text:
    STATE of Ohio, Plaintiff-Appellant v. Gerald PENDERGRASS, Defendant-Appellee
    No. 27814
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on September 21, 2018
    MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellant
    JEFFREY R. McQUISTON, Atty. Reg. No. 0027605, 130 West Second Street, Suite 1818, Dayton, Ohio 45402, Attorney for Defendant-Appellant
   TUCKER, J.

{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the trial court's dismissal of a re-indictment issued on September 13, 2017, against Defendant-appellee, Gerald Pendergrass. Raising two assignments of error, the State argues that the trial court misconstrued R.C. 2907.04(B)(4) and, in the alternative, that the trial court erred by dismissing the re-indictment in its entirety, rather than allowing the case to proceed on lesser included offenses. We find that the trial court erred by dismissing the re-indictment pursuant to R.C. 2907.04(B)(4) ; therefore, we sustain the State's first assignment of error and reverse the trial court's judgment of November 14, 2017. The State's second assignment of error is consequently overruled as moot.

I. Facts and Procedural History

{¶ 2} On August 4, 2016, a Montgomery County Grand jury issued an indictment against Pendergrass in Case No. 2016 CR 02355. The indictment charged him with two counts of unlawful sexual conduct with a minor, fourth degree felonies pursuant to R.C. 2907.04(A) and (B)(1), in relation to events that allegedly occurred "between the dates of October 1, 2015[, and] December 1, 2015." Pendergrass pleaded guilty to one of the two counts, and on September 30, 2016, the trial court docketed a termination entry reflecting the plea and the sentence imposed.

{¶ 3} In the instant case, a subsequent Montgomery County grand jury issued another indictment against Pendergrass on or about August 31, 2017. Again, Pendergrass was charged with two counts of unlawful sexual conduct with a minor, also fourth degree felonies pursuant to R.C. 2907.04(A) and (B)(1), but these new charges related to events that allegedly occurred "between the dates of May 19, 2013[, and] May 19, 2014." At his arraignment on September 5, 2017, Pendergrass entered a plea of not guilty.

{¶ 4} On September 13, 2017, Pendergrass was re-indicted on nearly the same charges. The re-indictment, however, alleged that the underlying events occurred between May 19, 2013, and May 19, 2015, and specified that Pendergrass had "been previously convicted * * * on September 30, 2016, for the offense of unlawful sexual conduct with a minor in [C]ase [N]umber 2016 CR [0]2355." In light of the previous conviction, the offenses in the re-indictment were charged as second degree felonies pursuant to R.C. 2907.04(A) and (B)(4). Pendergrass again entered a plea of not guilty when he appeared for arraignment on the re-indictment on September 14, 2017.

{¶ 5} On September 22, 2017, Pendergrass moved to dismiss the re-indictment under Crim.R. 12(C)(2). Effective October 11, 2017, the trial court entered a nolle prosequi without prejudice, at the State's request, with respect to the initial indictment. On November 14, 2017, the trial court sustained Pendergrass's motion to dismiss the re-indictment, and on November 22, 2017, the State timely filed a notice of appeal to this court.

II. Analysis

{¶ 6} For its first assignment of error, the State contends that:

THE TRIAL COURT ERRED IN GRANTING PENDERGRASS' MOTION TO DISMISS THE RE-INDICTMENT BASED ON ITS CONCLUSION THAT PENDERGRASS' PRIOR CONVICTION FOR UNLAWFUL SEXUAL CONDUCT WITH A MINOR COULD NOT SERVE AS A PRIOR CONVICTION THEREBY INCREASING THE DEGREE OF FELONY.

{¶ 7} In its decision sustaining Pendergrass's motion to dismiss, the trial court determined that his conviction in Case No. 2016 CR 02355 "is actually * * * a conviction subsequent to the violations alleged in the re-indictment," because the events that gave rise to the conviction occurred after the events on which the re-indictment is based. (Emphasis sic.) Decision & Entry Sustaining Mot. to Dismiss Re-indictment 2-3, Nov. 14, 2017 [hereinafter Decision ]. The State argues that the trial court erred by predicating its decision on the sequence in which the underlying events occurred, rather than the sequence in which the legal proceedings occurred. We find that the trial court erred by dismissing the re-indictment.

{¶ 8} A "motion to dismiss [under Crim.R. 12(C)(2) ] tests the legal sufficiency of [an] indictment, regardless of the quality or quantity of the evidence that may be introduced [at trial either by] the state or [by] the defendant." (Citations omitted.) State ex rel. Steffen v. Court of Appeals , 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906, ¶ 34 ; State v. Pointer , 193 Ohio App.3d 674, 2011-Ohio-1419, 953 N.E.2d 853, ¶ 16 (2d Dist.), citing Steffen at ¶ 34. When presented with a motion to dismiss an indictment, a trial court should determine only "whether the allegations [describe one or more] offenses under Ohio criminal law." State v. Patterson , 63 Ohio App.3d 91, 95, 577 N.E.2d 1165 (2d Dist.1989) ; see also Crim.R. 7(B). The question of whether the evidence is sufficient to support a conviction must be left for a trial on the merits. (Citation omitted.) Pointer at ¶ 16. On appeal, a trial court's ruling on a motion under Crim.R. 12(C)(2) is reviewed de novo. (Citation omitted.) State v. Thornsbury , 4th Dist. Lawrence No. 12CA9, 2013-Ohio-1914, 2013 WL 1932938, ¶ 6.

{¶ 9} R.C. 2907.04(A) prohibits any "person who is eighteen years of age or older" from "engag[ing] in sexual conduct with [a minor] who is not the offender's spouse," if the "offender" either "knows the [minor] is thirteen years of age or older but less than sixteen years of age" or "is reckless in that regard." Under R.C. 2907.04(B), if "the offender previously has been convicted of or pleaded guilty to a violation of * * * [R.C.] 2907.04," then "unlawful sexual conduct with a minor is a felony of the second degree." The term "conviction" generally means " 'the state of having been proved guilty.' " State v. Baker , 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 12, quoting Black's Law Dictionary 335 (7th Ed.1999). As the term is used in the Ohio Revised Code, " 'a "conviction" consists of a guilty verdict and the imposition of a sentence or penalty.' " (Emphasis sic.) See State v. Ulrich , 2d Dist. Montgomery No. 23737, 2011-Ohio-758, 2011 WL 579239, ¶ 40, quoting State v. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12.

{¶ 10} Here, Pendergrass argues that because the word "offender," instead of the word "defendant," is used in R.C. 2907.04(B)(4), the phrase "previously has been convicted * * * or pleaded guilty"

relates to the time at which he allegedly engaged in the conduct described in the re-indictment, rather than to the date on which he was convicted in Case No. 2016 CR 02355. See Appellee's Br. 4. The trial court concurred. Decision 2-3. Interpreting the statute accordingly, the trial court reasoned that for Pendergrass to have been validly re-indicted for a second degree felony on the basis of a previous conviction, the previous conviction must already have been a matter of record at the time he committed the acts cited in the re-indictment. See id. at 3.

{¶ 11} The trial court found support for its interpretation in the Ohio Supreme Court's opinion in State v. Smith , 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283. Decision 3. In its opinion, the Ohio Supreme Court considered the question of "whether [a] conviction [for a] sexually violent offense may be used as the conviction * * * to support [a] sexually violent predator specification [where the defendant was charged with the offense and the specification] in the same indictment." (Emphasis added.) Id. at ¶ 1. Answering the question in the negative, the Court held that the specification could only be based on "a conviction that existed prior to the indictment of the underlying offense." (Emphasis added.) Id.

