COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66687 IVAN SAWCHYN : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION CITY OF MIDDLEBURG HEIGHTS, et al : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 193,983 JUDGMENT : AFFIRMED IN PART, AS : MODIFIED; REVERSED IN PART; : AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: PAUL E. MEYER Attorney at Law 2858 W. Market Street, Suite C Akron, Ohio 44333 For defendant-appellee: ALAN E. JOHNSON DIANNA M. ANELLI LEO R. WARD Attorneys at Law 1265 West Sixth Street Cleveland, Ohio 44113 TERRENCE O'DONNELL, J.: Appellant Ivan Sawchyn appeals from the trial court's award of $15,246.76 in attorney fees and a $10,000 fine. For reasons which follow, we reduce the amount of attorney fees to $10,000, reverse the imposition of the fine, for failure to hold an evidentiary hearing on the matter, and remand the matter to the trial court. I. In July, 1990, appellant filed a pro se complaint for intentional infliction of emotional distress, malpractice and for refusal to rezone realty against the City of Middleburg Heights, its Law Director Peter Hull, and its Council President, Bonnie White ("appellees"), seeking compensatory and punitive damages. The appellees, through their public officials' liability insurance carrier, The National Casualty Company, retained the law firm of Ward & Associates to represent them. On September 14, 1990, Ward & Associates obtained dismissal of appellant's com- plaint but failed to obtain sanctions in the form of attorney fees against appellant. On appeal, this court affirmed the order of dismissal, reversed the denial of appellees' motion for attorney fees and remanded for a hearing pursuant to R.C. 2323.51. See, Sawchyn v. - 3 - City of Middleburg Heights (July 13, 1992), Cuyahoga App. No. 60642, unreported. Thereafter, apellant sent a series of letters to Middleburg Heights officials and to Ward & Associates threatening to initiate criminal prosecutions against Hull and White, disciplinary pro- ceedings against Hull and Attorney Alan E. Johnson of Ward & Associates, and to file an additional lawsuit against the City of Middleburg Heights unless appellees withdrew their application for attorney fees. In a letter to Middleburg Heights Finance Director Tim Pope dated September 1, 1993, appellant wrote, "If Hull & White haven't paid the city [for their defense] then in my opinion it will require a criminal investigation and I don't think you have any doubts that I will initiate same ***." In a September 2, 1993 letter to Middleburg Heights City Council members, appellant wrote that: *** after thourough [sic] investigation I have good legal reason to form the opinion that Mr. Hull, White, and our good Mayor are engaged in a felony in defrauding the city and attempting to defraud me. *** I'm going to give you a choice. Either you send me a letter confirming that you are directing that this Oct. 4[,] 1993 hearing is called off or I will ask the attorney general to investigate what in my opinion is defrauding the city and use of public money. In a September 3, 1993 letter to Ward & Associates, appellant threatened that: [U]nless I get a written letter confirming my demand to call off this Oct[.] 4, 1993 "hear- - 4 - ing", I am going to make a complaint to the Ohio Attorney General and demand a criminal investigation of the fact that MH taxpayers['] money is being pilfered to pay legal fees for Hull & White ***. In a September 5, 1993 letter to council member Barbara Becker, appellant again threatened that: [I]f I don't have a written committement [sic.] by Weds 9/8/93 [to withdraw the appellees' motion for attorney fees] I will send the attorney general of Ohio a letter I already have prepared demanding a good criminal investigation of the goings on in this regime ***. If not as I've already warned there will be another law suit against the city & probably some of it's [sic.] public officials. On September 17, 1993, appellant sent a letter to council member Joseph Caterini and city council urging that Hull be re- placed as law director for Middleburg Heights by an attorney who was a city council member and that he be appointed to the vacant council seat: For the last several weeks I've been sending numerous letters to Mary Ann George to give to all members of council. I have made a good faith effort to try to avoid embaressing [sic] MH any further because I'm hand carrying a complaint