COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68733 ELLIE PALMER, ET AL., : : Plaintiffs-Appellees : : JOURNAL ENTRY vs. : and : OPINION JOSEPH GAJDA, ET AL., : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 25, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 269972 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellees: Michael D. Linn JAVITCH, BLOCK, EISEN & RATHBONE 601 Rockwell Building Sixth Floor Cleveland, Ohio 44114-1601 For defendants-appellants: Arthur F. Clarke 24500 Center Ridge Road Suite 130 Westlake, Ohio 44145-5602 -2- NAHRA, J.: In this action for damages stemming from the sale of a mobile home, the sellers, defendants-appellants Joseph Gajda and Pollyanna Gajda, appeal from the trial court order which denied their postjudgment motion for attorney fees. The record reflects the action was filed by plaintiffs- appellees Ellie Palmer and Brian Needham in May 1994. Appellees alleged in their complaint they had purchased a mobile home from appellants on March 22, 1994. They further alleged that when at the time of purchase they had "inquired of [appellants] regarding the capability of transporting the mobile home," appellants "represented to [appellees] the mobile home could be so transported at little or no expense," even describing the "apparent mechanical procedure" to appellees. Appellees alleged that when they moved the mobile home on April 2, 1994, the moving costs proved instead to be "substantial," that appellants knew or should have known that fact, but that appellants misrepresented the cost to induce appellees to purchase the mobile home. Appellees prayed for both compensatory and punitive damages in the action. Appellants filed separate answers denying the allegations of the complaint. Appellant Pollyanna Gajda also filed a counterclaim seeking $50.00, alleging appellees had purchased an outdoor grill but had failed to pay for it. Shortly thereafter, appellant Joseph Gajda filed a motion for summary judgment, arguing that since he had no ownership interest in the mobile home, he was entitled to judgment as a matter of law. -3- Pursuant to "Civ.R. 11," appellant requested the trial court sanction appellees by ordering them to pay his attorney fees 1 incurred in defending the action. The motion was supported by his affidavit and a copy of the certificate of title to the mobile home. Appellees quickly filed a "reply" to the counterclaim, denying its allegations; they also filed a brief in opposition to the motion for summary judgment. Their brief was supported by the affidavit of appellee Ellie Palmer, who reiterated the pertinent allegations of the complaint. Discovery then proceeded in the action. Ultimately, the trial court overruled appellant Joseph Gajda's motion for summary judgment. Three weeks later, appellants filed another motion for summary judgment. In their brief, appellants relied upon the parties' 1 Civ.R. 11 states in pertinent part: RULE 11. SIGNING OF PLEADINGS, MOTIONS, OR OTHER PAPERS Every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address and attorney registration number, if any, shall be stated, ... The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. ... For A willful violation of this rule an attorney or pro se party, upon motion of a party or upon the court's own motion, may be subjected to appropriate action, including an award to the opposing party for expenses and reasonable attorney fees incurred in bringing any motion under this rule. -4- deposition testimony to argue the evidence demonstrated appellants could prove neither the essential elements of their cause of action 2 nor a defense to the counterclaim. Appellees filed a brief in opposition to the motion; they too relied on the deposition testimony to support their argument genuine issues of material fact remained in the case. In addition, appellees attached to their brief the affidavit of Leonard Sears, the man they hired to move the mobile home. The trial court subsequently granted appellants' motion for summary judgment, awarding judgment to them on the complaint and 3 judgment to appellant Pollyanna Gajda on her counterclaim. Approximately a week later, appellants filed a motion for attorney fees pursuant to R.C. 2323.51. In their brief, appellants argued that since much of the appellees' deposition testimony contradicted the allegations of the complaint, the filing of the action amounted to frivolous conduct on the part of appellees and of their counsel. Appellants requested a hearing on their motion. Appellees filed a brief in opposition to the motion, setting forth the events which ultimately led to the filing of the action and arguing that portions of the deposition testimony also supported appellees' claims of fraud and misrepresentation. 2 Although appellants stated the depositions of the parties were filed in the trial court, the docket does not reflect that occurrence; moreover, the deposition transcripts were not included in the record on appeal. See App.R. 9(B). 3 Appellees filed a timely notice of appeal in this court from the trial court's order but later filed a "Notice" to dismiss the appeal which this court granted. -5- Appellees attached to their brief copies of several documents which were intended to illustrate their points. Approximately two and a half months later, the trial court issued a ruling upon the matter, denying appellants' motion for attorney fees and citing as the basis for its decision this court's opinion in Pisani v. Pisani (1995), 101 Ohio App.3d 83. Appellants have filed their timely appeal from the foregoing order. They present three assignments of error for review. Because appellants' assignments of error are all related, they are addressed together as follows: I. THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANTS IN DENYING THEM AN OPPORTUNITY TO PRESENT EVIDENCE WHY THEY SHOULD BE ALLOWED ATTORNEY FEES IN ACCORDANCE WITH R.C. 2323.51 BECAUSE APPELLEES DID NOT HAVE SUFFICIENT FACTS TO SUPPORT A GOOD FAITH ARGUMENT TO THEIR ASSERTION APPELLANTS COMMITTED A FRAUD UPON THEM. II. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO HOLD A HEARING PURSUANT TO R.C. 2323.51. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN REFUSING TO GRANT ATTORNEY FEES WHEN PLAINTIFFS FILED A REPLY DENYING FACTS WHICH THE EVIDENCE SHOWED THEY KNEW TO BE TRUE BECAUSE APPELLEES DID NOT HAVE SUFFICIENT FACTS TO SUPPORT A GOOD FAITH ARGUMENT THAT WOULD SUPPORT THEIR DENIALS SET FORTH IN THEIR REPLY TO APPELLANTS (SIC) COUNTERCLAIM. Appellants argue the record in this case was sufficient to justify an award of attorney fees in their favor pursuant to R.C. 2323.51, contending the evidence demonstrated appellees and their counsel unreasonably pursued the action and defended the counterclaim. Appellants further argue the trial court lacked an -6- adequate basis upon which to deny their motion for attorney fees without a hearing. Appellants' arguments, however, are not persuasive. R.C. 2323.51 provides in pertinent part: 2323.51 Frivolous conduct in civil actions. (A) As used in this section: (1) "Conduct" means 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. (2) "Frivolous conduct" means conduct of a party to a civil action or of his counsel of record that satisfies either of the following: (a) It obviously serves merely to harass or maliciously injure another party to the civil action; (b) It is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law. (B)(1) ... [A]t any time prior to the commencement of the trial in a civil action or within twenty-one days after the entry of judgment in a civil action, the court may award reasonable attorney's fees to any party to that action adversely affected by frivolous conduct. The award may be assessed as provided in division (B)(4) of this section. (2) An award of reasonable attorney's fees may be made pursuant to division (B)(1) of this section upon the motion of a party to a civil action, but only after the court does all of the following: (a) Sets a date for a hearing to determine whether particular conduct was frivolous, to determine, if the conduct was frivolous, whether any party was adversely affected by it, and to determine, if an award is to be made, the amount of that award; (b) Gives notice of the date of the hearing ... ; (c) Conducts the hearing described in division (B)(2)(a) of this section, .... -7- * * * (4) An award of reasonable attorney's fees pursuant to division (B)(1) of this section may be made against a party, his counsel of record, or both. (Emphasis added.) Initially, it must be noted that much of the deposition testimony upon which appellants rely to support their arguments is not included in the record on appeal. Since a presumption of validity attends a trial court's actions, in the absence of an adequate record, which is the appellants' responsibility, the court of appeals is unable to evaluate the merits of the assignments of error and must affirm the trial court's decision. Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313, at the headnote. Secondly, an appellate court will not reverse a trial court's decision to impose sanctions pursuant to R.C. 2323.51 absent an abuse of discretion. Riley v. Langer (1994), 95 Ohio App.3d 151; Lewis v. Celina Fin. Corp. (1995), 101 Ohio App.3d 464; Martin v. Crosby (Aug. 24, 1995), Cuyahoga App. No. 68517, unreported. An abuse of discretion "implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency." State ex rel. Motor Freight v. Lancaster (1986), 22 Ohio St.3d 191, 193. The record in this case is sufficient to demonstrate the trial court did not abuse its discretion in denying appellants' motion for attorney fees. It is clear from the pleadings and the documents submitted in connection with appellants' motions for -8- summary judgment that with regard to the deal to purchase the mobile home, appellees believed they had been taken advantage of by appellants. Both appellees and counsel were entitled to act on this belief: whether the belief actually constituted the legal concept of fraud and misrepresentation was a question of law for the trial court to determine; therefore, their actions cannot be considered "frivolous conduct." Glass City Bolt & Nut Co. v. Kar Kare Auto Body Shop (Dec. 30, 1993), Lucas App. No. L-93-158, unreported; State ex rel. Ward v. Lion's Den (Nov. 25, 1992), Ross App. No. 1867, unreported; Cregar v. Ohio Edison Co. (Jan. 11, 1991), Trumbull App. No. 89-T-4316, unreported; In re: Annexation of 18.23 Acres of Land in Bath Township to City of Fairlawn (Jan. 11, 1989), Summit App. No. C.A. 13669, unreported. Similarly, when viewed in this context, appellees' denial of the counterclaim was merely an attempt to put appellants to their proof; thus, it also did not constitute frivolous conduct for purposes of R.C. 2323.51(A)(2). Pisani v. Pisani, supra; Martin v. Crosby, supra; cf., Lewis v. Celina Fin. Corp., supra; Masturzo v. Revere Rd. Synagogue (1994), 98 Ohio App.3d 347; Buck v. Georgian Manor Investments (Mar. 30, 1995), Cuyahoga App. No. 67170, unreported; Riley v. Langer, supra. Finally, the record fails to support appellants' contention that the trial court required more evidence upon which to base its denial of their motion for attorney fees. As this court observed in Martin v. Crosby, supra, -9- Pisani (sic) implies where the trial court lacks sufficient information to deny the motion, it might be an abuse of discretion not to have a hearing. However the burden is on the movant to show that additional information is necessary before the trial court may properly rule on the motion. Unless such a showing is made on the record, this court will presume the trial court had sufficient facts before it to deny the motion without a hearing. (Emphasis added.) In this case, appellants have neither met their burden nor demonstrated further evidence was necessary. The trial court had the benefit of the pleadings and documents presented in connection with appellants' motions for summary judgment, and issued its decision on appellants' motion for attorney fees after considering the matter for over two months. When presented with these facts, this court cannot agree the trial court abused its discretion in failing to conduct a hearing pursuant to R.C. 2323.51(B)(2). Pisani v. Pisani, supra; GMS Management v. Seminaro (July 22, 1993), Cuyahoga App. No. 63007, unreported; McKinney v. Aultman Hospital (Apr. 27, 1992), Stark App. No. 8603, unreported; Micro Coatings, Inc. v. A-1 Advanced Plumbing, Inc. (Aug. 25, 1994), Franklin App. No. 94APEO1-80, unreported; Mays v. Rebar (Oct. 7, 1992), Hamilton App. No. C-910585, unreported; Glass City Bolt & Nut Co. v. Kar Kare Body Shop, supra; CM Newspapers, Inc. v. Dawson (Jan. 28, 1992), Franklin App. No. 91AP-1067, unreported; cf., Buck v. Georgian Manor Investments, supra. For the foregoing reasons, appellants' assignments of error are without merit and are, accordingly, overruled. -10- The order of the trial court denying appellants' R.C. 2323.51 motion for attorney fees is affirmed. -11- 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 Common Pleas 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. PORTER, P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .