Carasalina, L.L.C. v. Bennett

[Cite as Carasalina, L.L.C. v. Bennett, 2014-Ohio-5665.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Carasalina LLC et al., :

Plaintiffs-Appellants, :

No. 14AP-74

v. : (C.P.C. No. 11CVA-01-754)

Daniel Bennett, Esq. et al., : (REGULAR CALENDAR)

Defendants-Appellees. :

D E C I S I O N

Rendered on December 23, 2014

Chuparkoff & Junga LLP, and Mark A. Chuparkoff, for

appellants.

Zeiger, Tigges & Little LLP, Marion H. Little, Jr., and Kris

Banvard, for appellees.

APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

{¶ 1} Plaintiffs-appellants, Carasalina LLC, and its attorney, Mark A. Chuparkoff,

appeal a judgment of the Franklin County Court of Common Pleas awarding defendants-

appellees, Daniel Bennett and Kegler, Brown, Hill & Ritter Co., L.P.A. ("Kegler Brown"),

their attorney fees pursuant to R.C. 2323.51. For the following reasons, we affirm.

{¶ 2} The instant case arises from prior litigation between Carasalina and Scott

Elliot Smith LPA ("SES"). Carasalina owned an office building located in Dublin, Ohio.

SES leased office space from Carasalina to operate its law office. In January 2010, SES

sued Carasalina, alleging that Carasalina breached the lease agreement between it and

SES by interfering with SES' quiet enjoyment of the leased premises. SES requested and

received a temporary restraining order ("TRO") that prohibited Carasalina from: (1)

No. 14AP-74 2

terminating the lease agreement or commencing a forcible entry and detainer action

against SES, (2) requiring SES to remove any boxes located in the office building's

hallways, and (3) terminating internet service to SES.

{¶ 3} Laura Cook, the managing member of Carasalina, hired Kegler Brown to

represent Carasalina in the SES litigation. Kegler Brown assigned the case to Bennett,

who was then an associate at the law firm. Bennett represented Carasalina for one week,

from January 29 to February 5, 2010.

{¶ 4} Bennett first met with Cook on January 29, 2010, the Friday after the

issuance of the TRO. That meeting included Brandt Cook, Cook's son. Brandt Cook was

the managing member of Big Thumb, LLC, Carasalina's other tenant, and a co-defendant

in SES' action. Brandt Cook's attorney and Carasalina's business attorney also attended

the meeting.

{¶ 5} During the January 29 meeting, Bennett and Cook discussed the issues in

dispute between SES and Carasalina. First, Carasalina wanted SES to move boxes stored

in a hallway because the boxes impeded access to an emergency exit in violation of the fire

code. SES had refused to move boxes. Second, SES wanted a direct internet connection.

At the time SES filed the lawsuit, SES accessed the internet through a server located in a

part of the office building leased by Big Thumb. Both SES and Big Thumb wanted to end

Big Thumb's involvement in providing SES with internet service, but to do so, the cable

configuration in the building needed to be altered. Third, the day prior to the meeting,

the office building had lost electricity because SES' employees were running space

heaters, which tripped a circuit breaker. Cook was concerned that future similar incidents

would jeopardize the security of confidential data contained on Big Thumb servers.

{¶ 6} Also during the meeting, the participants discussed transferring the case to

the court's commercial docket. According to Bennett, no decision was reached on that

issue. Cook contends that she gave Bennett a letter on Monday, February 1, that

requested that Bennett take the steps necessary to transfer the case.

{¶ 7} According to Cook, at some point during the meeting, Carasalina's business

attorney realized that he had received a faxed copy of a subpoena that SES had issued to

Chase Bank. The subpoena sought copies of all checks from accounts on which Brandt

Cook was a signatory that were payable to Carasalina or received from SES. Cook

No. 14AP-74 3

remarked that she was not concerned about the subpoena because she banked with

KeyBank, not Chase Bank. As Bennett later testified during the sanctions hearing, he

does not recall seeing the Chase Bank subpoena or hearing Cook's remark.

{¶ 8} By the conclusion of the January 29 meeting, Bennett had ascertained that

Cook initially wanted him to attempt to informally resolve the issues in dispute so that

Carasalina could avoid the cost of a preliminary injunction hearing. Carasalina's ultimate

goal was to get SES to vacate the leased premises.