to the Cuyahoga County Prosecutor today and sending a copy to attorney Mary Ann Neal in the Auditing Div[.] of the Attorney General's office in Columbus ***. It is my suggestion that council dismiss [Hull] and appoint [Caterini] as the new law director. *** PS-appoint me to succeed you in Council. During this same time period, appellant also served interrog- atories and requests for admissions on Middleburg Heights Finance Director Timothy Pope, who is not even a party in this action. - 5 - On October 4, 1993, the case was reassigned for hearing before a visiting judge. The hearing was continued to October 17, 1994. During the ensuing one and one-half months, appellant filed three different motions to dismiss the R.C. 2323.51 proceedings and a motion for attorney fees and/or sanctions against appellees for frivolous conduct pursuant to R.C. 2323.51. Appellees responded to each of these motions and, on October 13, 1993, filed a supplemental motion for attorney fees pursuant to R.C. 2323.51 for fees incurred during the pendency of the attorney fees pro- ceedings. At the start of the first day of the hearing, appellant requested a continuance in order to file an affidavit of disquali- fication against the judge. Appellant believed the judge was prejudiced against him because he tried, unsuccessfully, to remove the judge from presiding over a case he filed several years earli- er. After assuring appellant he was not biased or prejudiced against him, the judge denied the request for a continuance. The next day, appellant filed an affidavit of disqualification against the judge with the Ohio Supreme Court. In an entry dated October 24, 1993, the Ohio Supreme Court denied the affidavit, stating that: The allegations [in plaintiff's affidavit of disqualification seeking the disqualification of the judge] are without merit and the affi- davit is denied. The records of this Court indicate that affi- ant has filed approximately seventeen affida- vits of disqualification since 1986 against - 6 - various judges, none of which has been sus- tained. Frivolous, repeated filings are an abuse of the process and, where appropriate, could result in sanctions being imposed against an offender. In re Disqualification of Spahr (1987), 36 Ohio St.3d 603. Affiant is strongly cautioned against any such subsequent conduct. On October 25, 1993, the judge gave appellant a copy of the Ohio Supreme Court's ruling. Less than two weeks later, appellant filed another motion for a continuance asking that the judge disqualify himself. II. The appellees' request for fees came to $15,246.76: $2,287.55 to obtain dismissal of the initial complaint and $12,959.21 to pursue the request for attorney fees. At the conclusion of the hearing on November 26, 1993, the court announced from the bench that it was granting appellees' motion for attorney fees in the amount of $15,246.76 and was further imposing a fine of $10,000 against appellant for "inter- ference with the administration of justice." On November 30, 1993, a journal entry reflecting the court's rulings was filed. On December 28, 1993, appellant filed his notice of appeal 1 from the trial court's judgment. 1 On February 9, 1994, after appellant filed his notice of appeal, the trial court filed a second set of journal entries granting the appellees' motion for attorney fees and fining the appellant $10,000 for "abuse of process." On March 14, 1994, the trial court filed yet a third set of journal entries granting the (continued...) - 7 - On March 14, 1994, the trial court filed findings of fact and 2 conclusions of law. III. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN CONCLUDING THAT THE FILING OF PLAINTIFF'S COMPLAINT, AND THE PLAINTIFF'S SUBSEQUENT FAILURE TO VOLUNTARILY DISMISS HIS CASE CONSTITUTED "FRIVOLOUS CON- DUCT" WITHIN THE MEANING OF R.C. 2323.51(A)(2)(a) AND/OR R.C. 2323.51(A)(2)(b). The decision to impose attorney fees as sanctions, pursuant to R.C. 2323.51, is within the discretion of the trial court. Painter v. Midland Steel Prod. Co. (1989), 65 Ohio App.3d 273, 281. Absent an abuse of discretion, a trial court's imposition of sanctions will not be reversed. State ex rel. Fant v. Sykes (1987), 29 Ohio 1 (...continued) appellees' motion for attorney fees in the amount of $15,246.76 and imposing a fine of $10,000 against the appellant for interference with the administration of justice and abuse of process. As these orders were entered after the notice of appeal was filed, the court lost jurisdiction to change its November 30, 1993 order, assuming that was what it intended to do. Drage v. Ameritrust Corp. (Sept. 29, 1988), Cuyahoga App. No. 55772, unreported; Buckingham v. Buckingham (Aug. 4, 1983), Cuyahoga App. No. 45415, unreported. These entries, therefore, are void and not part of this appeal. Additionally, on May 22, 1995, the trial court filed a judgment entry of clarification, specifically stating that there is only one fine of $10,000 levied against appellant. 