substantial constitutional issue great public and general interest … · this case is of great...
TRANSCRIPT
^1 iG »AA
IN THE SUPREME COURT OF OHIO
13 O46 3MICHAEL DENNIS EARLY, et al.,
Appellee,
-vs-
THE TOLEDO BLADE COMPANY,
Appellant.
Case No.
On Appeal from the Lucas CountyCourt of Appeals, Sixth Appellate District
Court of Appeals Case No. L-11-1002
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT THE TOLEDO BLADE COMPANY
David J. Coyle (0003233)(counsel of record)
Rebecca E. Shope (0083942)SHUMAKER, LOOP & KENDRICK, LLP1000 Jackson StreetToledo, Ohio 43604Telephone: (419) 241-9000Facsimile: (419) 241-6894Email: [email protected]
Counsel For AppellantThe Toledo Blade Company
George C. Rogers (0014107)6884 State Route 110Napoleon, Ohio 43545Telephone: (419) 748-8041Facsimile: (419) 748-8532Email: [email protected]
Appellee/Attorney Pro Se
^Ai3
CLERK Of COURTSUPREME CQURT OF OHI®
TABLE OF CONTENTS
EXPLANATION OF WHY THIS CASE IS A CASE OF GREAT PUBLIC ANDGENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONALISSUE ...............................................................................................................:.............................1
A. This case is of great public and general interest . ..................................................... l
B. This case involves a substantial constitutional issue . ..............................................3
STATEMENT OF THE CASE AND FACTS .... ............................................................................ 5
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .....................................:..::.............8
Proposition of Law No. l: The trial court has the power under R.C. §2323.51 tosanction a litigant or attorney for conduct at the appellate level where thefrivolous nature of the case was known at the time plaintiffs' attorney filed theoriginal appeal and continued to pursue appeal after appeal . .................:...... .:.................. 8
Proposition of Law No. Il: Where the trial court has awarded sanctions, in part,under Ohio Civil Rule 11, the appellate court does not have the discretion toignore Rule 11 in considering on appeal whether the award of sanctions isappropriate . ........ ... .. ..... ..... ..... .. ..... .. ....... ...... ........... ......... ....... ........ ... ........ ... ........... ...... ... .11
Proposition of Law No. III: A trial court has the authority under Ohio Civil Rule11 to award sanctions for conduct on appeal connected with the underlying action. ....... 13
Proposition of Law No. IV: A trial court decision should be affirmed when thereis competent and credible evidence to support an award of sanctions for frivolousconduct and abuse of the legal process ..............................................................................13
CONCLUSION .............................................................................................................................15
CERTIFICATE OF SERVICE .. ....................................................................................................16
APPENDIX .... ................................................................................................................ Appx. 0001
Decision and Judgment Entry of the Lucas County Court of Appeals,Sixth Appellate District (February 8, 2013)
i
EXPLANATION OF WHY THIS CASE IS A CASE OFGREAT PUBLIC AND GENERAL INTEREST AND INVOLVES A
SUBSTANTIAL CONSTITUTIONAL ISSUE
This case is of great public and general interest and involves a substantial constitutional
issue. It presents critical questions the resolution of which are necessary to ensure the uniform
application of Ohio law; prevent abusive conduct in litigation, maintain the integrity of the
judicial process, uphold the reputation of the Ohio bar; and preserve important First Amendment
protections. In this case, after tens of thousands of dollars in litigation costs were expended by
The Blade, a Toledo based newspaper, in defending overtly frivolous claims and appeals, the
Sixth District Court of Appeals refused to honor an award of sanctions in the amount of
$163,301 issued by the trial court against plaintiffs' attorney, Appellee George Rogers. In doing
so, the Sixth District created a rule of law that is unjust and encourages and rewards the
continued filing of meritless claims and appeals by litigants and attorneys throughout the State of
Ohio. It also creates a split in authority between the Ohio appellate courts.
A. This case is of great public and general interest.
Central to the common law legal system is the concept of uniformity of laws, and the
principle that similar cases should be resolved with similar outcomes. This provides much
needed legal stability and predictability to our system of jurisprudence. However, when there is
a conflict between Ohio appellate courts with respect to a legal opinion issued by the Ohio
Supreme Court, a litigant's ability to effectively evaluate how to proceed in the course of
litigation is substantially impaired.
Here, a conflict exists in the interpretation of this Court's decision in Ohio Department of
Health v. Sowald, 65 Ohio St.3d 338, 603 N.E. 2d 1017 (1992). While the Ohio statutory
scheme clearly authorizes the imposition of sanctions by a trial court for conduct occurring on
appeal, the courts of this state have reached inconsistent results on this issue-some by
misinterpreting the Sowald holding. In the present case, the Sixth District ruled that the trial
court erred as a matter of law in awarding sanctions against plaintiffs' counsel for conduct
involved in pursuing appeals of the trial court's judgment to the Sixth District, the Supreme
Court of Ohio, and the United States Supreme Court. The court incorrectly maintained that
Sowald stood for the proposition that sanctions under R.C. §2323.51 applied only to attorneys'
fees incurred in the trial court proceedings and not in defending any appeal.
By issuing this holding, the Sixth District placed itself in direct conflict with the Soler
and Jackson decisions out of the Tenth District, as well as the Hildreth decision out of the Eighth
District, the Wrinch decision out of the Ninth District, and the Dudley decision out of the Twelfth
District. Soler v. Evans, St. Clair & Kelsey, 10th Dist. No. 04AP-314, 2006-Ohio-5402; Jackson
v. Bellomy, 10th Dist., No. 01-AP-1397, 2002-Ohio-6495; Hildreth v. Mims, 70 Ohio App. 3d
282, 590 N.E.2d 1353 (8th Dist. 1990); Wrinch v. Miller, 9th Dist., No. 25562, 2011-Ohio-5891;
Dudley v. Dudley, 196 Ohio App.3d 671, 964 N.E.2d 1119 (12th Dist. 2011). In these cases, the
district courts ruled that a trial court has discretion to award sanctions for conduct on appeal. To
avoid ongoing inconsistency at the appellate level, these decisions must be reconciled. This case
presents a perfect opportunity to clarify the Sowald holding and confirm the trial court's ability
to sanction under R.C. §2323.51 and Ohio Civil Rule 11 for defending meritless appeals of civil
actions.
Moreover, the lower court ruling affects an important public interest in carrying out
legislative intent. The ruling issued by the Sixth Appellate District infringes upon the legislative
purpose underlying R.C. §2323.51. The plain language of the statute makes clear that frivolous
"conduct" encompasses "filing a civil action, asserting a claim, defense, or other position in
2
connection with a civil action, or taking any other action in connection with a civil action." R.C.
§2323.51(A)(1) (emphasis added). The Sixth District's decision permits trial courts to ignore
express statutory language and legislative intent even where an appellant needlessly prolongs a
meritless controversy.
Even apart from the appellate split and departure from statute, this case is of great public
interest because it relates to the protection of the integrity of the legal system. Frivolous lawsuits
have long plagued our legal system. In recent years, however, this problem appears to have been
exacerbated with the increasing litigious nature of our culture. Trial court judges are often the
only ones to observe firsthand the full extent that a litigant or attorney abuses the legal system.
Thus, the trial court judges must be armed with broad authority to combat such conduct when the
system is used to harass and annoy opposing parties over the course of a decade.
