Filonenko v. Smock Constr., L.L.C.

[Cite as Filonenko v. Smock Constr., L.L.C., 2018-Ohio-3283.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Dimitry Filonenko et al., :
Plaintiffs-Appellants, :
No. 17AP-854
v. : (C.P.C. No. 15CV-9075)
Smock Construction, LLC, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on August 16, 2018
On brief: Cook, Sladoje & Wittenberg Co., LPA, Eric J.
Wittenberg and Adam C. Sims, for appellants.
Argued: Eric J. Wittenberg.
On brief: Robert D. Holmes, for appellee. Argued:
Robert D. Holmes.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiffs-appellants, Dimitry Filonenko and FDT Group, LLC, appeal a
judgment entered by the Franklin County Court of Common Pleas. For the following
reasons, we reverse in part that judgment and remand this case to the trial court for further
proceedings.
{¶ 2} Plaintiffs initiated this action against defendant-appellee, Smock
Construction, LLC, with a complaint filed in the Franklin County Municipal Court. With
leave of court, plaintiffs amended their complaint to request damages that exceeded the
municipal court's monetary jurisdiction. The municipal court, therefore, transferred the
case to the common pleas court.
No. 17AP-854 2
{¶ 3} Before the common pleas court, defendant submitted a number of filings that
plaintiffs deemed frivolous and unsupported by good grounds. In response to each such
filing, plaintiffs moved pursuant to R.C. 2323.51 and Civ.R. 11 for an award of attorney fees
and expenses to compensate them for the cost of responding to the filing. Specifically,
plaintiffs moved for sanctions against defendant and its attorney: (1) in combination with
their January 26, 2016 memorandum in opposition to defendant's January 25, 2016 motion
to dismiss; (2) in combination with their July 19, 2016 memorandum in opposition to the
"Dispositive Motion of Defendant" filed July 18, 2016; (3) in their September 27, 2016
motion to strike defendant's amended answer and counterclaim and motion for sanctions;
(4) in their September 29, 2016 second motion to strike defendant's amended answer and
counterclaim and motion for sanctions; (5) in their December 12, 2016 motion to strike
"Defendant's Memorandum as to Jurisdiction and Venue and Other Means of Dispute
Resolution, for Pre-Trial, December 15, 2016 and Status Conference" and motion for
sanctions; (6) in their January 10, 2017 motion to strike defendant's memorandum in
opposition to plaintiffs' second motion in limine and motion for sanctions; (7) in their
January 12, 2017 motion to strike defendant's January 11, 2017 memorandum and motion
for sanctions; (8) in their January 26, 2017 motion to strike defendant's "Memorandum:
Computation of Smock Construction LLC's Cost of 374 Square Foot Office Use for Work on
Sewerage Aeration Problem of Plaintiff's and Office Manager Cost, Damages Due
Defendant" and motion for sanctions; (9) in their February 21, 2017 motion to strike
defendant's status conference memorandum and motion for sanctions; (10) in their
July 20, 2017 motion to strike the "Memorandum of Defendant Contra Sanctions" and
motion for sanctions; and (11) in their August 30, 2017 motion to strike "Defendant's
Memorandum as to Determination of Court Costs and Payment of the $3,075.00 in
Damage Determined by Magistrate Petrucci, for Final Court Order" and motion for
sanctions.1
{¶ 4} In a decision and entry dated December 14, 2016, the trial court ruled in part
on plaintiffs' September 27 and 29, 2016 motions. The trial court struck defendant's
amended counterclaim from the record, but refused to strike defendant's amended answer.
1 Additionally, at the conclusion of a surreply filed January 12, 2016, plaintiffs requested that the trial court
require defendant to compensate plaintiffs pursuant to R.C. 2323.51 for litigation-related expenses incurred
as a result of defendant's frivolous conduct. We leave it to the trial court to determine upon remand if this
request amounts to a motion under R.C. 2323.51(B)(1).
No. 17AP-854 3
The trial court deferred ruling on plaintiffs' motions for sanctions, stating "[t]he Court will
address Plaintiffs' request for sanctions following the resolution of the remainder of the
merits of this case." (Dec. 14, 2016 Decision and Entry at 2-3.)
{¶ 5} Subsequently, the trial court ruled in part on the motions plaintiffs filed on
January 10, 12, and 26, 2017 and February 21, 2017. The trial court granted those motions
to the extent that they sought to strike defendant's filings. The trial court held the motions
in abeyance to the extent that they sought sanctions, stating that "the Court will entertain
Plaintiffs' request for sanctions upon resolution of the case." (May 17, 2017 Decision and
Entry at 6.)
{¶ 6} The parties tried the case before a magistrate on June 1, 2017. The magistrate
issued a decision finding for plaintiffs on their claim for breach of contract and against
plaintiffs on their claim for fraud in the inducement. The magistrate recommended
awarding plaintiffs $3,075 in damages, plus post-judgment interest and court costs.
{¶ 7} No party filed objections to the magistrate's decision. In a judgment dated
November 7, 2017, the trial court adopted the magistrate's decision, rendered judgment in
plaintiffs' favor, and ordered defendant to pay damages of $3,075, plus post-judgment
interest and court costs. The trial court further stated, "the Court has reviewed the motions
filed subsequent to the Magistrate's Decision and has independently reviewed all motions
not resolved prior to the bench trial. The Court holds that the motions are moot." (Nov. 7,
2017 Jgmt. at 2.)
{¶ 8} Plaintiffs appeal the November 7, 2017 judgment, and they assign the
following error:
The Trial Court abused its discretion when, without granting
Appellants a hearing, it denied eleven separate motions for
sanctions arising from conduct of Appellee's counsel as moot.
