Marcellino v. Nicastro , 2022 Ohio 2736 ( 2022 )

[Cite as Marcellino v. Nicastro, 2022-Ohio-2736.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
BIANCA MARCELLINO, CASE NO. 2021-G-0025
Petitioner-Appellant,
Civil Appeal from the
-v- Court of Common Pleas
MICHELLE NICASTRO,
Trial Court No. 2018 SP 000525
Respondent-Appellee.
OPINION
Decided: August 8, 2022
Judgment: Affirmed
Michela J. Huth, P.O. Box 17, Bolivar, OH 44612 (For Petitioner-Appellant).
Patrick J. Thomas, Ritzler, Coughlin & Paglia, Ltd., 1360 East 9th Street, 500 IMG
Center, Cleveland, OH 44114 (For Respondent-Appellee).
MARY JANE TRAPP, J.
{¶1} The reasoning behind the sage advice of “good fences make good
neighbors” resonates loudly in this case since underlying this appeal is a tumultuous
history between two neighboring horse farms, replete with encroaching fences, wandering
horses, dumped manure, dueling protection order petitions, and contempt motions.
{¶2} Appellant, Bianca Marcellino (“Ms. Marcellino”), appeals from the judgment
of the Geauga County Court of Common Pleas, which awarded appellee, Michelle
Nicastro (“Ms. Nicastro”), $35,000 in attorney fees and $2,221.70 in costs after granting
Ms. Nicastro’s “Motion for Sanctions, Attorney Fees and Costs” following the trial court’s
denial of Ms. Marcellino’s motion to show cause.
{¶3} Ms. Marcellino raises two assignments of error on appeal, in which she
contends the trial court erred and abused its discretion when it imposed sanctions against
her for the acts of her attorney and in finding that her lack of standing to file a motion to
show cause warranted imposition of sanctions pursuant to R.C. 2323.51.
{¶4} After a careful review of the record and pertinent law, we find Ms.
Marcellino’s assignments of error to be without merit. First, the trial court found the
claims, conduct, and efforts of Ms. Marcellino and her attorney, Greg Sasse (“Mr. Sasse”),
were egregious and objectively frivolous, but inasmuch as the motion sought sanctions
against Ms. Marcellino only, the trial court apparently apportioned the total amount of
attorney fees between them and ordered Ms. Marcellino to pay roughly half of Ms.
Nicastro’s attorney fees. Thus, the court did not sanction Ms. Marcellino in lieu of her
attorney but held her responsible for only half of the attorney fees incurred by Ms.
Nicastro.
{¶5} Second, the trial court’s findings support the sanctions award. Ms.
Marcellino lacked standing to bring a motion to show cause based upon an alleged breach
of a mediation settlement agreement. The record supports the finding that Ms. Marcellino
knew at the time she filed her motion she no longer held an interest in the property that
was the subject of the parties’ mediation agreement. Further, because of an earlier court
order, it was established that she had been prohibited from residing on any property with
equine animals. Therefore, she had no horses that could wander, and she had no
property interest affected by horses wandering between the adjoining properties.
2
Case No. 2021-G-0025
{¶6} The trial court also correctly determined Ms. Marcellino’s motion was not
made in good faith under existing law; she did not have a good faith argument for an
extension, modification, or reversal of existing law; and her claims were not supported by
any evidence. Quite simply, when evaluated under the objective “reasonable attorney”
standard, a standard to which a pro se litigant must also adhere, no reasonable person
would have filed a motion to show cause for issues concerning property in which she held
no interest, submitted an affidavit containing false statements lacking any evidentiary
support, argued a party was in contempt for actions not included in the judgment,
attempted to assert claims for others without any claim that she was personally harmed
by an alleged action, and attempted to convince the court that the parties’ mediation
agreement was a civil protection order (“CPO”) when by its own terms it was not to be so
viewed.
{¶7} The judgment of the Geauga County Court of Common Pleas is affirmed.
Substantive and Procedural History
{¶8} In 2016, the parties had adjacent horse farms and an ongoing property line
dispute. Ms. Marcellino built a barn on her property to board horses. Ms. Nicastro did
not live on her adjoining property. She rented the house on the property to a nonparty
tenant, who had a telescope in the window of the house. In 2018, both parties filed
petitions for civil stalking protection orders (“CPO”) against the other. Ms. Nicastro also
filed other CPO petitions against individuals associated with Ms. Marcellino.