The trial court's disposition of this action made clear that this case fell within the
category of cases that require the imposition of sanctions against plaintiffs' counsel. By
reversing the award of sanctions, the court of appeals has effectively rubber-stamped such
frivolous behavior within the appellate system. This decision creates an incentive for attorneys
to pursue baseless appeals even when a motion for sanctions is pending at the trial court level. It
further serves to tarnish the public's perception of the legal profession since the trial court's
hands are now tied. The Court must be mindful that this is not an isolated incident.
Unfortunately, there are other "Mr. Rogers" who will use this decision as a green-light to
manipulate, frustrate, and misuse the legal process.
B. This case involves a substantial constitutional issue.
This case has broad implications with respect to the media and those litigants that attempt
to use the legal system to harass and impede upon the media's rights under the First Amendment.
3
The appellate court decision has the potential to curb the First Amendment protections
historically enjoyed by newspapers. These constitutional protections help ensure full and
transparent reporting by journalists without the fear of retaliation. As this Court has recognized,
The threat of being put to the defense of a lawsuit...may be aschilling to the exercise of First Amendment freedoms as fear of theoutcome of the lawsuit itself...Unless persons, includingnewspapers, desiring to exercise their First Amendment rights areassured freedom from harassment of lawsuits, they will tend to
become self-censors.
Duplerv. Mansfield Journal Co., 64 Ohio St.2d 116, 120-121, 413 N.E.2d 1187 ( 1980).
In this climate, the threat of litigation is especially concerning to the newspaper industry.
Newspapers throughout the country are struggling to survive with established publications
closing and others filing for bankruptcy. In our system of jurisprudence civil litigants generally
have to incur the cost of defense, and newspapers now have fewer resources available to defend
frivolous actions from the trial court level up to the United States Supreme Court. Thus,
newspapers are especially at risk for unfair treatment under the Sixth District's holding. For this
reason, the outcome of this case has profound importance not only for the newspaper industry
and the millions of households that subscribe to newspapers, but also to our very republic that
depends upon the investigative reporting of the "fourth estate."
In sum, the decision of the court of appeals raises numerous questions about the ability to
sanction for frivolous conduct in Ohio. The ruling on this issue will impact not only the legal
community, but also thousands of individuals and entities pursuing and defending litigation. The
Sixth District's holding puts an inequitable financial strain on a litigant caught in the battle of
frivolous litigation. To resolve the conflict in the courts of appeal, to ensure fair and clear
application of Ohio law, to preserve the integrity of our legal system, and to uphold
constitutional protections of the press, this Court should grant jurisdiction to hear this case and
4
review the decision of the Sixth District Court of Appeals.
STATEMENT OF THE CASE AND FACTS
This case has a sordid history over twenty-three years that includes nearly a decade of
discovery, pleadings, hearings, decisions, appeals, and oral arguments that ultimately resulted in
The Blade having incurred over $163,300 in legal fees and costs related to conduct on appeal of
a case that the trial court described as being devoid of supporting evidence and having no basis
in law.
The origination of the case started with the filing of a complaint on October 11, 1990, by
Mr. George Rogers on behalf of twelve plaintiffs against The Blade. R.I. In the complaint, Mr.
Rogers asserted various claims for defamation and invasion of privacy based on an investigative
series entitled "The Secret Files of Internal Affairs" that examined certain misdeeds of the
Toledo Police Department. R. 36 and 70. The primary sources of information obtained in
writing the series were documents received by The Blade as part of a public records request
directed to the Toledo Police Department. R. 199.
Examining the record, there is no question that plaintiffs' claims were baseless at the
outset and that plaintiffs continued to improperly litigate in the face of no supporting facts or
law. As explained by the trial court, plaintiffs' complaint boiled down to thirty-seven claims
sounding in invasion of privacy and defamation. R. 199. By the time The Blade filed its Motion
for Summary Judgment, the case had been pending for two years and Mr. Rogers had issued six
sets of interrogatories, five sets of requests for documents, three sets of requests for admissions,
and taken the deposition of nine employees. R. 200. The frivolous nature of the lawsuit became
more clear at every step of the discovery process. When finally called upon to justify these
baseless claims, plaintiffs' counsel resorted to misrepresentations of Ohio rulings,
5
misrepresentations of Ohio statutory law, citations to the obviously inapplicable federal FOIA
statute, and even citations to statutes that did not exist. R. 199.
If not already clear enough, Judge Skow's 163-page opinion explained in meticulous
detail why there was absolutely no support for plaintiffs' lawsuit. Id. Despite intensive discovery
efforts, Mr. Rogers was unable to produce a single piece of evidence to support any of the
thirty-seven claims. Id. Even beyond the lack of evidence, a reasoned legal analysis would have
revealed that the claims lacked any legal basis. Id. Had Mr. Rogers examined well-established
case law, he would have discovered that information obtained from public records cannot form
the basis for an invasion of privacy claim. Id. The defamation claims were equally deficient since
no reasonable reader could have interpreted the articles in the fashion alleged by plaintiffs, and
some of the claims were not "of and concerning" the plaintiff who claimed to have been
defamed. Id. Moreover, the defamation claims stood "little chance of surviving summary
judgment short of complete abandonment of the actual malice standard in public official
defamation cases." Id.
Significantly, the trial court's opinion focused on inhibiting "the lodging of future and
specious defamation and privacy actions" against the media. R. 199, 257. The opinion
commended The Blade for its "laudable effort to define what constituted public records in Ohio"
and for "venturing as it did into the thicket of investigative reporting." Id. On the other hand, it
attacked Mr. Rogers' conduct and it stated "plaintiffs' counsel resorted again and again to blatant
misrepresentations of controlling law that were so basic and blaring they `must be presumed to
have been deliberate. "' Id.
On July 29, 1997, The Blade filed a Motion for Sanctions and Request for Hearing. R.
200. Through no fault of The Blade, the Motion remained pending for over twelve years.
6
During such time, Mr. Rogers filed appeal after appeal, starting with the Sixth District, and
moving on to the Supreme Court of Ohio and subsequently the United States Supreme Court.
Early v. The Toledo Blade, 130 Ohio App.3d 302, 720 N.E.2d 107 (6th Dist. 1998); Early v. The
Toledo Blade, 85 Ohio St.3d 1405, 706 N.E.2d 788 (1999); Early v. The Toledo Blade, 528 U.S.
964, (1999). On November 8, 1999, seven days after the United States Supreme Court denied
certiorari, The Blade renewed its request for the trial court to rule on its Motion for Sanctions.
R, 215. Subsequent briefing transpired and multiple hearings were held with the last occurring
on December 12, 2007, after which the court took the matter under advisement. R. 224.
A decision was not rendered until January 26, 2009, when Judge Stacy Cook, who
succeeded Judge Skow, issued her opinion and granted The Blade's Motion, in part, by awarding
it attorneys' fees incurred in responding to the numerous appeals. R. 225. In her opinion, she
stated that the conduct of plaintiffs' counsel had "bled into the realm of frivolity" at the time he
appealed the summary judgment entry because he had received information in the court's
decision that there was no legal basis and insufficient evidence to pursue the claims asserted. Id.
