The Eighth District recently released a decision holding that the trial court arbitrarily denied a frivolous conduct motion, filed pursuant to R.C. 2323.51, without a hearing or opinion in Brown v. Carlton Harley-Davidson, Inc., 2014-Ohio-5157. This continues a line of cases in the Eighth District requiring a trial court to conduct a hearing in denying a frivolous conduct motion even when solely filed pursuant to the statutory section, which only requires a hearing if the court grants the motion for attorney fees. Pisani v. Pisani, 101 Ohio App.3d 83, 88, 654 N.E.2d 1355 (8th Dist.1995). If ever facing the unfortunate situation of having to prosecute a frivolous conduct motion, Brown is a good starting point to get past a trial court's instantaneous denial of the motion without a hearing.
In Brown, the defendants filed a counterclaim alleging that the plaintiff was a vexatious litigator. That claim was granted upon an unopposed motion for summary judgment. The defendants, thereafter, filed a motion for attorney fees pursuant to R.C. 2323.51, based on the same frivolous conduct underlying the vexatious litigator claim. The trial court denied the frivolous conduct motion without hearing. The Eighth District reversed the trial court's denial, holding that once there is an arguable demonstration of frivolous conduct, a trial court must hold a hearing. Although this is good law for prosecuting such motions, it likely will not stand the test of time for two reasons.
As already alluded to, there is a conflict in the Eighth District on whether a hearing is required when denying a frivolous conduct motion brought solely pursuant to R.C. 2323.51. In Brown, the court cited authority dealing with Civ.R. 11 and R.C. 2323.51 standards even though the Brown case only dealt with R.C. 2323.51. This is problematic because although both rules allow attorney fees for frivolous conduct, both rely on different standards. Further, the court is at odds with itself. In the Pisani case, the court specifically noted that no hearing is required if denying a frivolous conduct motion. And most important, the award of damages pursuant to R.C. 2323.51 is completely discretionary. Even if a trial court determines that frivolous conduct exists it is not required to award attorney fees as damages. The Eighth District's decision seems to ignore the damages aspect of any frivolous conduct motion. It seems futile to remand a case for a hearing when the trial court cleary indicated its intent to not award fees, despite knowing that frivolous conduct existed to support the vexatious litigator claim.
For now, the Brown decision is a strong case when prosecuting a frivolous conduct motion. It implies that trial courts should hold a hearing in cases where there is some evidence of frivolous conduct to determine whether the award of damages is appropriate.