{¶ 12} The trial court's interpretation of R.C. 2907.04(B)(4), however, discounts the meaning of the word "conviction," which is defined exclusively by reference to legal proceedings. Compare Smith at ¶¶ 1 and 18, with Baker , 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 12, and Ulrich , 2d Dist. Montgomery No. 23737, 2011-Ohio-758, ¶ 40 ; see also Decision 3. For that matter, the holding in Smith appears to have limited relevance to this case given the narrowness of the issue presented for the Court's review. See Smith at ¶¶ 1 and 31-32.

{¶ 13} On its face, the statute is not ambiguous. R.C. 2907.04(B)(4) makes no reference to the chronological order in which a person commits violations of R.C. 2907.04(A) but, instead, refers exclusively to the order in which "the offender" is "convicted of" or "plead[s] guilty to" such violations. Compare State v. Brantley , 1 Ohio St.2d 139, 205 N.E.2d 391 (1965), syllabus. Moreover, the word "offender" must be construed within the context in which it appears. R.C. 2907.04(B) states that "[w]hoever violates [ R.C. 2907.04(A) ] is guilty of unlawful sexual conduct with a minor." The "offender," then, is the person who has violated R.C. 2907.04(A), and the use of the verb "to violate" in the present tense indicates that the violation in question is the current violation, as opposed to the violation or violations that resulted in the previous conviction or guilty plea. Consequently, R.C. 2907.04(B)(4) could be paraphrased as follows: "If the person who is found guilty of, or pleads guilty to, a violation of R.C. 2907.04(A) has already been convicted of a sex offense under R.C. 2907.02, 2907.03 or 2907.04, then the violation is a felony of the second degree."

{¶ 14} Here, in Case No. 2016 CR 02355, Pendergrass entered a plea of guilty to a violation of R.C. 2907.04(A), and was sentenced, 11 months before he was initially indicted in this case. The State's first assignment of error is sustained.

{¶ 15} For its second assignment of error, the State contends that:

THE TRIAL COURT ERRED IN DISMISSING THE ENTIRE RE-INDICTMENT WHEN THE COURT ONLY SHOULD HAVE DISMISSED THE CHALLENGED PRIOR-CONVICTION ELEMENT, THEREBY LEAVING IN PLACE THE LESSER-INCLUDED OFFENSE OF FOURTH DEGREE UNLAWFUL SEXUAL CONDUCT WITH A MINOR.

{¶ 16} The State argues in the alternative that the trial court should have reformed the re-indictment to charge Pendergrass with fourth degree felonies under R.C. 2907.04(A) and (B)(1), rather than dismissing the re-indictment in its entirety. See Appellant's Br. 8. As a result of our disposition of the State's first assignment of error, we overrule the State's second assignment of error as moot.

III. Conclusion

{¶ 17} We find that the re-indictment validly charged Pendergrass with a previous conviction for a violation of R.C. 2907.04(A), regardless of the fact that the re-indictment related to conduct that allegedly occurred before the conduct at issue in Case No. 2016 CR 02355. Therefore, the State's first assignment of error is sustained; the State's second assignment of error is overruled as moot; and the trial court's judgment of November 14, 2017, is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.

{¶ 18} Between May 2013 and May 2014, Pendergrass allegedly committed certain acts constituting unlawful sexual conduct with a minor.

{¶ 19} Between October 2015 and December 2015, Pendergrass again allegedly committed certain acts constituting unlawful sexual conduct with a minor, for which he was indicted in August 2016 and to which he pled guilty on September 30, 2016, in Montgomery County C.P. No. 16 CR 3355.

{¶ 20} On September 13, 2017, Pendergrass was indicted in Montgomery County C.P. No. 17 CR 896 for the acts he allegedly committed in 2013, before the 2015 acts for which he was indicted and convicted in 2016.

{¶ 21} This chronology initially might have presented no issues since all charges were brought within the relevant statutes of limitations. For example, the State may not have been aware of the 2013 offenses when in 2016 it indicted Pendergrass and accepted a plea to the 2015 offenses. However, the 2017 indictment provided a much more serious penalty, because it alleged Pendergrass "previously ha[d] * * * pleaded guilty" to the same criminal offense. See R.C. 2907.04(B)(4).

{¶ 22} It seems illogical to charge a person as a repeat offender for having committed an offense at a time when he in fact was not a repeat offender; that is, Pendergrass was charged for a 2013 offense as a repeat offender although when he committed the 2013, offense he was a first offender.

{¶ 23} Absent any suggestion of prosecutorial manipulation of charges or convictions, this appears to be a legislative decision. As in Deal v. United States , 508 U.S. 129, 135, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), the relevant statute "does not use the term 'offense,' so it cannot possibly be said that it requires a criminal act after the first conviction. What it requires is a conviction after the first conviction. There is utterly no ambiguity in that, and hence no occasion to invoke the rule of lenity." (Emphasis sic.)

{¶ 24} Whatever penological theory (punishment, deterrence, rehabilitation, incapacitation) is accepted, subsequent offenses generally are treated differently. The scenario in this case, however, is that at the time he allegedly committed the 2013 offense (for which he was charged as a repeat offender in 2017), Pendergrass was not a repeat offender since he, at that time, had not committed a prior offense. Therefore, whatever justification exists for a harsher sentence for a subsequent offender, it did not exist in 2013 when Pendergrass allegedly committed that offense. Deal , however, characterizes as "nothing but personal intuition" the contention that the statute is directed at those who "failed to learn their lessons from the initial punishment." Id. at 136, 113 S.Ct. 1993.

{¶ 25} The holding in Deal has been questioned since "there are perhaps good reasons to believe Congress did not intend this result." United States v. Johnson , 6th Cir., 702 Fed.Appx. 349, 366 (2017), cert. denied , --- U.S. ----, 138 S.Ct. 1591, 200 L.Ed.2d 780 (2018). Regardless, the Ohio statute, like the federal statute, says "conviction," not "offense."

{¶ 26} Given that R.C. 2907.04(B)(4) refers to those "previously * * * convicted," I must concur in the reversal of the dismissal.

{¶ 27} I disagree. The majority concludes that "previous conviction" means a conviction that was journalized prior to imposing sentence on the instant indictment. However, based upon the statutory language of R.C. 2907.04, read in context, I would conclude that "previous conviction" means any conviction that occurred before the commission of the instant indicted charge. Had the legislature intended the majority's reading of the statute, it could have easily unequivocally defined "previous conviction" as a conviction that was entered prior to imposing sentence in the current crime, provided that the prior conviction was based on a crime committed in a separate criminal episode. In my view, a contextual reading of R.C. 2907.04 should point to the additional event to which "previous" refers. Previous to what? The plain text of R.C. 2907.04(B) ostensibly dictates that the "violation" serves as the defining event which the "previous conviction" must precede. This is so because R.C. 2907.04(A) defines the elements of the offense and R.C. 2907.04(B) states "Whoever violates this section is guilty of unlawful sexual conduct with a minor." The disputed language appears in R.C. 2907.04(B)(4).

{¶ 28} Because "previous to what" is the issue, in my view the statute is at least ambiguous. The majority focuses on the words conviction and offender, whereas we should focus on the words "previous" and "violates." Under the doctrine of noscitur a socii, the word "previous" must be read in context with the language used in the section as a whole. This doctrine dictates the undefined word may derive meaning not just from the words that accompany it, but also those which are contextually associated with it. In State v. Orban, 11th Dist. Portage No. 1515, 1985 WL 4939 (Dec. 31, 1985), the Court applied this doctrine, recognizing that the language in R.C. 2907.06(A) must be read in conjunction with R.C. 2907.06(A)(1). Since the statute is reasonably susceptible to more than one interpretation, we must strictly construe it in favor of the accused. Miamisburg v. Wood, 137 Ohio App.3d 623, 625-626, 739 N.E.2d 410 (2d Dist.2000), citing State v. Hill, 70 Ohio St.3d 25, 31, 635 N.E.2d 1248, 1253 (1994).

