In re Carothers ( 2011 )

[Cite as In re Carothers, 2011-Ohio-6754.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96369
IN RE: SANCTIONS DEBORAH CAROTHERS
APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-719533
BEFORE: Stewart, J., Blackmon, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: December 29, 2011
ATTORNEY FOR APPELLANT
John C. Greiner
Graydon Head & Ritchey LLP
1900 Fifth Third Center
511 Walnut Street
Cincinnati, OH 45202-3157
ATTORNEYS FOR APPELLEES
David Kane Smith
Kathryn I. Perrico
Paul J. Deegan
Britton Smith Peters & Kalail Co., L.P.A.
3 Summit Park Drive, Suite 400
Cleveland, OH 44131
MELODY J. STEWART, J.:
{¶ 1} Appellant Deborah Carothers, counsel for relator, Renee Engelhart, in the
case State ex rel. Engelhart v. Brecksville-Broadview Hts. City School Bd. of Edn. (Jan.
31, 2011), Cuyahoga C.P. No. 10-CV-719533, appeals from the trial court’s award of
sanctions in favor of appellee Brecksville-Broadview Heights City School District Board
of Education (“BOE”), and also its finding that she filed a notice of dismissal of the
underlying action in an attempt to prejudice the BOE and perpetrate a fraud upon the
court. Carothers argues that her conduct was neither frivolous nor sanctionable since
Civ.R. 41(A) expressly authorizes voluntary termination of a cause of action at any time
prior to commencement of trial. Carothers requests that this court reverse the award of
sanctions and also strike from the trial court’s journalized entry its determination that she
attempted to deceive the court.
{¶ 2} Counsel for the BOE and Carothers were tasked by a pretrial schedule to
hand- deliver trial briefs to the trial court on January 12, 2011. On the morning of
January 12, counsel for the BOE contacted the court and requested permission to fax the
trial brief due to inclement weather, and informed Carothers of the request by voicemail.
Carothers, after listening to the message, also called the court and requested a one day
extension because she did not have a fax machine and did not want to venture out due to
hazardous road conditions. She then sent the BOE an email summarizing her request of
the court. The court notified both parties that the deadline had been extended to noon on
January 13, 2011.
{¶ 3} On the afternoon of January 12, 2011, the trial court granted the BOE’s
pending motion for summary judgment and recorded the decision on its electronic docket
at 2:25 p.m. Carothers, after noting this electronic entry, filed a notice to dismiss the
cause of action without prejudice. She proceeded to the clerk of court’s office and filed
the notice at 3:48 p.m. The trial court’s actual prepared journal entry granting the BOE’s
summary judgment for the BOE indicates receipt by the clerk’s office at 4:05 p.m.
{¶ 4} The next day, the BOE filed a motion to strike and a motion to deem moot
and untimely relator’s notice of dismissal, and a motion to show cause. On January 25,
2011, the trial court granted these motions and indicated by journal entry that the BOE’s
grant of summary judgment, as opposed to the voluntary dismissal, stood as the final
judgment in the case. The court’s journal entry additionally contained a detailed
recitation of facts justifying its ruling. Specifically, the court stated that the granting of
its motion for summary judgment was effectively filed before Carothers’s notice of
dismissal. The court’s entry also chastised Carothers for disobeying its standing orders
for case management, for her representations to the court concerning an inability to travel
in severe weather to timely file her trial brief, and for her alleged attempt to circumvent
the court’s ruling on the summary judgment motion. The trial court set a hearing for
January 31, 2011 on the motion to show cause why relator and Carothers should not be
held in contempt.
{¶ 5} Prior to the show cause hearing, Carothers, and her newly retained counsel,
filed motions for continuances. Carothers also filed a motion to reconsider instanter
jurisdiction. All motions were denied. Carothers orally requested a continuance on the
day of the hearing because her counsel was unable to appear. She again orally contested
the court’s jurisdiction in the matter. In reply, the court ruled that Carothers had been
given adequate time to prepare for the hearing since she was given six days notice that her
previous motion for continuance had been denied. With this, the hearing proceeded.
{¶ 6} Carothers cross-examined Kathryn Perrico, counsel for the BOE, and
opposing counsel objected when Carothers cited a case in an attempt to demonstrate that
Perrico was mistaken in her interpretation of state law concerning voluntary dismissals.
The court demanded that Carothers provide all subsequent history cites, and when she
could not, the court sustained the objection, since she could not unequivocally prove that
the case cited was “good law.”
