[Cite as St. James Therapy Ctr., Ltd. v. Ohio Vestibular & Balance Ctr., Inc., 2018-Ohio-433.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


St. James Therapy Center, Ltd., et al.                      Court of Appeals No. L-17-1055

        Appellant                                           Trial Court No. CI0201105184

v.

Ohio Vestibular & Balance Centers,                          DECISION AND JUDGMENT
Inc., et al.

        Appellees                                           Decided: February 2, 2018

                                                   *****

        John J. McHugh, III, for appellant.

        Marvin A. Robon and Zachary J. Murry, for appellees.

                                                   *****

        SINGER, J.

        {¶ 1} This case is before the court on the appeal of appellants, St. James Therapy

Center, Ltd. (“St. James”) and MWG, Inc. (“MWG”), from the February 10, 2017

judgment of the Lucas County Court of Common Pleas. For the reasons that follow, we

affirm the trial court’s judgment.
       {¶ 2} St. James and MWG set forth the following assignments of error:

              Assignment of Error No. 1: The trial court erred prejudicially in

       awarding attorneys’ fees against appellants [St. James and MWG] upon an

       unsupported conclusion that they had engaged in a pattern of persistent

       frivolous and vexatious conduct.

              Assignment of Error No. 2: The trial court erred prejudicially in

       awarding attorneys’ fees against appellants [St. James and MWG] upon an

       unmerited conclusion that their failure to dismiss their complaint following

       entry of an interlocutory order in a related case constituted frivolous and

       vexatious conduct.

                                       Facts

       {¶ 3} The background facts underlying this case are found in our opinion, Ohio

Vestibular & Balance Ctr., Inc. v. Wheeler, 2013-Ohio-4417, 999 N.E.2d 241 (6th Dist.).

The facts which relate to this appeal follow.

                                    The Related Case

       {¶ 4} On September 14, 2007, a complaint was filed against, inter alia, St. James

and MWG by Ohio Vestibular & Balance Center, Inc. (“OVB”) and other parties in

Lucas County Court of Common Pleas, being case No. CI0200706185 (“the related

case”). Appellee, Barkan & Robon, Ltd., a law firm (“the firm”), represented OVB and

the other parties in the related case. On February 14, 2011, a jury trial commenced. On

March 1, 2011, while the trial was still underway, the firm entered into a security

agreement with OVB, which granted the firm a security interest in OVB’s assets. On that

2.
same day, the firm filed a UCC financing statement with the Ohio Secretary of State to

perfect the lien on OVB’s assets. On March 11, 2011, the jury rendered a verdict in favor

of St. James and MWG. On April 18, 2011, the trial court entered judgment on the jury’s

verdict.

       {¶ 5} On January 24, 2013, the court appointed a receiver over OVB’s assets. On

June 16, 2014, the receiver filed a report which provided six claims had been submitted.

Those relevant claims included: St. James, which had a claim in the net amount of

approximately $69,700; the firm, which had a claim for attorney fees and costs of

$26,477.13; and, First Merit Bank (“First Merit”), which had a claim for $80,000.

       {¶ 6} On February 23, 2015, the trial court, in a Journal Entry, determined St.

James’ challenge to First Merit’s security interest in OVB was not well-taken. The court,

quoting First Merit’s reply to St. James’ objection to claims, set forth:

              The loan between FirstMerit and [OVB] dated November 23, 2005,

       which also included a security interest and UCC Financing Statement, was

       in the original amount of * * * ($60,000.00), and was an interest only

       demand promissory note. * * *

              The 2005 promissory note had a balance due FirstMerit on May 18,

       2011 of * * * ($56,293.62), which amount was paid in full upon the

       execution of the May 18, 2011 * * * ($80,000) promissory note. * * *

              In addition, FirstMerit entered into a Master Equipment Lease

       Agreement (“Lease”) with [OVB] on December 21, 2005 and amended it

       on February 21, 2006. In connection with that Lease, FirstMerit filed a

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       UCC Financing Statement * * * on March 29, 2006. Thereafter, on

       October 5, 2010, FirstMerit filed a continuation of that 2006 UCC

       Financing Statement * * *.

              Accordingly * * * FirstMerit has had a continuous security interest

       in the assets of [OVB] since 2005.”

The court also found “St. James is essentially an unsecured creditor with respect to

[OVB’s] personal assets * * *.”

       {¶ 7} On March 10, 2015, the firm filed a notice of newly discovered evidence and

motion for reconsideration of the February 23, 2015 entry. On August 4, 2015, the

motion for reconsideration was denied.

       {¶ 8} On September 15, 2015, the court ordered the receiver to distribute OVB’s

remaining funds to First Merit.

                                    The Instant Case

       {¶ 9} On August 30, 2011, St. James and MWG filed their complaint in Lucas

County Court of Common Pleas, case No. CI201105184 (“the instant case”), against the

firm, OVB and another party. St. James and MWG alleged the granting of the security

interest in OVB’s assets violated Ohio Uniform Transfer Act, R.C. 1336.04(A)(1), as it

was made with the intent to hinder, delay and defraud St. James and MWG as judgment

creditors. St. James and MWG also alleged the transfer was made during trial, in

anticipation of an unfavorable verdict. St. James and MWG further alleged the granting

of the security interest in OVB’s assets violated R.C. 1336.04(A)(2), as it was made

without receiving an equivalent value in exchange for the transfer.

4.
       {¶ 10} The firm filed a motion to dismiss the complaint; the motion was denied.

The case was stayed for period of time. On March 18, 2014, the firm answered the

complaint and filed a counterclaim against St. James and MWG alleging St. James and

MWG’s conduct in filing their complaint against the firm was frivolous, vexatious and

brought in bad faith. The firm made a claim against St. James and MWG pursuant to

R.C. 2323.51 and 2323.52, seeking attorney fees. The case was again stayed.         On

July 22, 2016, the firm filed a motion for summary judgment on St. James and MWG’s

claims as well as its counterclaim. St. James and MWG did not oppose the motion.

       {¶ 11} On November 29, 2016, the trial court granted the firm’s motion for

summary judgment and dismissed with prejudice all claims asserted by St. James and

MWG. The court found, as to the counterclaim, that the evidence showed a pattern of

vexatious and bad faith conduct by St. James and MWG, and St. James and MWG’s

complaint constituted the filing of a frivolous claim under R.C. 2323.51.

       {¶ 12} On December 14, 2016, an assessment of damages hearing was held.

Then, on February 10, 2017, the trial court issued its judgment. The court determined the

logical time that St. James and MWG should have dismissed their claims was September

15, 2015, when, in the related case, the receiver was ordered to distribute OVB’s

remaining funds to First Merit. The court noted that St. James and MWG, however,

continued to pursue their claims against the firm. The court held, based upon the firm’s

unchallenged fee statement, that the total amount of attorney fees incurred by the firm




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since September 15, 2015, was $6,760. The court ordered that the firm was entitled to

attorney fees on its counterclaim in this amount from St. James and MWG. St. James and

MWG appealed.

                                 Assignments of Error

      {¶ 13} St. James and MWG’s assignments of error are interrelated and will be

addressed together. The crux of St. James and MWG’s argument is that there was no

evidence of frivolous conduct. St. James and MWG contend the trial court erred in

awarding attorneys’ fees to the firm upon an unsupported conclusion that St. James and

MWG engaged in a pattern of persistent frivolous and vexatious conduct. St. James and

MWG argue their complaint was not frivolous when filed, and their decision not to

dismiss the complaint was not evidence of persistent frivolous conduct.

      {¶ 14} The firm counters the trial court’s decision to order sanctions was

supported by competent, credible and undisputed evidence, and the amount of the

sanctions was also supported by competent, credible and undisputed evidence.

                                       Standards

      {¶ 15} We review a trial court’s summary judgment decision on a de novo basis.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Accordingly, we undertake our own independent examination of the record and make our

own decision as to whether the moving parties are entitled to summary judgment. Dupler

v. Mansfield Journal, 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980).

      {¶ 16} Our review of a determination to impose sanctions pursuant to R.C.

2323.51 involves a mixed question of law and fact. R & S Roofing Co. v. Mercer-North

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Am., Inc., 6th Dist. Lucas No. L-13-1161, 2014-Ohio-1763, ¶ 21. Legal conclusions will

be considered de novo, whereas factual determinations will not be disturbed if supported

by competent, credible evidence. Id. “‘Ultimately, the decision as to whether to impose

sanctions under * * * R.C. 2323.51 rests in the sound discretion of the court and will not

be reversed absent an abuse of that discretion. (Citation omitted.)’” Id. Thus, we will

not reverse the trial court’s judgment unless it is arbitrary, unconscionable or

unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

                                           Analysis

       {¶ 17} R.C. 2323.51(A)(2)(a) provides that frivolous conduct occurs under any of

the following circumstances:

              (i) It [conduct] 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 [conduct] 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.

7.
              (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.

       {¶ 18} Here, a de novo review of the record shows the firm alleged in its motion

for summary judgment that St. James and MWG’s complaint was frivolous. Attached to

the motion was evidence which included affidavits, as well as St. James and MWG’s

responses to requests for admissions. St. James and MWG did not oppose the motion,

and as such, presented no evidence demonstrating that there was a genuine issue of

material fact for trial. We conclude the evidence presented by the firm demonstrated

there was no genuine issue of material fact and the firm was entitled to judgment as a

matter of law on St. James and MWG’s claims as well as its counterclaim. Accordingly,

the trial court did not err in granting the firm’s motion for summary judgment.

       {¶ 19} As to the trial court’s award of sanctions under R.C. 2323.51, a review of

the record shows St. James and MWG may have had a viable claim against the firm when

St. James and MWG filed their complaint on August 30, 2011, for violations of R.C.

1336.04, the fraudulent transfer act. Therefore, the complaint may not have been

frivolous when filed. However, as the related case progressed, evidence emerged that

established St. James and MWG’s claims against the firm lacked evidentiary support to

continue. Specifically, on February 23, 2015, the court in the related case rejected St.

James’ challenge to First Merit’s security interest in OVB, and found St. James was, in

effect, an unsecured creditor of OVB’s personal assets. Then, on September 15, 2015,

the court in the related case ordered the receiver to distribute OVB’s remaining funds to

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First Merit. When the last of these decisions was rendered, it was apparent that St. James

and MWG’s claims against the firm lacked any evidentiary support to continue.

Nevertheless, St. James and MWG did not dismiss their complaint. Instead, the firm

conducted discovery and was required to file a motion for summary judgment on St.

James and MWG’s claims and its counterclaim.

       {¶ 20} The Ohio Supreme Court has observed, “[w]hen a trial court has

determined that reasonable inquiry by a party’s counsel of record should reveal the

inadequacy of a claim, a finding that the counsel of record has engaged in frivolous

conduct is justified, as is an award * * * to any party adversely affected by the frivolous

conduct.” Ron Scheiderer & Assocs. v. London, 81 Ohio St.3d 94, 97-98, 689 N.E.2d

552 (1998).

       {¶ 21} Here, St. James and MWG’s failure to dismiss the complaint on their own

volition after the September 15, 2015 order in the related case served to extend the time

that the lawsuit remained pending. In addition, St. James and MWG’s failure to dismiss

the complaint caused the firm to incur the unnecessary time and expenses associated with

conducting discovery as well as drafting the unopposed motion for summary judgment.

We find St. James and MWG’s continuous failure to dismiss the complaint constituted a

pattern of frivolous conduct. We further find this frivolous conduct adversely affected

the firm. Accordingly, we conclude the trial court did not abuse its discretion in

awarding to the firm sanctions for St. James and MWG’s frivolous conduct. It follows

that St. James and MWG’s assignments of error are not well-taken.



9.
       {¶ 22} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellants, St. James Therapy Center, Ltd. and MWG, Inc., are ordered to pay the costs of

this appeal, pursuant to App.R. 24, and the clerk is ordered to serve all parties with notice

of this decision.

                                                                       Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
James D. Jensen, J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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