{¶ 9} During the week following the January 29 meeting, Bennett worked to

resolve the problems between SES and Carasalina. Bennett engaged in ongoing

negotiations with SES' counsel, Christina Corl. As part of those negotiations, he drafted a

proposal whereby Carasalina would waive payment of the rent for December 2009,

January 2010, and February 2010 in return for SES leaving the premises, agreeing to

termination of the lease, executing a mutual release, and dismissing the lawsuit. SES did

not agree to the proposal.

{¶ 10} According to Bennett, on Saturday, January 30, he requested and received

Cook's permission for SES to complete the work needed to secure its own internet

connection. That work largely consisted of running coaxial cable throughout the part of

the building that SES leased. On Tuesday, February 2, Bennett communicated

Carasalina's authorization of the work to SES. SES' contractor began his work, but he was

interrupted. On Friday, February 5, Cook sent an email to Bennett that stated, "At this

time, no oral or written authorization is given for Scott Smith's IT vendor to perform work

at the building." Lack of authorization stymied all further work.

{¶ 11} Cook maintains that she never authorized any work in the office building.

According to Cook, she arrived at the building on Tuesday, February 2, and saw ceiling

tiles dislodged and cables hanging down. Cook then spoke with Bennett, who urged Cook

to allow the work to proceed. Cook sent the Friday, February 5 email to inform Bennett

that she had decided not to follow his advice.

{¶ 12} On the morning of Monday, February 1, Bennett and Cook visited SES'

offices. In Bennett's opinion, the office was too cold, so he recommended to Cook that she

raise the temperature on the thermostat. Bennett made that recommendation for two

reasons. First, Bennett hoped that more heat would cause SES' employees to discontinue

No. 14AP-74 4

the use of space heaters and thereby prevent future electricity outages. Second, the low

temperature of the building caused Bennett to worry that Carasalina might be breaching

the lease. He recommended to Cook that she increase the heat in order to avoid the

possibility that SES would introduce the temperature issue into the litigation.

{¶ 13} With regard to the boxes stored in the hallway, Bennett had little

negotiating leverage because the TRO prevented Carasalina from unilaterally moving the

boxes. Bennett, therefore, asked SES whether it would agree to move the boxes to another

area within the building. SES did not object to that plan, but it wanted Carasalina to pay

for the cost of moving the boxes. Cook, however, refused to pay.

{¶ 14} On Wednesday, February 3, SES' attorney, Christina Corl, served a

subpoena on KeyBank requesting, in part, records of all deposits made in any account for

which Cook was a signatory. When Bennett received a copy of the subpoena, he contacted

Corl and told Corl that Carasalina would move to quash the subpoena unless SES reduced

its scope. Corl refused to amend the subpoena, so Bennett drafted a motion for a

protective order quashing the subpoena. Bennett drafted the motion as a joint motion of

all defendants, and he included in the motion a challenge to the scope of the Chase Bank

subpoena as well.

{¶ 15} On Friday, February 5, Bennett withdrew from representing Carasalina in

the SES litigation. Bennett withdrew because Cook wanted impossible results, she

objected to paying for the increased time needed to pursue the obstructionist strategy she

favored, and she appeared to mistrust him. Although Bennett withdrew without filing the

motion to quash, he gave his draft to Carasalina's new counsel, along with the remainder

of the case file. Carasalina's new counsel, Chuparkoff, filed the motion to quash, largely

unchanged, on Thursday, February 11.

{¶ 16} At the conclusion of its representation of Carasalina, Kegler Brown billed

Carasalina $7,235. Carasalina did not pay this bill. In the fall of 2010, Bennett spoke with

Chuparkoff regarding whether Carasalina intended to settle its account. On January 18,

2011, Carasalina and Cook filed the instant action, alleging legal malpractice. Specifically,

No. 14AP-74 5

the complaint stated that Bennett had disclosed to Corl the identity of plaintiffs' bank,

which enabled Corl to subpoena plaintiffs' banking records.1

{¶ 17} Defendants answered the complaint, and Kegler Brown filed a counterclaim

for breach of contract, seeking the $7,235 owed for its legal services to Carasalina. Within

a month of filing the answer and counterclaim, defendants moved for summary judgment

on their counterclaim and plaintiffs' claims. In another motion, filed contemporaneously,

defendants requested that the trial court sanction plaintiffs and their attorney under

Civ.R. 11 and R.C. 2323.51.