Thus, the fees were limited to conduct after the summary judgment opinion was issued in July
1997. Additional briefing ensued on the issue of whether the court had the authority to award
sanctions for conduct that occurred at the appellate level. R. 248-249, 252, 253, and 255. On
December 21, 2010, after noting that The Blade's Motion was brought pursuant to Civil Rule 11
and R.C. §2323.5 1, the court issued its final judgment against Mr. Rogers finding that it had the
authority to sanction the conduct and awarding attorneys' fees in favor of The Blade in the
amount of $163,301. R. 257.
No surprise given the history of this case, Mr. Rogers appealed the decision to the Sixth
District Court of Appeals on January 4, 2011. R. 258. In his brief, Mr. Rogers challenged the
7
trial court's award of sanctions. The Blade filed a cross-appeal on January 19, 2011, which
questioned the failure of the trial court to sanction for conduct that occurred prior to the summary
judgment decision. R. 261.
On February 8, 2013, the Sixth District issued its decision reversing the award of
sanctions against Mr. Rogers. Appx. 1. Despite statutory and case law to the contrary, the Sixth
District concluded that the trial court was without jurisdiction to award sanctions for conduct on
appeal in connection with a civil action. In reaching its decision, the Sixth District erroneously
held that this Court's decision in Sowald stood for this proposition. Further, it refused to
consider The Blade's argument under Ohio Civil Rule 11-an issue raised both at the trial and
appellate levels.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No.I: The trial court has the power under R.C. §2323.51
to sanction a litigant or attorney for conduct at the appellate level where thefrivolous nature of the case was known at the time plaintiffs' attorney filedthe original appeal and continued to pursue appeal after appeal.
It is beyond debate that R.C. §2323.51 permits a trial court to award fees incurred at the
appellate level to a party adversely impacted by frivolous litigation conduct. Because sanctions
are central to preserving the integrity of our legal system, the trial court must be able to freely
impose sanctions for actionable conduct under R.C. §2323.51, including that which occurs on
appeal. The decision in Jackson v. Bellomy, 10th Dist., No. 01-AP-1397, 2002-Ohio-6495,
supports this proposition and illustrates the proper application of R.C. §2323.51 with respect to
conduct arising at the appellate level.
Relying on the plain language of the statute, the Jackson court determined that the trial
court had the ability to sanction conduct on appeal in a lawsuit that lasted over three years. "The
trial court found that appellant needlessly prolonged this controversy, intending to harass and
8
annoy opposing parties, by taking the further related action of appealing its decision over a three
year period of time:" Id., ¶58. See, also, Soler v. Evans, St. Clair & Kelsey, 10th Dist., No.
04AP-314, 2006-Ohio-5402 (ruling that the trial court did not abuse its discretion by awarding
attorney fees in a civil action for appellate proceedings as a sanction where plaintiff had no
grounds to file its complaint). Notably, the Tenth District's holding has been echoed by the
Eighth, Ninth and Twelfth Districts. Hildreth v. Mims, 70 Ohio App. 3d 282, 590 N.E.2d 1353
(8th Dist. 1990) (affirming the trial court's award of sanctions for frivolous conduct on appeal
since the "filing of a notice of appeal and subsequent dismissal ... clearly constituted the taking of
action in connection with the primary civil action."); Wrinch v. Miller, 9th Dist., No. 25562,
2011-Ohio-5891 (trial court could consider fees expended on appeal in defending the frivolous
claim); and Dudley v. Dudley, 196 Ohio App.3d 671, 964 N.E.2d 1119 (12th Dist. 2011)
(holding R.C. §2323.51 does not limit a trial court's ability to order fees solely in relation to
hours spent at the trial level).
The Sixth District, however, did not follow these decisions. Instead, it impermissibly
limited the scope of R.C. §2323.51 and improperly expanded this Court's holding in Ohio
Department of Health v. Sowald, 65 Ohio St.3d 338, 603 N.E. 2d 1017 (1992), placing it in
direct conflict with the Tenth, Eighth, Ninth, and Twelfth District Courts. In doing so, it relied
entirely on Mueller v. City of Vandalia, 2nd Dist., No. 17285, 1999 WL 197971 (Mar. 31, 1999),
a decision that grossly misinterpreted statutory law and this Court's holding in Sowald.
In making its pronouncement about the interpretation of R.C. §2323.5 1, the Sixth District
court utterly disregarded the fact that the plain language of the statute specifically authorizes the
trial court to issue sanctions for conduct "in connection with a civil action." This language
cannot be ignored. The term "connection" means "the state of being connected or joined."
9
Black's Law Dictionary (6th Ed.). "Connect" is defined as "a bond or relation between." Id. It
inevitably encompasses the conduct on appeal, since such conduct is connected with and bears
relation to the civil action. Dudley, supra, at ¶12. Thus, its decision fails to account for a well-
established rule of statutory interpretation "that where the terms of the statute are clear and
unambiguous, the statute should be applied without interpretation." Wingate v. Hordge, 60 Ohio
St.2d 55, 57 (1979). Because, it is clear from the unambiguous language of R.C. §2323.51 that
the statute extends to all facets of litigation "in connection" with a civil action, the Sixth District
erred in relying on its own subjective determination of what it believed to be legislative intent.
The court's interpretation of Sowald, supra, is similarly flawed. First, that case does not
stand for the broad proposition of law that the Sixth District urges. There is absolutely nothing
in the Sowald decision that forever bars the trial court from sanctioning conduct on appeal.
Second, the particular facts in Sowald supported a different result because, there, the R.C.
§2323.51 motion was submitted to an appellate court in connection with a mandamus action that
arose out of an administrative proceeding. Administrative proceedings are not "civil actions."
Tomsu v. Ohio Civ. Rights Comna'n, 116 Ohio Misc. 2d 24, 28, 764 N.E.2d 516 (Ct.Cl.) (attorney
fees for frivolous conduct applies only to civil actions, not administrative hearings). And third, a
more recent Ohio Supreme Court decision impliedly contradicts the Sixth District's
interpretation of Sowald by upholding an award of fees under R.C. §2323.51 for successfully
defending a mandamus action. Striker v. Cline, 130 Ohio St.3d 214, 957 N.E.2d 19 (2011)
(upholding an award of fees to a party that successfully defended against a mandamus action
filed in the court of appeals and against the appeal of the matter to the Ohio Supreme Court).
The Sixth District was also incorrect when it relied heavily on the amendments to R.C.
§2323.51, which added conduct of "an inmate who has filed an appeal," as a basis for its
10
decision. In doing so, the court failed to appreciate the need for the General Assembly to spell
out that particular form of appeal. Inmate actions and appeals are administrative proceedings
governed by statute. See Ohio Admin. Code 5120-9-31; 42 U.S.C. 1997; Hemphrey v. Jago, 74
Ohio St.3d 675, 660 N.E.2d 1206 (1996). Accordingly, it was necessary for the legislature to
incorporate a separate and independent provision in the statute related to inmate appeals.
Without this provision, some inmate actions would be excluded entirely from the statute.
The Sixth District has improperly blurred the state of the law with respect to sanctions
under R.C. §2323.51. Thus, this Court should accept jurisdiction of this appeal to affirm the
discretion correctly afforded to trial courts under R.C. §2323.51 to sanction conduct on appeal
since it is "in connection with a civil action."
Proposition of Law No. II: Where the trial court has awarded sanctions, in
part, under Ohio Civil Rule 11, the appellate court does not have thediscretion to ignore Rule 11 in considering on appeal whether the award of
sanctions is appropriate.
