PAULA WALTERS v. KARON F. CARTER, ET AL.
No. 108555
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 5, 2020
[Cite as Walters v. Carter, 2020-Ohio-807.]
RAYMOND C. HEADEN, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-17-890552 and CV-18-898448
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 5, 2020
Appearances:
The Spitz Law Firm, L.L.C., and Brian D. Spitz, for appellee.
Jeffrey F. Slavin, for appellant.
RAYMOND C. HEADEN, J.:
{¶ 1} Defendant-appellant Karon Carter (“Karon”) appeals from the trial court’s denial of her motion for sanctions against Brian D. Spitz, counsel for plaintiff-appellee Paula Walters (“Paula”). For the reasons that follow, we affirm the trial court’s judgment.
{¶ 2} Paula, and her brother Robert Walters (“Robert”), lived in a rental property situated at 2260 Goodnor Road, Cleveland Heights, Ohio for approximately 40 years. The rental property is structurally connected to the home located at 3341 Silsby Road, Cleveland Heights, Ohio where Karon has lived for over 15 years.1 Karon purchased the rental property in November or December 2017 and immediately sought to terminate Paula’s tenancy.
{¶ 3} The parties dispute the facts. Paula claims Karon and Opal made repeated disparaging comments about her age, disability, and religion. (See affidavit of Paula (“Paula’s affidavit”), attached to Appellee’s brief in opposition to motion for sanctions.) The comments supposedly included statements that Paula was a “dirty Jew” and Karon did not want Paula’s “dirty Jewish money.” (See Paula’s affidavit. See also affidavit of Robert (“Robert’s affidavit”), attached to Appellee’s brief in opposition to motion for sanctions.) Paula argued discrimination was the real basis for Karon’s threatened eviction. Paula claimed Karon gave her only two weeks’ notice in December 2017 to vacate the premises even though she had paid December’s rent. (Paula’s affidavit and Robert’s affidavit.)
{¶ 4} Paula refused to move and alleged Karon continued to try and force her to leave the property through ongoing harassment, including threatening phone calls. (Paula’s affidavit; Robert’s affidavit.) The phone calls allegedly increased in
{¶ 5} Based upon the alleged behavior, Paula filed a complaint against Karon and Opal Carter on December 19, 2017, in Cuyahoga C.P. No. CV-17-890552 stating that the defendants discriminated against her on the basis of religion, disability, and age; committed telephone harassment; and caused intentional infliction of emotional distress (“discrimination complaint”). Paula sought a permanent injunction to require Karon and Opal to discontinue their discrimination and harassment and to prevent Paula’s eviction and also requested compensatory and monetary damages, lost wages, liquidated damages, attorney fees, punitive damages, and court costs. Defendants subsequently filed an answer.2
{¶ 6} Following Paula’s initiation of her discrimination action, Karon filed two eviction actions against Paula and Robert with the Cleveland Heights Municipal Court that were both dismissed prior to resolution.3
{¶ 8} On May 31, 2018, the parties filed a joint motion to consolidate the discrimination and eviction cases pending with the Cuyahoga County Court of Common Pleas. The court granted this motion on June 26, 2018.
{¶ 9} On July 2, 2018, following the discovery deposition of Paula, Opal Carter was voluntarily dismissed, without prejudice, from the discrimination case.
{¶ 10} Paula and Robert vacated the premises on or about July 16, 2018. Paula filed a stipulated notice of settlement and dismissal with prejudice of the discrimination complaint on October 30, 2018. On the same date, Karon filed a notice of dismissal in the eviction case.
{¶ 11} On April 22, 2019, Karon filed a motion for sanctions pursuant to
The judgment of the trial court denying the appellant’s motion for sanctions was an abuse of discretion.
II. Law and Analysis:
A. Standard of Review
{¶ 12} Two separate mechanisms are provided in Ohio law for an aggrieved party to seek attorney fees for frivolous conduct:
1. R.C. 2323.51
{¶ 13} Under
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.
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.
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. 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.
{¶ 14} To determine whether a claim is frivolous under
2. Civ.R. 11
{¶ 15}
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. If a document is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the document had not been served. 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. * * *
{¶ 16} When a party files a motion for sanctions under
{¶ 17} The decision to grant or deny sanctions under
{¶ 18} Karon sought sanctions under both
B. Whether the Filing of the Complaint was Frivolous and Subject to Sanctions under R.C. 2323.51
{¶ 19} Paula‘s complaint asserted discrimination, telephone harassment, and intentional infliction of emotional distress.