2 While, generally, a trial court loses its jurisdiction to take any further action in a case once an appeal is filed, an exception exists when the action taken by the trial court is in aid of the appeal. Drage v. Ameritrust Corp., supra; Buckingham v. Buckingham, supra. In this case, the preparation of findings of fact and conclusions of law by the trial court does not alter the judgment entry appealed from by appellant and the findings and conclusions are manifestly in aid of this appeal. Id. - 8 - St.3d 65. An abuse of discretion connotes more than an error of law or judgment; it connotes an attitude on the part of the court that is unreasonable, arbitrary or unconscion-able. Rock v. Cabral (1993), 67 Ohio St.3d 108. R.C. 2323.51(A)(2) defines frivolous conduct as conduct that either "(a) *** obviously serves merely to harass or maliciously injure another party to the civil action; [or that] (b) *** is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law." Appellant contends that the trial court abused its discretion in finding that he engaged in conduct constituting frivolous con- duct as defined under both R.C. 2323.51(A)(2)(a) and (b). With respect to the former, appellant argues that the trial court abused its discretion in finding that he filed his complaint "merely" to harass or maliciously injure appellees because there is evidence in the record to support his position that he filed the complaint to redress a perceived injury for a lost business opportunity. Appellant insists that he had a legitimate reason for filing the complaint and that, therefore, the trial court could not reasonably conclude that the complaint was filed "merely" to harass or maliciously injure appellees. The record supports the trial court's conclusion that appel- lant filed his complaint not to seek redress for a perceived injury for a lost business opportunity as contended but, rather, to avenge - 9 - his unsuccessful attempt to get elected to city council, which he blamed on Hull and White. The evidence shows that appellant had filed a claim against the city stemming from the rezoning of the disputed property in a previous lawsuit which he lost on the merits and did not appeal. It is, therefore, incongruous to suggest that appellant's only motivation for filing the complaint was to obtain redress for the alleged loss of a business opportunity as a result of the rezoning issue. Moreover, the bulk of appellant's complaint concerns allegations of misconduct on the part of Hull and White which appellant claims caused him to lose the election to city council. In addition, the various letters sent by appellant to city officials seeking to get himself appointed to city council and threatening criminal investigation and prosecution if Hull and White are not required to pay their own legal expenses also indi- cate that appellant was seeking to avenge his election loss which he blamed on Hull and White. The record also supports the trial court's conclusion that appellant's complaint was not warranted under existing law. Appellant's various claims were barred either by the doctrines of statutory immunity or res judicata or by the applicable statute of limitations. R.C. 2744.07(A)(1); R.C. 2744.07(C); Rogers v. Youngstown (1991), 61 Ohio St.3d 205; Willoughby Hills v. Cincin- nati Ins. Co. (1984), 9 Ohio St.3d 177; Great Am. Ins. Co. v. Hartford Ins. Co. (1993), 85 Ohio App.3d 815. - 10 - Moreover, there is no merit to appellant's argument that his conduct was not frivolous because his claims were supported by a good faith argument for the extension, modification or reversal of the doctrine of statutory immunity. Appellant contends that at least one Justice of the Ohio Supreme Court believes, as does he, that statutory immunity under R.C. Chapter 2744 should be ex- tended, modified or reversed. See, Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141 (J. Pfeiffer, concurring). However, in his response to the motion to dismiss the complaint, appellant did not notify the trial court that he was seeking an extension, modifica- tion or reversal of this doctrine or his reasoning for seeking the same. The fact that appellant is now able to cite a case alleged- ly supporting his position that the doctrine of statutory immunity should be extended, modified or reversed does not render his argument sustainable since appellant could not have possibly relied on Garrett when he filed his complaint some four years before its publication. Based on our review of the record, we conclude that the trial court's decision that appellant's conduct was frivolous under both R.C. 2323.51(A)(2)(a) and (b) is not arbitrary, capricious or unreasonable. Painter v. Midland Steel Prod. Co., supra. The first assignment of error is overruled. IV. Appellant's second assignment of error states: - 11 - IN AN EVIDENTIARY PROCEEDING REMANDED SOLELY AS TO DEFENDANTS' PRE-JUDGMENT APPLICATION FOR ATTORNEYS' FEES UNDER R.C. 2323.51, IT WAS ERROR FOR TRIAL COURT TO AWARD POST JUDGMENT ATTORNEYS' FEES INCURRED DURING THE PENDENCY OF THE EVIDENTIARY PROCEEDINGS. The trial court found that in addition to appellant's origi- nal frivolous conduct in filing this action, the appellant also engaged in frivolous conduct within the meaning of R.C. 2323.51(A)(2)(a) and (A)(2)(b) during the pendency of the attorney fee proceedings and at the hearing itself. The court thus awarded appellees the attorney fees engendered by this conduct of the appellant, which included the time spent by counsel reviewing and responding to the numerous letters and motions filed by appellant, the time spent preparing for the fee hearing and for counsel's attendance at the fee hearing. Appellant contends that the court was precluded from awarding fees for conduct occurring after the dismissal of the original action for two different reasons. First, appellant argues that R.C. 2323.51 itself does not authorize the award of fees for time spent preparing for the fee hearing or for counsel's attendance at the fee hearing. Appellant refers this court to the decision of Painter v. Midland Steel Products, supra, wherein it was held that a claim for attorney fees, as a sanction, is collateral to and independent of the primary action, and the decision of Chiroprac- tic Clinic of Solon v. Kutsko (1994), 92 Ohio App.3d 608, 612, wherein it was observed that R.C. 2323.51 does not authorize the - 12 - award of attorney fees incurred in collateral proceedings such as an appeal to support his argument. To determine whether it was within the discretion of the trial court to make an award of fees for time spent by counsel preparing for the hearing and for counsel's attendance at the fee hearing, we must look at R.C. 2323.51. R.C. 2323.51(A)(1) defines "conduct" as "filing a civil action, asserting a claim, defense, or other position in connection with a civil action, or taking any other action in connection with a civil action. (Emphasis added.) The conduct of appellant during the pendency of the R.C. 2323.51 proceedings and at the fee hearing was action taken "in connection with a civil action." Cf. Oates v. Oates (Mar. 16, 1989), Frank- lin App. No. 88AP-701, unreported. By including the phrase "tak- ing any other action in connection with a civil action (emphasis added), the General Assembly was apparently desirous of broadening the scope of R.C. 2323.51 to include frivolous conduct occurring at different stages of the trial court proceedings. This language is broad enough to include the attorney fee hearing itself. Moreover, the record supports the court's finding that appel- lant's frivolous conduct continued beyond the point of the granting of the motion to dismiss and through the conclusion of the fee hearing. First, the record is replete with instances where appel- lant filed repetitive, unwarranted and unsupported motions and discovery requests. The barrage of letters sent to appellees and their counsel threatening criminal prosecution if they did not - 13 - dismiss their claim for attorney fees also supports the trial court's conclusion that appellant engaged in frivolous conduct in connection with the civil action beyond the point of the granting of the motion to dismiss. Further, the record demonstrates that appellant's conduct at the hearing needlessly prolonged the