[Cite as Lasater v. Vidahl, 2013-Ohio-5558.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

JANET LASATER                                       C.A. No.       26764

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
LENA VIDAHL                                         COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CV 2008 10 7047

                                 DECISION AND JOURNAL ENTRY

Dated: December 18, 2013



        MOORE, Presiding Judge.

        {¶1}     Defendant, Lena Vidahl, appeals from the judgment of the Summit County Court

of Common Pleas. This Court affirms.

                                               I.

        {¶2}     Ms. Vidahl and Janet Lasater are sisters. In October 2006, Ms. Vidahl had a

Consent Agreement and Domestic Violence Civil Protection Order issued against Ms. Lasater.

In November 2006, Ms. Vidahl filed an incident report alleging Ms. Lasater had violated the

terms of the CPO. As a result, Ms. Lasater was arrested. In 2007, Ms. Vidahl filed another

incident report against Ms. Lasater for violating the CPO, which resulted in Ms. Lasater’s second

arrest. The charges against her were subsequently dismissed.

        {¶3}     In 2008, Ms. Lasater sued Ms. Vidahl claiming that Ms. Vidahl had placed Ms.

Lasater in a false light by making incriminating statements about her to police officers and a

magistrate. Ms. Vidahl filed a motion to dismiss the complaint, and the trial court granted Ms.
                                                  2


Vidahl’s motion, finding that Ms. Lasater’s statement to the magistrate was privileged. Further,

the trial court concluded that even were Ms. Lasater’s statements to the police officers not

privileged, she had not sufficiently pleaded publicity, an element of a claim for false-light

invasion of privacy. Ms. Lasater appealed the trial court’s judgment dismissing her complaint.

In Lasater v. Vidahl, (“Lasater I”), 9th Dist. Summit No. 26242, 2012-Ohio-4918, we affirmed

the trial court’s judgment, concluding that Ms. Vidahl’s statements to the police officers and her

letter to the magistrate were protected by absolute privilege. Id. at ¶ 13.

          {¶4}   After we released our decision in Lasater I, Ms. Vidahl filed a motion in the trial

court seeking attorney fees and related expenses pursuant to R.C. 2323.51. In December of

2012, the trial court denied Ms. Vidahl’s motion. Ms. Vidahl timely appealed from the trial

court’s decision denying her motion, and she now presents one assignment of error for our

review.

                                                 II.

                                   ASSIGNMENT OF ERROR

          THE TRIAL COURT ABUSED ITS DISCRETION BY NOT AWARDING
          ATTORNEY FEES FOR [MS. LASATER]’S FRIVOLOUS APPEAL WHERE
          THE LAW IS WELL SETTLED AND NO REASONABLE GROUNDS ARE
          GIVEN TO CHANGE THE LAW.

          {¶5}   In her sole assignment of error, Ms. Vidahl argues that the trial court erred in

denying her motion for attorney fees. We disagree.

          {¶6}   A trial court’s decision to grant or deny a request for attorney fees under R.C.

2323.51 will not be disturbed absent an abuse of discretion. Fuline v. Green, 9th Dist. Summit

No. 25704, 25936, 2012-Ohio-2749, ¶ 15. An abuse of discretion “implies that the trial court’s

attitude [was] unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio
                                                   3


St.3d 217, 219 (1983). When applying the abuse of discretion standard, an appellate court may

not substitute its judgment for that of the trial court. Id.

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

        * * * [A]t 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. The
        court may assess and make an award to any party to the civil action or appeal who
        was adversely affected by frivolous conduct, as provided in division (B)(4) of this
        section.

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

        Conduct of an inmate or other party to a civil action, of an inmate who has filed
        an appeal of the type described in division (A)(1)(b) of this section, or of the
        inmate’s or other party’s counsel of record that satisfies any of the following:

        ***

        (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.

        ***

        {¶9}    This Court has previously held that the following two-step analysis applies to

claims made pursuant to R.C. 2323.51: “(1) whether an action taken by the party to be

sanctioned constitutes ‘frivolous conduct,’ and (2) what amount, if any, of reasonable attorney

fees necessitated by the frivolous conduct is to be awarded to the aggrieved party.” Ceol v. Zion

Indus., Inc., 81 Ohio App.3d 286, 291 (9th Dist.1992).

