “wrongful exercise of

dominion over property to the exclusion of the rights of the owner, or withholding it from

his possession under a claim inconsistent with his rights.” Heflin v. Ossman, 5th Dist.

No. 05CA17, 2005-Ohio-6876, quoting Joyce v. General Motors Corp., 49 Ohio St.3d

93, 96, 551 N.E.2d 172 (1990).

       {¶25} We find a reasonable lawyer might have brought and argued Plaintiffs’

action for conversion in light of the existing law. Pillar admitted to taking the wood

chipper without permission and pled guilty to an amended indictment of one count of

theft based upon his removal of Weaver’s wood chipper from Weaver’s property. In his

discovery responses, Weaver states the wood chipper that was fully operational prior to

Pillar’s removing it from Weaver’s property had a gas line removed and a substance

added to the oil. Weaver also states a second wood chipper was damaged in the same

fashion as the first wood chipper that Pillar admitted to removing from Weaver’s

property.
Tuscarawas County, Case No. 2012-CA-32                                                   10

                           Intentional Infliction of Emotional Distress

       {¶26} Pillar argues the filing of a claim for intentional infliction of emotional

distress and the failure to make a reasonable inquiry of the facts of the complaint

regarding intentional infliction of emotional distress by Appellant constitutes frivolous

conduct because Plaintiffs’ medical records demonstrate Pillar was not the cause of any

emotional distress and Plaintiffs should have expected business collection calls to be

made to their combined business/home phone line. We disagree. “To prove a claim of

intentional infliction of emotional distress, the plaintiff must show that the defendant

intentionally or recklessly caused him serious emotional distress by extreme and

outrageous conduct.” Stafford v. Columbus Bonding Ctr., 177 Ohio App.3d 799, 809,

2008-Ohio-3948, 896 N.E.2d 191 (10th Dist.), citing Yeager v. Local Union 20, 6 Ohio

St.3d 369, 453 N.E.2d 666 (1983).

       {¶27} We find a reasonable lawyer could have brought and argued Plaintiffs’

action for intentional infliction of emotional distress in light of the existing law. Pillar

admits in an affidavit he contacted Weaver’s business phone number numerous times,

but he was always attempting to collect a debt and never harassed or threatened

Weaver or his fiancée. In their answers to interrogatories, both Weaver and Paisley

state Pillar phoned them numerous times. Paisley states she saw Pillar drive by the

residence on at least two occasions, she had panic attacks, and feared for the safety of

her family due to the actions of Pillar. While the medical records demonstrate Weaver

and Paisley were on anti-anxiety medication prior to the incidents with Pillar, this fact

alone would not make the filing of the compliant for intentional infliction of emotional

distress frivolous.
Tuscarawas County, Case No. 2012-CA-32                                                      11


       {¶28} Further, at the time of the filing of the complaint, Appellant had available to

him records of two separate criminal convictions of Pillar. In one case, Pillar was found

guilty of three counts of telecommunications harassment stemming from calls made to

Plaintiffs. In the other case, Pillar pled guilty to an amended indictment of one count of

theft based upon his removal of Weaver’s wood chipper from Weaver’s property. It is

feasible that the victims in these cases might have been able to show that Pillar

intentionally or recklessly caused them serious emotional distress by extreme and

outrageous conduct.

                                        Invasion of Privacy

       {¶29} Pillar argues the filing of a claim for invasion of privacy and the failure to

make a reasonable inquiry of the facts of the complaint regarding invasion of privacy by

Appellent constitutes frivolous conduct because Plaintiffs should expect collection calls

to come to their combined business/home phone line.             We disagree.      The tort of

invasion of privacy includes four separate torts:         “(1) intrusion upon the plaintiff’s

seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing

private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in

the public eye; and (4) appropriation.” Peterman v. Stewart, 5th Dist. No. 05-CAE-12-

0082, 2006-Ohio-4671, citing Henson v. Henson, 9th Dist. No. 22772, 2005-Ohio-6321.

       {¶30} Plaintiffs did not claim Pillar misappropriated their name or likeness,

publicized their affairs, or portrayed them in a false light. Rather, Plaintiffs claimed Pillar

made an unreasonable intrusion upon their right to seclusion. “One who intentionally

intrudes, physically or otherwise, upon the solitude or seclusion of another or his private

affairs or concerns, is subject to liability to the other for invasion of his privacy if the
Tuscarawas County, Case No. 2012-CA-32                                                    12

intrusion would be highly offensive to a reasonable person.” Sustin v. Fee, 69 Ohio

St.2d 143, 145, 431 N.E.2d 992 (1982).