hearing. The appellant repeatedly requested continuances to seek disqualification of the judge, even after the Ohio Supreme Court denied his affidavit of disqualification, and further to obtain legal counsel despite the fact that he had been on notice for more than a year that an evidentiary hearing would be conducted. Appellant also argues that this court's remand order pre- cluded the court from awarding attorney fees for conduct occurring after the dismissal of the original action. Appellant states that this court remanded the matter "solely" for an evidentiary hearing upon appellees' prejudgment application for attorney fees, see Sawchyn v. City of Middleburg Heights (July 13, 1992), Cuyahoga App. No. 60642, unreported. It is well established that "when a case is remanded to a trial court from an appellate court, the mandate of that appellate court must be followed." Kaechele v. Kaechele (1989), 61 Ohio App.3d 159, 162. This court's mandate to the trial court did not, as argued by appellant, limit the authority of the trial court to award attor- ney fees for the post-judgment conduct of a party leading up to and at the attorney fee hearing. The only issue before this court on - 14 - appellees' cross-appeal was whether the trial court erred in refusing to hold an evidentiary hearing on their motion for attor- ney fees. This court held that a hearing is required under R.C. 2323.51 and, therefore, the court did err in failing to hold an evidentiary hearing. Hence, we find no merit to the appellant's argument that the court exceeded the scope of the remand order by awarding attorney fees for conduct occurring after the dismissal of the original action. The second assignment of error is overruled. V. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN DRAWING A PRESUMPTION AGAINST PLAINTIFF AND IMPOSING ON PLAINTIFF A BURDEN OF PROOF CONTRARY TO LAW. Appellant argues that the trial court drew a presumption against him and improperly imposed on him the burden of proof at the fee hearing. To support his argument, appellant calls our attention to the following statement by the court: *** You're here basically to tell the court why you shouldn't pay attorney's fees, that's what they're saying. That's the only part that's open, why you shouldn't pay attorney's fees. (Emphasis added.). Our review of the colloquy from which this statement was excerpted reveals that while the judge did tell appellant his task was to tell the court why he should not pay attorney fees, it was only to explain to a pro se litigant, in non-legalese, the nature - 15 - of the proceedings before the court. See, e.g., Flagner v. Reiman (Jan. 24, 1991), Cuyahoga App. No. 57825, unreported; In re Kuhlman (Dec. 7, 1994), Hamilton App. No. C-930688, unreported. That is not to say, however, that the court actually imposed the burden of proof on appellant. Indeed, the record clearly shows that at the start of the fee hearing, the court explained that it was appellees who had the burden of proving their entitlement to fees under R.C. 2323.51. The court explained as follows: THE COURT: This is the case of Ivan Sawchyn *** Plaintiff, cross appellant versus Middleburg Heights, Et. Al, Case Number 193983. We're here because the Court of Appeals reversed the trial court for dismissing the appellant motion for attorney's fees without having a hearing; is that correct? Have I stated that correctly? MR. JOHNSON: That's correct, your Honor. MR. SAWCHYN: May I address the court? THE COURT: Just a moment. Normally it's the person's motion that goes first. It's his motion. He has the burden of proving it. He goes first, and you'll reply. Am I correct on that, gentlemen? (Emphasis added.). MR. JOHNSON: That's how I understand it, yes. The third assignment of error is overruled. VI. Appellant's fourth assignment of error states: - 16 - THE TRIAL COURT ERRED IN CONCLUDING THAT PLAINTIFF'S ACTIVITIES AFTER DISMISSAL OF HIS COMPLAINT CONSTITUTED "FRIVOLOUS CONDUCT" WITHIN THE MEANING OF R.C. 2323.51(A)(2)(b). Appellant contends that the trial court abused its discretion in finding that he engaged in conduct constituting frivolous conduct as defined under R.C. 2323.51(A)(2)(b) during the pendency of the attorney fees proceedings. Specifically, the appellant argues that: *** [his] activities [during the pendency of and at the hearing] may be likened to motions in aid of execution of judgment. The activi- ties deemed to be frivolous conduct *** are clearly ancillary and incidental to the judg- ment. It is unclear whether the appellant is contending that his conduct is warranted under existing law or he is attempting to establish a good faith argument for an extension, modification or reversal of existing law. In either case, the appellant has failed to develop his argument to a point which convinces this court that his conduct was warranted under existing law or could be supported by a good faith argument in support of extension, modification or reversal of existing law. Further, the trial court's finding that the appellant's actions during the pendency of and at the attorney fee hearings constitute frivolous conduct within the meaning of R.C. 2323.51(A)(2)(b) is factually supported by the record. During the pendency of the R.C. 2323.51 proceeding, appellant served many irrelevant discovery requests, filed numerous unwarranted and - 17 - repetitive motions, and sent a barrage of letters to appellees and their counsel that were not warranted under existing law and could not be supported by a good faith argument for an extension, modi- fication or reversal of existing law. Appellant's repeated argu- ment--restated thematically in his discovery requests, motions, and letters--that Hull and White committed felonies by having Middleburg Heights and its public officials' liability insurer pay for their defense in this action was not warranted by existing law and could not be supported by a good faith argument for an exten- sion, modification or reversal of existing law. R.C. 2744.07(A)(1); R.C. 2744.07(C); Rogers v. Youngstown (1991), 61 Ohio St.3d 205; Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177; Great Am. Ins. Co. v. Hartford Ins. Co. (1993), 85 Ohio App.3d 815. In addition, appellant's frequent argument in his motions, discovery requests and correspondence that the attorney fees proceeding should be dismissed on the basis of his alleged ex parte and hearsay communications with an employee of the Eighth District Court of Appeals regarding the law also was not warranted by existing law and could not be supported by a good faith argument for an extension, modification or reversal of existing law. Based on our review of the record, we conclude that the trial court's decision that appellant's conduct was frivolous under R.C. 2323.51(A)(2)(b) is not arbitrary, capricious or unreasonable. Painter v. Midland Steel Prod. Co., supra. - 18 - The fourth assignment of error is overruled. VII. Appellant's fifth assignment of error states: THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND INADMISSIBLE EVIDENCE OF PLAINTIFF'S PRIOR HISTORY OF LITIGATION IN PROCEEDINGS UNDER R.C. 2323.51, AND SUCH ERROR CONSTITUTED AN ABUSE OF DISCRETION. The testimony objected to by the appellant at the hearing relates to the some twenty lawsuits previously filed by the appel- lant in which he was unsuccessful. The trial court admitted the 3 evidence pursuant to Evid.R. 404(B). The appellant maintains that the trial court erred in so doing because some of these lawsuits were remote in time, having been filed in the 1980's and one in the 1970's, making their relevance questionable. Appellees, on the other hand, maintain that this evidence was relevant to show appellant filed meritless lawsuits merely as a harassment tactic and was therefore admissible pursuant to Evid.R. 404(B). Since the appellant raised a timely objection to the disputed evidence, we review the trial court's ruling under an abuse of 3 Evid.R. 404(B) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in con- formity therewith. It may, however, be ad- missible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. - 19 - discretion standard. Weiner, Orkin, Abate & Suit Co. L.P.A. v. Nutter (1992), 84 Ohio App.3d 582. Evid.R. 401 defines relevant evidence as "*** evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Under Evid.R. 402, all relevant evidence is admissible in the absence of a rule of exclusion, and irrelevant evidence is inadmissible. The issue for determination at the hearing was whether the appellant engaged in frivolous conduct as that term is defined in R.C. 2323.51(A)(2)(a) and/or R.C. 2323.51(A)(2)(b). Evidence that the appellant had previously filed some twenty unsuccessful law- suits, the great majority of them pro se, tends to establish the appellant's intent under R.C. 2323.51(A)(2)(a), a material fact in