{¶ 29} Furthermore, if we were to adopt the state's interpretation - that any convictions obtained prior to sentencing qualify as "previous convictions" - we would be violating a cardinal rule of statutory construction by reading the term "previous" out of the statute. See Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) ("We are * * * reluctant to treat statutory terms as surplusage in any setting.") (Emphasis added; internal quotation marks and citations omitted). Because the state's approach incorporates all convictions existing at the time of sentencing, when this provision is applied, every conviction would, by definition, be "previous," rendering inclusion of the word "previous" entirely unnecessary. See United States v. Talley, 16 F.3d 972, 975-76 (8th Cir.1994) ("If previous convictions meant those convictions a defendant had accumulated prior to sentencing, Congress could have omitted the world previous because, at sentencing, a district court could never consider convictions not yet in existence.")(Emphasis sic). I would decline to treat the word "previous" as mere surplusage.

{¶ 30} Simply put, Pendergrass did not commit this second offense after his first conviction and, in my view, a recidivist statute which is historically designed to punish offenders who have not responded affirmatively to the restraining influence of conviction and punishment should not apply. I would affirm.

      18 U.S.C. 924(c)(1)(C), the U.S. Code section applied in Deal , provided a harsher sentence "in the case of a second or subsequent conviction under this subsection."


source: Caselaw Access Project

author: TYACK, J.

license: Public Domain

text:
    Theresa R. WOLFE, Plaintiff-Appellant, v. J.C. PENNEY CORP., INC. et al., Defendants-Appellees.
    No. 18AP-70
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on September 25, 2018
    On Brief: Law Office of Russell A. Kelm, Russell A. Kelm, Columbus, and Ian M. King, for appellant. Argued: Ian M. King
    On Brief: Benesch, Friedlander, Coplan & Aronoff LLP, and John F. Stock ; Columbus, LeClairRyan, PLLC, and Leslie Paul Machado, for appellees. Argued: Leslie Paul Machado.
    DECISION
   TYACK, J.

{¶ 1} Plaintiff-appellant, Theresa R. Wolfe ("Wolfe"), appeals the January 3, 2018 decision and judgment entry of the Franklin County Court of Common Pleas granting defendants-appellees, J.C. Penney Corporation Inc.'s ("JCPenney's") motion to stay proceedings pending arbitration. For the reasons that follow, we affirm the judgment of the court of common pleas.

I. Facts and Procedural History

{¶ 2} According to the complaint filed in this case, Wolfe was a long-term employee (41 years) of JCPenney. Her last position was HR coordinator where she reported to defendant-appellee, Kyle Kirkpatrick, a 38-year-old senior HR manager. In January 2017, JCPenney announced an early retirement incentive which was offered to Wolfe and many other older employees. Wolfe was 60 years old at the time she was offered early retirement. Wolfe declined to participate in the early retirement plan and was thereafter placed on a Performance Improvement Plan ("PIP") that could lead to her termination. Wolfe asked to be transferred to a warehouse position that she had previously held, but was told she was ineligible to transfer because she was on a PIP. Kirkpatrick allegedly manipulated the PIP to terminate Wolfe in March 2017. Although long-term employees were routinely offered severance pay based on their years of service, Wolfe was not.

{¶ 3} Wolfe filed suit in the court of common pleas on July 14, 2017 alleging age discrimination under Ohio law. JCPenney filed a motion to compel arbitration and to stay proceedings pending arbitration on August 22, 2017, claiming that Wolfe had signed a valid and enforceable arbitration agreement that required arbitration of all claims arising out of Wolfe's employment and discharge. In response, Wolfe filed "Plaintiff's Renewed Jury Demand" seeking a jury trial pursuant to R.C. 2711.03(B)"on all issues related to whether plaintiff ever agreed to arbitration of issues related to her employment."

{¶ 4} Attached as an exhibit to the motion to compel and to stay was a copy of an electronic signature box that was checked off, dated June 6, 2017, and contained the name and employee ID number of Wolfe. There was also a copy of the JCPenney Dispute Resolution Program ("agreement") stating that participation in the program was completely voluntary. The agreement also stated that "[m]andatory arbitration will be your and JCPenney's exclusive method of resolving covered past, present, and future disputes between you and JCPenney." (Mot. to Compel Arbitration, Ex. C at 1.) The agreement further provided that it applied "without limitation, to any claim, controversy, or dispute between you and JCPenney arising out of the terms and conditions of your employment, past, present, or future, as to which a court would be authorized by law to grant relief if the claim were successful." (Ex. C at 3.) The agreement went on to include some examples of arbitrable claims including: "Unlawful discrimination or harassment." (Ex. C at 4.)

{¶ 5} Wolfe opposed the motion to compel and to stay arguing that: there had been no demand for arbitration; that JCPenney had failed to attach authenticated materials in support of its motion; no signed agreement had been produced; to the best of her knowledge Wolfe had not signed an agreement to arbitrate; there was no mutuality of obligation to the agreement since JCPenney could change the terms at any time; and, that the fee shifting and cost allocation provision in the agreement rendered it void.

{¶ 6} JCPenney then withdrew its motion to compel arbitration but continued to pursue its motion to stay proceedings under R.C. 2711.02(B) claiming that: the evidence showed that Wolfe did agree to arbitrate her claims; a demand for arbitration by JCPenney was not required to be entitled to a stay; and, the agreement was enforceable.

{¶ 7} The trial court granted the motion to stay proceedings on January 3, 2018. The trial court found that the agreement was enforceable, that the age discrimination claim was arbitrable and encompassed by the language of the agreement, and that JCPenney was not required to demand arbitration in order to move to stay the case.

II. Assignments of Error

{¶ 8} On appeal, Wolfe assigns the following three errors for our review:

[I.] Without a valid agreement to arbitrate, it is error to stay proceedings.
[II.] Without a demand for arbitration by the party seeking to stay proceedings, it is error to compel arbitration.
[III.] The trial court erred in not submitting the contested issues of fact, as to whether the parties agreed to arbitration, to a jury, which was demanded by plaintiff under R.C. 2711.03(B) and 9 U.S.C. § 4.

III. Standard of Review

{¶ 9} Generally, when reviewing a motion to stay pending arbitration, the standard of review is abuse of discretion. State Dept. of Admin. Servs. v. Design Group, Inc. , 10th Dist. No. 07AP-215, 2007-Ohio-6278, 2007 WL 4171131, ¶ 15. However, the de novo standard of review is appropriate when the appeal presents a question of law. Campinha-Bacote v. AT & T Corp. , 10th Dist. No. 16AP-889, 2017-Ohio-5608, 2017 WL 2817566, ¶ 6. Interpreting the meaning and construction of contracts requires a de novo standard of review. State Dept. of Admin. Servs. at ¶ 15. Whether a party has agreed to submit an issue to arbitration is also subject to a de novo standard of review. Campinha-Bacote at ¶ 7 ; Ohio Plumbing, Ltd. v. Fiorilli Constr., Inc., 8th Dist., 2018-Ohio-1748, --- N.E.3d ----, ¶ 9, citing McCaskey v. Sanford-Brown College , 8th Dist. No. 97261, 2012-Ohio-1543, 2012 WL 1142880, ¶¶ 7-8. A presumption favoring arbitration over litigation arises when the claim in dispute falls within the scope of an arbitration provision. Pyle v. Wells Fargo Fin., 10th Dist. No. 05AP-644, 2005-Ohio-6478, 2005 WL 3304098, ¶ 12. " 'An arbitration agreement will be enforced unless the court is firmly convinced that (1) the clause is inapplicable to the dispute or issue in question or (2) the parties did not agree to the clause.' " Doe v. Vineyard Columbus , 10th Dist. No. 13AP-599, 2014-Ohio-2617, 2014 WL 2781594, ¶ 14, quoting Estate of Brewer v. Dowell & Jones, Inc. , 8th Dist. No. 80563, 2002-Ohio-3440, 2002 WL 1454069, ¶ 7, citing Ervin v. Am. Funding Corp. , 89 Ohio App.3d 519, 625 N.E.2d 635 (12th Dist. 1993).