While the Sixth District's misinterpretation of R.C. §2323.51 and misapplication of this
Court's decision in Sowald is troubling enough, the decision below demonstrates a clear
disregard for the record of this case and should not be sustained. The appellate court refused to
consider sanctions under Rule 11 because, according to it, The Blade had not raised the issue in
its Motion for Sanctions. Appx. 1, p. 11. An appellate court must consider issues properly
raised at the trial level and on appeal. App. R. 12(A); Trauth v. Dunbar, 5 Ohio St.3d 68, 70,
448 N.E.2d 1368 (1983). In determining that The Blade did not raise the issue of sanctions
pursuant to Civ. R. 11 in the trial court, the Sixth District overlooked portions of the record that
affirmatively demonstrates otherwise.
There is no dispute that Rule 11 was raised at the trial level and addressed in The Blade's
Assignment of Error on appeal. The Blade specified in its Motion that it requested sanctions
ll
under the "inherent authority of the Court." R. 200. Ohio law recognizes the inherent authority
of its trial courts to impose sanctions under Civil Rule 11. Goff v. Ameritrust Company, 8th
Dist., No. 65196, 1994 WL 173544, *9. "[A] trial court retains inherent authority to impose Civ.
R. 11 sanctions." Id.
The trial court treated the Motion as made, in part, under Rule 11, with pretrial orders
referencing the rule. See R. 217 ("Defendant's Rule 11 motion is set for hearing on July 6,
2000."). Likewise, The Blade and Mr. Rogers continued to reference Rule 11 in the related
briefing. R. 244 (making arguments under Rule 11); R. 248 (stating that an issue is whether the
trial court has jurisdiction pursuant to Civ. R. 11 to award sanctions for conduct on appeal); R.
251 (requesting that the court proceed to issue its ruling assessing sanctions under Rule 11); R.
253 (Rogers referencing Rule 11); R. 255 (Rogers quoting Rule 11); R. 256 (citing Rule 11).
Further, the December 21, 2010, Judgment Entry issued by Judge Cook made clear that
The Blade's Motion for Sanctions was made under both R.C. §2323.51 and Ohio Civil Rule 11.
R. 257 ("On July 27, 1997, Defendant filed its Motion for Sanctions against Plaintiffs' counsel,
pursuant to Civ. R. 11 and R.C. 2323.51"). This is the same entry that confirmed the court's
award against Mr. Rogers for sanctions. Nowhere in the judgment entry did the trial court state
that it was rejecting The Blade's Rule 11 argument.
The Sixth District's decision creates a new rule of law that allows courts of appeal to
arbitrarily ignore assignments of error properly raised. Therefore, The Blade respectfully
requests that this Court accept jurisdiction in this case to correct this error of law and to uphold
the trial court's sanctions against Mr. Rogers under Rule 11. Fant v. Sykes, 29 Ohio St.3d 65,
505 N.E.2d 966 (1987) (holding that the decision to impose sanctions under Civ. R. 11 rests lies
within the discretion of the trial court and will not be disturbed absent an abuse of discretion).
12
Proposition of Law No. III: A trial court has the authority under Ohio Civil
Rule 11 to award sanctions for conduct on appeal connected with the
underlying action.
Had the Sixth District properly considered Rule 11, it would have affirmed sanctions
imposed against Mr. Rogers since Ohio Civil Rule 11 permits a trial court to award sanctions for
conduct on appeal. In Fast Property Solutions, Inc. v. Jurczenko, l lth Dist., No. 2012-L-015,
2013-Ohio-60; the appellate court affirmed sanctions issued by the trial court under Rule 11,
which included fees for conduct related to an appeal. The Jurczenko court held these sanctions
were merited"after...an extensive review of years of voluminous pleadings, motions, and briefs
filed in four different courts, which demonstrated a pattern of numerous, repeated violations of
Civ. R. 11, evincing willful conduct." Id., ¶1. As is the case here, the trial court ultimately
concluded that appellant engaged in prolonged litigation, repeatedly raised issues already ruled
upon, and made arguments not supported by existing law in an effort to delay. Id., ¶62. By
affirming the ability of a trial court to sanction for conduct related to an appeal, the Eleventh
District took a strong position against conduct "interposed solely to delay, obfuscate, confuse,
confound, and wear down [an] opponent and the court." Id., ¶1.
Proposition of Law No. IV: A trial court decision should be affirmed whenthere is competent and credible evidence to support an award of sanctionsfor frivolous conduct and abuse of the legal process.
This Court should be deeply troubled by the Sixth District's implicit attack on a well-
regarded legal principal that a trial court's award of sanctions should not be disturbed if
supported by competent, credible evidence. Bardwell v. Cuyahoga County Bd. Of Commrs., 127
Ohio St.3d 202, 204, 937 N.E.2d 1274 (2010). The legislature vests considerable discretion with
a court to award sanctions for frivolous conduct or abusive or harassing behavior. Striker, supra.
The trial court's decision to grant sanctions is reviewed on an abuse of discretion standard.
13
Jackson, supra. Accordingly, that decision should not be disturbed where the record supports
the court's determination. Id. In issuing its ruling, the appellate court effectively overrode the
trial court's discretion, despite the fact that the trial court had more than sufficient evidence upon
which to determine that Mr. Rogers' conduct should be sanctioned.
A trial court is in the best position to assess what is considered permissible advocacy and
what crosses the line. See Fast Property Solutions, supra, ¶65. In considering this issue, Ohio
courts have ruled that frivolous conduct warranting sanctions occurs when a litigant continues to
pursue a claim once its lack of merit becomes clear. See Masturzo v. Revere Road Synagogue,
98 Ohio App.3d 347, 648 N.E.2d 582 (9th Dist. 1994). Likewise, conduct with a dishonest
purpose, implied conscious of wrongdoing, or done for the,purpose of delay, rises to the level of
willfulness warranting sanctions. See Fast Property Solutions, supra.
The record in this case is filled with evidence that highlights Mr. Rogers' frivolous
conduct pursuing appeal after appeal. As was vividly illustrated in the trial court's detailed
summary judgment opinion, the defamation claims were doomed from the outset for the
fundamental reason that there was an absence of evidence to show that The Blade acted with
actual malice. Significantly, the court found Mr. Rogers had "no likelihood of prevailing short of
complete abandonment of well settled principles of defamation and invasion of privacy law."
R.257. Rather than admit that the failure of proof and law were fatal to his claims, Mr. Rogers
continued to advance the same propositions at every appellate level. In a well-reasoned decision,
the trial court expressed its deep frustration with Mr. Rogers' having needlessly prolonged the
litigation by filing one futile appeal after another, and held that such conduct merited an award of
sanctions. Id.
14
By reversing the award of sanctions, the Sixth District found that the trial court abused its
discretion. Such a holding not only strips away from the trial court discretion to assess sanctions,
but serves only to reward a party for prolonged litigation for the sole purpose of delay, abuse,
and harassment. This holding is also flatly inconsistent with this Court's long history
disfavoring frivolous conduct and abuse within the legal system. The Blade, therefore,
respectfully requests that this Court accept jurisdiction to affirm a trial court's discretion in
awarding sanctions where there exists competent and credible supporting evidence.
CONCLUSION
The issues presented in the decision below are significant. The holding will not only
affect the actions of litigants and attorneys, but it will have a substantial impact on the freedom
of the press. This Court should accept jurisdiction of this case and confirm that a trial court can
impose sanctions for conduct on appeal.
Respectfully submitted,
Davi . Coyle (counsel f r cord)Rebecca E. ShopeSHUMAKER, LOOP & KENDRICK, LLP
Counsel for AppellantThe Toledo Blade Company
15
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Memorandum in Support of
,
Jurisdiction of Appellant The Toledo Blade Company was served by email and ordinary
United States mail upon Appellee George C. Rogers, 6885 State Route 110, Napoleon, Ohio
43545, on this 22nd day of March, 2013.
'---AI ^ A ADavid J. oyleRebecca E. ShopeCounsel for Appellant,The Toledo Blade Company
16
APPENDIX
_.. . ... .... _ . ...
E"1'•L AP;P:^-^;^^^ ^';
°,7.Ot3 FE8 ' ^ A
gFRNt^ CC3UR^SG^r P;^ UF
IN THE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT
LUCASCOUNTY
Michael Dennis Early, et al. Court of Appeals No. L-11-1002
Appellant/Cross-Appellee Trial Court No. CI0199003434
V.
The ToledoBlade Company DECISION AND JUDGMENT
Appellee/Cross-Appellant Decided: FEB 08 200
George C. Rogers, for appellant/cross-appellee.
Paul R. Bonfiglio, for appellee/cross-appellant.
YARBROUGH, J.
INTRODUCTION
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas, which awarded sanctions in favor of appellee/cross-appellant, The Toledo Blade
E-JOURNALIZEDFEB - 8 2013
1.
Appx.0001
Company, and against appellant/cross-appellee attorney George Rogers ("Rogers").^ For
the reasons that follow, we reverse the decision of the trial court, in part, and affirm, in
part.
Facts and Procedural Background
112) The history of this protracted litigation began with a complaint filed on
October 11, 1990, in which plaintiffs asserted defamation and invasion of privacy claims
stemming from an investigative series entitled, "The Seoret Files of Internal Affairs,"
published by appellee between June 24 and July 1, 1990. We initially note that this
litigation has persisted over 23 years. Accordingly, the facts set forth below are stated as
summarily as possible.
{¶ 31 On July 8, 1997, the trial court, in a 163 page judgment, granted appellee's
motion for summary judgment. Thereafter, on July 29, 1997, appellee filed a motion for
sanctions against Rogers. While this motion was pending in the trial court, Rogers filed a
notice of appeal in this court, and we affirmed the trial court's July 8 judgment in a
decision dated October 9, 1998. Early v. The Toledo Blade, 130 Ohio App.3d 302, 720
N.E.2d 107 (6th Dist.1998).
{¶ 4} Following our decision, Rogers filed an appeal with the Supreme Court of
Ohio which was dismissed on March 3, 1999. Early v. The Toledo Blade, 85 Ohio St.3d
1405, 706 N.E.2d 788 (1999). Thereafter, Rogers filed a request for certiorari to the
1 Rogers represented the twelve original plaintiffs: Michael Dennis Early, George J.Taylor, Jr., Robert R. Case, John P. Smith, Robert L. Barboza, Edwin V. Marok andPamela J. Marok, Martin Schaber, Maryann Hodak, Linda Leichty, Jane Lewis, and
Kimberly Kristoff,
2.
Appx.0002'.
United States Supreme Court, which was denied on November 1, 1999. Early v. The
Toledo Blade, 528 U.S. 964, 120 S.Ct. 399, 145 L.Ed.2d 311(1999).
{¶ 5) Following the denial of certiorari, appellee filed a"Notice of Disposition of
Final Appeal and Request for Hearing" in which appellee sought a ruling on its
previously filed motion for sanctions. Appellee sought sanctions pursuant to R.C.
2323.51 in addition to sanctions pursuant to the trial court's "inherent power to do all
things necessary to the administration of justice and to protect their own powers and
processes." Rogers filed a memorandum in opposition to appellee's motion on
November 22, 1999. Pretrial hearings were conducted on July 6, 2000, and then the
motion lingered on the trial court's docket until December 12, 2007, when a hearing was
held and the trial court took the matter under advisement. Eventually, on January 28,
2009, a decision was issued in which the trial court found that Rogers' conduct during the
trial court proceedings was not frivolous, but had "bled into the realm of frivolity at the
time Plaintiffappealed summary judgment based on the information received in the
Court's decision outlining the lack of sufficient evidence to pursue the claims asserted."
(Emphasis added.) The court then conducted a hearing on the amount of fees to be
awarded. In a judgment dated December 21, 2010, the trial court awarded fees of
$163,301 to appellee, which amounted to appellee's costs to defend the appeals filed in
this court, the Supreme Court of Ohio, and the United States Supreme Court. Rogers'
appeal, and appellee's cross-appeal, of the trial court's January 28, 2009 and
December 21, 2010 decisions and judgments are now before this court.
3.
Appx.0003.
THE APPEAL
Rogers' Assignments of Error
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRIES OF
JAN. 28, 2009 AND DEC. 10, 2010, IN GRANTING SANCTIONS FOR
CONDUCT OF COUNSEL BEFORE THE LUCAS COUNTY COURT
OF APPEALS, THE OHIO SUPREME COURT, AND THE UNITED
STATES SUPREME COURT.
ASSIGNMENT OF ERROR NO. I.A.
THE TRXAL COURT ERRED IN THAT THE "ISSUE" OF
COUNSEL'S CONDUCT ON APPEAL WAS NOT BEFORE IT AS
SUCH "ISSUE" HAD NOT BEEN RAISED BY MOTION AS
REQUIRED BY R.C. 2323.51 AND THERE WAS NO DUE PROCESS
NOTICE OF SUCH "ISSUE."
ASSIGNMENT OF ERROR NO I.B.
THE TRIAL COURT ERRED IN THAT R.C. 2323.51 DOES NOT
AUTHORIZE A TRiAL COURT TO AWARD SANCTIONS FOR
COUNDUCT OF COUNSEL ON APPEAL OF A NON-PRISONER
CIVIL ACTION.
4.
Appx.00041
ASSIGNMENT OF ERROR NO I.C.
THE TRIAL COURT OF THE STATE OF OHIO HAD NO
7URISDICTION [to] AWARD SANCTIONS FOR COUNSEL'S
CONDUCT IN THE UNITED STATE[s] SUPREME COURT.
ASSIGNMENT OF ERROR NO. I.D.
THE TRIAL COURT ERRED IN FAILING TO FIND THAT A
MOTION TO AWARD SANCTIONS FOR COUNSEL'S CONDUCT ON
APPEAL WAS BARRED BY R.C. 2323.51 AS NOT BEING MADE
WITHIN TWENTY-ONE DAYS FOLLOWING ENTRY OF JUDGMENT
BY THE APPELLATE COURT.
ASSIGNMENT OF ERROR NO I.E.
THE TRIAL COURT ERRED IN THAT IT HAD NO EVIDENCE
Il,T THE RECORD BEFORE IT OF COUNSEL' S CONDUCT ON
APPEAL.,
Sanctions Under R.C. 2323.51
116) Because Rogers' assignments of error are interrelated, they will be discussed
together.