{¶ 7} Perrico testified that she expended five hours of research and preparation to
compose an affidavit and motion to address the alleged sanctionable conduct, and that her
billing rate was $240 per hour. The court granted the BOE’s motion for sanctions in the
amount of $1,200 and ordered Carothers to pay on or before noon on February 7, 2011.
The court informed Carothers that her conduct would be referred to disciplinary counsel,
but did not hold her in contempt.
{¶ 8} The trial court’s subsequent journal entry states, in pertinent part: “the
court finds from the statements and evidence that Ms. Caruthers [sic] was aware of the
court[’]s ruling in favor of respondents before she filed *** and did so in an attempt to
prejudice the respondents and perpetrate a fraud upon the court.” In a later journal entry
dated February 4, 2011, the court indicated that John Greiner, then counsel for Carothers,
had by email inappropriately contacted the Cuyahoga County’s Prosecutor’s Office to
obtain advice and was attempting to improperly influence the court. The court referred
the matter to Ohio’s disciplinary counsel and recused herself from further proceedings.
{¶ 9} In Carothers’s sole assignment of error, she argues that the trial court erred
in granting sanctions against her and finding that she attempted to perpetrate a fraud on
the court because she had an absolute right to dismiss the case, pursuant to Civ.R. 41(A),
at any point prior to trial. She points to the fact that a judgment is legally effective only
after being entered upon the journal by the clerk of courts, and that the trial court’s
electronic docket is not analogous to the journal. Carothers also contends that the trial
court lacked jurisdiction to strike the notice of voluntary dismissal since her filing
divested the court of the same.
{¶ 10} “Appellate review of a trial court’s decision to impose sanctions pursuant to
Civ.R. 11 and R.C. 2323.51, and upon whom to impose such sanction, is on an abuse of
discretion standard.” Mitchell v. W. Res. Agency, 8th Dist. No. 86708, 2006-Ohio-2475,
¶47. Appeals concerning sanction awards, pursuant to R.C. 2323.51, require the
application of a mixed standard of review and entail inquiring into questions of both law
and fact. Wheeler v. Best Emp. Fed. Credit Union, 8th Dist. No. 92159,
2009-Ohio-2139, ¶11. Although the trial court’s determination of legal issues is given
no deference, some deference is given to factual findings. Id.
{¶ 11} Submitting filings to a court for the purpose of causing a “needless increase
in the cost of litigation [as well as assertions that are] *** not warranted under existing
law” is conduct deemed frivolous. R.C. 2323.51. When an attorney knowingly signs a
pleading, motion, or other document that lacks a sufficient foundation of support, Civ.R.
11 allows, upon motion of a party or the court, an award of expenses and reasonable
attorney fees to an opposing party. Moss v. Bush, 105 Ohio St. 3d 458, 2005-Ohio-2419,
828 N.E.2d 994. “While the ultimate decision whether to impose sanctions for frivolous
conduct *** remains wholly within the trial court’s discretion, the question of whether the
conduct was frivolous may be subjected to an abuse of discretion or a de novo standard of
review.” Wheeler at ¶42. We now turn to an analysis of Carothers’s filing of the
voluntary dismissal.
{¶ 12} Civ.R. 41(A)(1)(a) empowers a plaintiff to “[file] a notice of dismissal at
any time before the commencement of trial ***.” The voluntary dismissal of claims by a
plaintiff, prior to the actual commencement of trial is “an absolute right, regardless of
motives and can be accomplished without order of the court and without giving notice to
opposing counsel.” Witt v. Lamson, 8th Dist. No. 87349, 2006-Ohio-3963, ¶8; Rini v.
Rini, 8th Dist. No. 80225, 2002-Ohio-6480, ¶11. “Filing of the notice of dismissal
automatically terminates the case without intervention by the court. No court approval is
necessary.” Payton v. Rehberg (1997),119 Ohio App.3d 183, 191, 694 N.E.2d 1379.
{¶ 13} In Standard Oil Co. v. Grice (1975), 46 Ohio App. 2d 97, 345 N.E.2d 458, a
plaintiff voluntarily dismissed its claim before trial, pursuant to Civ.R. 41(A), after the
court rendered an adverse ruling but before the decision was journalized. In response,
the trial court entered an order striking the voluntary dismissal and also entered its
decision for the opposing party into the record. The reviewing court, as an initial matter,
found that the filing was timely since it preceded the trial court’s judgment entry and trial
had not commenced. The appellate court then set aside the subsequent orders of the trial
court and reinstated the voluntary dismissal, reasoning that once dismissal had been
effectively accomplished pursuant to Civ.R. 41(A)(1) and (C), there was “no longer
anything before the [trial] court ***.” Id. at 101.