The Mediation Agreement
{¶9} In August 2018, the parties reached a mediated settlement memorialized in
a written agreement, in which they acknowledged and agreed that “this Agreement does
3
Case No. 2021-G-0025
not have the full force and effect of a Civil Stalking Protection Order and is not enforceable
as a protection order pursuant to R.C. 2903.214 or R.C. 2919.21.” Ms. Marcellino was
represented by Mr. Sasse when the agreement was reached.
{¶10} The parties further agreed that (1) Ms. Nicastro would ask the prosecutor to
dismiss the trespassing charge that was filed against Ms. Marcellino; (2) Ms. Nicastro
would remove any encroachment from the property line; (3) both parties would contain
their animals on their own property; (4) contact between Ms. Marcellino and Ms. Nicastro
was prohibited, which included persons on property owned by the other party; and (5) a
party found in violation of the agreement would “pay the other party’s attorney fees and
all court costs.” Ms. Marcellino, Ms. Nicastro, and Ms. Marcellino’s father, Giancarlo
Marcellino, signed the agreement.
{¶11} The resolution of the dueling CPOs was only a pause in the legal battles
between the parties. It launched dueling motions to show cause and resulted in two
protracted and convoluted motion hearings, which, unfortunately, we must detail in order
to understand and evaluate the propriety of the sanctions that are the subject of this
appeal.
Ms. Nicastro’s Motion to Show Cause
{¶12} Several months after the agreement was signed, Ms. Nicastro filed a motion
to show cause and for an award of attorney fees and court costs with an attached affidavit.
Ms. Nicastro alleged that Ms. Marcellino’s horses came onto her property on several
instances; that Giancarlo Marcellino intentionally dumped manure onto her front
limestone riding ring; and that Ms. Marcellino directed profanities at her while Ms. Nicastro
was leaving her own property.
4
Case No. 2021-G-0025
{¶13} On February 20, 2019, while Ms. Nicastro’s motion was pending, Ms.
Marcellino transferred her interest in the parcel adjacent to Ms. Nicastro to her parents.
In addition, pursuant to an order of the Chardon Municipal Court arising out of a criminal
trespass case against Ms. Marcellino, she was not permitted to own, possess, care for,
or reside on property with any equine animal on or after March 19, 2019. See State v.
Marcellino, 2019-Ohio-4837, 149 N.E.3d 927 (11th Dist.), and State v. Marcellino, 11th
Dist. Geauga Nos. 2019-G-0199 & 2019-G-0200, 2019-Ohio-3329.
{¶14} On March 30, 2019, Mr. Sasse, who represented Ms. Marcellino in that
criminal trespass case, notarized an affidavit for Ms. Marcellino alleging various
“violations” of the parties’ agreement. On April 12, 2019, he sought leave to withdraw as
counsel, which was denied. On April 15, 2019, one day before the hearing on Ms.
Nicastro’s motion, Ms. Marcellino, pro se, filed a motion to show cause and for an award
of attorney fees, attaching the March 30, 2019, affidavit.
{¶15} A one-day hearing on Ms. Nicastro’s motion to show cause was held before
a magistrate. The magistrate found that the relationship between the parties “has been
and remains acrimonious and antagonistic,” that Ms. Nicastro failed to establish contempt
by clear and convincing evidence, and that Ms. Nicastro’s claims against Ms. Marcellino
were barred by the doctrine of clean hands. The magistrate also found that Ms. Marcellino
proved her impossibility defense because after Ms. Nicastro removed some, but not all,
of her encroaching fencing, Ms. Marcellino could not put up a permanent fence. Further,
while a dumped mixture, which included some manure, did fall onto Ms. Nicastro’s
property, Ms. Marcellino reasonably feared trespassing charges if she removed the
mixture from Ms. Nicastro’s property. Thus, the magistrate denied Ms. Nicastro’s motion
5
Case No. 2021-G-0025
to show cause and for attorney fees. The trial court adopted the magistrate’s decision
over the objections of the parties. Neither party appealed the court’s judgment.
