[Cite as Keith-Harper v. Lake Hosp. Sys., Inc., 2017-Ohio-7361.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


LINDA KEITH-HARPER,                                      :         OPINION

                 Plaintiff-Appellant,                    :

(THE SPITZ LAW FIRM, LLC, et al.,                        :         CASE NO. 2015-L-137

                 Appellants),                            :

        - vs -                                           :

LAKE HOSPITAL SYSTEM, INC. et al.,                       :

                 Defendants-Appellees.                   :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 14 CV 000459.

Judgment: Affirmed.


Brian D. Spitz, The Spitz Law Firm, LLC, 25200 Chagrin Boulevard, Suite 200,
Beachwood, OH 44122 (Appellants).

Christopher B. Congeni and Daniel J. Rudary, Brennan, Manna & Diamond, 75 East
Market Street, Akron, OH 44308 (For Defendants-Appellees).



THOMAS R. WRIGHT, J.



        {¶1}     Appellants, Attorney Brian D. Spitz and the Spitz Law Firm, LLC

(collectively Spitz), appeal the trial court’s decision awarding Lake Hospital System, Inc.

and Maria Creagh $22,926.72 in attorney fees and expenses. We affirm.
       {¶2}   In February 2014, Spitz filed a complaint on behalf of Linda Keith-Harper

against Lake Hospital System, Inc. and Maria Creagh (collectively appellees). Keith-

Harper worked for the hospital as an LPN and thereafter an RN for more than 15 years.

Creagh became Keith-Harper’s supervisor and department manager in 2012 until Keith-

Harper was terminated in September of 2013.

       {¶3}   The complaint alleges seven causes of action against appellees arising

from Keith-Harper’s termination, including age discrimination, wrongful termination

based on age discrimination, disability discrimination based on Keith-Harper’s knee

replacement, wrongful termination based on disability discrimination, unlawful FMLA

retaliation, workers’ compensation retaliation, and intentional infliction of emotional

distress.

       {¶4}   Appellees filed their motion for summary judgment in December 2014.

The trial court granted summary judgment on all claims in appellees’ favor on May 27,

2015. No appeal was filed from this decision.

       {¶5}   Appellees subsequently filed a motion for sanctions under R.C. 2323.51

and Civ.R. 11 against plaintiff’s counsel Brian D. Spitz and the Spitz Law Firm, LLC.

The trial court held a frivolous conduct hearing, and thereafter concluded in its seven-

page decision that “Spitz’s conduct after December 16, 2014 met the criteria of frivolous

conduct under R.C. 2323.51(A)(2) * * *.” The trial court found Attorney Brian D. Spitz

and the Spitz Law Firm LLC jointly and severally responsible for $22,926.72 in

expenses and attorney fees the hospital incurred after most discovery had ended. The

court did not find a Civ.R. 11 violation.

       {¶6}   Spitz’s amended appellate brief asserts six assignments of error. We

address his first two assignments together for ease of analysis, which assert:

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       {¶7}   “The trial court committed reversible error by finding frivolous conduct in

prosecuting Keith-Harper’s claims.

       {¶8}   “Because Brian Spitz did not engage in any frivolous conduct, the trial

court erred in sanctioning him.”

       {¶9}   R.C. 2323.51(B)(1) provides:

       {¶10} “[A]ny 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. The court may assess and make

an award to any party to the civil action or appeal who was adversely affected by

frivolous conduct * * *.”

       {¶11} Pursuant to R.C. 2323.51(B)(4), the award can be “made against a party,

the party’s counsel of record, or both.”

