[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. DiFranco v. S. Euclid, Slip Opinion No. 2015-Ohio-4915.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2015-OHIO-4915
  THE STATE EX REL. DIFRANCO, APPELLANT, v. THE CITY OF SOUTH EUCLID
                                    ET AL., APPELLEES.

  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State ex rel. DiFranco v. S. Euclid, Slip Opinion No.
                                     2015-Ohio-4915.]
R.C. 2323.51 and Civ.R. 11—Motion for sanctions for frivolous conduct was
        untimely and conduct was not frivolous—Court of appeals’ judgment
        denying motion affirmed.
    (No. 2014-1761—Submitted June 23, 2015—Decided December 2, 2015.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 097713.
                                 _____________________
        Per Curiam.
        {¶ 1} This is the second appeal to this court in an action that originated as a
public-records mandamus case originally brought in the Eighth District Court of
Appeals. The case was first appealed to us on the issues of statutory damages and
attorney fees. We reversed the court of appeals’ judgment on damages and
                             SUPREME COURT OF OHIO




remanded the cause for a determination of damages under the proper statutory
criteria, and we affirmed the court of appeals’ denial of attorney fees. State ex rel.
DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136
(“DiFranco I”). On remand, the court of appeals awarded relator-appellant, Emilie
DiFranco, damages.
       {¶ 2} Shortly thereafter, DiFranco filed a motion for sanctions against
respondents-appellees, the city of South Euclid and its director of community
services, Keith A. Benjamin, and against their attorney, claiming that they had
engaged in frivolous conduct. The court of appeals denied that motion, and
DiFranco’s appeal from that judgment is now before this court.
       {¶ 3} Because the motion was made out of time, and because the court of
appeals did not abuse its discretion in denying the motion on the merits, we affirm.
                                        Facts
       {¶ 4} DiFranco filed a public-records mandamus case in the Eighth District
Court of Appeals to obtain records she had requested from South Euclid. DiFranco
I, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 6-7. In the course of the
litigation, appellees produced all the requested records, and the court of appeals
granted appellees’ motion for summary judgment. Id. at ¶ 1 and 2. The court of
appeals denied DiFranco’s request for statutory damages and attorney fees. Id. at
¶ 2.
       {¶ 5} DiFranco appealed from the portion of the judgment denying damages
and fees, and we found that she was not entitled to attorney fees but that she was
entitled to damages under R.C. 149.43(C)(1), and we remanded the case to the court
of appeals with instructions to determine damages. DiFranco I at ¶ 28-36.
       {¶ 6} On remand, the court of appeals awarded DiFranco damages.
Eighteen days later, DiFranco filed a motion for sanctions against appellees and
their counsel. After a responsive memorandum was filed, the court of appeals
denied the motion.




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                                January Term, 2015




       {¶ 7} DiFranco has appealed from that denial.
                                  Legal Analysis
       {¶ 8} DiFranco’s motion for sanctions was based on R.C. 2323.51 and
Civ.R. 11. Specifically, she argues that appellees engaged in frivolous conduct—
conduct causing unnecessary delay or a needless increase in the cost of litigation—
in 2011 by representing to the court of appeals that they had produced all responsive
records when they had not. Similarly, she asserted that appellees’ counsel had
violated Civ.R. 11 by submitting pleadings asserting that appellees had produced
all the responsive records when they had not.
       {¶ 9} We affirm the court of appeals’ judgment primarily because under
R.C. 2323.51, the motion for sanctions was filed out of time and could have been
denied on that ground alone. Similarly, under Civ.R. 11, the motion was filed
beyond a reasonable time. On the merits, the court of appeals was correct that
appellees and their counsel did not engage in frivolous conduct in defending the
public-records mandamus action, and therefore sanctions are not warranted.
The timeliness of the motion for sanctions under R.C. 2323.51
       {¶ 10} R.C. 2323.51 sets a 30-day time limit from the date of final judgment
in which a party may move for sanctions:


               (B)(1) Subject to divisions (B)(2) and (3), (C), and (D) of
       this section and except as otherwise provided in division (E)(2)(b)
       of section 101.15 or division (I)(2)(b) of section 121.22 of the
       Revised Code, at any time not more than thirty days after the entry
       of final judgment in a civil action or appeal, any party adversely
       affected by frivolous conduct may file a motion for an award of
       court costs, reasonable attorney’s fees, and other reasonable
       expenses incurred in connection with the civil action or appeal.




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(Emphasis added.)         “The term ‘final judgment’ as used in R.C. 2323.51 is
synonymous with the term ‘final order’ as defined by R.C. 2505.02.” Adams v.
Pitorak & Coenen Invests., Ltd., 11th Dist. Geauga No. 2013-G-3129, 2013-Ohio-
4102, ¶ 12, citing Soler v. Evans, St. Clair & Kelsey, 94 Ohio St.3d 432, 435-436,
763 N.E.2d 1169 (2002). As we stated in Soler:


        [T]he General Assembly manifested its intent that there be a cutoff
        time for this sanction to be imposed. This purpose is served by
        giving the aggrieved party the option of filing the sanctions motion
        at any time prior to trial or within twenty-one1 days of the last
        judgment rendered in the case. This would assure that twenty-one
        days after the entry of final judgment, the proceedings would be
        over.