Ms. Marcellino’s Motion to Show Cause
{¶16} A three-day hearing was held over the span of several months. Multiple
briefs were filed by the parties, including several filed by Ms. Marcellino, which were
stricken from the record. Mr. Sasse represented Ms. Marcellino during the hearing.
{¶17} The hearing began in September 2019, and testimony continued in October
and December 2019. Willard Schade (“Mr. Schade”), Ms. Marcellino’s property surveyor,
testified that he surveyed the property line in November 2018 and found most of the
encroachments had been removed, with the exception of a vinyl fence that was
encroaching onto Ms. Marcellino’s property, which was later transferred to her parents.
{¶18} Ms. Marcellino testified that in 2016 she bought her property, which
consisted of two lots. On February 20, 2019, she “gifted” the lot adjacent to Ms. Nicastro
to her parents via a quit-claim deed and “no longer owns that parcel.” Ms. Marcellino
stipulated that at the time she filed her motion, she was neither the owner of the property
with the encroaching fence, nor was she allowed to reside on the property adjacent to
Ms. Nicastro. She removed Ms. Nicastro’s encroaching fence with her father while the
police observed nine days after she filed her motion. She could not identify the portion of
fence she removed on various surveys and maps showed to her by her own attorney.
She also testified that in the criminal trespass case against her, the trial court granted
several of her motions to continue until the case was finally dismissed in December 2018.
{¶19} Over Ms. Marcellino’s continuing objection, Tracey Fronk (“Ms. Fronk”), a
victim advocate for Geauga County Police Prosecutor Victim Assistance Program,
6
Case No. 2021-G-0025
testified as to the procedural delay in dismissing the trespass case, which involved
multiple continuances requested by Ms. Marcellino until December 2019 when the
prosecutor dismissed the case upon request. Ms. Nicastro’s attorney requested that the
prosecutor dismiss the charges on the date of the mediation agreement in August 2018.
Ms. Fronk recalled a discussion with Ms. Nicastro that she did not want the charges to be
dismissed.
{¶20} On the final hearing day, Ms. Marcellino again testified, in addition to Ms.
Nicastro and Mark Bontrager, a fence installer from T & C Fence who installed fencing
for both parties on various occasions. Ms. Marcellino described the psychological effects
Ms. Nicastro’s actions had on her mental health, which included seeing a psychiatrist and
a counselor, and taking sleeping, antidepressant, and antianxiety medications. The
parties disputed whether the testimony as to Ms. Marcellino’s psychological treatment
was admissible because she was not requesting such damages.
{¶21} Ms. Nicastro testified that the first time she heard that a portion of her fence
was still encroaching on Ms. Marcellino’s property was when the surveyor, Mr. Schade,
testified on the first day of the hearing. From her understanding of the mediation
agreement, she did not need to separate her property from Ms. Marcellino’s so long as
she contained her own animals. There was a portion of her fencing that she did take
down, which caused Ms. Marcellino’s animals to wander onto her property. She reported
the incidents to the police, which she estimated occurred approximately five times.
Thereafter, Mr. Sasse attempted to impeach Ms. Nicastro with her testimony from the
earlier hearing on Ms. Nicastro’s motion to show cause. The magistrate cautioned Mr.
Sasse that he needed to abide by the rules of evidence.
7
Case No. 2021-G-0025
{¶22} The magistrate instructed the parties to brief whether the hearing should
continue to allow the presentation of more witnesses, along with other issues the parties
wanted the court to consider, including admissibility of charges from the surveyor and Ms.
Marcellino’s alleged psychological harm.
{¶23} After several months of briefing, the magistrate issued her decision, denying
Ms. Marcellino’s motion to show cause and finding that Ms. Marcellino was as much at
fault as Ms. Nicastro. More specifically and germane to the sanctions question before us,
Ms. Marcellino lacked standing to bring the show cause motion since she did not own the
property adjacent to Ms. Nicastro, and she was prohibited from owning any land with
equine animals. Moreover, even if she had established standing, she did not establish
contempt by clear and convincing evidence.
{¶24} The magistrate also found that if Ms. Nicastro wished to move for attorney
fees or sanctions, the motion must be filed separately. The trial court adopted the
magistrate’s decision, and neither party filed an appeal from the trial court’s judgment.