       {¶12} R.C. 2323.51(A)(2) defines “frivolous conduct,” in relevant part, as:

       {¶13} “(a) Conduct of [a] party to a civil action, * * * that satisfies any of the

following:

       {¶14} “* * *

       {¶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} Unlike Civ.R. 11, R.C. 2323.51 does not require a showing that the

individual willfully engaged in frivolous conduct. Grove v. Gamma Ctr., 3d Dist. Marion

No. 9-14-29, 2015-Ohio-1180, ¶115.         R.C. 2323.51 uses an objective standard in

determining whether sanctions may be imposed for frivolous conduct. Kester v. Rogers,

11th Dist. Lake Nos. 93-L-056 and 93-L-072, 1994 Ohio App. LEXIS 1949, *10 (May 6,

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1994).    Thus, a finding of frivolous conduct under R.C. 2323.51 is decided without

inquiry as to what the individual knew or believed, and instead asks whether a

reasonable lawyer would have filed the action or continued to pursue the claims in light

of existing law or facts in a particular case. Omerza v. Bryant & Stratton, 11th Dist.

Lake No. 2006-L-147, 2007-Ohio-5216, ¶15, citing City of Wauseon v. Plassman (Nov.

22, 1996), 6th Dist. No. F-96-003, 1996 Ohio App. LEXIS 5168, 8; Pingue v. Pingue, 5th

Dist. Delaware No. 06-CAE-10-0077, 2007-Ohio-4818, ¶20.

         {¶17} The trial court held the frivolous conduct hearing August 20, 2015, and

thereafter held in part,

         {¶18} “Spitz’s conduct after December 16, 2014 met the criteria of frivolous

conduct under R.C. 2323.51(A)(2) in that plaintiff’s allegations or other factual

contentions had no evidentiary support and were not likely to have evidentiary support

particularly after the first deposition of Keith-Harper which failed to provide evidence

supporting her claims.”

         {¶19} It explained its decision in detail, stating why each of Keith-Harper’s claims

lacked merit:

         {¶20} “By the beginning of December [2015], it was clear that there was no

evidence that plaintiff had requested or taken FMLA thus rendering her claim of unlawful

FMLA retaliation as baseless. * * * There was no evidence that she was disabled or

perceived as disabled. * * * There was simply no evidence she was terminated for

claiming workers compensation benefits that ended ten months earlier.              She had

received workers compensation benefits for eight years with no problems from

defendants. * * * [Keith-Harper] never testified that she was directly targeted because of

her age. Creagh testified that she was more than forty years old herself. At this point in

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discovery, defendants turned over a considerable amount of material documenting

plaintiff’s declining performance and disciplinary actions for insubordination, violation of

hospital protocol and unsatisfactory performance.          The evidence showing she was

terminated for just cause is overwhelming. * * * With respect to plaintiff’s claim of

intentional infliction of emotional distress, there was no evidence that defendants

exceeded their legal right to criticize and correct plaintiff’s work.

       {¶21} “* * * The first deposition of plaintiff was completed by the end of

November 2014 and Creagh’s deposition was completed on December 11, 2014.

These depositions essentially refuted plaintiff’s allegations.          After this court granted

several extensions, Spitz filed a brief in opposition to summary judgment * * * and later

* * * submitted a monetary demand to defendants of $72,500. * * * Pending this court’s

decision on their motion for summary judgment, defendants filed a trial brief and a

motion to bifurcate the trial and defendants prepared for trial. * * * this court awarded

summary judgment * * * well after defendants had commenced preparations for trial.”

       {¶22} The trial court further explained that defense counsel asked one of

plaintiff’s attorneys to dismiss the suit in light of the lack of evidence after the plaintiff’s

first deposition, but Spitz did not do so. The trial court further noted in its decision: “At

this point, discovery was essentially completed * * *.” Thus, appellees were forced to

move for summary judgment, which was aggressively opposed, but ultimately granted in

appellees’ favor.

       {¶23} The standard of review employed by an appellate court when reviewing

rulings on R.C. 2323.51 motions varies and is contingent upon the basis for the trial

court's decision. Groves v. Groves, 10th Dist. Franklin No. 09AP-1107, 2010-Ohio-

4515, ¶18, abrogated on other grounds by Jacobson v. Kaforey, 149 Ohio St.3d 398

                                               5
(2016). Our standard of review here is mixed. Crooks v. Consolidated Stores Corp.,

10th Dist. Franklin No. 98AP-83, 1999 WL 52981, *9-10 (Feb. 4, 1999).