{¶ 9} Initially, we must correct a misapprehension in plaintiffs' assignment of
error. The trial court did not deny plaintiffs' motions for sanctions in its November 7, 2017
judgment. Rather, the trial court found those motions moot. "An issue is moot 'when it has
no practical significance and, instead, presents a hypothetical or academic question.' "
State ex rel. Ford v. Ruehlman, 149 Ohio St. 3d 34, 2016-Ohio-3529, ¶ 55. As a general
matter, courts will not resolve moot issues. State v. Harding, 10th Dist. No. 13AP-362,
2014-Ohio-1187, ¶ 50; In re Brown, 10th Dist. No. 03AP-1205, 2005-Ohio-2425, ¶ 15.
Consistent with this law, the trial court declined to rule on plaintiffs' motions once it found
No. 17AP-854 4
those motions moot. The question before this court, therefore, is whether the trial court
erred in deciding that plaintiffs' 11 motions for sanctions were moot.
{¶ 10} The trial court did not state in its November 7, 2017 judgment why it
concluded that all the pending, unresolved motions were moot. Defendant contends that
the trial court found the motions for sanctions moot because the court had denied those
motions earlier in the litigation. The record, however, contains no ruling on any of the
motions for sanctions. In both of the two pre-trial entries addressing the motions for
sanctions, the trial court postponed review of the merits of the motions until resolution of
the underlying action. Then, in the final judgment, the trial court stated that it had reviewed
the pending motions and found them moot. As the trial court had not yet ruled upon the
motions for sanctions when it issued the final judgment, the purported mootness of the
motions did not result because the motions were already decided.
{¶ 11} We can only surmise that the trial court held the pending, unresolved
motions moot because a judgment in plaintiffs' favor had resolved the underlying litigation.
We disagree with that conclusion with regard to the motions for sanctions.
{¶ 12} Pursuant to R.C. 2323.51(B)(1), a court may award court costs, reasonable
attorney fees, and other reasonable expenses to any party to a civil action who is adversely
affected by frivolous conduct. Prior to making such an award, the court must hold a hearing
to determine: (1) whether the conduct at issue was frivolous; (2) if the conduct was
frivolous, whether any party was adversely affected by it; and (3) the amount of the award,
if any. Bennett v. Martin, 10th Dist. No. 13AP-99, 2013-Ohio-5445, ¶ 17. "Conduct"
includes "[t]he filing of a civil action, the assertion of a claim, defense, or other position in
connection with a civil action, the filing of a pleading, motion, or other paper in a civil action
* * * or the taking of any other action in connection with a civil action." R.C. 2323.51(A)(1).
{¶ 13} Under Civ.R. 11, a court may award a party reasonable attorney fees and
expenses if an opposing attorney signed a pleading, motion, or other document in willful
violation of the rule. Stafford v. Columbus Bonding Ctr., 177 Ohio App. 3d 799, 2008-Ohio-
3948, ¶ 7-8 (10th Dist.). Civ.R. 11 requires every pleading, motion, or other document of a
party represented by an attorney be signed by at least one attorney of record in the
attorney's individual name. The attorney's signature constitutes certification that: (1) the
attorney has read the pleading, motion, or document; (2) to the best of the attorney's
No. 17AP-854 5
knowledge, information, and belief, there is good ground to support the pleading, motion,
or document; and (3) the pleading, motion, or document is not interposed for delay.
{¶ 14} Both R.C. 2323.51 and Civ.R. 11 serve to deter abuse of the judicial process by
penalizing sanctionable conduct that occurs during litigation. Therefore, motions for
sanctions under R.C. 2323.51 and Civ.R. 11 are collateral to and independent of the primary
action. Flatinger v. Flatinger, 10th Dist. No. 01AP-1481, 2002-Ohio-3781, ¶ 7; Fouad v.
Velie, 10th Dist. No. 01AP-283 (Nov. 8, 2001); Sain v. Roo, 10th Dist. No. 01AP-360
(Oct. 23, 2001). While motions for sanctions arise from the primary action, the ultimate
issue raised by such motions—whether the conduct engaged in during the underlying
litigation deserves sanction—remains extant even after the primary action concludes. See
Barbato v. Mercy Med. Ctr., 5th Dist. No. 2005 CA 00044, 2005-Ohio-5219, ¶ 30 (holding
that a "jury's verdict * * * did not impliedly overrule the motion for sanctions because a
sanction issue is a collateral issue to the underlying proceedings"); Sain (holding that the
defendant's motion for sanctions "clearly * * * survive[d] [the granting of] a motion for
summary judgment in the underlying action"); Fant v. Greater Cleveland Regional Transit
Auth., 8th Dist. No. 63097 (July 15, 1993) ("[A] Civ.R. 11 motion does not become moot
upon the final disposition of a case."); see also Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 396 (1990) ("[T]he imposition of a Rule 11 sanction is not a judgment on the merits of
the action. Rather, it requires the determination of a collateral issue: whether the attorney
has abused the judicial process, and, if so, what sanction would be appropriate. Such a
determination may be made after the principal suit has been terminated.").
{¶ 15} Here, therefore, the trial court erred in determining that a final judgment on
the underlying action mooted plaintiffs' motions for sanctions. Accordingly, we sustain
plaintiffs' assignment of error to the extent that it asserts error in the mootness finding. We
reverse the part of the November 7, 2017 judgment that held that all pending, unresolved
motions were moot, and we remand this case to the Franklin County Court of Common
Pleas for further proceedings consistent with law and this decision.
Judgment reversed in part;
case remanded.
SADLER and LUPER SCHUSTER, JJ., concur.