Ms. Nicastro’s Motion for Sanctions, Attorney Fees, and Costs
{¶25} Subsequently, Ms. Nicastro filed a “motion for sanctions, attorney fees, and
costs,” alleging that Ms. Marcellino violated R.C. 2323.51 by asserting allegations she did
not have standing to assert and that were not grounded in law. As a result, Ms. Nicastro
was forced to spend $65,725 in legal fees and $2,271.70 for transcripts and subpoena
fees to defend herself.
{¶26} A one-day hearing was held before a magistrate, during which Ms.
Nicastro’s attorney, Patrick Thomas, as well as Lisa Braemer, an administrative assistant
8
Case No. 2021-G-0025
for the Chesterland Township Police Department and custodian of its records, and Ms.
Marcellino testified.
{¶27} The magistrate found that Ms. Marcellino’s pro se affidavit, notarized by her
attorney, Mr. Sasse, lacked evidentiary support, and that Ms. Marcellino and Mr. Sasse
knew at the time the affidavit was created that the contentions were false. Further, the
magistrate found Mr. Sasse did not seek to amend Ms. Marcellino’s motion to show cause
or dissuade his client from continuing the litigation. Thus, under the objective standard
of R.C. 2323.51, no reasonable attorney would have pursued a contempt motion or
attempted to convince the court that an agreement that by its own terms was not a CPO
should be treated as one that included covering other family members and actions that
did not personally harm Ms. Marcellino.
{¶28} Finding Ms. Marcellino’s claims could not be supported by existing law or a
reasonable extension, modification or reversal of existing law, the magistrate determined
that the conduct, claims, and efforts of both Ms. Marcellino and Mr. Sasse were egregious
and frivolous. The magistrate also noted that Ms. Marcellino and Mr. Sasse “should be
personally familiar with this objective standard” because Ms. Marcellino was previously
sanctioned for frivolous conduct, citing our decision, inter alia, affirming those sanctions
in Marcellino v. Geauga Humane Soc., 11th Dist. Geauga No. 2018-G-0180, 2019-Ohio-
2093.
{¶29} The magistrate granted Ms. Nicastro’s motion, noting that Ms. Nicastro
sought sanctions only against Ms. Marcellino and not against Ms. Marcellino’s attorney.
The magistrate awarded Ms. Nicastro $35,000 in attorney fees (roughly half of the total
9
Case No. 2021-G-0025
amount of fees found to be reasonable by the magistrate) and $2,221.70 in litigation
expenses to be paid by Ms. Marcellino within one year of the date of entry of judgment.
{¶30} Ms. Marcellino filed objections to the magistrate’s decision, in which she
contended that she had a good faith belief that her motion had merit, that the basis for
her belief was reasonable, and that she was seeking a remedy for her mental distress
caused by Ms. Nicastro’s actions. In addition, she claimed Ms. Nicastro was not entitled
to attorney fees because she had unclean hands, i.e., Ms. Nicastro continually contacted
various agencies such as Geauga Soil and Water Conservation District, the Chester
Township Police Department, and the Geauga County Humane Society to report Ms.
Marcellino.
{¶31} She also contended that standing should not have been an issue, arguing
“[i]t was not frivolous to believe that standing would track closer to protection order cases
than to public utility cases” (apparently a reference to a frivolous conduct case involving
an oil well cited by the magistrate). She further asserted she had a “good faith basis to
seek a lawful objective, i.e., a remedy to her mental distress,” and “such a belief was
reasonable and therefore the motion was not filed merely to harass.” Thus, she asserted
that the law of CPOs should be treated expansively and that she had standing to seek
protection for herself and her family from violation of the parties’ agreement and to protect
herself from future violations.
{¶32} Ms. Nicastro filed a response to Ms. Marcellino’s objections, arguing that
Ms. Marcellino failed to set forth her objections pursuant to Civ.R. 53 because she failed
to identify her objections with factual findings from the hearings. Further, Ms. Marcellino’s
10
Case No. 2021-G-0025
objections were simply reiterations of her closing argument and her previous briefs, one
of which was stricken from the record.
{¶33} The trial court adopted the magistrate’s decision granting Ms. Nicastro’s
motion for attorney fees and expenses and entered the monetary judgment against Ms.
Marcellino.
{¶34} Ms. Marcellino raises two assignments of error on appeal:
{¶35} “[1.] The trial court erred and abused its discretion when it imposed
sanctions upon Appellant Bianca Marcellino for the acts, or lack of acts, of her attorney.
{¶36} “[2.] The trial court erred and abused its discretion when it held that the lack
of standing was clear under existing law, and that Appellant did not have a good faith
argument for an extension, modification, or reversal of existing law.”
Standard of Review
{¶37} On appeal, a trial court’s adoption of a magistrate’s decision will not be
reversed unless the trial court abused its discretion in adopting the decision. Baltes v.
Baltes, 11th Dist. Trumbull No. 2011-T-0117, 2012-Ohio-4890, ¶ 19.
{¶38} An abuse of discretion is the “‘failure to exercise sound, reasonable, and
legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,
¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). When an appellate court is
reviewing a pure issue of law, the mere fact that the reviewing court would decide the
issue differently is enough to find error. Id. at ¶ 67. By contrast, where the issue on
review has been confided to the discretion of the trial court, the mere fact that the
reviewing court would have reached a different result is not enough, without more, to find
error. Id.
11
Case No. 2021-G-0025
R.C. 2323.51
{¶39} R.C. 2323.51 serves to deter abuse of the judicial process by penalizing
sanctionable conduct that occurs during litigation. Zamlen-Spotts v. Keco, 2019-Ohio-
5048, 150 N.E.3d 363, ¶ 57 (11th Dist.). The statute was designed to chill egregious,
overzealous, unjustifiable, and frivolous action. Ferron v. Video Professor, Inc., 5th Dist.
Delaware No. 08-CAE-09-0055, 2009-Ohio-3133, ¶ 45. In determining whether conduct
is frivolous, courts must carefully apply the statute so that legitimate claims are not chilled.
Id.{¶40} Pursuant to R.C. 2323.51(B)(1), “at any time not more than thirty days after
the entry of final judgment in a civil action or appeal, any party adversely affected by
frivolous conduct may file a motion for an award of court costs, reasonable attorney’s
fees, and other reasonable expenses incurred in connection with a civil action * * *.” The
award may be made “against a party, the party’s counsel of record, or both.” R.C.
2323.51(B)(4).
{¶41} “Conduct” includes, in relevant part, “[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)(a).
{¶42} “Frivolous conduct” means the conduct of a party or the party’s attorney that
satisfies any of the following:
{¶43} “(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.
12
Case No. 2021-G-0025
{¶44} “(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.
{¶45} “(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.
{¶46} “(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).
{¶47} R.C. 2323.51 uses an objective standard in determining whether sanctions
may be imposed for frivolous conduct. Stevenson v. Bernard, 11th Dist. Lake No. 2006-
L-096, 2007-Ohio-3192, ¶ 41. Thus, a finding of frivolous conduct under R.C. 2323.51 is
decided without inquiry as to what the individual knew or believed. Omerza v. Bryant &
Stratton, 11th Dist. Lake No. 2006-L-147, 2007-Ohio-5216, ¶ 15.
Sanctions Against a Party
{¶48} In Ms. Marcellino’s first assignment of error, she contends the trial court
erred in awarding sanctions against her for the acts of her attorney.
{¶49} R.C. 2323.51(B)(4) provides that an award of attorney fees “may be made
against a party, the party’s counsel of record, or both.”
{¶50} By allowing the imposition of sanctions against the party, attorney, or both,
the statute “‘provides a mechanism for the court to place blame directly where fault lies.’”
Southard Supply, Inc. v. Anthem Contractors, Inc., 10th Dist. Franklin No. 16AP-545,
2017-Ohio-7298, ¶ 36, quoting Rindfleisch v. AFT, Inc., 8th Dist. Cuyahoga Nos. 84551,
13
Case No. 2021-G-0025
84897, & 84917, 2005-Ohio-191, ¶ 19; accord Ron Scheiderer & Assocs. v. London, 81
Ohio St.3d 94, 97, 689 N.E.2d 552 (1998) (by authorizing an award against a party, its
counsel, or both, “[t]he General Assembly gave courts the discretion to hold those
engaging in frivolous conduct responsible for their actions”); Sain v. Roo, 10th Dist.
Franklin No. 01AP-360, 2001 WL 1263665, *8 (Oct. 23, 2001) (“The objective of the
statute is to impose sanctions on the person actually responsible for the frivolous
conduct”).