       {¶24} The trial court’s initial decision that Spitz’s conduct was frivolous is a

factual determination, which we will not disturb where the trial court’s findings are

supported by competent, credible evidence. Id. However, the decision to assess a

penalty for frivolous conduct lies within the trial court’s discretion, and as such, we

review its decision to impose sanctions for an       abuse of discretion.    Stevenson v.

Bernard, 11th Dist. Lake No. 2006-L-096, 2007-Ohio-3192, ¶39; State ex rel DiFranco

v. South Euclid, 144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶13

       {¶25} “‘[T]he term “abuse of discretion” is one of art, connoting judgment

exercised by a court, which does not comport with reason or the record.’ State v.

Underwood, 11th Dist. No. 2008-L-113, 2009 Ohio 2089, ¶30, citing State v. Ferranto,

112 Ohio St. 667, 676-678, 3 Ohio Law Abs. 187, 3 Ohio Law Abs. 332, 148 N.E. 362

(1925). * * * where the issue on review has been confined to the discretion of the trial

court, the mere fact that the reviewing court would have reached a different result is not

enough, without more, to find error.’” [State v. Beechler, 2d Dist. No. 09-CA-54, 2010-

Ohio-1900,] ¶67.” Ivancic v. Enos, 2012-Ohio-3639, 978 N.E.2d 927, ¶70 (11th Dist.).

       {¶26} Thus, absent a clear abuse of discretion, i.e., a finding that the trial court

failed “to exercise sound, reasonable, and legal decision-making[,]” this court must

affirm. Id.

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

determination.   First, did an individual engage in frivolous conduct.      Second, if the

conduct was frivolous, was another party adversely affected by the frivolous conduct.

And third, the amount of award, if any. Tipton v. Directory Concepts, Inc., 5th Dist.

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Richland No. 13CA61, 2014-Ohio-1215, ¶32, citing Ferron v. Video Professor Inc., 5th

Dist. Delaware No. 08-CAE-09-0055, 2009-Ohio-3133.

       {¶28} In Stevenson v. Bernard, 11th Dist. Lake No. 2006-L-096, 2007-Ohio-

3192, this court upheld an award of Civ.R. 11 sanctions against an attorney who lacked

a factual basis for filing a slander complaint against two other attorneys. Plaintiff’s

counsel refused to dismiss the suit even after the plaintiff admitted that the factual basis

for the complaint was untrue and in spite of requests from defense counsel to dismiss.

We affirmed the trial court’s decision finding that counsel’s decision to file suit based

only on assumptions and suspicions of slander, without any investigation as to the truth

of the allegations, was willfully frivolous conduct.

       {¶29} In this case, the trial court found objectively frivolous conduct and satisfied

all three R.C. 2323.51 prongs. It determined that Spitz engaged in frivolous conduct

when it continued to pursue Keith-Harper’s claims after the depositions of Keith-Harper

and Creagh established that the complaint lacked merit. The trial court found appellees

were adversely affected based on Spitz’s continued pursuit of the claims in spite of the

lack of evidence to support each. It found that appellees incurred trial preparation costs

as well as the costs associated with pursuing its motion for summary judgment after the

discovery process revealed that the claims lacked evidentiary support under R.C.

2323.51(A)(2)(a)(iii). Finally, the trial court found Attorney Brian D. Spitz and the Spitz

Law Firm, LLC jointly and severally liable for the $22,926.72 award.

       {¶30} Based on the foregoing, the trial court’s finding that Spitz’s continued

pursuit of Keith-Harper’s claims after the depositions of the key witnesses was frivolous

conduct under R.C. 2323.51(A)(2)(a)(iii) was supported by competent, credible

evidence, and its decision to impose sanctions is not an abuse of discretion. See

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Engintec Corp. v. Miller, 11th Dist. Trumbull No. 2008-T-0091, 2010-Ohio-3680, ¶34

(finding no abuse of discretion since the trial court was in the best position to evaluate

witness credibility and determine if plaintiff’s conduct throughout the underlying

proceedings was frivolous).      The trial court exercised sound, reasonable, and legal

decision-making in rendering its detailed decision, and as such, Spitz’s first and second

assigned errors are overruled.