{¶ 20} Karon argues that Paula‘s complaint was frivolous under
{¶ 21} Under
{¶ 22} Analysis of a claim that a complaint was filed with malicious intent, and therefore, is frivolous under
{¶ 23} Karon further argues the trial court abused its discretion when it failed to find Paula‘s complaint was frivolous under
{¶ 24}
{¶ 25} Courts must carefully apply
{¶ 26} We will analyze each cause of action — discrimination, telephone harassment, and intentional infliction of emotional distress — under each section of
1. Discrimination Claims
{¶ 27}
{¶ 28} To establish a prima facie case of discrimination, the plaintiff must present either (1) direct evidence of intentional discrimination by the defendant, or (2) circumstantial evidence that creates an inference of intentional discrimination. Sheppard v. Tai-Chi Kwok, N.D.Ohio No. 5:18CV2832, 2019 U.S. Dist. LEXIS 113656, 9-10 (July 9, 2019).5 Affidavits can serve as direct evidence of discriminatory behavior. Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1249-50 (6th Cir.1995)
{¶ 29} Paula presented direct evidence of Karon‘s alleged discrimination as documented in Paula and Robert‘s affidavits. Paula‘s affidavit included the following statements:
- I lived in the property owned by Karon Carter located at 2260 Goodnor Road, Cleveland Heights, Ohio 44118 (“Rental Property”) with my brother Robert Walters for over 40 years.
- I am 82 years old with degenerative hip conditions that affect my major life activities, including walking.
- Carter repeatedly made disparaging comments about my age, disability, and religion.
- Carter called me a dirty Jew and told me that she did not want our dirty Jew money.
- Carter told me that she wanted my old Jew ass to move out.
- Carter would not take our rent payments, which we always made timely.
- I was willing to pay rent until I could find another place to live but Carter said that she did not want our dirty Jew money and that she wanted us gone.
- Carter would come to our house and bang on the door telling us to move out at all hours.
- Carter kept trying to evict us, but she kept doing it improperly.
We had a verbal year to year lease with the prior [landlord], but Carter tried to evict us in the middle of the rent term right after she bought the property in December of 2017. - After buying the Rental Property, Carter immediately told us to move out from the apartment in two weeks despite the fact that we had already paid the rent for the month.
- I am a Holocaust survivor and was a hidden child during World War II.
- Carter‘s conduct, including attempting to forcibly remove us from our home, has caused me to experience significant emotional distress.
{¶ 30} Robert‘s affidavit presented similar statements:
- I lived in the property owned by Karon Carter located at 2260 Goodnor Road, Cleveland Heights, Ohio 44118 (“Rental Property”) with my sister Paula Walters for over 40 years.
- Carter repeatedly made disparaging comments about our age and religion.
- Carter often made jokes about Paula‘s disability and stated that she believed that Walters suffers from dementia.
- Carter called me a dirty Jew and told me that she did not want our dirty Jew money.
- Carter referred to me and Paula as, “old Jew,” “cheap Jew,” and “dirty Jew,” among other anti-Semitic comments.
- Carter told me that she wanted my old Jew ass to move out.
- Carter would harass us by phone and by coming to the house and banging on the door.
- Carter would not take our rent payments, which we always made timely.
- I was willing to pay rent until I could find another place to live but Carter said that she did not want our dirty Jew money and that she wanted us gone.
Carter would come to our house and bang on the door telling us to move out at all hours. - Carter kept trying to evict us, but she kept doing it improperly.
- We had a verbal year to year lease with the prior [landlord], but Carter tried to evict us in the middle of the rent term right after she bought the property in December of 2017.
- After buying the Rental Property, Carter immediately told us to move out from the apartment in two weeks despite the fact that we had already paid the rent for the month.
Paula and Robert‘s executed affidavits attesting to Karon‘s discriminatory behavior served as direct evidence of Karon‘s alleged discrimination.
{¶ 31} Karon argues that Paula‘s deposition testimony does not support a claim of discriminatory eviction, and therefore, filing the complaint constituted frivolous conduct. Karon cites several statements from Paula‘s deposition testimony to support her position. When asked on cross-examination during her discovery deposition, Paula stated she did not believe Karon evicted her due to Paula‘s religion. (Tr. 50-51.) Paula testified that she could not vacate her home without adequate time to obtain affordable senior housing. (Tr. 25-26.) Paula also stated that she had not worked in over 20 years, which refuted her lost wages claim. (Tr. 8.) And while Opal was a named defendant who allegedly discriminated against and harassed Paula, Paula did not remember knowing a person named Opal Carter. (Tr. 9.)