{¶51} An appellate court will not reverse the trial court’s allocation of the
responsibility for the payment of attorney fees absent an abuse of discretion. Southard
Supply, Inc. at ¶ 36. See also Lane v. Griffith, 11th Dist. Ashtabula No. 2019-A-0041,
2019-Ohio-3442, ¶ 31 (“Since R.C. 2323.51(B)(1) grants the court discretion in awarding
attorney fees to a party adversely affected by frivolous conduct, a court’s factual
determination regarding the imposition of sanctions will not be reversed absent an abuse
of discretion”).
{¶52} As our examination of the magistrate’s decision reveals, contrary to Ms.
Marcellino’s assertions, the magistrate found the conduct of Ms. Marcellino and her
attorney to be egregious and objectively frivolous. The magistrate, while not explicitly
apportioning the award of sanctions equally against them, ordered Ms. Marcellino to pay
roughly half of Ms. Nicastro’s reasonable attorney fees and all of the litigation expenses.
See Norris v. Philander Chase Corp., 5th Dist. Knox No. 11-CA-10, 2011-Ohio-6545, ¶
44 (declining to find law firm jointly and severally liable for the award of sanctions imposed
on an individual attorney in the firm since appellee did not request an award against it in
either of its motions and there was no demonstration in the record it was sui juris).
14
Case No. 2021-G-0025
{¶53} In Lloyd v. Thornsbery, 11th Dist. Portage No. 2019-P-0108, 2021-Ohio-
240, we similarly upheld an award of sanctions where appellant’s actions before, during,
and after trial constituted frivolous conduct. Id. at ¶ 61. For instance, the appellant knew
or should have known that her case had no merit, that she could not prove her case, and
that she had insufficient evidence. Id. at ¶ 54. Further, she filed dozens of motions and
other documents pro se, even though she was represented by counsel, which included
irrelevant information and served no legitimate purpose. Id. at ¶ 56.
{¶54} Ms. Marcellino pursued a motion to show cause against Ms. Nicastro for
violations of an agreement in which she no longer had an interest. Prior to her pro se
filing, Ms. Marcellino transferred her property interests to her parents, and was prohibited,
by court order, from owning, caring for, or residing with any equine animals. Therefore,
the only conclusion that can be drawn from the circumstances is that the factual
contentions in her affidavit were knowingly false. Her frivolous motion resulted in three
days of hearings held over a span of several months with hundreds of pages of filings
and took over a year to conclude. Quite simply, Ms. Marcellino is not paying sanctions in
lieu of her attorney, but instead paying her proportionate share that represents her
responsibility for a frivolous motion in which she was an active instigator and participant.
{¶55} In support, Ms. Marcellino cites to P.K. Lumber Co. v. Investors Title
Agency, Inc., 2d Dist. Montgomery No. 12184, 1991 WL 6326 (Jan. 23, 1991), where the
Second District modified the trial court’s judgment to substitute counsel in place of the
appellant as the appropriate person responsible for the payment of the appellee’s
attorney’s fees. Id. at *4. The court did so because the basis of the award was that the
complaint, filed and prepared by counsel, could not be supported by the existing law or a
15
Case No. 2021-G-0025
reasonable extension, modification, or reversal of existing law. Id. Further, the court did
not find the appellant filed its action to harass or maliciously injure the appellee, and
appellant’s counsel accepted full responsibility for the complaint and the resultant
litigation at the oral hearing on appeal. Id.
{¶56} The facts in P.K. Lumber are not similar to the circumstances presented
here, and we do not find it to have any bearing on the instant case. Ms. Marcellino’s
conduct was found to be egregious and objectively frivolous. She filed the frivolous
motion pro se and never backed away from her determined course of action. The burden
of any sanction should fall upon those actually responsible for the frivolous conduct.
Estep v. Kasparian, 79 Ohio App.3d 313, 317, 607 N.E.2d 109 (10th Dist.1992).
{¶57} Ms. Marcellino’s first assignment of error is without merit.
Lack of Standing
{¶58} In Ms. Marcellino’s second assignment of error, she contends the trial court
erred when it held that her lack of standing to file her motion to show cause was clear
under existing law and that she did not have a good faith argument for an extension,
modification, or reversal of existing law.