       {¶31} Spitz’s third assigned error asserts:

       {¶32} “As R.C. 2323.51 does not allow sanctioning of law firms, the trial court

committed reversible error in sanctioning the Spitz Law Firm.” Spitz claims the trial

court acted without authority and contrary to law upon finding the Spitz Law Firm, LLC

jointly and severally liable for the R.C. 2323.51 award in appellees’ favor. First, Spitz

did not raise this argument to the trial court, and as such, the issue is waived absent a

finding of plain error. “[I]n a civil case, the doctrine of plain error will be applied only in

the ‘extremely rare case involving exceptional circumstances where error, to which no

objection was made at the trial court, seriously affects the basic fairness, integrity, or

public reputation of the judicial process, thereby challenging the legitimacy of the

underlying judicial process itself.’” S & P Lebos, Inc. v. Ohio Liquor Control Comm., 163

Ohio App.3d 827, 2005-Ohio-5424, 840 N.E.2d 1108, ¶12 (10th Dist.) quoting Goldfuss

v. Davidson (1997), 79 Ohio St.3d 116, 122–123, 679 N.E.2d 1099.

       {¶33} Furthermore, R.C. 2323.51(B)(4) authorizes “[a]n award * * * against a

party, the party’s counsel of record, or both.”

       {¶34} Several courts have upheld a R.C. 2323.51 award against a law firm and

have not differentiated between the law firm and the individual attorney employed by it

as counsel of record. Master v. Chalko, 8th Dist. Cuyahoga No. 75973, 2000 Ohio App.

                                              8
LEXIS 2014, at *1 (May 11, 2000) (affirming award of attorney fees against executor

and law firm, jointly and severally, under R.C. 2323.51); Lewis v. Celina Financial Corp.,

101 Ohio App.3d 464, 655 N.E.2d 1333 (3d Dist.1995).

       {¶35} In Riley v. Langer, 95 Ohio App.3d 151, 642 N.E.2d 1 (1st Dist.1994) rev’d

on other grounds by Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, 777

N.E.2d 857 (1st Dist.), the First Appellate District considered a comparable argument

and found although a law firm cannot be held responsible for an award of attorney fees

under Civ.R. 11, it can be found liable under R.C. 2323.51. Riley based its decision on

Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 110 S.Ct. 456 (1989),

which held that a law firm cannot be held accountable based on Fed.R.Civ.P. 111 since

it imposes a non-delegable duty on the individual attorney who signs the pleading, and

not his law firm, for his or her failure to ensure the “truth and legal reasonableness of

the papers filed * * *.” Id. at *163. This rationale does not apply to R.C. 2323.51. Id.

       {¶36} Unlike Ohio Civ.R. 11, R.C. 2323.51 was not drafted to impose

responsibilities and sanctions on individual attorneys signing pleadings, but was

designed to afford an avenue of relief to a party adversely affected by frivolous conduct.

Ferron v. Video Professor, Inc., 5th Dist. Delaware No. 08-CAE-09-0055, 2009-Ohio-

3133, ¶69.

       {¶37} Here, appellees’ motion for an award of attorney fees requested attorney

fees against both Attorney Brian D. Spitz and the Spitz Law Firm, LLC. Thus, the firm

was on notice that the claim was against it as well as individually against Attorney Spitz.

Accordingly, we find no plain error in the trial court’s decision holding the Spitz Law Firm



1. Fed.R.Civ.P. 11 has since been amended and subsection Fed.R.Civ.P. 11(c)(1) now specifically allows
the imposition of a sanction on the law firm as well an individual attorney.

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jointly and severally liable with Attorney Brian Spitz for the R.C. 2323.51 award. Spitz’s

third assigned error is overruled.

       {¶38} Spitz’s fourth assigned error asserts,

       {¶39} “The trial court committed reversible error by holding that appellees were

adversely affected by having to pay standard defense costs.”