IV. Law and Analysis

{¶ 10} Under R.C. 2711.02, a trial court can stay an action pending arbitration if the trial court is satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration. ACRS, Inc. v. Blue Cross & Blue Shield , 131 Ohio App.3d 450, 455, 722 N.E.2d 1040 (8th Dist. 1998).

{¶ 11} R.C. 2711.02(B) provides as follows:

If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration.

A. Validity of the Arbitration Agreement

{¶ 12} As a general rule, a party to an action cannot be compelled into arbitration if that party has not agreed to submit the dispute to arbitration. AT & T Technologies, Inc., v. Communications Workers of Am. , 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). In ACRS, Inc. , the court held that, at the very least, the party seeking a stay must produce authenticated copies of the entire contract on which the motion to compel arbitration was based in order to provide the trial court with sufficient evidence of the existence of a written agreement to arbitrate the disputed claims. Id. at 457, 722 N.E.2d 1040.

{¶ 13} In her first assignment of error, Wolfe argues that, for a number of reasons, there is no valid agreement to arbitrate. First, she claims that JCPenney cannot show there was an agreement to arbitrate because the evidence submitted in support of their motion lacked proper authentication by means of an affidavit. Wolfe contends that the declaration of Kesha Cole is not sufficient evidence under Ohio law which requires the use of an affidavit to authenticate evidentiary materials.

{¶ 14} Attached to the motion for a stay of proceedings was the declaration of Kesha Cole, the HR Operations Manager for JCPenney. Cole's declaration was sworn to and signed in the presence of a notary which is sufficient under Ohio law to qualify as an affidavit. In Ohio, an affidavit is a written declaration made under oath. R.C. 2319.02. In Toledo Bar Assn. v. Neller , 102 Ohio St.3d 1234, 2004-Ohio-2895, 809 N.E.2d 1152, ¶ 1, the Supreme Court of Ohio held that unsworn written statements signed under penalty of perjury could not be substituted for affidavits in Ohio. But "a written declaration made under oath before a proper officer qualifies as an 'affidavit.' " Id. at ¶ 24. Moreover, in JCPenney's "Memorandum in Opposition to Plaintiff's Renewed Jury Demand and Reply in Support of Defendant's Motion to Stay Proceedings," JCPenney submitted an affidavit from Kyle Kirkpatrick, Senior Human Resources Manager for JCPenney that also authenticated the agreement and the electronic signature page. (Sept. 26, 2017 Memo in Opp., Ex. 1.) Thus, the evidentiary materials provided by JCPenney were properly authenticated and considered by the trial court.

{¶ 15} Second, Wolfe contends that JCPenney has failed to establish how she signed the agreement and never provided a signed copy of the agreement to the trial court. Wolfe asserted in her own affidavit that "[t]o the best of her knowledge, she was never asked to sign nor did she ever sign an agreement to arbitrate any disputes that she had with her employer, J.C. Penney Co., Inc." (Wolfe Aff. at ¶ 3.) Wolfe's affidavit is equivocal in that she states that she never "knowingly" electronically signed the agreement and that "to the best of her knowledge" she had not had the agreement presented to her. (Wolfe Aff. at ¶ 3, 5.)

{¶ 16} The evidence submitted by JCPenney shows that Wolfe applied her electronic signature by clicking on a check box on June 7, 2016. Kyle Kirkpatrick submitted an affidavit that indicated JCPenney provided Wolfe with the agreement on June 6, 2016 through their associate kiosk. Wolfe was instructed to review the agreement and indicate by June 9, 2016 whether she accepted it by clicking the electronic signature box on the associate kiosk. JCPenney records showed that Wolfe signed the agreement and another JCPenney policy on June 7, 2016. On June 25, 2016, Kirkpatrick received a list of JCPenney employees who had not signed the agreement, and Wolfe's name was not on that list.

{¶ 17} Wolfe's act of electronically signing the form is sufficient to demonstrate that she agreed to arbitration. See Corl v. Thomas & King , 10th Dist. No. 05AP-1128, 2006-Ohio-2956, 2006 WL 1629740, ¶ 18 (Plaintiff's act of initialing and signing a form is sufficient to demonstrate she read and understood its terms and specifically agreed to binding arbitration as the sole and exclusive method of resolving employment disputes). In Ranazzi v. Amazon.com, Inc. , 6th Dist., 2015-Ohio-4411, 46 N.E.3d 213, ¶¶ 5, 11, the plaintiff agreed to arbitrate disputes by means of a click wrap agreement when he clicked on a computer screen prompt to signify his assent to the agreement. The court held that clicking is an acceptable method to manifest assent to the terms of an agreement, and when the plaintiff clicked "I agree" on a license agreement, he accepted the terms of the agreement. Id. at ¶¶ 12-13.

{¶ 18} In Campinha-Bacote , the appellant averred in his affidavit that to the best of his knowledge and recollection, he never had an opportunity to review the terms of service prior to or during his online sign up for cable service. This court held that "appellant's lack of knowledge or memory in agreeing to the terms of service is disproven by the affidavit of AT & T's attorney that appellant would not have been able to register or access his services without accepting the terms of service during registration." Without more than the affidavit, this court found the evidence insufficient to show that he did not assent to the terms of service.

{¶ 19} After reviewing the evidence submitted by the parties, we find that Wolfe was presented with the agreement through the employee kiosk on June 6, 2016. She agreed to be bound by the agreement when she applied her electronic signature by clicking a check box on June 7, 2016. The trial court did not err in determining that the evidence was sufficient to support the motion to stay.

{¶ 20} Wolfe next argues that a provision in the agreement that allows JCPenney to modify the terms of the agreement renders the agreement illusory and unenforceable because there is no mutuality of obligation.

{¶ 21} With respect to modification, the agreement provides:

JCPenney reserves the right to modify this Program, and any such modification shall be in writing and delivered to you at least fourteen (14) days prior to the effective date of the modification; provided, however, that any future modification of this Program will not apply to claims that arose prior to the effective date of the modification. A dispute "arises" with respect to a particular claim at the time that the statute of limitations on that claim begins to run. Nothing in this section limits JCPenney's right to modify any policy, procedure, or business practice outside the provisions of this Program.

(Aug. 22, 2017 Mot. to Compel, Ex. C.)

{¶ 22} An arbitration provision is enforceable if the right of modification is limited by a notice or timing provision. In Morrison v. Circuit City Stores , 317 F.3d 646 (6th Cir.2003), a case cited by both Wolfe and JCPenney, the court applied Ohio law and determined that an arbitration provision was not unenforceable when a provision allowed Circuit City to alter or terminate the agreement on December 31 of each year upon giving 30 days' notice to its employees. Id. at 667-68.

{¶ 23} Here, Wolfe is not arguing that JCPenney actually modified the agreement. The plain language of the modification provision states that JCPenney could not and cannot apply any future modifications to Wolfe's claim. The modification provision was not a unilateral right to alter the agreement which would render the agreement unenforceable. "A contract is illusory only when by its terms the promisor retains an unlimited right to determine the nature or extent of his performance; the unlimited right, in effect, destroys his promise and thus makes it merely illusory." Century 21 Am. Landmark, Inc. v. McIntyre , 68 Ohio App.2d 126, 129-30, 427 N.E.2d 534 (1st Dist. 1980), citing 1 Williston on Contracts, Section 43 at 140 (3 Ed. 1957).