       {¶31} We find a reasonable lawyer could have brought and argued Plaintiffs’

action for invasion of privacy in light of the existing law. As noted above, Pillar states in

an affidavit that he contacted Weaver’s business phone number numerous times to

collect a debt and both Weaver and Paisley state Pillar phoned them numerous times.

Paisley states she saw Pillar drive by the residence on at least two occasions, she had

panic attacks, and feared for the safety of her family due to the actions of Pillar. Pillar

was found guilty of three counts of telecommunications harassment stemming from calls

made to Weaver and pled guilty to an amended indictment of one count of theft based

upon his removal of Weaver’s wood chipper from Weaver’s property. It is feasible that

such intrusion might be highly offensive to a reasonable person.

                                           Defamation

       {¶32} Pillar argues the filing of a claim for defamation and the failure to make a

reasonable inquiry of the facts of the complaint regarding defamation by Appellent

constitutes frivolous conduct because Pillar’s true statements made against Plaintiffs

could not constitute defamation. We disagree. The following elements are needed to

establish a defamation claim:

              “(a) a false and defamatory statement concerning another; (b) an

       unprivileged publication to a third party; (c) fault amounting at least to

       negligence on the part of the publisher; and (d) either actionability of the

       statement irrespective of special harm or the existence of special harm

       caused by the publication.” (Internal citations and quotations omitted).
Tuscarawas County, Case No. 2012-CA-32                                                   13

       {¶33} Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv. Inc., 81 Ohio

App.3d 591, 601, 611 N.E.2d 955 (9th Dist. 1992).

       {¶34} In Plaintiffs’ complaint, they allege that in August of 2009, Pillar went to

the homes of different individuals and told them Plaintiffs owed him money, that these

statements were false and defamatory because Plaintiffs paid the debt owed to Pillar,

and that Pillar’s statements caused these individuals to believe Plaintiffs were not

trustworthy in their business dealings.      In his answers to interrogatories, Weaver

identifies John Bitikofer and James Pietro as the individuals Plaintiffs allege Pillar told

Plaintiffs owed him money. Pillar argues the New Philadelphia Court’s judgment in

favor of Pillar and this court’s subsequent judgment entry affirming the New Philadelphia

Municipal Court’s judgment demonstrates the defamation claim was frivolous.

       {¶35} We agree with Pillar that the truth is a complete defense to defamation.

See Croskey v. Universal Health Serv., 5th Dist. No. 09 CA 37, 2009-Ohio-5951.

However, in this case, the issue as to whether a debt was owed by Plaintiffs to Pillar

was not settled until October 30, 2012.       In his answers to interrogatories, Weaver

maintains he paid Pillar for the equipment and work done. Weaver correctly states that,

at the time of his answering the interrogatories, the magistrate had issued a decision

finding him liable, but Weaver had filed objections to the magistrate’s decision. The trial

court did not approve and adopt the magistrate’s decision until December 29, 2011,

over a year after the complaint filed by Plaintiffs on February 23, 2010. Further, the trial

court had not approved and adopted the magistrate’s decision prior to the filing of

Pillar’s Motion for Summary Judgment on February 11, 2011. Weaver continued to
Tuscarawas County, Case No. 2012-CA-32                                                    14


dispute whether he paid Pillar when he appealed the New Philadelphia Municipal

Court’s order on January 30, 2012.

       {¶36} At the time of the filing of the complaint and when a judgment was

rendered by the trial court on the summary judgment motion, the question of whether

Plaintiffs paid Pillar was being litigated and no final conclusion had been reached.

Thus, Appellant could not know, with reasonable inquiry, whether the defense of truth

would prevent his defamation claim from being actionable.            Therefore, we find a

reasonable lawyer might have brought and argued Plaintiffs’ action in light of the

existing law.

       {¶37} We find that while the claims in Plaintiffs’ complaint may have been

unsuccessful, the claims for conversion, intentional infliction of emotional distress,

invasion of privacy, and defamation were not wholly unwarranted, could be supported

by a good faith argument, did not lack evidentiary support, and Appellant made a

reasonable inquiry of the facts of the complaint regarding the claims.        We therefore

reverse the trial court on its determination that Appellant engaged in frivolous conduct

and sustain Appellant’s First Assignment of Error.

                                                 II.

       {¶38} “Where a determination has been made that an entire lawsuit, a certain

claim or claims, or a defense or defenses asserted in a civil action were frivolous, the

party seeking R.C. 2323.51 attorney fees must affirmatively demonstrate that he or she

incurred additional attorney fees as a direct, identifiable result of defending the frivolous

conduct in particular.” Wiltberger, 110 Ohio App.3d at 54, 673 N.E.2d 628 (10th Dist.
Tuscarawas County, Case No. 2012-CA-32                                                     15


1996).    A party is not adversely affected only “upon the fundamental necessity to

expend attorney fees to defend a lawsuit in general.” Id.

         {¶39}       In this case, Pillar submitted a deposition by Attorney Steven

Anderson and a billing statement with a breakdown of the requested $5,041.25 amount.

This billing statement includes time for: reviewing the complaint, preparing an answer,

preparing discovery, reviewing medical records, conferencing with his client,

researching issues related to the motion for summary judgment, preparing of the motion

for summary judgment, and attendance at the summary judgment hearing. Attorney

Anderson testified he prepared the billing statement and the fees charged by his firm in

this case are reasonable and necessary.        However, the services listed by Attorney

Anderson in the billing statement cover the types of actions necessary to defend the

lawsuit in general, rather than being directly related to the alleged frivolous conduct.

         {¶40} We find the record lacks evidence that Pillar was adversely affected by

having to defend allegedly frivolous claims, as distinguished from the need to defend

the lawsuit in general. Accordingly, we sustain Appellant’s Second Assignment of Error.

                                 III. & Cross-Assignment of Error

         {¶41} The trial court determined the amount requested by Pillar of $5,041.25

was not reasonable and instead found $1,000.00 in attorney fees were reasonably

incurred by Pillar in defense of Plaintiffs’ frivolous claims and was appropriate pursuant

to R.C. 2323.51. Pillar argues the trial court abused its discretion in only awarding

$1,000.00 in attorney fees. Appellant argues the trial court abused its discretion by

awarding any attorney fees.
Tuscarawas County, Case No. 2012-CA-32                                                   16


       {¶42} As noted above, when a determination is made that a claim or lawsuit is

frivolous, the party seeking fees must show that additional fees were incurred “as a

direct, identifiable result of defending the conduct in particular.” Wiltberger, 110 Ohio

App.3d at 54, 673 N.E.2d 628 (10th Dist. 1996).      The trial court’s judgment entry does

not describe with specificity how it arrived at the lower figure. Thus, this court cannot

determine if the attorney fees are directly related to actions necessitated by the alleged

frivolous conduct. However, since we sustained Assignments of Error I and II, it is not

necessary to remand the matter to the trial court to state with specificity which portion of

the attorney fees are directly related to the claim alleged to be frivolously brought under

R.C. 2323.51.

       {¶43} Upon our review of the record, we find the trial court erred in finding

Appellant Dan Guinn engaged in frivolous conduct and in finding that Pillar was

adversely affected by the alleged frivolous conduct.
Tuscarawas County, Case No. 2012-CA-32                                   17


      {¶44} The judgment of the Tuscarawas County Court of Common Pleas is

reversed.

By Gwin, P.J., and

Wise, J., concur;

Hoffman, J., concurs

separately
                                         _________________________________
                                         HON. W. SCOTT GWIN


                                         _________________________________
                                         HON. WILLIAM B. HOFFMAN


                                         _________________________________
                                         HON. JOHN W. WISE



WSG:clw 0227
Tuscarawas County, Case No. 2012-CA-32                                              18


Hoffman, J., concurring

      {¶45}     I concur in the majority’s analysis and disposition of Appellant/Cross-

Appellee’s first assignment of error and Appellee/Cross-Appellant’s cross-assignment

of error.

      {¶46} Based thereon, I would find Appellant/Cross-Appellee’s second and third

assignments of error moot.



                                              ________________________________
                                              HON. WILLIAM B. HOFFMAN
[Cite as Weaver v. Pillar, 2013-Ohio-1052.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


BRIAN WEAVER, ET AL                            :
                                               :
   Plaintiffs-Appellants/Cross-Appellees       :
                                               :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
MILES PILLAR                                   :
                                               :
                                               :
    Defendant-Appellee/Cross-Appellant         :       CASE NO. 2012-CA-32




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Tuscarawas County Court of Common Pleas is reversed as to appellant

Guinn only. Appellee to pay court costs.




                                                   _________________________________
                                                   HON. W. SCOTT GWIN

                                                   _________________________________
                                                   HON. WILLIAM B. HOFFMAN

                                                   _________________________________
                                                   HON. JOHN W. WISE