{¶ 18} To support their motion for summary judgment on plaintiffs' claims,

defendants relied on the affidavits from Bennett and Corl. In his affidavit, Bennett

unequivocally denied "disclos[ing] any information regarding the location and identity of

[plaintiffs'] bank accounts" to Corl. (Bennett affidavit, at ¶ 19.) Corl corroborated

Bennett's denial. In her affidavit, Corl stated:

The allegation that Bennett gave me any information

which enabled me or my client to obtain Carasalina's bank

information is untrue. At no time did Bennett ever

provide any information to me concerning the financial

accounts of Carasalina or Laura Cook * * *. * * * I learned

the name of Carasalina's bank by looking at the back of

cancelled checks and when I subpoenaed Key Bank they

gave me information about Carasalina's bank accounts.

(Corl affidavit, at ¶ 7.) The cancelled checks Corl referenced were rent checks from SES to

Carasalina. Corl authenticated copies of three cancelled rent checks, and she pointed out

that "[o]n the reverse side of each check is printed the name of Key Bank and a number

that we believed to be Carasalina's account number." (Corl affidavit, at ¶ 6.)

{¶ 19} In their motion for sanctions, defendants argued that plaintiffs' claims were

not supported by good grounds, had no evidentiary support, and were not warranted by

existing law or a good-faith argument for the expansion or reversal of existing law.

Defendants also pointed out that both Bennett and Corl had testified in their affidavits

that plaintiffs had not contacted them prior to filing the lawsuit to inquire into the truth of

1 Carasalina and Cook are the plaintiffs in the underlying action, and, thus, we refer to them as

"plaintiffs." Cook is not a party to this appeal, but Chuparkoff is. Consequently, when we use the term

"appellants," we mean Carasalina and Chuparkoff.

No. 14AP-74 6

the allegations made in the complaint. It appeared, therefore, that plaintiffs had failed to

investigate the factual grounds for their claims.

{¶ 20} In response to defendants' motions, plaintiffs continued to assert that

Bennett had disclosed Carasalina's banking information to Corl. Plaintiffs maintained

this position based on the "CID" information printed on the pages containing images of

the cancelled checks. Plaintiffs contended that the CID information indicated that Corl

requested copies of the cancelled checks from SES' bank on January 29, 2010. Plaintiffs

found this fact significant because Cook allegedly told Bennett that she banked at

KeyBank on January 29. Based on this coincidence of timing, plaintiffs surmised that

Bennett had disclosed their banking information to Corl and argued that a genuine issue

of material fact remained regarding how Corl acquired Carasalina's banking information.

{¶ 21} In addition to persisting with the theory of the case advanced in their

complaint, plaintiffs also bolstered their legal malpractice claim with new theories.

Plaintiffs asserted, for the first time, that defendants also beached their duty to Carasalina

by: (1) failing to request a transfer of the case to the commercial docket, (2) failing to file

the motion to quash the KeyBank subpoena, and (3) permitting SES to perform some of

the work necessary to give SES an independent internet connection in contravention to

Cook's instructions.

{¶ 22} The trial court did not rule on defendants' motions. With the discovery

period passing, the parties proceeded to engage in discovery.

{¶ 23} On March 27, 2012, plaintiffs moved for summary judgment. In their

motion, plaintiffs continued to advance the grounds for legal malpractice previously

alleged, including their theory that Bennett told Corl that Carasalina had accounts at

KeyBank. Additionally, plaintiffs again expanded the number of theories on which they

rested their legal malpractice claim. The new grounds for malpractice included: (1)

failing to provide a fee agreement and engagement letter until after withdrawing as

counsel, (2) attempting to convince Cook to allow SES employees to run space heaters and

increase the building temperature, (3) instructing Carasalina to remove the boxes stored

in the hallway itself, and (4) telling Cook that she should not bicker over the rent owed

under the lease agreement. Moreover, plaintiffs maintained that Bennett "lacked any

experience and foundation to adequately represent Carasalina," he "elected to cave to the

No. 14AP-74 7

absurd demands of Corl and SES," and "Bennett and Kegler [Brown] were simply

interested in obtaining a large retainer from Carasalina without any intention of seeing

this matter to fruition." (R. 75 at 7, 8.)

