COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68269 : ACCELERATED DOCKET ALBERT C. NOZIK, et al : : JOURNAL ENTRY Plaintiff-Appellants : : and -vs- : : OPINION MICHAEL A. SANSON, et al : : Defendant-Appellees : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 8, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 275,700 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellants: ALBERT C. NOZIK, pro se 7833 Lake Shore Boulevard Mentor-on-the-Lake, OH 44060 For defendant-appellees : JEROME M. ELLERIN Attorney at Law 1717 Bond Court Building Cleveland, OH 44114 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the 1 Cuyahoga County Court of Common Pleas and the briefs of counsel. Plaintiffs-appellants Albert C. Nozik and Eleanor McDonald appeal the trial court's order granting defendant-appellees Michael Sanson, Erol Nozik, Sandra Chisling and Joyce Trudeau an award of $3037.50 for attorney fees as sanctions pursuant to R.C. 2323.51 and Civ.R. 11. The complaint in this case alleged that the appellees maliciously, and with the intention to injure the appellants, filed a false judgment lien against certain real estate of the appellants. The appellees filed a Civ.R. 12(B)(6) motion to dismiss the complaint for failure to state a claim upon which relief could be granted. In their motion to dismiss, the appellees maintained that the appellants' actions in filing the complaint were frivolous and requested a sanctions hearing pursuant to Civ.R. 11 and R.C. 2323.51. The trial court granted the appellees' motion to dismiss and further granted the 1 The purpose of an accelerated appeal is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). - 3 - appellees' request for a hearing to determine whether to impose sanctions. On November 21, 1994, the trial court conducted a hearing on the request for sanctions. The trial court entertained oral arguments and received testimony from appellant Albert Nozik, an attorney who has represented the appellants throughout the proceedings, and appellee Michael Sanson, the attorney who filed the judgment lien on behalf of the other appellees. On November 23, 1994, the trial court issued its order wherein the appellees were awarded $3037.50 for attorney fees. Separate appeals were filed by the appellants from the dismissal order and the award of attorney fees. The appeals were not consolidated, and the appeal sub judice concerns only the award of attorney fees pursuant to Civ.R. 11 and R.C. 2323.51. The appellants assign the following errors for review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN GRANTING SANCTIONS IN THE ABSENCE OF ANY EVIDENCE OR ANY FINDING OF FRIVOLOUS, WILLFUL, GROUNDLESS OR SHAM PLEADINGS. II. THE TRIAL COURT ERRED IN CONDUCTING A HEARING FOR ATTORNEY FEES PURSUANT TO R.C. 2323.51 WHERE THERE WAS NO MOTION FOR SANCTIONS FILED ON THE RECORD. We will address the appellants' second assignment of error first. The appellants contend that it was error for the trial court to make an award of attorney fees pursuant to R.C. 2323.51 as the appellees never filed a motion for sanctions. The appellants - 4 - suggest that the court, sua sponte, scheduled a hearing for the purpose of determining whether to award the appellees attorney fees pursuant to R.C. 2323.51 for having to defend against frivolous conduct. See Shaffer v. Mease (1991), 66 Ohio App.3d 400 (wherein the court construed R.C. 2323.51 as precluding courts from raising R.C. 2323.51 sanction issues sua sponte). Simply put, this is not the situation in this case. The record reflects that in their motion to dismiss, the appellees clearly requested an award of sanctions against the appellants for violation of R.C. 2323.51 and Civ.R. 11 and further requested an evidentiary hearing on the matter. There is no basis in the record to support the appellants' argument that the trial court raised the sanctions issue sua sponte. Accordingly, the appellants' second assignment of error is overruled. We turn now to the appellants' first assignment of error wherein the appellants challenge the trial court procedure used to consider the request for attorney fees as sanctions. It is the position of the appellants that no hearing should have been held because the appellees' motion to dismiss presented no evidence to support their contention that the appellees engaged in frivolous conduct or filed a false pleading and because the trial court, in dismissing the case pursuant to Civ.R. 12(B)(6), never addressed the merits of whether the appellants engaged in - 5 - 2 frivolous conduct or filed a false pleading. This court finds no merit in these arguments of the appellants. It is well established that a claim for attorney fees as sanctions is collateral to and independent of the primary action. Stevens v. Kiraly (1985), 24 Ohio App.3d 211; Painter v. Midland Steel Products Co. (1989), 65 Ohio App.3d 273. It is equally well established that due to the collateral nature of these proceedings, both Civ.R. 11 and R.C. 2323.51 require the trial court to conduct an evidentiary hearing at which the parties and counsel must be given the opportunity to present any evidence relevant to the issues raised before imposing sanctions. Goff v. Ameritrust Co. (May 5, 1994), Cuyahoga App. Nos. 65196, 66016, unreported ("[a] trial court abuses its discretion in awarding attorney fees pursuant to Civ.R. 11 without first conducting a hearing"); Dreger v. Bundas (Nov. 15, 1990), Cuyahoga App. No. 57389, unreported ("*** the trial court may award attorney fees [pursuant to R.C. 2323.51] only after conducting a hearing that allows the parties to present evidence in support of or opposition to such award"); Belfiore v. Natl. Eng. & Contracting Co. (1991), 71 Ohio App.3d 142 (holding the same). In this case, this was the procedure followed by the trial court. The trial court conducted a hearing on the issue of 2 When a court dismisses a complaint pursuant to Civ.R. 12(B)(6), it makes no factual finding beyond its legal conclusion that the complaint fails to state a claim upon which relief can be granted. State, ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40, 41. - 6 - attorney fees, and the appellants were given an opportunity to dispute the imposition of attorney fees. Moreover, when, at the hearing, the appellants expressed confusion with the procedure for imposing sanctions, the trial court explained to them that the motion to dismiss involved a determination of the sufficiency of their claim for slander of title whereas the issue raised by the request for sanctions is whether Mr. Nozik engaged in frivolous conduct or filed a false pleading, an entirely different question which necessitated a hearing of the evidence relevant to this matter. Furthermore, a motion for attorney fees must be decided solely upon evidence presented at the hearing and not upon evidentiary materials submitted with the motion or otherwise. Pisanick-Miller v. Roulette Pontiac-Cadillac GMC, Inc. (1991), 62 Ohio App.3d 757, 760-761; Stephens v. Crestview Cadillac, Inc. (1989), 64 Ohio App.3d 129, 132; Dreger v. Bundas, supra.; Stickney v. Ervin (Dec. 5, 1989), Franklin App. No. 89AP-6160, unreported. Therefore, the fact that the appellees did not attach supporting evidentiary materials to their motion to dismiss is inconsequential. Accordingly, for all of the foregoing reasons, the trial court did not abuse its discretion in awarding attorney fees as sanctions to the appellees and against the appellants pursuant to Civ.R. 11 and R.C. 2323.51. Therefore, the appellants' first assignment of error is overruled, and the judgment of the trial court is affirmed. - 7 - This cause is affirmed. It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas 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. DONALD C. NUGENT, PRES. JUDGE JOSEPH J. NAHRA, JUDGE TERRENCE O'DONNELL, JUDGE 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, .