{¶59} “‘Under R.C. 2323.51, the court must first determine whether the actions of
the party to be sanctioned constitute “frivolous conduct.” If the court determines that such
actions are frivolous conduct, the court must then determine the amount, if any, of
attorney fees that are warranted to the party who was adversely affected by the frivolous
conduct.’” Lane, at ¶ 29, quoting Findlay Ford Lincoln Mercury v. Huffman, 3d Dist.
Hancock No. 5-03-28, 2004-Ohio-2797, ¶ 10; see R.C. 2323.51(B).
16
Case No. 2021-G-0025
{¶60} The trial court’s initial decision whether conduct was frivolous is a factual
determination, which we will not disturb where the trial court’s findings are supported by
competent, credible evidence. Keith-Harper v. Lake Hosp. Sys., Inc., 2017-Ohio-7361,
96 N.E.3d 823, ¶ 24 (11th Dist.).
{¶61} “[A] determination of ‘[w]hether a pleading is warranted under existing law
or can be supported by a good-faith argument for an extension, modification, or reversal
of existing law is a question of law, peculiarly within the competence of an appellate
court.’” Lane at ¶ 30 quoting Findlay Ford Lincoln Mercury v. Huffman, 3d Dist. Hancock
No. 5-03-28, 2004-Ohio-2797, ¶ 11. Therefore, we are not bound by the trial court’s
determination on this particular issue. Id.{¶62} We note at the outset that Ms. Marcellino did not appeal the trial court’s
denial of her motion to show cause or its finding that she lacked standing. Not only did
the magistrate determine that Ms. Marcellino lacked standing because she failed to show
injury, causation, and redressability, but the magistrate also determined that she failed to
show contempt by clear and convincing evidence, i.e., that Ms. Nicastro violated any
provision of the parties’ agreement/court order. In addition, the magistrate found that “Ms.
Marcellino’s own conduct, especially in removing Ms. Nicastro’s fence after her Motion
was filed, is reprehensible, grossly inequitable, or unconscionable.”
{¶63} Ms. Marcellino exhibits confusion over the concept of standing, presenting
an incomprehensible argument about the magistrate following the law in public utility
cases. Standing is a necessary requirement in all cases. The Supreme Court of Ohio
explained in Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780, 964 N.E.2d 414.
17
Case No. 2021-G-0025
{¶64} “‘It is well established that before an Ohio court can consider the merits of
a legal claim, the person seeking relief must establish standing to sue.’ State ex rel. Ohio
Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 469, 715 N.E.2d 1062.
‘“Standing” is defined at its most basic as “[a] party’s right to make a legal claim or seek
judicial enforcement of a duty or right.”’ Ohio Pyro Inc. v. Ohio Dept. of Commerce, 115
Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, quoting Black’s Law Dictionary
(8th Ed.2004) 1442. ‘“‘[T]he question of standing depends upon whether the party has
alleged such a “personal stake in the outcome of the controversy * * *” as to ensure that
the dispute sought to be adjudicated will be presented in an adversary context and in a
form historically viewed as capable of judicial resolution.’”’ Id., quoting State ex rel.
Dallman v. Franklin Cty. Court of Common Pleas (1973), 35 Ohio St.2d 176, 178-179, 64
O.O.2d 103, 298 N.E.2d 515, quoting Sierra Club v. Morton (1972), 405 U.S. 727, 732,
92 S.Ct. 1361, 31 L.Ed.2d 636, quoting Baker v. Carr (1962), 369 U.S. 186, 204, 82 S.Ct.
691, 7 L.Ed.2d 663, and Flast v. Cohen (1968), 392 U.S. 83, 101, 88 S.Ct. 1942, 20
L.Ed.2d 947.” Id. at ¶ 15.
{¶65} To succeed in establishing standing, plaintiffs must show that they suffered
(1) an injury, (2) that is fairly traceable to the defendant’s allegedly unlawful conduct, and
(3) likely to be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). These three factors—injury,
causation, and redressability—constitute “the irreducible constitutional minimum of
standing.” Id. at 560; see also Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897,
975 N.E.2d 922, ¶ 22.
18
Case No. 2021-G-0025
{¶66} There is no question Ms. Marcellino lacked standing to file a motion to show
cause against Ms. Nicastro for violating their agreement, which concerned their adjoining
properties at the time the agreement was made. Ms. Marcellino transferred her interest
in the property and was prohibited by court order from owning any equine property at the
time she filed her motion pro se, which she claimed was supported by an affidavit
containing false averments. “A finding of frivolous conduct under R.C. 2323.51 is decided
without inquiry as what the individual knew or believed.” Marcellino v. Geauga Humane
Soc., supra, at ¶ 26. Instead, a finding of frivolous conduct under R.C. 2323.51 uses an
objective standard and asks whether a reasonable lawyer would have filed action or
continued to pursue the claims in light of existing law or facts in a particular case. Id.
{¶67} A review of Ms. Marcellino’s contentions reveal they lack evidentiary
support and could not have been made in good faith. Firstly, Ms. Marcellino alleged that
Ms. Nicastro violated the parties’ agreement by not requesting dismissal of the trespass
charge. Ms. Nicastro’s conversations with Ms. Fronk, however, were not conversations
with the prosecutor, and Ms. Nicastro’s attorney sent a letter to the prosecutor on the date
the mediation agreement was signed requesting the charges be dismissed. Secondly,
any encroaching fencing was on property owned by Ms. Marcellino’s parents and, at the
hearing, Ms. Marcellino was unable to compare and contrast survey documents and
identify points of encroachment. Thirdly, Ms. Marcellino did not own and was prohibited
from owning any property with any equine animal, so she had no horses to wander and
she had no interest affected by horses wandering between the adjoining properties.
Fourthly, Ms. Marcellino failed to produce any alleged customers who were affected by
19
Case No. 2021-G-0025
Ms. Nicastro’s signage, which she alleged was posted on Ms. Nicastro’s barn in such a
way that it was only visible to those on her property.
{¶68} In addition, Ms. Marcellino attempted to argue that the parties’ mediation
agreement had the similar effect and force of a CPO, even though the agreement
specifically stated that “this Agreement does not have the full force and effect of a Civil
Stalking Protection Order and is not enforceable as a protection order pursuant to R.C.
2903.214 or R.C. 2919.21.”
{¶69} Courts have upheld the imposition of sanctions for frivolous conduct where,
as here, the action was based on suspicion and not supported by any evidence.
{¶70} In Stevenson, supra, this court upheld the trial court’s finding that appellant
engaged in frivolous conduct because she filed the action based solely on her
assumptions and suspicions and without good ground or any investigation, knowing she
had no evidence against the appellees. Id. at ¶ 48. Further, the appellant maintained the
action for several months after her sole witness told her she had no evidence to support
her allegations. Id. By maintaining the action with no factual basis, the appellant forced
appellees to retain counsel to defend the suit, to file a motion to dismiss, and to file a reply
brief to her brief in opposition, in which she continued to maintain the appellees’ liability
without any factual basis. Id. at ¶ 55.
{¶71} Likewise, in Masturzo v. Revere R.d. Synagogue, 98 Ohio App.3d 347, 648
N.E.2d 582 (9th Dist.1994), the Ninth District affirmed the trial court’s finding that
appellant’s suit was frivolous where the appellant relied on questionable information in its
complaint and then failed to dismiss a defendant several months after it learned the
defendant did not have an interest in the property. Id. at 353. See also Crooks v. Consol.
20
Case No. 2021-G-0025
Stores Corp., 10th Dist. Franklin No. 98AP-83, 1999 WL 52981, *4 (Feb. 4, 1999) (“The
failure to conduct a reasonable investigation of the facts and the law of a claim prior to
filing a complaint may constitute frivolous conduct * * *”).
{¶72} Thus, it is clear under these circumstances that the trial court did not err in
finding that Ms. Marcellino’s motion to show cause was not warranted under existing law
and that she did not have a good faith argument for an extension, modification, or reversal
of existing law. Quite simply, no reasonable person would have filed and litigated a
motion to show cause for issues concerning property he or she did not own, and there is
no good faith legal argument that would give Ms. Marcellino a redressable injury as a
party. The frivolous conduct statute was designed to provide relief in a case like this.
{¶73} Ms. Marcellino’s second assignment of error is without merit.
{¶74} The judgment of the Geauga County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
JOHN J. EKLUND, J.,
concur.
21
Case No. 2021-G-0025