{¶ 24} The provision, as written, is enforceable.

{¶ 25} Wolfe's final argument under her first assignment of error is that the fee and cost shifting provisions that allow the arbitrator to award costs and attorney fees to the prevailing party are unenforceable and render the entire agreement void.

{¶ 26} Under the provision entitled "Costs and Fees," the agreement provides that:

The expense of the arbitrator will be borne entirely by JCPenney. If you initiate the arbitration, you may be required to pay a filing fee of up to $250 or a fee equal to that for filing a claim in federal court in your jurisdiction, whichever is less, but in no circumstance will you be required to pay any administrative fees in excess of what you would otherwise be required to pay had the action been brought in court.
Each side will be entitled to use a representative, including one or more attorneys, at the arbitration. Each side will bear all costs, expenses and fees (including attorneys' fees) to the same extent as if the matter were being heard in court. If, however, any Party prevails on a claim, then the arbitrator may award reasonable fees and/or costs to a Party to the same extent as could a judge in court. The arbitrator will resolve any dispute as to who is the prevailing party and as to the reasonableness of any requested award of fees or costs.

(Memo in Support of Mot. to Compel, Ex. C at 6-7.)

{¶ 27} As can be seen above, in awarding fees and costs, including attorney fees, the arbitrator is bound by the same law that binds a court in determining whether to award fees and costs.

{¶ 28} Wolfe cites a number of cases from the Sixth Circuit for the proposition that one cannot recover attorney fees without specific negotiation of such a clause. E.g. , Colonel's Inc. v. Cincinnati Milacron Mktg. Co. , 6th Cir. No. 96-1243, 1998 WL 321061 (attorney fee provision in an agreement was not the product of specific fee and understanding negotiation and, accordingly, the provision was void as against the public policy of Ohio). However, this line of cases was overruled in Allied Indus. Scrap, Inc. v. OmniSource Corp. , 776 F.3d 452 (6th Cir.2015). In that case, the court stated the Supreme Court of Ohio in Wilborn v. Bank One Corp. , 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, "makes it clear that when not confronted with a direct statutory conflict, Ohio law will generally give effect to such fee-shifting provisions when there is no duress." Allied Indus. Scrap at 453.

{¶ 29} The syllabus in Wilborn states:

A provision in a residential-mortgage contract requiring a defaulting borrower to pay a lender's reasonable attorney fees as a condition of terminating pending lender-initiated foreclosure proceedings on a defaulted loan and reinstating the loan is not contrary to Ohio statutory or decisional law or against Ohio public policy.

{¶ 30} Wolfe's argument that the fee and cost shifting provisions are contrary to law is not well-taken.

{¶ 31} The first assignment of error is overruled.

B. Demand for Arbitration

{¶ 32} In her second assignment of error, Wolfe contends that the motion to stay should have been denied because JCPenney withdrew its motion to compel arbitration and it has not made a demand for arbitration. Without a demand for arbitration, Wolfe argues the trial court is precluded from issuing a stay of proceedings.

{¶ 33} Wolfe cites PS Commercial Play, LLC v. Harp Contrs., Inc. , 2d Dist. No. 27253, 2017-Ohio-4011, 2017 WL 2303649, for the proposition that a failure to make a demand for arbitration precludes a trial court from both issuing a stay of proceedings and compelling arbitration. However, in Harp , the agreement contained a discretionary arbitration provision that had to be invoked by the defendant by serving a written demand within a reasonable time after the dispute had arisen. The court found that the defendant had waived its right to arbitrate by failing to file a demand for arbitration within a reasonable time. No such provision exists in this case.

{¶ 34} In Ohio Plumbing, Ltd. , the plaintiff argued that, because the defendant did not initiate arbitration proceedings prior to filing its motion for a stay, no stay was appropriate. The court held that there is no requirement under R.C. 2711.02(B) that a defendant must initiate arbitration proceedings before it can seek a stay of litigation pending arbitration. Id. at ¶ 19. See also , Pyle at ¶¶ 8, 26, in which a motion for a stay was upheld even after a motion to compel arbitration was formally withdrawn.

{¶ 35} In Winters v. Premier Warranty Group, Inc. , 5th Dist. No. 2005 CA 0034, 2006-Ohio-58, 2006 WL 39103, the trial court denied a motion to stay proceedings pending arbitration on the grounds that the party had not filed a demand for arbitration. Id. at ¶ 10. The appellate court found that there was not a statutory requirement in R.C. 2711.02(B) that a party do so before requesting a stay. The court noted that the statute only requires that a party file an application to stay the case, and that the trial court be satisfied that the matter is referable to arbitration.

{¶ 36} The determination as to whether an issue can be referred to arbitration depends on the specific language in the agreement. Here, the arbitration agreement states, in pertinent part:

This Program applies without limitation, to any claim, controversy, or dispute between you and JCPenney arising out of the terms and conditions of your employment, past, present, or future, as to which a court would be authorized by law to grant relief if the claim were successful.

(Ex. C at 3.) A claim of age discrimination falls within the parameters of the agreement.

{¶ 37} The trial court did not err in granting the motion to stay when JCPenney had not filed a demand for arbitration.

{¶ 38} The second assignment of error is overruled.

C. Jury Trial

{¶ 39} In her third assignment of error, Wolfe asserts that the trial court erred in not submitting the motion to stay to a jury.

{¶ 40} While a motion to compel arbitration requires a hearing according to R.C. 2711.03, one is not required for a motion to stay under R.C. 2711.02. Maestle v. Best Buy Co. , 100 Ohio St.3d 330, 2003-Ohio-6465, 800 N.E.2d 7, ¶ 19 ; Davis v. Beggs, 10th Dist. No. 08AP-432, 2008-Ohio-6311, 2008 WL 5104808, ¶ 8 ; Pyle at ¶ 21. Although R.C. 2711.03 contains a requirement for a hearing when a party files a motion to compel arbitration, JCPenney withdrew its motion to compel and, thus, this provision is inapplicable. The law is the same under the federal statute. Maestle at ¶ 20.

{¶ 41} Accordingly, we overrule the third assignment of error.

V. Disposition

{¶ 42} Having overruled the three assignments of error, the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

BRUNNER and HORTON, JJ., concur.


author: ANITA LASTER MAYS, J.:

text:
    Jeffrey A. LANSKY, Plaintiff-Appellant/Cross-Appellee v. William BROWNLEE, et al., Defendants-Appellees/Cross-Appellants
    [Appeal by Attorney Brent English], Appellant/Cross-Appellee
    No. 105408
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: September 27, 2018
    Mary A. Lansky, pro se, 5077-22 Concord Downs Lane 22, Aurora, Ohio 44202, FOR APPELLANT JEFFREY LANSKY.
    Brent L. English, Law Offices of Brent L English, The 820 Building, 9th Floor, 820 Superior Ave., West, Cleveland, Ohio 44113, FOR APPELLANT BRENT L. ENGLISH.
    Brodie M. Butland, David C. Tryon, Porter, Wright, Morris & Arthur, 950 Main Avenue, Suite 500, Cleveland, Ohio 44113, Maurice A. Thompson, 208 E. State Street, Columbus, Ohio 43215, ATTORNEYS FOR APPELLEES.
    BEFORE: Laster Mays, J., Boyle, P.J., and S. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   ANITA LASTER MAYS, J.:

{¶ 1} Appellant attorney Brent L. English ("English") appeals the trial court's grant of summary judgment in favor of defendants-appellees William Brownlee ("W. Brownlee") and Lynde Brownlee ("L. Brownlee") (jointly referred to as the "Brownlees"), husband and wife, awarding sanctions pursuant to Civ.R. 11 and R.C. 2323.51 against attorney English arising from English's representation of Jeffrey Lansky ("Lansky"). The Brownlees filed a cross-appeal challenging the amount of the award. We affirm.