{¶ 32} Karon argues these inconsistencies further support her claim of frivolous conduct. Yet, on direct examination, Paula later testified that Karon told her “no longer dirty Jewish rent.” (Tr. 54.) Paula also voluntarily dismissed Opal following her discovery deposition.
{¶ 34} Karon focuses on Paula‘s attorney‘s behavior as an indication that the complaint was frivolous. One example is Karon‘s allegation that the majority of Paula‘s admissions, requests for production of documents, and interrogatories were “frivolous, nonsense, irrelevant, etc.” Appellant‘s brief at 22. Karon discusses the admissions, one by one, and explains why she finds the posed questions unnecessary.
{¶ 35} However, we are not trying to decide if there were sufficient facts to find Paula would prevail on her complaint. We just need to determine if Paula‘s filing of her complaint was frivolous. “A party‘s conduct is not frivolous simply because a claim is not well-grounded in fact or impervious to dispute.” Conneaut, Ohio v. Buck, 11th Dist. Ashtabula No. 2014-A-0053, 2015-Ohio-2593, ¶ 35. “Further, the statute was not designed to punish coincidental misjudgment or mere tactical error.” Id., citing Turowski v. Johnson, 70 Ohio App.3d 118, 123, 590 N.E.2d 434 (9th Dist.1991).
{¶ 36} We find that Paula‘s discrimination claim was warranted under existing law. Further, the record reflects competent, credible evidence to support the trial court‘s findings that (1) the claim was not filed with malicious intent, (2) the
2. Telephone Harassment
{¶ 37} Paula‘s complaint included a claim for damages due to telephone harassment in violation of
{¶ 38} Telephone harassment — a criminal cause of action charged under
(1) the offender knowingly makes a telephone call; (2) to the recipient of the phone call, to another person at the premises to which the phone call is made or to the premises to which the phone call is made; (3) when the recipient or another person on the premises to which the phone call is made had previously told the caller not to call.
Bentleyville v. Pisani, 8th Dist. Cuyahoga Nos. 69063, 69064, 69065 and 69066, 1996 Ohio App. LEXIS 3565, 19-20 (Aug. 22, 1996). A party can seek a civil action based upon a statute, such as
{¶ 39} Under
3. Intentional Infliction of Emotional Distress
{¶ 40} A claim for intentional infliction of emotional distress requires proof of the following elements:
(1) the defendant either intended to cause, or knew or should have known, that his actions would result in serious emotional distress; (2) the defendant‘s conduct was so extreme and outrageous that it went beyond all possible bounds of decency and can be considered completely intolerable in a civilized community; (3) the defendant‘s actions proximately caused psychological injury to the plaintiff; and (4) the plaintiff suffered serious mental anguish of a nature no reasonable person could be expected to endure it.
Ashcroft v. Mt. Sinai Med. Ctr., 68 Ohio App.3d 359, 366, 588 N.E.2d 280 (8th Dist.1990).
{¶ 41} Paula is a Holocaust survivor and was a hidden child during World War II. (Paula‘s affidavit.) Paula stated, in her affidavit, that Karon‘s statements regarding her age, disability, and religion; Karon‘s refusal to accept Paula‘s proffered rent payment; Karon‘s banging on Paula‘s doors at all hours telling her to move out; and Karon‘s attempts to forcibly remove Paula from her home caused significant emotional distress. Paula‘s deposition testimony wavered on some of these details. For instance, Paula‘s testimony regarding the regularity with which Karon pounded on her doors fluctuated from daily, between the hours of 10:00 a.m. and 11:00 a.m.,
{¶ 42} However, the mere fact that a claim may not be successful is insufficient to warrant sanctions under
{¶ 43} According to the relevant case law and factual evidence, we cannot say the trial court erred when it found it was reasonable for an attorney to file a claim for intentional infliction of emotional distress against Karon, and therefore, Paula‘s attorney was not frivolous under
4. Conclusion – R.C. 2323.51
{¶ 44} Applying a de novo standard of review to the trial court‘s legal determination (
C. Whether the Filing of the Complaint was Subject to Sanctions under Civ.R. 11
{¶ 45} The purpose of
{¶ 46} As analyzed above, a legal and factual basis existed for Paula‘s complaint. While Karon challenges the complaint was filed for purposes of delay, evidence exists supporting Paula‘s position that she had a good faith basis to prosecute the action and she had sufficient grounds to support it. Therefore, the trial court did not abuse its discretion when it denied Karon‘s award of sanctions.
{¶ 47} For the foregoing reasons, we find the trial court did not err when it denied Karon‘s motion for sanctions under
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
RAYMOND C. HEADEN, JUDGE
PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR