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Keith-Harper v. Lake Hospital System, Inc.

Court of Appeals of Ohio, Eleventh District, Lake

August 28, 2017

LINDA KEITH-HARPER, Plaintiff-Appellant,
v.
LAKE HOSPITAL SYSTEM, INC. et al., Defendants-Appellees. (THE SPITZ LAW FIRM, LLC, et al., Appellants),

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

          Brian D. Spitz, The Spitz Law Firm, LLC, (Appellants).

          Christopher B. Congeni and Daniel J. Rudary, Brennan, Manna & Diamond, (For Defendants-Appellees).

          OPINION

          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:

         {¶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, 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 plaintiffs allegations or other factual contentions had no evidentiary support and were not likely to have evidentiary support particularly after ...


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