         [Cite as Polk v. Spirit Homecare, Inc., 2012-Ohio-4948.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



NEDRA POLK,                                        :                APPEAL NO. C-120088
                                                                    TRIAL NO. A-1007872
        Plaintiff-Appellee,                        :
                                                                       O P I N I O N.
  vs.                                              :

SPIRIT HOMECARE, INC.,                             :

SAJJAD A. KHAN,                                    :

  and                                              :

SHAZIA KHAN, M.D.,                                 :

    Defendants-Appellants.                         :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 26, 2012


Nedra Polk, pro se,

Nadeem Quraishi, for Defendants-Appellants.




Please note: This case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




S UNDERMANN , Presiding Judge.

       {¶1}    Spirit Homecare, Inc., Sajjad Khan, and Shazia Khan (collectively

“Spirit Homecare”) appeal the trial court’s judgment that overruled Spirit

Homecare’s motion for sanctions against Nedra Polk. Because we conclude that the

trial court erred when it overruled the motion without having held a hearing on the

motion, we reverse the judgment of the trial court and remand the cause for a

hearing on Spirit Homecare’s motion.

       {¶2}    Nedra Polk sued Spirit Homecare for “race discrimination Title VII,”

“race discrimination ORC 4112.02 & 4112.99,” promissory estoppel, breach of

expressed/implied contract and interference with contract, wrongful discharge, and

“misrepresentation of employee status.” The trial court entered summary judgment

in favor of Spirit Homecare on all counts, except for Polk’s breach of contract claim,

which was tried to a jury. The jury returned a verdict in favor of Spirit Homecare.

This court affirmed the judgment of the trial court in Polk v. Spirit Homecare, Inc.,

1st Dist. No. C-110632 (May 9, 2012).

       {¶3}    Following the trial court’s entry of judgment, Spirit Homecare filed a

motion for sanctions for frivolous conduct, pursuant to R.C. 2323.51. The trial court

overruled Spirit Homecare’s motion without a hearing. Spirit Homecare filed a

motion for findings of fact and conclusions of law, but the trial court denied the

motion sub silentio.

       {¶4}    In its first assignment of error, Spirit Homecare asserts that the trial

court erred in failing to award reasonable attorney fees pursuant to R.C. 2323.51. We

review the trial court’s decision on a motion for sanctions under an abuse-of-

discretion standard. State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-

5350, 957 N.E.2d 19, ¶ 11.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



      {¶5}     R.C. 2323.51(A)(2)(a) defines “frivolous conduct” as “* * * [c]onduct of

a[] party to a civil action that satisfies any of the following:

       (i) It obviously serves merely to harass or maliciously injure another

       party to the civil action or appeal or is for another improper purpose,

       including, but not limited to, causing unnecessary delay or a needless

       increase in the cost of litigation.

       (ii) It is not warranted under existing law, cannot be supported by a

       good faith argument for an extension, modification, or reversal of

       existing law, or cannot be supported by a good faith argument for the

       establishment of new law.

       (iii) The conduct consists of allegations or other factual contentions

       that have no evidentiary support or, if specifically so identified, are not

       likely to have evidentiary support after a reasonable opportunity for

       further investigation or discovery.

       (iv) The conduct consists of denials or factual contentions that are not

       warranted by the evidence or, if specifically so identified, are not

       reasonably based on a lack of information or belief.”

       {¶6}     Here, the trial court did not hold a hearing on Spirit Homecare’s

motion. In Mays v. Rebar, 1st Dist. No. C-910585, 1992 Ohio App. LEXIS 5154, *7

(Oct. 7, 1992), we held that “R.C. 2323.51 does not mandate that a hearing be

conducted to determine whether a particular action involves frivolous conduct, but

does require that if attorney’s fees are to be ultimately awarded, then a hearing

indeed must be held in accordance with * * * R.C. 2323.51(B)(2).” See also Schwartz

v. Gen. Acc. Ins. of Am., 91 Ohio App.3d 603, 632 N.E.2d 1379 (1st Dist.1993). But

even if a trial court is not required to hold a hearing, appellate courts will find an

abuse of discretion on the part of the trial court when it arbitrarily denies a request



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                     OHIO FIRST DISTRICT COURT OF APPEALS



for sanctions. Poindexter v. Grantham, 8th Dist. No. 95825, 2011-Ohio-1576, ¶ 12.

“An arbitrary denial occurs when (1) the record clearly evidences frivolous conduct

and (2) the trial court nonetheless denies a motion for attorney fees without holding

a hearing.” Id., citing Bikkani v. Lee, 8th Dist. No. 89312, 2008-Ohio-3130.

       {¶7}    In this case, the record contains evidence that Polk’s actions may have

constituted frivolous conduct as defined in R.C. 2323.51. What initially began as a

contract dispute about how much Spirit Homecare owed Polk evolved into a

complaint alleging discrimination, wrongful discharge, and misrepresentation of

employee status. Spirit Homecare repeatedly attempted to settle the case, but Polk

changed her requested damages. Given the record before us, we conclude that there

was enough evidence that Polk may have acted frivolously to warrant a hearing on

the motion.    The trial court abused its discretion in ruling on the motion for

sanctions without holding a hearing. The first assignment of error is sustained.

       {¶8}    Given the disposition of the first assignment of error, Spirit

Homecare’s second assignment of error is moot.

       {¶9}    Therefore, we reverse the judgment of the trial court and remand the

case for a hearing on Spirit Homecare’s motion for sanctions.

                                               Judgment reversed and cause remanded.

D INKELACKER and F ISCHER , JJ., concur.


Please note:
       The court has recorded its own entry this date.




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