I. Background and Facts

{¶ 2} Lansky served as mayor of the city of Maple Heights, Ohio from December 2007 to December 2015, president of city council from 1991 to 2003, and as a city councilman from 1987 to 1991. Lansky died in March 2017.

{¶ 3} The Brownlees are publishers of an internet website entitled Maple Heights News (www.MapleHeightsNews.org ) reporting on city community news. Most of the articles are authored gratis by the Brownlees, including an editorial blog entitled "Throwback Thursday" published on July 17, 2014. The blog discussed the significant financial issues faced by the city from 2011 until the city was declared to be in fiscal emergency in 2015. The blog also included a copy of campaign literature from Lansky's second mayoral campaign delineating his accomplishments during the first term.

{¶ 4} The blog attributed a number of service reductions in the community to decisions made by Lanksy that were allegedly not caused or controlled by Lansky:

(1) The closure of a fire station location was attributed to Lansky, though the fire chief made the decision to close the station due to budget cuts rather than use a smaller staff.
(2) The city council and not Lansky voted to renegotiate the waste hauling agreement and eliminate curbside recycling.
(3) Senior citizens services were not reduced or eliminated by Lansky. Some services were provided by volunteer drivers instead of salaried drivers, and attempts were made to transport several citizens concurrently for required services instead of unilaterally.
(4) Lansky did not veto legislation to place a property tax increase on the ballot as the blog alleged, but allowed it to pass by failing to veto or otherwise act within the period required by the city charter.
(5) Contrary to the blog information, Lansky did not terminate the community safety town program. The program ended because funding was no longer available to retain paid staff and residents did not respond to requests for volunteer assistance.
(6) City council, not Lansky, voted to stop using public funds to print and mail newsletters to residents.
(7) City council, not Lansky, voted to eliminate the budget appropriation for the "code red" emergency system.

{¶ 5} Lansky telephoned W. Brownlee demanding removal of the false statements. Lansky consulted with English who sent correspondence to the Brownlees stating the statements were false, defamatory, and ill-informed and requested the statements be retracted immediately.

{¶ 6} The Brownlees "lined through" certain representations after Lansky complained but the information remained on the website. A July 23, 2014 notice appeared on the site stating that:

[The blog] contained [three] errors. A letter from Mayor Lansky's lawyer informed us that he did not veto the 2013 property tax levy, that Fire Station # 2 was closed at the direction of the fire chief, and there was no loss of service for senior transportation. These errors have been "struck out" and updated.

The original text was legible with the strike-through edit. The Brownlees respond that they used the correction format recommended by "The Reuters Handbook of Journalism" for blog corrections. Appellees' brief, p. 6.

{¶ 7} English asserts that the Brownlees were contentious, critical, and disrespectful to Lansky and others at city council meetings, particularly regarding budget cuts required as the result of revenue losses. Lansky pursued an action for defamation and intentional infliction of emotional distress, allegedly as the result of complaints received from citizens and concern about his reputation due to the blog. Lansky charged that W. Brownlee had actual knowledge of the falsity of the statements due to his position as a city council member.

{¶ 8} The Brownlees argue that Lansky and English have engaged in a " 'pattern of intimidation' in bringing meritless defamation suits against Lansky's political opponents" and that they were the ninth and tenth targets since 1994, a 20-year period. According to the Brownlees, Lansky threatened them with a lawsuit and told them that he did not want to settle. He also asked the Brownlees whether they carried homeowner's insurance to cover a judgment and refused the Brownlees' request that he identify in writing the inaccurate information. Lansky stated during deposition testimony that it was not his responsibility to tell the Brownlees which information was incorrect.

{¶ 9} In response to Lansky's complaint, the Brownlees counterclaimed for vexatious litigation and frivolous conduct, violation of Civ.R. 11, and malicious civil prosecution. The Brownlees asserted that Lansky's claims were made in bad faith, for improper purposes, were not supported by existing law and did not serve as the basis for establishing new law.

{¶ 10} On November 13, 2015, in a 28-page opinion, the trial court dismissed Lansky's claims for defamation and intentional infliction of emotional distress and granted summary judgment for the Brownlees. The trial court determined that the statements complained of were not factually false, the strike through methodology that the Brownlees employed to make corrections to the article was acceptable, and the evidence did not support a finding that the Brownlees acted with actual malice. The Brownlees' counterclaims for a vexatious litigator declaration and malicious prosecution were withdrawn, but the Brownlees continued their pursuit of sanctions.

{¶ 11} The parties appeared for the sanctions hearing required by R.C. 2323.51(B)(2)(a) on December 15, 2016. Lansky, who was unable to appear due to illness, was allowed to testify by affidavit. English testified that sanctions should not be imposed, and he objected to the claims by the Brownlees for attorney fees and expenses exceeding $160,000. The Brownlees relied on their briefs and affidavits.

{¶ 12} On December 28, 2016, the trial court issued an entry based on the trial court's review of the entire record. Sanctions were awarded pursuant to Civ.R. 11 and R.C. 2323.51 for: (1) $75 for the counterclaim filing fee; (2) $2,000 for the fees of Brownlees' primary counsel; (3) $5,000 for the fees of counsel assisting the primary counsel; and (4) costs and expenses totaling $2,319.94. The sanctions were imposed against Lansky and English, jointly and severally. On February 15, 2017, the trial court stayed the request of English and Lansky for findings of fact and conclusions of law due to the filing of this appeal.

{¶ 13} We affirm the judgment of the trial court.

II. Assignments of Error

{¶ 14} English presents two assignments of error. First, English argues that he did not engage in frivolous conduct warranting sanctions under R.C. 2323.51. Secondly, English asserts that his conduct did not violate a duty imposed by Civ.R. 11.

{¶ 15} Civ.R. 11 and R.C. 2323.51 are the two avenues available under Ohio law for recovery of attorney fees for claims of frivolous conduct. "[B]oth authorize the award of attorney fees as a sanction for frivolous conduct, [but] they have separate standards of proof and differ in application." Bikkani v. Lee , 8th Dist. Cuyahoga No. 89312, 2008-Ohio-3130, 2008 WL 2536983, ¶ 18, citing Sigmon v. S.W. Gen. Health Ctr. , 8th Dist. Cuyahoga No. 88276, 2007-Ohio-2117, 2007 WL 1290016, ¶ 14.

A. Frivolous Conduct Under R.C. 2323.51

{¶ 16} The discretion to award sanctions and attorney fees under R.C. 2323.51 is legislatively vested in the trial court.

[A] decision on whether to award sanctions under R.C. 2323.51 will not be reversed absent an abuse of discretion. State ex rel. Striker v. Cline , 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19, ¶ 11, citing Ron Scheiderer & Assocs. v. London , 81 Ohio St.3d 94, 98, 689 N.E.2d 552 (1998).

Brown v. Carlton Harley Davidson, Inc. , 8th Dist. Cuyahoga No. 101494, 2014-Ohio-5157, 2014 WL 6483257, ¶ 6. An abuse of discretion "connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." (Citations omitted.) Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 17} The standard for determining frivolous conduct under R.C. 2323.51 is objective. It "is determined without reference to what the individual knew or believed." Hardin v. Naughton , 8th Dist. Cuyahoga No. 99182, 2013-Ohio-2913, 2013 WL 3423121, ¶ 14, citing State Farm Ins. Cos. v. Peda , 11th Dist. Lake No. 2004-L-082, 2005-Ohio-3405, 2005 WL 1538623, and Ceol v. Zion Indus., Inc. , 81 Ohio App.3d 286, 610 N.E.2d 1076 (9th Dist.1992).

{¶ 18} The Ohio Supreme Court has elaborated:

Frivolous conduct, as contemplated by R.C. 2323.51(A)(2)(a), is judged under an objective, rather than a subjective standard, [State ex rel. ] Striker [ v. Cline , 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19] ¶ 21, and must involve egregious conduct. Frivolous conduct is not proved merely by winning a legal battle or by proving that a party's factual assertions were incorrect. Ohio Power Co. v. Ogle , 4th Dist. Hocking No. 12CA14, 2013-Ohio-1745 [2013 WL 1803895], ¶ 29-30 (" 'A party is not frivolous merely because a claim is not well-grounded in fact. * * * [ R.C. 2323.51 ] was designed to chill egregious, overzealous, unjustifiable, and frivolous action. * * * [A] claim is frivolous if it is absolutely clear under the existing law that no reasonable lawyer could argue the claim"), quoting Hickman v. Murray , 2d Dist. Montgomery No. CA-15030, 1996 Ohio App. LEXIS 1028 [*14], 1996 WL 125916, [*5] (Mar. 22, 1996).

State ex rel. DiFranco v. S. Euclid , 144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 15.

{¶ 19} The presence of one of the following factors supports a finding of frivolous conduct under R.C. 2323.51 :

"(i) It obviously serves merely to harass or maliciously injure another party to the civil action * * * 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 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."

Internatl. Union of Operating Engineers, Local 18 v. Laborers' Internatl. Union of N. Am., Local 310 , 8th Dist. Cuyahoga No. 104774, 2017-Ohio-1055, 2017 WL 1091644, ¶ 14, quoting R.C. 2323.51(A)(2)(a)(i)-(iv).

{¶ 20} The trial court determined that, in contrast to Lansky's claims of character damage, Lansky testified during deposition that the Brownlees and their website have no credibility in the community, and that he could not identify anyone who was misled by the article. Lansky was also unable to demonstrate that he was exposed to public hatred by the statement that he vetoed legislation to raise property taxes, and could only offer that a few people were confused. In fact, Lansky admitted that vetoing the legislation would not have had a negative impact on his reputation in the community.

{¶ 21} The trial court determined that the Brownlees' act of revising the article in accord with published standards was reasonable as to the other false statements. Finally, the trial court concluded that the Brownlees were entitled to judgment as a matter of law due to Lansky's inability to support the claims of the complaint and to demonstrate damages by clear and convincing evidence.

{¶ 22} A defamation complainant must demonstrate that the statement in issue is false, defamatory, published, caused injury, and that the defendant acted with the requisite degree of fault. Am. Chem. Soc. v. Leadscope, Inc. , 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 77, citing Jackson v. Columbus , 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 9, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Const. Trades Council , 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995).

{¶ 23} To establish defamation of a public figure, a complainant must also establish that the defendant acted with actual malice. Actual malice means that the statement was made "with knowledge of falsity or a reckless indifference to their truth." Murray v. Chagrin Valley Publishing Co. , 2014-Ohio-5442, 25 N.E.3d 1111, ¶ 30 (8th Dist.).

{¶ 24} As English acknowledged in his brief, he is familiar with the level of proof required for defamation actions involving public figures. He does not deny the Brownlees' assertion that he has represented Lansky in similar actions over the 20 years, so he is experienced in litigating defamation actions. See , e.g. , this court's holding in Lansky v. Rizzo , 8th Dist. Cuyahoga No. 88356, 2007-Ohio-2500, 2007 WL 1508659, where we explained the applicable standard of proof:

To establish reckless disregard, the plaintiff must present clear and convincing evidence that the false statements were made with a "high degree of awareness of their probable falsity," or that "the defendant in fact entertained serious doubts as to the truth of his publication."

Id. at ¶ 19, quoting Garrison v. Louisiana , 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), and St. Amant v. Thompson , 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968).

{¶ 25} The trial court's opinion addressed each of the statements. The evidence demonstrated that the Brownlees did not know at the time of publication that Lansky's failure to sign the tax increase legislation did not constitute a veto and corrected the error. The evidence failed to support that Lansky was harmed or exposed to public hatred, and the Brownlees' correction of the item was sufficient.

{¶ 26} Lansky admitted during his deposition that he had authority as the city's safety director to order the reopening of the fire station. The trial court concluded that the statement was true when made and properly corrected. It was also reasonable for the Brownlees to believe that, because Lansky took credit for the reopening of Safety Town, he had the authority to close it.

{¶ 27} On the recycling issue, the trial court concluded that, while the Brownlees knew that Lansky was not solely responsible for eliminating recycling, it was not unreasonable for them to attribute the decision to Lansky. The trial court determined that the statement regarding a reduction of van service for seniors did not rise to the level of defamation since adjustments to services were made, though there was no actual loss in service. The Brownlees also sufficiently corrected the statement.

{¶ 28} Finally, the trial court determined that the statements about the city newsletter and code red were not about Lansky so they could not be grounds for a defamation claim. As to all of the statements, the trial court did not find it unreasonable for others to "attribute actions or events that occur during a Mayor's administration directly to the Mayor, despite the fact that others were also involved in carrying out the actions or events." Journal entry No. 91723981 (Nov. 13, 2015), p. 17.

{¶ 29} Viewing the evidence objectively, and considering whether any reasonable attorney would have brought the action in light of the existing law, we cannot say that the trial court abused its discretion in granting sanctions pursuant to R.C. 2353.51. Sigmon , 8th Dist. Cuyahoga No. 88276, 2007-Ohio-2117, at ¶ 14.

{¶ 30} We affirm the trial court's judgment issuing sanctions under R.C. 2323.51.

B. Civ.R. 11 Sanctions

{¶ 31} We also review a trial court's decision to grant or deny Civ.R. 11 sanctions under an abuse of discretion standard. ABN AMRO Mtge. Group, Inc. v. Evans , 8th Dist. Cuyahoga No. 98777, 2013-Ohio-1557, 2013 WL 1696728, ¶ 12, citing Taylor v. Franklin Blvd. Nursing Home, Inc. , 112 Ohio App.3d 27, 677 N.E.2d 1212 (8th Dist.1996), and Jurick v. Jackim , 8th Dist. Cuyahoga No. 89997, 2008-Ohio-2346, 2008 WL 2058513. A plain reading of R.C. 2323.51 and Civ.R.11 reveals that "both the statute and the rule impose the same requirement on an attorney: to prosecute only claims having merit under existing law." Sigmon at ¶ 23.

{¶ 32} Our analysis under Civ.R. 11 is subjective in nature. It is dependent on what the individual knew or believed:

The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. * * * For a willful violation of this rule, an attorney or pro se party, upon motion of a party or upon the court's own motion, may be subjected to appropriate action, including an award to the opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule.

Civ.R. 11.

{¶ 33} A trial court considers whether the evidence demonstrates that the attorney that has signed the document " '(1) has read the pleading, (2) harbors good grounds to support it to the best of his or her knowledge, information, and belief, and (3) did not file it for purposes of delay.' " ABN AMRO Mtge. Group, Inc. , 8th Dist. Cuyahoga No. 98777, 2013-Ohio-1557, at ¶ 17, quoting Ceol , 81 Ohio App.3d at 290, 610 N.E.2d 1076.