{¶ 24} Although plaintiffs' motion cited a panoply of grounds for legal malpractice,

plaintiffs' expert witness, Jeffrey Lucas, testified that Bennett breached the standard of

care in only four ways. In the affidavit attached to plaintiffs' motion for summary

judgment, Lucas stated that Bennett deviated from the standard of care by: (1) "disclosing

confidential information to [Scott] Smith[ ] and Christina Corl," (2) "failing to file a

petition to transfer this matter to [the] commercial court despite repeated requests from

Laura Cook and Carasalina LLC," (3) "failing to file a Motion to Quash the subpoenas

directed to Laura Cook and Carasalina's banking institution," and (4) together with Corl,

Brandt Cook's attorney, and Scott Smith, "participat[ing] in a conspiracy to extort money

from Laura Cook and/or Brandt Cook through improper legal proceedings and failing to

represent the interest of their clients." (Lucas affidavit, at ¶ 18-21.)

{¶ 25} On July 24, 2013, the trial court issued a decision granting defendants'

motion for summary judgment on plaintiffs' claims, denying defendants' motion for

summary judgment on their counterclaim, and denying plaintiffs' motion for summary

judgment. After reviewing parties' evidence, the trial court concluded that plaintiffs

founded their allegations of disclosure of banking information and conspiracy merely on

subjective belief and speculation. The trial court also rejected plaintiffs' claims that

Bennett committed malpractice in failing to transfer the case to the commercial docket

and failing to file the motion to quash. Finally, the trial court denied defendants' motion

for summary judgment on their counterclaim because genuine issues of material fact

remained regarding the amount of legal work completed and the value of that work.

{¶ 26} The trial court then held a hearing on defendants' motion for sanctions. At

the conclusion of the hearing, the trial court awarded defendants their attorney fees under

R.C. 2323.51. The trial court found that Carasalina's claims were unsupported by any

material facts and without a colorable basis in the substantive law governing legal

malpractice.

{¶ 27} After the parties settled defendants' counterclaim, the trial court issued a

final judgment in defendants' favor. In the December 31, 2013 judgment, the trial court

No. 14AP-74 8

also ordered Carasalina and Chuparkoff, jointly and severally, to pay $46,882.62 in

attorney fees.

{¶ 28} Carasalina and Chuparkoff now appeal the December 31, 2013 judgment,

and they assign the following errors:

I. The Court of Common Pleas abused its discretion when it

granted Defendants/Appellees' Motion for Sanctions under

[R.C.] 2323.51(A) as such was against the manifest weight of

[the] evidence presented at [the] hearing and an abuse of the

Court's discretion when there was no evidence of frivolous or

malicious misconduct.

II. The Trial Court erred as a matter of law when it awarded

clearly excessive and unreasonable attorney's fees.

{¶ 29} By appellants' first assignment of error, they argue that the trial court erred

in finding that their conduct met the definition of "frivolous conduct" set forth in R.C.

2323.51(A)(2)(a)(ii) and (iii). We disagree.

{¶ 30} Pursuant to R.C. 2323.51(B)(1), a court may award court costs, reasonable

attorney fees, and other reasonable expenses to any party to a civil action who is adversely

affected by frivolous conduct. Prior to making such an award, the court must hold a

hearing to determine: (1) whether the conduct at issue was frivolous, (2) if the conduct

was frivolous, whether any party was adversely affected by it, and (3) the amount of the

award, if any. Bennett v. Martin, 10th Dist. No. 13AP-99, 2013-Ohio-5445, ¶ 17.

"Conduct" includes "[t]he filing of a civil action, the assertion of a claim, defense, or other

position in connection with a civil action, the filing of a pleading, motion, or other paper

in a civil action * * * or the taking of any other action in connection with a civil action."

R.C. 2323.51(A)(1). "Frivolous conduct" means the conduct of a party or the party's

attorney that satisfies any of the following:

(i) It 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 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

No. 14AP-74 9

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.

(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.

R.C. 2323.51(A)(2)(a)(i) through (iv). Any party who has commenced or persisted in

maintaining a frivolous action may be assessed sanctions. Guy v. Axe, 3d Dist. 14-09-31,

2010-Ohio-986, ¶ 10.

{¶ 31} Here, appellants' argument on appeal requires us to examine R.C.