Standard of Review
{¶ 7} An R.C. 2323.51 determination to impose sanctions involves a mixed
question of law and of fact. Resources for Healthy Living, Inc. v. Haslinger, 6th Dist. No.
WD-10-073, 2011-Ohio- 1978,126. On appeal, legal questions will be considered de
5.
Appx.0005
novo, while a trial court's factual determinations will not be disturbed if supported by
competent, credible evidence. Grine v. Sylvania Schools Bd of Edn., 6th Dist. No.
L-06-1314, 2008-Ohio-1562, ¶ 41. Ultimately, the decision 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. State ex rel. Stryker v. Cline, 130 Ohio St.3d 214,
2011-Ohio-5350, 957 N.E.2d 19,111.
118) The version of R.C. 2323.51(B) at issue in this appeal provides that a court
in a civil action may, at any time prior to trial or within twenty-one days after entry of
judgrnent, award attorney fees to any party adversely affected by frivolous conduct.2 In
this case, the trial court made a legal determination that R.C. 2323.51 permitted an award
of attorney fees as a sanction for appellants' conduct on appeal to the Lucas County
Court of Appeals, the Supreme Court of Ohio, and the United States Supreme Court.
Therefore, we will employ a de novo review of the trial court's legal determination to
award sanctions to appellee for defending the appeals.
Z All of the alleged frivolous conduct occurred in the appeals pending between July 1997and November 1999. Therefore, we will utilize the relevant version of R.C. 2323.51 as itexisted before the 1996 Ohio Tort Reform Act, 146 Ohio Laws, Part II, 3867, 3974. Theversion which existed following the Tort Reform Act was subsequently declared
unconstitutional in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio
St.3d 451, 715 N.E.2d 1062 (1999). That version was recodified by 2001 Am.Sub.S.B.No. 108, which revived the version in effect before the enactment of the Ohio Tort
Reform Act.
6.
Appx.0006'
Analysis
{¶ 9} The Supreme Court has addressed the issue of whether sanctions may be
awarded for defending appeals in civil actions. In State ex rel. Ohio Dept. o, f Health v.
Sowald, 65 Ohio St.3d 338, 603 N.E.2d 1017 (1992), a petition for a writ of mandamus
was filed in the Tenth District Court of Appeals. The petition was denied, and the
petitioner appealed to the Supreme Court of Ohio, which issued the requested writ. The
unsuccessful respondent then requested the Supreme Court of Ohio to award attorney
fees pursuant to R.C. 2323.51 for defense of the appeal to the 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." Id. at 343.
{¶ 101 In reaching its decision that attorney fees were appropriate in this case, the
trial court relied on Soler v. Evans, St. Clair & Kelsey, 10th Dist. No. 04AP-314, 2006-
Ohio-5402, ¶ 25. In Soler, the Tenth District determined that the trial court did not abuse
its discretion by awarding attorney fees in a civil action for appellate proceedings as a
sanction for frivolous conduct because the trial court determined plaintiff had no grounds
to file its complaint. Id. at ¶ 27. The Soler court, relying on its previous decision in
Jackson v. Bellomy, 10th Dist. No. 01-AP-1397, 2002-Ohio-6495, distinguished Sowald
by "finding that the Sowald court was referring to the appeal of an appellate court's
judgment, not to an appeal of a trial court's original judgment." Soler at ¶ 25; Jackson at
¶ 58. We are not persuaded by the Tenth District's interpretation of Sowald.
7.
Appx.0007'
{¶ 11} In Mueller v. City of Vandalia, 2d. Dist. No. 17285, 1999 WL 197971 *3,
(Mar. 31, 1999), the Second District Court of Appeals awarded a defendant reasonable
attorney fees incurred in defending against a frivolous action in the trial court. The
Mueller court also included reasonable attorney fees the defendant incurred in
prosecuting his R.C. 2323.51 motion in the trial court. Id., citing Ron Schneider & Assoc.
v. London, 81 Ohio St.3d 94, 689 N.E.2d 552. Relying on Sowald, the Mueller
determined that "the plain language of R.C. 2323.51(B)(1) applies only to attorney fees
incurred in trial court proceedings and does not authorize an award of attorney fees
incurred in either prosecuting or defending an appeal." Id. at *2. The Mueller court
interpreted the Supreme Court's holding in Sowald to mean that,
"[F]ee awards authorized by R.C. 2323.51 are necessarily limited to
trial court proceedings by division (B) of the statute, which states that `at
any time prior to the commencement of the trial in a civil action or within
twenty-one days after the entry of judgment in a civil action, the court may
award reasonable attorneys [sic] fees to any party to that action adversely
affected by frivolous conduct." Because, per Civ.R. 58(A), "entry of
judgment" occurs after and upon a Civ.R. 54(A) "judgment" of a trial court,
fees incurred in an appeal from the judgment are necessarily not included.
Id. at *2, citing Sowald at 343.
{¶ 12} The Mueller court concluded that even though the adversely affected
defendant requested an award of fees incurred in prosecuting a successful appeal in the
8.
Appx.0008!
trial court, and not at the appellate court as in Sowald, a similar outcome is dictated by
the Sowald holding, and is supported by three other considerations. We agree not only
with the Second District's interpretation of Sowald, but also with the three other
considerations described in Mueller.
1113) First, an appeal may be meritorious, even though it is prosecuted by the
party who committed the frivolous conduct in the trial court proceedings. As the Mueller
court stated, "`the questions of whether or not a civil action is frivolous is an entirely
separate question from whether or not an appeal is frivolous."' Id. at *3.
{¶ 14} Second, the Supreme Court in Sowald analyzed former R.C. 2323.51 as it
existed prior to the 1996 amendment. R.C. 2323.51 was later modified and further
strengthens appellants' position. The amendments to R.C. 2323.51, effective on April 7,
2005, extended its coverage to attorney fees incurred in appeals by inmates in civil
actions.3 However, the legislature did not include "appeal" to the definition of "conduct"
3 R.C. 2323.51(A), as amended by 2004 S 80, provides,
(1) "Conduct" means any of the following:
(a) The filing of a civil action, the assertion of a claim, defense, orother position in connection with a civil action, the filing of a pleading,motion, or other paper in a civil action, including, but not limited to, amotion or paper filed for discovery purposes, or the taking of any otheraction in connection with a civil action;
(b) The filing by an inmate of a civil action or appeal against agovernment entity or employee, the assertion of a claim, defense or otherposition in connection with a civil action of that nature or the assertion ofissues of law in an appeal of that nature, or the taking of any other action inconnection with a civil action or appeal of that nature.
9.
Appx.0009'
in other civil actions as defined in R.C. 2323.51(A)(1)(a). This necessarily suggests that
the General Assembly, in the applicable version of R.C. 2323.51, did not intend to allow
for an award of attorney fees based on a party's conduct during an appeal, except for an
inmate's appeal in a civil action. See also Mueller at *3.
1115) Third, the Mueller court took into consideration App.R. 23, which permits
an award of attorney fees and expenses by an appellate court if an appeal is found to be
frivolous. The Mueller court reasoned that App.R. 23 provides an independent basis for
relief which "protects a party who is adversely affected at the appellate level."
{¶ 16} For these reasons, we hold that the trial court erred as a matter of law in
awarding attorney fees pursuant to former R.C. 2323.51 for Rogers' actions in pursuing
plaintiffs' appeals of the trial court's July 8, 1997 judgment to this court, the Supreme
Court of Ohio, and the United States Supreme Court. Accordingly, Rogers' first
assignment of error is well-taken. To the extent that Rogers' remaining assignments of
error are not addressed, they are rendered moot pursuant to App.R. 12(A)(1)(c).