{¶ 34} Each of these requirements must be met. Id. at ¶ 17. Where one of the requirements is not satisfied, a court considers whether the violation was negligent or willful. A trial court has broad discretion to determine willfulness as well as the amount of sanctions to administer. Id. ; Rindfleisch v. AFT, Inc. , 8th Dist. Cuyahoga Nos. 84551, 84897, and 84917, 2005-Ohio-191, 2005 WL 110443, ¶ 16.

{¶ 35} In this case, the trial court issued a summary decision holding that sanctions were imposed under both the statute and the rule, a finding that indicates the trial court determined that each of the Civ.R. 11 requirements had not been satisfied, or that at least one element was present and the conduct was willful.

{¶ 36} As we noted during our analysis of the first assigned error challenging the imposition of sanctions under the objective standard of R.C. 2323.51, English represented Lansky in a number of similar actions over the past 20 years and is familiar with the level of proof required for defamation actions involving public figures. English has not pointed to facts demonstrating that the trial court abused its discretion in determining that English's conduct was willful.

{¶ 37} We affirm the trial court's decision to impose sanctions under Civ.R. 11 and overrule appellant's assigned error on this issue.

C. Cross-Appeal; Award of Fees

{¶ 38} The Brownlees' single cross-assigned error asserts that the trial court erred in awarding only $2,000 in attorney fees to their lead counsel Michael Thompson ("Thompson") with The 1851 Center for Constitutional Law, a nonprofit legal organization based in Columbus, Ohio, and $5,000 in attorney fees to Porter, Wright, Morris & Arthur L.L.P. ("Porter Wright") who served as local counsel to Thompson, according to their retainer agreement with the Brownlees.

{¶ 39} The trial court awarded court costs "as assessed by the clerk of courts as well as defendants' $75 counterclaim filing fee." Journal entry No. 97009376 (Dec. 28, 2016), p. 1. Porter Wright was awarded $5,000, and Thompson was awarded $2,000 in attorney fees. Thompson also received $695 for hotel, mileage, and parking expenses for traveling to Cleveland, and Porter Wright was awarded $1,624.94, the full amount of the expenses that were requested by Porter Wright.

{¶ 40} The Brownlees argue that the award is improper where the uncontested lodestar calculation was $103,666.25 and the trial court failed to detail the decision to deviate from that calculation. English refutes the application of the lodestar calculation and argues that counsel's pro bono representation negated any entitlement to attorney fees.

{¶ 41} The Brownlees rely on Turner v. Progressive Cas. Ins. , 8th Dist. Cuyahoga No. 78862, 2002-Ohio-3240, 2002 WL 1397172, for the position that the lodestar calculation must be employed and deviations explained in assessing sanctions. The lodestar method was formulated to provide computation guidelines for fee awards to prevailing parties pursuant to "federal fee-shifting statutes." See , generally , Burlington v. Dague , 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992).

{¶ 42} The Turner case cited by the Brownlees was the fourth in a series of appeals following our initial remand of the case to the trial court to apply the lodestar formula to properly calculate an award of attorney fees to a prevailing plaintiff under Section 216 of the Fair Labor Standards Act, 29 U.S.C. 207 et seq. The case did not involve the calculation of fees and expenses under R.C. 2323.51 or Civ.R. 11.

{¶ 43} A court arrives at a lodestar calculation by: (1) "multiplying the number of hours reasonably expended by a reasonable hourly rate," and (2) deciding "whether to adjust the amount [upward or downward] based on the reasonableness factors in Prof.Cond.R. 1.5(a)." Cruz v. English Nanny & Governess School, Inc. , 8th Dist. Cuyahoga, 2017-Ohio-4176, 92 N.E.3d 143, ¶ 97, citing Bittner v. Tri-County Toyota, Inc. , 58 Ohio St.3d 143, 569 N.E.2d 464 (1991), syllabus (applying the predecessor to Prof.Cond.R. 1.5(a) ); Am. Chem. Soc. , 10th Dist. Franklin No. 08AP-1026, 2010-Ohio-2725, 2010 WL 2396544, ¶ 88.

{¶ 44} Cruz did not involve sanction calculations but discussed the lodestar calculation for attorney fees resulting from the jury's award of punitive damages. "If punitive damages are proper, reasonable attorney fees may be awarded as an element of compensatory damages." Id. at ¶ 96, citing Galmish v. Cicchini , 90 Ohio St.3d 22, 35, 734 N.E.2d 782 (2000).

{¶ 45} Contrary to cross-appellants' lodestar argument, when entertaining the issue of sanctions under Civ.R. 11 and R.C. 2323.51, a trial court is not required, even where frivolous conduct exists, to award attorney fees. Marshall v. Cooper & Elliott , 2017-Ohio-4301, 82 N.E.3d 1205, ¶ 26 (8th Dist.), Internatl. Union of Operating Engineers, Local 18 , 8th Dist. Cuyahoga No. 104774, 2017-Ohio-1055, at ¶ 10, Scott v. Nameth , 10th Dist. Franklin No. 16AP-64, 2016-Ohio-5532, 2016 WL 4480514, ¶ 32 ; see also ABN AMRO Mtge. Group, Inc. , 8th Dist. Cuyahoga No. 98777, 2013-Ohio-1557, at ¶ 32.

{¶ 46} The trial court in this case specifically recognized the scope of its discretion, stating for the record that "the court isn't bound to award that which is requested * * * [and may] award that which the court thinks is reasonable under these circumstances." (Tr. 44.) Counsel for both parties agreed. (Tr. 44-45.)

{¶ 47} This court "will not disturb a trial court's decision to grant or deny" "attorney fees" under Civ.R. 11 and R.C. 2323.51(B)(1)"absent an abuse of discretion." Marshall at ¶ 26, citing DiFranco , 144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, at ¶ 13 ; State ex rel. Striker , 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19, at ¶ 11 ; Internatl. Union of Operating Engineers, Local 18 at ¶ 11.

{¶ 48} We will not substitute our judgment for that of the trial court and will only find an abuse of discretion where a decision is "unreasonable, arbitrary or unconscionable." Marshall , 2017-Ohio-4301, 82 N.E.3d 1205, at ¶ 27, citing DiFranco at ¶ 13, and Blakemore , 5 Ohio St.3d at 219, 450 N.E.2d 1140. " 'A decision is unreasonable if there is no sound reasoning process that would support that decision.' " Id ., quoting Ockunzzi v. Smith , 8th Dist. Cuyahoga No. 102347, 2015-Ohio-2708, 2015 WL 4049089, ¶ 9, quoting AAAA Ents. Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 49} The trial court did not abuse its discretion in awarding $5,000 to Porter Wright and the entirety of the claimed expenses, and $2,000 to Thompson with reimbursement for travel to Cleveland, based on the relatively simple legal issues and facts of this case. Id. at ¶ 29.

{¶ 50} The cross-appellants' cross-assigned error is without merit.

III. Conclusion

{¶ 51} The trial court's judgment is affirmed.

SEAN C. GALLAGHER, J., CONCURS;

MARY J. BOYLE, P.J., CONCURS IN JUDGMENT ONLY

      On October 2, 2017, this court granted the motion to withdraw as counsel for Lansky filed by English and ordered that all notices on behalf of Lansky be directed to his widow.

      W. Brownlee's term as councilman commenced after the legislation was passed by council.

      Turner v. Progressive Corp. , 8th Dist. Cuyahoga No. 76524, 1999 WL 980395 (Oct. 28, 1999), Turner v. Progressive Corp. , 140 Ohio App.3d 112, 746 N.E.2d 702 (8th Dist.2000), and Turner v. Progressive Cas. Ins. Co. , 8th Dist. Cuyahoga No. 78862, 2001 WL 406232 (Apr. 19, 2001).