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Kozar v. Bio-Medical Applications of Ohio9/22/2004
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{ } Appellant, Ohio Edison Company, appeals from the decision of the Summit County Common Pleas Court. We affirm in part, reverse in part, and remand for further consideration consistent with this opinion.
I.
{ } The facts of this case are not in dispute. On January 28, 2002, Nicholas Kozar, age 84, died during kidney dialysis treatment at Bio-Medical Applications of Ohio. Coincidentally, an Ohio Edison power line failed, causing temporary, accidental and unexpected power outages at the center. The county medical examiner investigated a possible link between the power outage and Mr. Kozar's death, and reported that Mr. Kozar died of natural causes associated with chronic heart disease, with no causation attributed to the concurrent power outage.
{ } Almost a year later, Peter M. Kozar contacted attorney Mark C. Cavanaugh, seeking to file a lawsuit and relating that an unnamed emergency room physician had alleged that the power outage caused his father's death. Relying on this information and without conducting any legal research, Cavanaugh rushed to file the complaint on January 27, 2003, naming Bio-Medical Applications of Ohio and Ohio Edison as joint defendants and claiming negligence.
{ } On March 13, 2003, Ohio Edison's attorney called Cavanaugh to urge the dismissal of Ohio Edison, instructing him that his claim was baseless under prevailing law and informing him of the medical examiner's conclusion. The call was formalized in a follow-up letter, which detailed the deficiencies of Cavanaugh's claim and warned that a motion for sanctions would be forthcoming unless the suit was dismissed. In his defense, Cavanaugh has insisted that he would not dismiss an action merely on such threats, but also admitted that he did not investigate whether Ohio Edison's assertions had merit.
{ } Ohio Edison moved to dismiss the action on the basis that, under established Ohio law, Ohio Edison owed no duty to Mr. Kozar, a non-customer. At a subsequent deposition, Cavanaugh testified that it was at this point that he did his first legal research. Yet, even with his own research, Ohio Edison's legally compelling motion and the prior warning of insufficiency, Cavanaugh refused to concede. Rather, he opposed the motion by arguing that utilities do owe a duty to non-customers and citing non-Ohio case law. Ohio Edison replied that even these cases were inapplicable, as they addressed intentional misconduct, not negligence. On June 20, 2003, the trial court granted Ohio Edison's motion.
{ } As promised, Ohio Edison moved for attorney fees, under both Civ.R. 11 and R.C. 2323.51, alleging a frivolous claim. The trial court conducted a hearing, during which Ohio Edison entered evidence, without objection, of $12,683.15 in attorney fees resulting directly from the claim. The trial court denied the sanctions on January 6, 2004, but expressly ruled on only Civ.R. 11. The order concluded that it was a final appealable order with no just cause for delay, and it is from this order that Ohio Edison appeals.
{ } Ohio Edison timely appealed, asserting two assignments of error for review. We reverse the order of the assignments of error to facilitate review.
II.
{ } As a prelude to this analysis, we begin by noting that this Court has previously decided a case on point. See Ceol v. Zion Industries, Inc. (1992), 81 Ohio App.3d 286. In Ceol, counsel for defendant Zion Industries wrote a letter early in the litigation articulating the insuffici
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