       {¶40} Spitz claims the trial court never addressed how appellees were adversely

affected by its frivolous conduct and claims that appellees simply incurred “normal

defense costs” to defend the suit. We disagree. The trial court found in part:

       {¶41} “The court finds that Spitz’s conduct after December 16, 2014 met the

criteria of frivolous conduct under R.C. 2323.51(A)(2) in that plaintiff’s allegations or

other factual contentions had no evidentiary support and were not likely to have

evidentiary support particularly after the first deposition of Keith-Harper which failed to

provide evidence supporting her claims. Defendants’ lead attorney * * * immediately

after the deposition, * * * contacted * * * an attorney then working for Spitz Law Firm,

and asked her to dismiss the lawsuit. This was not done.”

       {¶42} Thereafter, appellees filed their motion for summary judgment, opposed

Spitz’s motions to extend the deadline, filed a reply brief to plaintiff’s motion in

opposition, and also began preparing for trial filing a trial brief and a motion to bifurcate.

Spitz likewise submitted a settlement demand after the unfavorable deposition

testimony. The trial court did not issue its summary judgment decision until May 27,

2015, 20 days before trial was scheduled.

       {¶43} Thus, the trial court found that Spitz’s continued pursuit of Keith-Harper’s

claims after the key discovery depositions adversely affected appellees. The trial court




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did not award attorney fees for the entirety of the case. Spitz’s fourth assigned error

lacks merit.

       {¶44} Spitz’s fifth assignment of error asserts:

       {¶45} “The alleged billing records were not properly before the trial court.”

       {¶46} Spitz argues that appellees’ defense firm’s billing invoices were not

formally submitted or admitted into evidence at the sanction hearing.             The billing

invoices, marked as defendant’s exhibit 1, were introduced and identified as the monthly

billing invoices Lake Hospital System, Inc. received from the law firm of Brennan,

Manna & Diamond, LLC in defending the Keith-Harper lawsuit. Although the written

record does not reflect that this exhibit was offered or admitted into evidence at the

hearing, the official court reporter indicates in her certification that defendant’s exhibit 1

was admitted into evidence and is to be included with the official hearing transcript of

proceedings. The trial court also relies on the invoices in its decision.

       {¶47} “It is well-established that the admission or exclusion of relevant evidence

rests within the sound discretion of the trial court. State v. Robb (2000), 88 Ohio St.3d

59, 68, 723 N.E.2d 1019, quoting State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d

343, paragraph two of the syllabus.        Absent an abuse of discretion, as well as a

showing that the accused has suffered material prejudice, an appellate court will not

disturb a ruling by a trial court as to the admissibility of evidence. State v. Martin

(1985), 19 Ohio St.3d 122, 129, 483 N.E.2d 1157.” Abetew v. Denu, 10th Dist. Franklin

No. 01AP-87, 2002-Ohio-628, *7.

       {¶48} A hospital representative as well as one of the partners of the law firm

identified the invoices during testimony as reflecting the total litigation expenses the

hospital incurred in defending Keith-Harper’s suit. They both verified the total amount of

                                             11
defense costs incurred was approximately $65,000. The hospital’s vice president of

human resources confirmed that he reviewed these billing statements upon receipt and

authorized their payment.

       {¶49} Further, Attorney Congeni confirmed his firm’s hourly rates, explained that

these costs were directly related to the defense of Keith-Harper’s complaint, and verified

that he reviewed each monthly statement before it was mailed to the hospital. Congeni

stated that his firm’s fees and expenses were reasonable and necessary.

       {¶50} Spitz attempted to point out minor conflicts in the defense billing

statements, but did not introduce evidence generally challenging the amount or

reasonableness of the firm’s billing statements as a whole. Spitz never argued that the

defense bills were unnecessary or that the amount was unreasonable. Spitz likewise

did not submit evidence disputing the veracity or authenticity of the billing statements.