        {¶10} Here, in her complaint, Ms. Lasater alleged that Ms. Vidahl made incriminating

statements regarding Ms. Lasater to a magistrate and police officers. After Ms. Vidahl prevailed

below and the court dismissed the action, she filed a motion for attorney fees against Ms.

Lasater. In the motion Ms. Vidahl maintained, in part, that Ms. Lasater’s claim for false light

invasion of privacy based on these statements was not warranted under existing law, rendering
                                                4


both Ms. Lasater’s complaint and her appeal in Lasater I frivolous. Although, in her motion,

Ms. Vidahl argued that both Ms. Lasater’s complaint and her appeal in Lasater I were frivolous,

on appeal, Ms. Vidahl only argues that Ms. Lasater’s appeal in Lasater I was frivolous. See

State v. Brown, 9th Dist. Summit No. 23637, 2008-Ohio-2670, ¶ 24 (an appellant’s “assignment

of error provides a roadmap for our review and, as such, directs our analysis of the trial court’s

judgment”). Accordingly, we will limit our review to the trial court’s determination that Ms.

Lasater’s appeal in Lasater I did not amount to frivolous conduct under R.C. 2323.51.

       {¶11} First, we note that, in her appellee’s brief, Ms. Lasater has maintained that Ms.

Vidahl has not followed the appropriate procedural mechanism to obtain a determination that

Ms. Lasater’s appeal was frivolous. Ms. Lasater claims that, pursuant to the Ohio Supreme

Court’s holding in State ex rel. Ohio Dept. of Health v. Sowald, 65 Ohio St.3d 338, 343 (1992), a

trial court may not deem an appeal frivolous pursuant to R.C. 2323.51; rather such a

determination is properly made only by an appellate court pursuant to App.R. 23.

       {¶12} In Sowald, the respondent in a mandamus action requested attorney fees pursuant

to R.C. 2323.51 for the purportedly frivolous conduct of the petitioner in appealing the decision

of an appellate court to the Ohio Supreme Court. The Supreme Court denied the request, holding

that “R.C. 2323.51 does not contemplate awarding attorney fees for defending appeals of civil

actions.” Sowald at 343.

       {¶13} The Sixth and the Second Districts have interpreted Sowald as holding that a trial

court may not award fees and expenses under R.C. 2323.51 for purported frivolous conduct

arising from any civil appeal, except for certain appeals by inmates specifically referenced in the

statute. See Mueller v. Vandalia, 2d Dist. Montgomery No. 17285, 1999 WL 197971, *3 (Mar.

31, 1999), and Early v. Toledo Blade Co., 6th Dist. Lucas No. L-11-1002, 2013-Ohio-404, ¶ 10-
                                                  5


16. However, the Tenth District has disagreed with this interpretation of the Sowald holding, and

it has determined that a trial court may award fees and expenses for frivolous conduct in

appealing the trial court’s judgment. See Jackson v. Bellomy, 10th Dist. Franklin No. 01AP-

1397, 2002-Ohio-6495, ¶ 57-58, and Soler v. Evans, St. Clair & Kelsey, 10th Dist. Franklin No.

04AP-314, 2006-Ohio-5402, ¶ 25-26 (interpreting Sowald as holding that a trial court may not

award fees and expenses for frivolous conduct arising from an appeal from an appellate court’s

decision).

       {¶14} This issue is one of first impression in the Ninth District, however, we conclude

that it is unnecessary to resolve it as, assuming without deciding that the trial court properly

could consider whether an appeal from its decision constituted frivolous conduct under R.C.