issue. See Evid.R. 404(B). Thus, the trial judge did not abuse his discretion in admitting this evidence. Nor can we say that the probative value of this evidence was outweighed by its prejudicial effect. Evid.R. 403. The fifth assignment of error is overruled. VIII. Appellant's sixth assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW BY INCLUDING AN AWARD OF EXPERT WITNESS FEES IN PROCEEDINGS UNDER R.C. 2323.51. - 20 - The appellees called as an expert witness Hilary Taylor, an attorney experienced in defending municipal and governmental entities in civil lawsuits, to express an opinion regarding the reasonableness of the amount of time billed by Ward & Associates for representing appellees throughout this matter and the reason- ableness of the hourly rate of $95 charged by Ward & Associates for representation of appellees in this case. The trial court awarded appellees $924, the amount they owed Mr. Taylor for his services as an expert witness in this case. In doing so, however, the court erred. The only sanction a court may impose under R.C. 2323.51 is an award of attorney fees. Shaffer v. Mease (1991), 66 Ohio App.3d 400, 409; Zink v. Harrison (July 16, 1992), Montgomery App. Nos. 12201, 12684, unreported. Nothing in R.C. 2323.51 expressly states, nor can be reasonably construed to suggest, that costs other than attorney fees may be awarded in response to a finding of frivolous conduct. Therefore, the trial court was without authority to award appellees the costs of their expert witness on that basis. Zink v. Harrison, supra. The sixth assignment of error is sustained. IX. Appellant's seventh, eighth, and ninth assignments of error state: VII. THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANTS WERE ENTITLED TO RECOVER - 21 - ATTORNEYS' FEES INCURRED AFTER PLAIN- TIFF'S COMPLAINT WAS DISMISSED BECAUSE DEFENDANTS DID NOT HAVE STANDING TO SEEK AND OBTAIN RECOVERY OF SUCH FEES UNDER R.C. 2323.51. VIII. THE TRIAL COURT ERRED BY AMENDING THE PLEADINGS, SUA SPONTE, UNDER CIVIL RULE 15(B), TO ADD DEFENDANT'S INSURER, NATIONAL CASUALTY COMPANY, AS A PARTY TO THE PROCEEDINGS UNDER R.C. 2323.51. IX. ANY AWARD OF ATTORNEYS' FEES IN FAVOR OF DEFENDANTS' INSURER, NATIONAL CASUALTY COMPANY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW UNDER R.C. 2323.51. In its findings of fact and conclusions of law, the trial court, sua sponte, considered the standing of the city to recover attorney fees for fees paid by its insurance carrier, National Casualty Company (fees exceeding the appellees' $10,000 deduc- tible). The court wrote as follows: In the event it is determined that the defen- dants as such do not have standing to seek and obtain the recovery of the entirety of this amount, the pleadings are hereby amended to add the defendants' public officials liability insurer, the National Casualty Company, as a party in the attorneys' fees proceedings. Civ.R. 15(B) ***. Appellant argues that appellees did not have standing to recover attorney fees over their $10,000 insurance deductible and that the court could not, sua sponte, amend the pleadings to include National Casualty Company as a party. Appellees, on the other hand, argue that they have standing to recover attorney fees 4 In that the appellant has argued these assignments of error jointly, they will be addressed in the same way. - 22 - on the behalf of National Casualty because it was unclear whether National Casualty could have been a party to the attorney fee proceedings and it will bear the brunt of appellant's frivolous conduct by paying the attorneys for time expended beyond the appellees' $10,000 deductible. Where, as in this case, a party does not rely on any specific statute authorizing invocation of the judicial process, the ques- tion of standing is dependent 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 pres- ented in an adversary context and in a form historically viewed as capable of judicial resolution.'" Aetna v. Kovacs (Apr. 21, 1984), Cuyahoga App. No. 65295, unreported, citing Sierra Club v. Morton (1972), 405 U.S. 727, 96 S.Ct. 1361; 31 L.Ed 2d 636 (cites omitted.). In this case, it is undisputed that appellees did not have a personal stake in the fees expended by National Casualty for attorney fees in excess of their $10,000 deductible. Moreover, and despite appellees' assertions to the contrary, National Casualty could have filed a motion to intervene in order to recover its fees in excess of appellees' deductible of $10,000. Cf. Weiner, Orkin, Abate & Suit Co., L.P.A. v. Nutter, supra. Thus, we conclude that appellees were without standing to recover attorney fees for National Casualty Company; that is, attorney fees exceeding the appellees' $10,000 deductible. - 23 - Having determined that appellees lacked standing to recover fees expended by National Casualty for attorney fees in excess of their $10,000 deductible, we are necessarily faced with the issue of whether the court effectively added National Casualty Company as a party. Based on our review of the record, we find that it did not. While Civ.R. 21 does allow a trial court, sua sponte, to add parties, the record in this case does not contain a journal entry adding National Casualty Company as a party. It is well settled that a court speaks through its journal entries and not through its written findings. Cf. Schenley v. Kauth (1953), 160 Ohio St. 109; In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 173 at fn. 3. Thus, inasmuch as appellees lacked standing to recover fees expended by National Casualty for attorney fees in excess of their $10,000 deductible and National Casualty was not a party to the attorney fee proceedings, we conclude that the court erred in awarding appellees attorney fees in excess of the deductible. Accordingly, the amount of the attorney fee award is reduced to $10,000.00. X. Appellant's tenth assignment of error states: THE TRIAL COURT ERRED BY IMPOSING FINES AGAINST PLAINTIFF WHICH ARE CONTRARY TO THE LAW, WHICH CONSTITUTE AN ABUSE OF DISCRETION, AND ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The court, sua sponte, sanctioned the appellant, by way of a fine, for abuse of process. Civ.R. 11. In its findings of fact - 24 - and conclusions of law, the court explained the basis for the fine as follows: In view of plaintiff's disregard of Chief Justice Moyer's admonition *** and the over- whelming evidence of the plaintiff's abuse of process, the Court finds and concludes that plaintiff has interfered with the administra- tion of justice, and plaintiff is accordingly further sanctioned by way of a fine in the amount of $10,000.00 payable in the form of a certified check to the Clerk of Court of the Cuyahoga County Court of Common Pleas. Although the trial court possesses substantial discretion in selecting the sanction for a violation of Civ. R. 11, see Wiltsie v. Teamor (1993), 89 Ohio App.3d 380, 390, we believe that before a court may impose a fine as a sanction for a violation of Civ.R. 11, it is required to extend the minimum due process safeguards (notice and an opportunity to be heard) to the offending person to challenge the basis and reasonableness of the sanction. See Goff v. Ameritrust Co. (May 5, 1994), Cuyahoga App. Nos. 65196, 66016, unreported. While we acknowledge that an argument can be made that, in this case, the trial court could make its determination based on the record before it, there is still a question as to the amount of the fine imposed. While there is no single right amount to fine a 5 pro se litigant for violating Civ.R. 11 , and much must be left to the sound judgment of the trial court, which is most familiar with 5 Prior to its amendment in 1994, Civ.R. 11 had been inter- preted not to apply to pro se parties. The amendments, however, make clear its applicability to parties representing themselves. - 25 - the case and counsel, there still must be a method of getting to the amount of the sanction, including a fine. Moreover, this method should be characterized by intellectual discipline, which here means consideration of the appellant's ability to pay, see, e.g., Clark v. Hawkes Hospital (1984), 9 Ohio St.3d 182; Doe v. White (1994), 97 Ohio App.3d 585, and consideration of the possibility that a $10,000 fine may/or may not serve as a deterrent, see, e.g., Calmes v. Goodyear Tire & Rubber Co. (1991), 61 Ohio St.3d 470, 473; Morad v. Task (Mar. 10, 1994), Cuyahoga App. No. 64757, unreported. Accordingly, for the foregoing reasons, this issue must be remanded. Judgment accordingly. - 26 - This cause is affirmed in part, as modified, and reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant and appellee each pay equally in the cost of this matter. 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. PATRICIA BLACKMON, P.J. and JAMES D. SWEENEY, J. CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .