COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68912 : ROSE JOHNSON, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION SAMUEL L. ALLEN, JR., ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-265526 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: THOMAS P. ALDRICH, III, ESQ. BRUCE H. ILLES, ESQ. 1060 Greyton Road SMITH, CONDENI, & ABEL Cleveland Heights, Ohio 44112 The Sterling Building Suite 505 1255 Euclid Avenue Cleveland, Ohio 44115-1807 - 2 - KARPINSKI, J.: This issue presented for review in this case is whether the trial court erred in ordering sanctions against plaintiff's attorney, who was the attorney of record at all stages of this litigation. The trial court awarded sanctions after determining that the plaintiff's complaint was frivolous. This award of sanctions is the latest in a series of cases concerning plaintiff's attempt to be involved in the distribution of her daughter's estate. For the following reasons, this judgment is affirmed. The distribution of the estate of Vire Wilson underlies this present action. Vire Wilson died on February 3, 1990. Her will provided that her residual estate would be equally divided between her son, Samuel L. Allen, and her minor daughter, Charlotte Wilson. Samuel L. Allen was named the executor of the estate and the legal guardian of Charlotte. Ms. Wilson's cousin, Nora O'Banner, was named as alternate guardian of Charlotte in the event Samuel Allen was unable to act as guardian. Soon after, Rose Johnson, Vire Wilson's mother, attempted to be involved in the distribution of the estate. Johnson filed a complaint in Probate Court alleging a concealment of assets. As part of this action, Johnson requested an accounting of the estate. The probate court dismissed the complaint because Johnson was not a proper party. This decision was affirmed by - 3 - this court. In Re Estate of Vire N. Wilson (Jan. 12, 1995), Cuyahoga App. No. 67566, unreported. On February 14, 1994, appellants Rose Johnson and Charlotte Wilson filed in Cuyahoga County Common Pleas Court, General Division, a complaint alleging conversion and a breach of fiduciary duty. Samuel Allen and Nora O'Banner were named as defendants. On June 30, 1994, the trial court granted defendants' motion to dismiss. Affirming this dismissal, this court held that (1) Probate Court had exclusive jurisdiction over the matter, (2) plaintiffs had no standing in the action because Rose Johnson had no interest in the will and Charlotte Wilson as a minor could not bring an action in her own name, and (3) Probate Court's decision precluded this action. Rose Johnson v. Samuel Allen Jr. (Feb. 2, 1995), Cuyahoga App. No. 67673, unreported. On July 20, 1994, defendant filed a motion for sanctions pursuant to R.C. 2323.51. The trial court issued the following order: Upon hearing pursuant to O.R.C. 2323.15, it is the determination of the Court that there was no basis in existing law for the present complaint and [sic] cannot be supported by a good faith argument for an extension, modification, or reversal of existing law. It is also the determination of the Court that the frivolous conduct was solely the result decision [sic] by attorney Thomas Aldrich. Pursuant, therefore to R.C. 2323.51(B), judgment is entered for defts. Nora O'Banner and Seretta Willams Knight, Executrix of the Estate of Samuel L. Allen Jr. against attorney Thomas 1 After the death of Samuel Allen, Seretta Williams Knight was substituted as a defendant in this action because she was the executrix of Samuel L. Allen's estate. - 4 - Aldrich in the amount of $1,500.00 plus interest and costs. Appellant timely appealed raising six assignments of error. I. THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION IN PRECLUDING PLAINTIFFS FROM HAVING THEIR MATTER TRIED. In this assignment, appellant alleges that in dismissing the case which was the subject of the first appeal the trial court abused its discretion because it did not consider the merits of the concealment of assets action. The sole issue in the case at bar, which is the third appeal, however, is the trial court's 2 decision to impose sanctions on appellant's counsel. Because the concealment of assets issue is not properly before this court, this assignment of error is overruled. II. THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION IN FAILING TO CONSIDER THE ATTORNEYS' RELATIVE FEES IN ISSUING SANCTIONS. In this assignment, appellant argues that the trial court erred in its determination of the amount of sanctions that should be imposed. Specifically, appellant's counsel contends that he was representing his client on a practically pro bono basis, charging only a minimal fee for his representation and, therefore, the award of sanctions in the amount of $1,500.00 was unreasonable. The trial court's decision regarding the imposition of sanctions for frivolous conduct will not be reversed absent an abuse of discretion. Hildreth v. Mims (1990), 2 Only a proper party can complain about the alleged concealment of assets. Since appellant is not a proper party--a matter this court has twice ruled upon--this court cannot address the merits of the original case. - 5 - 70 Ohio App.3d 282. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Beacon Journal Pub. Co. v. Stow (1986), 25 Ohio St.3d 347. Revised Code 2323.51(3) concerns the amount of sanctions to be awarded for frivolous conduct in civil actions. This statute states as follows: (3) The amount of an award that is made pursuant to division (B)(1) of this section shall not exceed, and may be equal to or less than, whichever of the following is applicable: (a) If the party is being represented on a contingent fee basis, an amount that corresponds to reasonable fees that would have been charged for legal services necessitated by the frivolous conduct had the party been represented on an hourly of basis or another basis other than a contingent fee basis; (b) In all situations other than that described in division (B)(3)(a) of this section, the attorney's fees that were both reasonably incurred by a party and necessitated by the frivolous conduct. Regarding the amount of sanctions, the statute is unambiguous that the party opposing the frivolous lawsuit is entitled to a reasonable award of attorney's fees. The trial court heard ample evidence concerning the fees incurred by defendants' legal work and therefore did not abuse its discretion in awarding $1,500.00 to defendant as sanctions. The fact that appellant's counsel charged the client only $75.00 is irrelevant to the issue of whether the amount of sanctions was proper. The statute is intended to protect persons who have to defend against frivolous lawsuits. The trial court was therefore correct in looking to the expenses incurred by appellees as opposed to the rate - 6 - appellant's counsel charged. This assignment of error is overruled. III. THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION IN FINDING PLAINTIFFS' CASE FRIVOLOUS. In this assignment, appellant argues that the trial court erred by finding the underlying complaint in this case to be frivolous. Again, the trial court's decision regarding what constitutes frivolous conduct will not be reversed absent an abuse of discretion. Hildreth, supra. After a hearing pursuant to R.C. 2323.15, the judge found no basis in law or fact, as well as no good faith argument, to support appellant's complaint. After reviewing the history of the litigation between the parties, the trial court acted well within its discretion in finding this action to be frivolous. It has been repeatedly determined that (1) probate court has exclusive jurisdiction over matter's concerning Vire Wilson's estate, (2) appellant Rose Johnson has no standing in this matter, and (3) appellant Charlotte Wilson as a minor cannot bring an action in her own name. Having found no abuse of discretion on the part of the trial judge, this assignment of error is overruled. Appellants' fourth and fifth assignments of error will be addressed together. IV. THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION AND IN DOING SO, VIOLATED CANON 2 OF THE CODE OF JUDICIAL CONDUCT. V. THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION AND IN DOING SO, VIOLATED CANON 3 OF THE CODE OF JUDICIAL CONDUCT. - 7 - In these two assignments, appellant argues that the trial court violated Canons Two and Three of the Code of Judicial Conduct. Appellant has not alleged, however, any specific acts of impropriety by the trial judge. Such baseless allegations of judicial misconduct are not well taken by this court. These two assignments of error are overruled. VI. THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION IN RATIFYING DEFENSE COUNSEL'S IMPROPER CONDUCT IN PROBATE COURT. In this assignment, appellant again tries to raise issues concerning the administration of the estate. We reiterate that this appeal is an appeal only of the judgment granting sanctions. Issues regarding the administration of the estate are not properly before this court. Moreover, prior decisions from this court in this matter have unequivocally held that Cuyahoga County Probate Court has exclusive jurisdiction over this matter. This assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee 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. JAMES D. SWEENEY, P.J., and SARA J. HARPER, J., CONCUR. DIANE KARPINSKI 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 it will become the judgment and .