 {¶ 14} The Standard Oil case seems to make clear that appellant’s reason for filing
the voluntary dismissal is irrelevant. Her motives cannot be questioned or sanctioned if
she complied with the Civil Rules. The BOE argues that there are several reasons why
the trial court properly sanctioned appellant and determined that her conduct was
frivolous and fraudulent. However, the BOE’s arguments hinge on what action takes
precedence over the other: the voluntary dismissal or the grant of summary judgment.
{¶ 15} Steadfastly believing that filing the voluntary dismissal terminated the
proceedings in the underlying case, the appellant, on behalf of her client, filed a petition
for writs of prohibition and mandamus in this court against the trial court judge, State ex
rel. Engelhart v. Russo, 8th Dist. No. 96387, 2011-Ohio-2410, in an effort to prevent the
trial court judge from proceeding with the underlying case. This petition was denied.
The panel deciding the case found, among other things, that the time the trial court
electronically signed and transmitted the order granting summary judgment to the clerk
constituted the time of filing, and therefore it was clear that “the order granting summary
judgment was journalized prior to the filing of the notice of voluntary dismissal.” Id. at
¶39; but, see, Shesler v. Consol. Rail Corp., 8th Dist. No. 83656, 2004-Ohio-3110, ¶18
(the entry of a trial court’s judgment into an electronic docket does not equate to
journalization of the decision); see, also, State ex rel. White v. Junkin, 80 Ohio St. 3d 335,
1997-Ohio-340, 686 N.E.2d 267. This case is currently on appeal in the Supreme Court
of Ohio. See State ex rel. Engelhart v. Russo, Supreme Court Case No. 2011-0903.
{¶ 16} Civ.R. 58(A) states in pertinent part that “[a] judgment is effective only
when entered by the clerk upon the journal.” “Journalization of a judgment entry
requires that: (1) the judgment is reduced to writing; (2) signed by a judge; and (3) filed
with the clerk so that it may become a part of the permanent record of the court.” State
v. Ellington (1987), 36 Ohio App. 3d 76, 78, 521 N.E.2d 504. Cuyahoga County Court of
Common Pleas Loc.R. 19.1 provides, in pertinent part, that: “(B) Electronic
transmission of a document with an electronic signature by a Judge or Magistrate that is
sent in compliance with procedures adopted by the Court shall, upon the complete receipt
of the same by the Clerk of Courts, constitute filing of the document for all purposes of
the Ohio Civil Rules, Ohio Criminal Rules, Rules of Superintendence, and the Local
Rules of this Court.”1 According to the court’s local rule, until an entry is received —
“complete receipt,” it cannot be filed. Filing is the third prong necessary for
journalization.
{¶ 17} The determination of which document was filed first, the voluntary
dismissal or the grant of summary judgment, is one we need not make here. The
supreme court will soon decide the issue. Regardless of this determination, we find,
however, that the trial court abused its discretion in finding that Carothers’s conduct was
frivolous and fraudulent, and in imposing sanctions against her. It is clear that
Carothers’s decision to voluntarily dismiss her client’s case was done with the belief that
1
In the appeal of the underlying case to the supreme court, the relator-appellant argues
that this local rule is inconsistent with Civ.R. 58(A) and is, therefore, invalid.
she had an absolute right to do so, even though she was aware of the trial court’s decision
to grant the BOE’s motion for summary judgment. It may turn out that Carothers was
mistaken in her belief, but such a mistake does not rise to the level of frivolous or
fraudulent conduct. See Wheeler at ¶43 (the exercise of a right of voluntary dismissal
without prejudice cannot be construed as frivolous or fraudulent conduct). In Witt,
supra, this court acknowledged the argument that “appellants should not be permitted to
race to the courthouse and file a notice of voluntary dismissal after the trial court has
already issued its ruling ***,” however, Civ.R. 41 allows a party in receipt of an adverse
ruling to do just that. Witt at ¶11. Carothers’s sole assignment of error is sustained.
{¶ 18} This cause is reversed and remanded for proceedings consistent with this
opinion.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to 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.
___________________________________________
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, P.J., and
MARY J. BOYLE, J., CONCUR