(Footnote added.) Id. at 436. In Soler, we agreed with the Seventh District Court
of Appeals in Olivito v. Cavanaugh, 7th Dist. Jefferson Nos. 90-J-33 and 90-J-39,
1992 WL 398435, *13 (Dec. 30, 1992), which held that “the term ‘judgment’
should be interpreted as being synonymous with the term ‘final order’ as defined in
R.C. 2505.02.” In other words, the term “judgment” means a final, appealable
order. Soler at 435.
        {¶ 11} Moreover, in this case, the accusation of frivolous conduct involved
the merits of the case; specifically, DiFranco accuses appellees and their counsel of
deliberately and knowingly making the false statement that they had produced all
responsive documents when they had not. The final judgment involving the merits
of the case was the entry of September 26, 2012. The appeal from that judgment


1
 The version of the statute applicable in Soler had a 21-day cutoff rather than the current 30-day
cutoff. Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, 3974, 3976.




                                                4
                                January Term, 2015




to this court, DiFranco I, did not involve the merits, but involved only statutory
damages and attorney fees. Allowing DiFranco to succeed on a motion for
sanctions filed so long after the merits of the case had been decided would violate
the statute and the policy behind it as articulated in Soler: “The plain meaning of
the statute provides a means for an immediate judicial determination and a speedy
sanctioning of such abuse.” Id. at 436.
       {¶ 12} We therefore affirm the court of appeals’ rejection of the R.C.
2323.51 claim because the motion was untimely.
The merits of the motion under R.C. 2323.51
       {¶ 13} However, even if the motion had not been untimely, we would affirm
the court of appeals’ denial of the motion under R.C. 2323.51. “On appeal, [this
court] will not reverse a lower court’s decision on whether to award sanctions under
R.C. 2323.51 absent a showing of an abuse of discretion.” State ex rel. Bell v.
Madison Cty. Bd. of Commrs., 139 Ohio St.3d 106, 2014-Ohio-1564, 9 N.E.3d
1016, ¶ 10, citing State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-
5350, 957 N.E.2d 19, ¶ 11. To prove such an abuse, the appellant must establish
that the court of appeals’ award or denial of sanctions was unreasonable, arbitrary,
or unconscionable. Id.
       {¶ 14} DiFranco asserts that appellees’ answer and motion to dismiss,
which were filed on December 27, 2011, each assert several times that the requested
records had been provided and that the case was therefore moot when in fact, all
the records had not been provided and the case was not moot. DiFranco asserts that
these misrepresentations forced her to hire an accountant to show that documents
responsive to her request must exist but were not included among the documents
produced by appellees.
       {¶ 15} Frivolous conduct, as contemplated by R.C. 2323.51(A)(2)(a), is
judged under an objective, rather than a subjective standard, Striker, ¶ 21, and must
involve egregious conduct. Frivolous conduct is not proved merely by winning a




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                              SUPREME COURT OF OHIO




legal battle or by proving that a party’s factual assertions were incorrect. Ohio
Power Co. v. Ogle, 4th Dist. Hocking No. 12CA14, 2013-Ohio-1745, ¶ 29-30 (“ ‘A
party is not frivolous merely because a claim is not well-grounded in fact. * * *
[R.C. 2323.51] was designed to chill egregious, overzealous, unjustifiable, and
frivolous action. * * * [A] claim is frivolous if it is absolutely clear under the
existing law that no reasonable lawyer could argue the claim’ ”), quoting Hickman
v. Murray, 2d Dist. Montgomery No. CA1-5030, 1996 WL 125916, *5 (Mar. 22,
1996).
         {¶ 16} Here, appellees initially asserted that they had produced all the
records that were responsive to DiFranco’s request. DiFranco then presented the
affidavit of accountant Brian Johnson, who had reviewed the documents and opined
that additional documents must exist. Following discussions between Johnson and
South Euclid’s finance director, appellees produced additional documents. In other
words, after the affidavit was filed, appellees cooperated with Johnson to determine
what documents Johnson considered still outstanding, and they produced those
documents. The court of appeals then granted summary judgment in favor of
appellees. Appellees did not deny the conclusions of the expert or continue to claim
that all the documents had been produced when they were faced with evidence that
some documents were still outstanding.
         {¶ 17} The court of appeals reasonably found that South Euclid’s actions
did not constitute “frivolous conduct” under R.C. 2323.51.
Timeliness under Civ.R. 11
         {¶ 18} Although Civ.R. 11 does not articulate a time limit, courts have held
that a Civ.R. 11 motion must be filed within a reasonable time of the final judgment.
See, e.g., In re Krueger, 8th Dist. Cuyahoga No. 100694, 2014-Ohio-3718, ¶ 10.
Counsel’s questioned conduct here occurred during the merits stage of the
litigation; the final, appealable order on the merits was entered in September 2012,
and no appeal was taken from the ruling on the merits. Any Civ.R. 11 motion




                                          6
                                January Term, 2015




regarding conduct during the merits part of the litigation should have been filed
shortly thereafter, not almost two years later.
                                    Conclusion
       {¶ 19} We affirm the court of appeals’ denial of the motion for sanctions
because the motion was untimely, having been filed almost two years after the final
order on the merits of the case. Moreover, the court of appeals did not abuse its
discretion in its determination that the actions of appellees and their counsel in
defending the case were not taken in bad faith or with the purpose of delay.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                                _________________
       The Law Firm of Curt C. Hartman and Curt C. Hartman; and Finney Law
Firm, L.L.C., and Christopher P. Finney, for appellant.
       Michael P. Lograsso, South Euclid Law Director; and Nicola, Gudbranson
& Copper, L.L.C., Vincent A. Feudo, and Michael E. Cicero, for appellees.
                                _________________




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