¶1 concurring in judgment.
¶2 My analysis of the problem is a little different than that of the majority. After a determination of frivolous conduct has been made, I view it as a two- *124 step process. First, the court should determine, pursuant to R.C. 2323.-51(B)(3)(b), “the attorney’s fees that were both reasonably incurred by a party and necessitated by the frivolous conduct.” Second, pursuant to R.C. 2323.-51(B)(3), the court should make an award which “shall not exceed, and may be equal to or less than,” those reasonable and necessary attorney fees.
¶3 On the issue of the attorney fees that were both reasonably incurred and necessitated by appellee’s frivolous conduct, the record is short and to the point. At the hearing on fees, appellant’s counsel submitted a statement reflecting that 77.24 hours were expended on the case, which included 49.75 hours prior to appeal plus 27.49 hours for the appeal. Appellee’s response was:
¶4 “[Plaintiff’s counsel]: Very briefly, Your Honor. An offer was made of settlement in this case relatively early on, an offer of $1,000 was made. And that basically was indicated to me to be the case that Miss Cook had believed that Ohio Edison would have to extend to defend this case.
¶5 “And based upon that offer, that $1,000 offer, I will ask the Court to consider that as being fair and reasonable fees in this case.
¶6 “THE COURT: Anything else?
¶7 “[Defendant’s counsel]: No, Your Honor.
¶8 “THE COURT: Do you want to put on any testimony? Do you dispute the hours they put into this?
¶9 “[Plaintiff’s counsel]: Judge, this is the first opportunity I have had to look at this document.
¶10 “THE COURT: Well, take a look at it.
¶11 “[Plaintiff’s counsel]: The only thing that I might have some question about is the hours for appeal. I notice that that is time, if I am reading this correctly, a lump figure.”
¶12 Based on the record, a finding that the reasonable and necessary attorney fees defending this $3.2 million lawsuit were only $250 would be patently erroneous.
¶13 But the question remains whether the trial court may award a sum which is less than the attorney fees reasonably incurred and necessitated by the frivolous conduct. I believe that R.C. 2323.51(B)(3) clearly allows this by saying that the award “shall not exceed, and may be equal to or less than,” reasonable and necessary attorney fees.
¶14 At this point I believe that the trial court’s authority should be virtually unassailable — almost to the extent a sentence in a criminal case is virtually *125 unassailable. This approach has the added virtue of limiting litigation by discouraging appeals.
¶15 One further thought is in order. It is generally agreed that frivolous conduct on the part of both plaintiffs and defendants is too common. If the statute is to have the intended effect of reducing frivolous conduct by making it subject to sanctions, trial courts must have the courage to administer the statute to that end.