2323.51(A)(2)(a)(ii) and 2323.51(A)(2)(a)(iii). Under R.C. 2323.51(A)(2)(a)(ii), conduct is

frivolous when no reasonable attorney would have brought the action in light of the

existing law. Groves v. Groves, 10th Dist. No. 09AP-1107, 2010-Ohio-4515, ¶ 17. This test

presents a legal question, which appellate courts review de novo. Id. at ¶ 18.

{¶ 32} Unlike R.C. 2323.51(A)(2)(a)(ii), R.C. 2323.51(A)(2)(a)(iii) presents a

factual question; namely, whether a party's allegations have evidentiary support. Hunt v.

Allen, 5th Dist. No. 11-CA-70, 2012-Ohio-1212, ¶ 33. The language used in R.C.

2323.51(A)(2)(a)(iii) is similar to the language in Fed.R.Civ.P. 11(b)(3), which states that,

by presenting a pleading to the court, an attorney or unrepresented party certifies that

"the factual contentions have evidentiary support or, if specifically so identified, will likely

have evidentiary support after a reasonable opportunity for further investigation or

discovery." Pursuant to Fed.R.Civ.P. 11(c), a trial court may impose sanctions if it

determines that a party has violated Fed.R.Civ.P. 11(b)(3). Therefore, both R.C. 2323.51

and Fed.R.Civ.P. 11 sanction the same behavior: asserting a claim lacking (or not likely to

have) evidentiary support.

{¶ 33} Ohio courts may rely on federal authority interpreting a federal rule to

explicate a similar state rule. Stammco, L.L.C. v. United Tel. Co., 136 Ohio St.3d 231,

2013-Ohio-3019, ¶ 18. Although R.C. 2323.51(A)(2)(a)(iii) is a statutory provision and not

No. 14AP-74 10

a rule, we find the federal authority interpreting Fed.R.Civ.P. 11(b)(3) instructive. Thus,

we turn to that authority to determine how to construe R.C. 2323.51(A)(2)(a)(iii).

{¶ 34} The Advisory Committee Notes on the 1993 amendments to Fed.R.Civ.P.

11(b)(3) state that a party must provide " 'evidentiary support' for the allegation, not

[establish] that [it] will prevail with respect to its contention regarding the fact." Thus:

[t]hat summary judgment is rendered against a party does not

necessarily mean * * * that it had no evidentiary support for

its position. On the other hand, if a party has evidence with

respect to a contention that would suffice to defeat a motion

for summary judgment based thereon, it would have sufficient

"evidentiary support" for purposes of Rule 11.

Id; accord Wrinch v. Miller, 183 Ohio App.3d 445, 2009-Ohio-3862, ¶ 55 (9th Dist.)

("[T]he fact that summary judgment was denied demonstrates that [the plaintiff]

provided at least some factual basis to support the claims.").

{¶ 35} Moreover, according to the Advisory Committee Notes, Fed.R.Civ.P.

11(b)(3) recognizes that "sometimes a litigant may have good reason to believe that a fact

is true or false but may need discovery, formal or informal, from opposing parties or third

persons to gather and confirm the evidentiary basis for the allegation." However, if a

litigant does not obtain evidentiary support after a reasonable opportunity for further

investigation or discovery, "the party has a duty under [Fed.Civ.R. 11(b)(3)] not to persist

with that contention." Id.

{¶ 36} Using this authority to interpret R.C. 2323.51(A)(2)(a)(iii), we conclude that

a party only needs minimal evidentiary support for its allegations or factual contentions in

order to avoid a frivolous conduct finding. If a party makes an allegation or factual

contention on information or belief, then the party must have the opportunity to

investigate the truth of that allegation or factual contention. However, if a party persists

in relying on that allegation or factual contention when no evidence supports it, then the

party has engaged in frivolous conduct under R.C. 2323.51(A)(2)(a)(iii).

{¶ 37} Because a finding of frivolous conduct under R.C. 2323.51(A)(2)(a)(iii)

results from a factual analysis, appellate courts afford such a finding a degree of

deference. Hunt, 2012-Ohio-1212, at ¶ 27, 33. Appellate courts will not reverse a

determination that conduct is frivolous under R.C. 2323.51(A)(2)(a)(iii) unless the record

No. 14AP-74 11

lacks competent, credible evidence to support the trial court's factual findings. Id.;

Groves, 2010-Ohio-4515, at ¶ 18.