2323.51, we cannot say that the trial court erred in denying Ms. Vidahl’s motion. The essence of

Ms. Vidahl’s argument in her motion and on appeal is that the law was clear that her statements

to the magistrate and the police officers were protected by absolute privilege. In its order

denying Ms. Lasater’s motion for attorney fees, the trial court referenced this Court’s analysis in

Lasater I, wherein we recognized a split in the Ohio appellate districts as to whether absolute

privilege applies to statements made to law enforcement officers. Lasater I at ¶ 8 (The Fourth

District has deemed statements made to police to have absolute immunity, while the Eighth and

Eleventh Districts have declined to extend absolute immunity to such statements.). The trial

court then cited the First District case of Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308

(1st Dist.), for the proposition that, “[w]hen a split in the districts exists, a court cannot say the

claim was unwarranted under existing law.” Based upon the split in the districts as to the scope

of absolute immunity, and the fact that this Court had not definitively addressed the issue, the

trial court concluded that it could not say that Ms. Lasater’s appeal was not warranted by existing
                                                 6


law. Accordingly, it denied Ms. Vidahl’s motion for attorney fees under R.C. 2323.51. We

cannot say that the trial court’s decision in this respect was unreasonable, arbitrary, or

unconscionable.

       {¶15} Based upon the foregoing, the trial court did not abuse its discretion in concluding

that Ms. Vidahl was not entitled to attorney fees and related expenses pursuant to R.C. 2323.51.

Accordingly, her assignment of error is overruled.

                                                III.

       {¶16} Ms. Vidahl’s sole assignment of error is overruled. The judgment of the trial

court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                                 7


       Costs taxed to Appellant.




                                                      CARLA MOORE
                                                      FOR THE COURT




WHITMORE, J.
CONCURS.

CARR, J.
CONCURRING.

       {¶17} I concur in the majority’s conclusion that Ms. Vidahl was not entitled to attorney

fees, but I do not agree with the majority’s conclusion that we need not determine whether the

trial court has authority pursuant to R.C. 2323.51 to award attorney fees for a frivolous appeal.

The resolution of that preliminary issue is necessary to a proper disposition of the appeal.

Moreover, it resolves the substantive issue of the appeal, as well.

       {¶18} I agree with Ms. Lasater’s reliance on State ex rel. Ohio Dept. of Health v.

Sowald, 65 Ohio St.3d 338 (1992), as I believe that the Ohio Supreme Court has resolved the

issue. The Sowald court interpreted R.C. 2323.51 to apply to trial court judgments, not appellate

court judgments. Id. at 343. (holding that “R.C. 2323.51 does not contemplate awarding

attorney fees for defending appeals of civil actions.”) Therefore, the high court denied the

application for attorney fees for defending the appeal to the high court. Although the Sowald

court noted that the applicant did not challenge the Tenth District’s denial of attorney fees for

answering the mandamus action filed against it in the first instance in that court, the high court

noted that mandamus actions are civil actions from which an appeal would lie, thereby

identifying them as trial court judgments to which R.C. 2323.51 would apply.
                                                8


       {¶19} On the other hand, App.R. 23 provides a clear and unambiguous avenue by which

an appellee may seek relief from the expense of responding to a frivolous appeal. The rule

provides: “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.”

       {¶20} The majority notes that the Tenth District has interpreted Sowald to allow a trial

court to award attorney fees for frivolous conduct in appealing the trial court’s judgment. See

Jackson v. Bellomy, 10th Dist. Franklin No. 01AP-1397, 2002-Ohio-6495, ¶ 57-58. I would

characterize the Bellomy decision as an anomaly that misinterpreted the high court’s holding in

Sowald.     Although legal scholars acknowledge that R.C. 2323.51 has been interpreted in

different ways, they too have written that “[t]he better practice would be to file the motion [for

appellate attorney fees] in the court of appeals and to rely on App.R. 23 and/or R.C. 2505.35,

rather than R.C. 2323.51(B)(1).” Painter and Pollis, OH. App. Prac., Section 7:28.

       {¶21} In conclusion, I would conclude that the trial court did not err by denying Ms.

Vidahl’s request for attorney fees pursuant to R.C. 2323.51, but for the reason that that was not

the appropriate mechanism by which to seek appellate fees. Because the appropriate mechanism

for the relief she sought was via App.R. 23, I agree that the trial court’s judgment must be

affirmed.


APPEARANCES:

TIMOTHY J. TRUBY, Attorney at Law, for Appellant.

KENNETH L. TUROWSKI, Attorney at Law, for Appellee.