CROSS-APPEAL
Appellee/Cross-Appellant's Assignments of Error
Assignment of Error 1: The Trial Court Erred in Failing to Sanction
the Conduct of Appellant's [sic] Counsel that Occurred Prior to the Trial
Court's July 8, 1997 Decision Granting the Blade's Motion for Summary
Judgment.
10.
Appx.0010!1
{¶ 17} Appellee argues in its cross-appeal that the trial court erred in not finding
Rogers' conduct in the trial court proceedings to be frivolous pursuant to R.C. 2323.51,
Civ.R. 11, and by the court's "inherent power to do all things necessary to the
administration of justice and to protect their own powers and processes.°'4
R.C. 2323.51
R.C. 2323.51 states, in relevant part,5
(A) As used in this section:
(1) "Conduct" means filing a civil action, asserting a claim, defense,
or other position in connection with a civil action, or taking any other
action in connection with a civil action.
(2) "Frivolous conduct" means conduct of a party to a civil action or
of his counsel of record that satisfies either of the following:.
(a) It obviously serves merely to harass or maliciously injure
another party to the civil action;
(b) It is not warranted under existing law and cannot be supported
by a good faith argument for an extension, modification, or reversal of
existing law.
4 Appellee did not raise the issue of sanctions pursuant to Civ.R. 11 in its motion forsanctions in the trial court. Therefore, it will not be considered on appeal.
5 Because the litigation commenced in 1990, we will utilize the version of R.C. 2323.51,
as it then existed. 1987 Am.Sub.H.B. No. 1, effective January 5, 1988.
11.
Appx.0011'
i . . - ^. ' ^ ..I
(B)(1) Subject to divisions (B)(2) and (3), (C), and (D) of this
section, at any time prior to the commencement of the trial in a civil action,
or within twenty-one days after the entry of judgment in a civil action, the
court may award reasonable attorney's fees to any party to that action
adversely affected by frivolous conduct. The award may be assessed as
provided in division (B)(4) of this section.
{¶ 181 In applying R.C. 2323.51, a trial court must initially determine whether an
action taken by the party against whom sanctions are sought constituted frivolous
conduct. If the conduct is found to be frivolous, the trial court must determine the
amount of attorney fees to be awarded to the aggrieved party. Cleveland Indus. Square,
Inc. v. Dzina, 8th Dist. Nos. 85336, 85337, 85422, 85423, 85441, 2006-Ohio-1095, ¶ 30,
citing Lable & Co. v. Flowers, 104 Ohio App.3d 227, 232-233, 661 N.E.2d 782 (9th
Dist. 1995).
{¶ 19) "The question of what constitutes frivolous conduct may be either a factual
determination, e.g., whether a party engages in conduct to harass or maliciously injure
another party, or a legal determination, e.g., whether the claim is warranted under
existing law." Curtis v. Hard Knox Energy, Inc., I lth Dist. No. 2005-L-023, 2005-Ohio-
6421, ¶ 15. A trial court's ruling on a motion to impose sanctions will not be disturbed
on appeal absent an abuse of discretion. Haslinger, 6th Dist. No. WD-10-073, 2011-
Ohio-1978, at ¶ 26. "The term abuse of discretion connotes more than an error of law or
judgment. It implies that the court's attitude is unreasonable, arbitrary or
12.
Appx.00121I
^ -
unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983). However, the question of whether a pleading is warranted under existing law is a
question of law and will be subject to de novo review by the appellate court. Goff v.
Ameritrust Co., N.A., 8th Dist. Nos. 65196 and 66016, 1994 WL 173544, * 10 (May 5,
1994).
Analysis
Claims not frivolous
{¶ 20} Rogers filed the original complaint on October 11, 1990, and amended the
complaint on March 11, 1991, and again on May 10, 1991. This litigation involved 37
specific claims brought by 12 plaintiffs 6 Furtherrnore, by the time appellee filed its
motion for summary judgment, Rogers had propounded six sets of interrogatories, five
sets of requests for production of documents, and three sets of requests for admissions.
Rogers had also deposed nine of appellee's employees. On March 2, 1992, following a
motion to compel discovery, the trial court also sanctioned appellant in the amount of
$18,981.50 for various violations of the discovery process. This litigation was clearly
contentious. In the context of R.C. 2323.51(A)(2)(b), appellee submits that the trial
court abused its discretion by not finding that plaintiffs' invasion of privacy and
6 Specifically, there were eight claims for malicious defamation, six claims in negligentdefamation, ten claims for invasion of privacy by publication, eight claims for false lightinvasion of privacy, and five general claims for invasion of privacy. The trial courtdismissed appellant's false light claims in a decision dated March 11, 1991, finding thatthis tort was not recognized under Ohio law.
13.
Appx.0013
^ ... .. ' ' I :
defamation claims were frivolous. We note that appellee does not specifically argue
which claims it deems frivolous.
{¶ 21) Before a court may impose R.C. 2323.51 sanctions in a case like this, the
court must find that the conduct "is not warranted under existing law and cannot be
supported by a good faith argument for an extension, modification, or reversal of existing
law." R.C. 2323.51(A)(2)(b). This court, in interpreting the current version of R.C.
2323.51 has determined that filing a complaint without evidentiary support does not
become frivolous conduct under the law when no evidentiary support is uncovered by
investigation or discovery. The conduct is frivolous only when the expectation of finding
such evidence is not reasonable. See Haslinger, 6th Dist. No. WD-10-073, 2011-Ohio-
1978,at¶31.
Invasion of Privacy Claims
11221 Regarding the invasion of privacy claims, appellee argues,
The invasion of privacy claims were barred for the fundamental
reason that those claims were based on publications obtained from public
records, and the United States Supreme Court had made clear in 1989 that
no such claims arise where a newspaper published truthful information of
public significance made available to government sources.
11231 By way of background, the trial court, prefaced a 25-page postscript
contained within its award of summary judgment, by stating,
14.
Appx.0014'
The "Secret Files" series, to be sure, marked a sharp journalistic
departure for The Blade, venturing as it did into the thicket of investigative
reporting. The series was the immediate product of a determined and
laudible effort to define what constituted public records in Ohio. For this
reason alone, the series is significant.
(1124) Despite this initial praise, the trial court also opined in its postscript that
appellee's series "was not an unqualified success when measured against a`fairness
index."' The court noted that the series included "questionable journalistic decisions"
and "plaintive claims and unprofessional puffery." The court remarked that the reporters
failed to contact two officers to secure their versions of lawsuit settlements in which they
were involved 7 The court also questioned why the Willys Park sex scandal of 1971,
which occurred some 19 years prior to the series, included the names and punishments of
the officers involved. 8 Noting that several officers were in their mid-twenties in 197 1,
but at the time of the series, several of those officers were married with children, the trial
court stated,
[I]t is difficult to understand why names and punishments were
printed, especially since the entire incident (including officers' names and
7 Murray and Roe, Police Violence: A Costly, Recurring Problem for the City, Toledo
Blade (Jun. 25, 1990) 1, 6-7.
8 Murray and Roe, How a Sex Scandal Led to Internal Affairs, Toledo Blade (Jun. 24,1990) D2.
I5.
i
Appx.0015'^
punishments) was reported on the pages of The Blade contemporaneous to
the incident and sanctions. This decision was not the stuff of Pulitzers.
1125) Finally, the court questioned the journalistic decision to disclose the
names of the former wives of Officer Donald Lewis who were the victims of his
abusive behavior and subsequently privacy plaintiffs to the lawsuit. The series
also printed the names of two female officers who were victims of Officer Brian
Vasquez' violence. The court noted that the names of four other victims of
Officer Vasquez who were not officers were not disclosed. The trial court cited
several other examples of the questionable journalistic tactics employed by
appellee in this series.
{¶ 26} In its decision denying sanctions, the trial court acknowledged that many,
not all, of the invasion of privacy claims were negated by appellee's public records
defense, grounded in R.C. Chapter 149, the Ohio Public Records Act. The trial court also
noted that the information gathered by appellee in its investigative series came from
records that had been previously kept confidential based on a "duly negotiated union
contract provision then in effect.'° The trial court thus reasoned that "it would appear that
the Plaintiffs had every reason, at the time [of the complaint], to allege that their rights of
privacy had been invaded." Upon review, we find that the trial court did not abuse its
discretion in not finding that the invasion of privacy claims were frivolous.
16.
Appx.0016,,
Defamation Claims
1127) As to the legitimacy of plaintiffs' defamation claims, appellee argues that
the claims were deficient because "no reasonable reader could have interpreted the
articles in the fashion alleged by Plaintiffs." In further support of this argument, appellee
brings to our attention that the trial court determined that five of the claimed defamatory
statements were not actionable as a matter of law, and five other claims failed because
they simply were not "of and concerning" the plaintiff who claimed to have been
defamed.
{¶ 28} After a thorough review of the extensive record provided on appeal, we
cannot find that the trial court's attitude was unreasonable, arbitrary or unconscionable by
holding that the defamation claims brought against appellee were not frivolous.
{¶ 29} In its later judgment denying sanctions for frivolous conduct, the court,
citing how statutory and case law analysis and legal interpretation vary from court to
court, concluded that it "would hardly be predictable to determine at the onset whether a
case of such magnitude as the case herein, would be found to be wholly without merit."
In reaching its conclusion, the trial court reasoned that even though there was relatively
little, if any chance that plaintiffs' defamation claims would have survived, "[a] scintilla
of merit, however, could be meritorious nonetheless."
{¶ 30} Here, given the questionable reporting employed by appellee, in addition to
the information that was at the time recently made public, we find that the trial court did
not abuse its discretion when it determined that the claims were not frivolous.
17.
Appx.001
{¶ 31} Appellee alternatively argues that at some point during the litigation in the
trial court, plaintiffs' claims became so meritless so as to warrant voluntary dismissal or
be deemed frivolous. Appellee cites Matszuro v. Revere Rd. Synagogue, 98 Ohio App.3d
347, 648 N.E.2d 582 (9th Dist.1994), in support of this argument. In Matszuro, the court
determined that sanctions were warranted because the plaintiff failed to dismiss a claim
until two months after discovering that it named the wrong party as the defendant. Id. at
353. Civ.R. 17(A) requires that a civil action must be prosecuted by the real party in
interest. Appellee also relies on State ex rel. Russell v. Shaker Heights Mun. Court., 87
Ohio App.3d 511, 622 N.E.2d 697 (8th Dist. 1994), in support of its contention that
Rogers' failure to dismiss the claim constituted frivolous conduct. In Russell, the Eighth
District upheld an award of sanctions where a pro se filed an action in prohibition in a
common pleas court, and did not dismiss his action once he received the respondent's
brief which pointed out the court's the lack of jurisdiction over the action. Id. at 513.
These cases involve procedural matters which were fatal to the claims.
1132) In this case, it appears that the appellants were wrong about their theory
about what constitutes actionable conduct. However, we cannot say that appellants were
required to dismiss their complaint when presented with a conflicting theory of appellee's
theory of actionable conduct. As the trial court noted, many of the claims were negated
by R.C. 149, but not all of them. We are hard-pressed to hold that an award of summary
judgment automatically entitles the winning party to an award of sanctions for failing to
bring a winning claim.
18.
Appx.0018'
. I . .. . I i -^ .I . . . - i
{¶ 33} Accordingly, we cannot say that the trial court abused its discretion in
finding that the filing and maintaining of the action in the trial court was not frivolous
under R.C. 2323.51.
Conduct of Rogers Not Frivolous
{¶ 34) In its brief, appellee outlines Rogers' following behaviors as abusive and
therefore sanctionable pursuant to R.C. 2323.51: 1) filing meritless oppositions to the
motionfor summary judgment; 2) submitting the testimony of patently unqualified
experts - neither of whom the court permitted to testify; 3) forcing the Blade and its
counsel to participate in a two day oral argument; and 4) filing baseless post-hearing
briefs.
{¶ 351 In fixrther support of its argument that Rogers' conduct was frivolous,
appellee points to a portion of the trial court's July 8, 1997 judgment which states,
"plaintiff's counsel resorted again and again to blatant misrepresentations of controlling
law that were so basic and glaring they `must be presumed to have been deliberate."
Indeed, the trial court painstakingly addressed numerous errors committed by Rogers,
including misspellings, typographical errors, and wrong citations. The trial court also
pointed to several errors where Rogers cited to cases which stood for the opposite
position for which they were cited, did not even address the issue for which the citation
was used, or failed to give appropriate case history. In denying appellee's motion for
sanctions for Rogers' conduct in the trial court, the court noted that Rogers' behavior was
"unprofessional conduct" rather than frivolous conduct. The trial court stated,
19.
Appx.0019i.
{¶ 36) While the Court understands that litigation can be costly and time-
consuming for Defendants who axe ultimately found to be without liability, finding
an action frivolous because a Court's decision on summary judgment pointed out
what it deemed failures on the part of Plaintiffs' counsel would not bode well for
litigants, who as Defendant itself stated, are entitled to broad latitude in the pursuit
of legal claims.
{¶ 37) After reviewing the record in its entirety, we cannot find that the trial court
abused its discretion in determining that the conduct of Rogers was not frivolous in the
context of R.C. 2323.51.
381 Accordingly, we find that appellee's assignment of error asserted in its
cross-appeal is not well-taken.
CONCLUSION
{¶ 391 For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas is reversed, in part, and affirmed, in part. The portion of the trial court
judgment which awards attorney fees to appellee is hereby vacated. It is ordered that
appellee pay the court costs of this appeal and cross-appeal pursuant to App.R. 24.
Judgment affirmed, in part,and reversed, in part.
20.
Appx.0020i;
L-1 1-1002Early, et al. v. The Toledo Blade Company
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See
also 6th'Dist.Loc.App.R. 4.
Peter M. Handwork, J.
Arlene Singer P.S.
JSteuhen A. Yarbroug ,̂h, J.CONCUR.
L1-0^^^m, IJUDGE
JUDGE
JUDGE912 -
This decision is subject to further editing by the Supreme Court otOhio's Reporter of Decisions. Parties interested in viewing the fmal reported
version are advised to visit the Ohio Supreme Court's web site at:httn://www.sconet.state.oh.us/rod/newpdi:/?source=6.
l
21.
Appx.0021