Thus, absent a showing of material prejudice, we cannot find the trial court abused its

discretion in relying on defendant’s exhibit 1 in fashioning its award.       Spitz’s fifth

assignment is overruled.

       {¶51} Spitz’s final assignment of error alleges:

       {¶52} “The trial court erred when it improperly awarded fees charged by law

clerks and staff.”

       {¶53} Spitz argues the trial court erroneously included appellees’ defense firm’s

law clerk and staff time in its R.C. 2323.51 award. Spitz complains that the statute only

permits an award for attorney fees and does not authorize the payment of law clerk and

other staff time. We disagree.

       {¶54} R.C. 2323.51 clearly authorizes a “motion for an award of court costs,

reasonable attorney’s fees, and other reasonable expenses incurred in connection with

                                            12
the civil action or appeal * * *.” (Emphasis added.) Thus, assuming the trial court’s

award in this case included time billed for defense counsel’s law clerk and other staff

members’ time billed for time spent in defending Keith-Harper’s claims, there is no error

since the same constitutes “other reasonable expenses.” All Climate Heating & Cooling

v. Zee Props., 10th Dist. Franklin No. 01AP-784, 2002 Ohio App. LEXIS 1951, at *18-20

(Apr. 25, 2002), citing Ron Scheiderer & Assocs. v. City of London, 12th Dist. Madison

Nos. CA95-08-022, CA95-08-024, 1996 Ohio App. LEXIS 3296, at *19 (Aug. 5, 1996)

affirmed (1998), 81 Ohio St.3d 94.

      {¶55} Accordingly, Spitz’s final argument lacks merit, and the judgment of the

Lake County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


                                ____________________



COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

      {¶56} I respectfully dissent.

      {¶57} “Generally, a reviewing court will not reverse a trial court’s decision to

impose sanctions for frivolous conduct absent an abuse of discretion.” Drummond v.

Genoa Banking Co., 6th Dist. Ottawa No. OT–97–008, 1998 WL 102144, *3. Regarding

this standard, this writer recalls the term “abuse of discretion” is one of art, connoting

judgment exercised by a court which neither comports with reason, nor the record. State

v. Ferranto, 112 Ohio St. 667, 676–678 (1925). An abuse of discretion may be found



                                           13
when the trial court “applies the wrong legal standard, misapplies the correct legal

standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio

App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.).

      {¶58} The trial court found that Attorney Spitz’s conduct, after appellees filed

their motion for summary judgment, met the criteria under R.C. 2323.51(A)(2) and that

the “allegations or other factual contentions had no evidentiary support...” The trial

court went on to note that the allegations “were not likely to have evidentiary support

particularly after the first deposition of Keith-Harper which failed to provide evidence

supporting her claims.” (Emphasis added).

      {¶59} However, this writer is constrained to ask: If it was clear after the first

deposition of Keith-Harper that her claims were without merit—why did appellees, as

the docket and billing records clearly show, schedule and take a second deposition two

months after filing their summary judgment motion?

      {¶60} Appellees filed their motion for sanctions claiming that no reasonable

attorney would have pursued this case. The trial court agreed and held that after the

filing of summary judgment—and in particular after the first deposition of Keith-Harper—

it was clear that these claims could not be sustained. Again, if it was so clear—why was

a second deposition of Keith-Harper taken by appellant after the motion for summary

judgment had been filed?

      {¶61} By taking this second deposition appellees clearly demonstrated that they

were not certain that they would prevail on their summary judgment motion. Why would

an attorney terminate a case, possibly prejudicing their client, when the actions of the

opposing party demonstrate their concern that the matter will go to trial? Would not an




                                           14
attorney be risking a malpractice claim by dismissing a case under these

circumstances?

       {¶62} Is there any other conclusion to draw in this matter other than Attorney

Spitz was damned if he did and damned if he didn’t? It appears from the record that

each attorney acted within the bounds of properly representing their client.             Such

actions do not give rise to sanctions.

       {¶63} Given all this, it is clear that the imposition of sanctions by the trial court in

this matter does not comport with reason or the record.

       {¶64} I respectfully dissent.




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