{¶ 38} Here, the trial court determined that no evidence supported the allegations

that Bennett disclosed Carasalina's banking information to opposing counsel or engaged

in a conspiracy with the other attorneys involved in the case. Bennett's and Corl's

affidavit testimony—attached to appellees' motion for summary judgment—precluded all

possibility of any wrongful disclosure or conspiracy. Appellants, however, turned a blind

eye to the evidence that unequivocally refuted their allegations. The trial court concluded

that appellants' persistence in pursuing disproven allegations amounted to frivolous

conduct under R.C. 2323.51(A)(2)(a)(iii). We agree.

{¶ 39} On appeal, appellants do not focus on the trial court's R.C.

2323.51(A)(2)(a)(iii) determination. Rather, they concentrate on the theories of legal

malpractice that they raised subsequent to the complaint, and they argue that existing law

warrants a legal malpractice claim based on those theories. Appellants contend that if we

agree with them that any of the other grounds for legal malpractice are not frivolous, then

we must find that the trial court erred in finding any frivolous conduct. We cannot agree

with appellants' reasoning. If a party is adversely affected by any frivolous conduct, a trial

court may make an award under R.C. 2323.51. In other words, a party's non-frivolous

conduct does not ameliorate or eliminate its frivolous conduct. The trial court does not

weigh a party's "good" conduct against its "bad" conduct to determine whether frivolous

conduct occurred. Rather, engaging in any conduct defined as "frivolous" in R.C.

2323.51(A)(2) may result in an award of reasonable attorney fees.

{¶ 40} Moreover, almost all appellants' other grounds for the legal malpractice

claim are frivolous under R.C. 2323.51(A)(2)(a)(ii). Appellants raise six other grounds:

(1) failure to transfer the case to the trial court's commercial docket, (2) failure to file the

motion to quash, (3) the recommendation that Carasalina pay for moving the boxes stored

in the hall, (4) the recommendation that Carasalina forgive three months' rent payments,

(5) the recommendation that Carasalina raise the heat in the office building, and (6)

allowing SES to begin the work necessary for SES to acquire an independent internet

connection. The trial court found these grounds lacking.

No. 14AP-74 12

{¶ 41} To establish a claim for legal malpractice, a plaintiff must show: (1) the

attorney owed a duty or obligation to the plaintiff, (2) a breach of the duty or obligation

and the attorney failed to conform to the standard required by law, and (3) a causal

connection between the conduct complained of and the resulting damage or loss. Vahila

v. Hall, 77 Ohio St.3d 421 (1997), syllabus. Here, with the exception of one ground, no

reasonable attorney would bring a legal malpractice claim based on the grounds

appellants assert because, for some grounds, there is no evidence of a breach and, for

others, there is no evidence of damages.

{¶ 42} With regard to the commercial-docket and motion-to-quash grounds,

appellants cannot show any evidence of harm resulting from Bennett's alleged failures. As

the trial court stated about these two grounds:

[I]t is important to recall that the Smith case ultimately

transferred—only a short time after Bennett was relieved as

counsel—to the Commercial Docket * * *. The time delay in

doing so was neither remarkable nor was any harm caused

Carasalina from the few-days delay. Again, these facts were

apparent long before this case was filed in 2011. It was

frivolous to assert and persist in this as part of the legal

malpractice claim.

* * * [W]hile [Bennett] was still counsel[,] a motion to quash

the subpoena for Key Bank material was in fact drafted by

Bennett almost immediately after the issue arose. Once

relieved, Bennett turned his draft over to replacement counsel

Chuparkoff. Chuparkoff filed substantially the same motion

(joined by [Brandt Cook's counsel]) days later on or about

Feb. 11, 2010. No demonstrable harm to Carasalina occurred

from the delay in filing the motion to quash, such as might

have colorably justified a legal malpractice claim against

Bennett when seen from the vantage point of early 2011 when

this case was brought.

(R. 137 at ¶ Z and AA.)

{¶ 43} With regard to the boxes, rent, and heating grounds, appellants have shown

only disagreement with Bennett's recommendations, not a breach of duty. Per Cook's

instruction, Bennett tried to compromise with SES in order to avoid the cost of litigating.

To achieve the desired outcomes—the removal of the boxes, SES leaving the office

building, and cessation of the electrical outages—Cook had to make concessions: pay

No. 14AP-74 13

movers, forgive three months' rent, and raise the heat. Ultimately, Cook evaluated the

price of the concessions as too high, and she refused the recommended compromises.

Cook's dislike, and ultimate rejection, of her attorney's advice did not render that advice

negligent. As the trial court stated, Cook's "apparent misunderstanding of the litigation

process, coupled with impatience and emotional distress[,] did not translate what Bennett

tried to do into legal malpractice." (R. 137 at ¶ HH.) As Bennett's recommendations do

not equate to legal malpractice, appellants' assertion of them as grounds for such a claim

is frivolous.

{¶ 44} Only with regard to appellants' last ground—the authorization of the

installation of coaxial cable—do we conclude that appellants alleged a legal malpractice

claim that surmounts the frivolous threshold. Bennett testified that he secured Cook's

permission to proceed with the work necessary for SES' independent internet connection.

Cook denied giving this permission, and she presented evidence that SES' contractor

damaged the office building when installing coaxial cable. An attorney who fails to follow

a client's instructions may be liable for legal malpractice. McInnis v. Hyatt Legal Clinics,

10 Ohio St.3d 112, 112-13 (1984). Given Cook's testimony that Bennett disregarded her

instructions, we conclude that appellants did not act frivolously in bringing a legal

malpractice claim based on the occurrence of internet-related work.

{¶ 45} Even though one of appellants' grounds for the legal malpractice claim is

not frivolous under R.C. 2323.51(A)(2)(a)(ii), reversal of the trial court's judgment is not

warranted. In addition to finding appellants' conduct frivolous under R.C.

2323.51(A)(2)(a)(ii) and (iii), the trial court also determined that appellants' conduct

satisfied R.C. 2323.51(A)(2)(a)(i), which includes conduct that merely serves an

"improper purpose." The trial court found that "improper purpose was a key part of what

occurred here, namely plaintiffs' misguided effort to try to gain 'leverage' or head-off an

attorney fees claim by Carasalina's former lawyers." (R. 137, at ¶ W.) Appellants do not

mention this finding at all, much less present any argument for its reversal. Therefore, it

stands unchallenged as an independent basis for the trial court's finding of frivolousness.

{¶ 46} In sum, we conclude that the trial court did not err in finding that

appellants engaged in frivolous conduct. Carasalina filed suit solely on the theory that

Bennett disclosed its banking information to opposing counsel. When appellees' evidence

No. 14AP-74 14

unequivocally refuted that theory, Carasalina refused to concede the factual impossibility

of its disclosure allegations and, additionally, raised a grab bag of other unprovable bases

for its claim. These actions constitute frivolous conduct sanctionable under R.C. 2323.51.

Accordingly, we overrule appellants' first assignment of error.

{¶ 47} By their second assignment of error, appellants argue that the trial court

erred in awarding appellees the attorney fees they incurred during the two-year period

during which appellees' motions for summary judgment and motion for sanctions were

pending. We disagree.

{¶ 48} Where a trial court has found that frivolous conduct occurred, the decision

to assess a penalty lies within the sound discretion of the trial court. Judd v. Meszaros,

10th Dist. No. 10AP-1189, 2011-Ohio-4983, ¶ 19. Appellate courts, therefore, review such

a decision for an abuse of discretion. Bennett, 2013-Ohio-5445, at ¶ 19.

{¶ 49} Here, appellees were forced to defend a lawsuit premised on frivolous

allegations and claims during the two-year period at issue. Appellees expended funds so

that its attorneys could conduct discovery, respond to Carasalina's discovery requests, and

oppose Carasalina's motion for summary judgment. We find no abuse of discretion in the

trial court's decision to award appellees the attorney fees incurred for that work.

Accordingly, we overrule appellants' second assignment of error.2

{¶ 50} For the foregoing reasons, we overrule appellants' first and second

assignments of error, and we affirm the judgment of the Franklin County Court of

Common Pleas.

Judgment affirmed.

SADLER, P.J., and LUPER SCHUSTER, J., concur.

2 Tangentially, we note that appellants' argument in support of the second assignment of error includes

the unsubstantiated assertion that the trial court ruled against them out of a predetermined bias. Such an

accusation is inappropriate.