Miller v. Evans , 2015 Ohio 4571 ( 2015 )

[Cite as Miller v. Evans, 2015-Ohio-4571.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBERT MILLER : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2015CA00042
:
NANCY EVANS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County
Court of Common Pleas,
Domestic Relations Division,
Case No. 2014DR00566
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: November 2, 2015
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CRAIG T. CONLEY WARNER MENDENHALL
604 Huntington Plaza 190 N. Union St., Ste. 201
220 Market Ave. South Akron, OH 44304
Canton, OH 44702
Stark County, Case No. 2015CA00042 2
Delaney, J.
{¶1} Defendant-appellant Nancy Evans ("Evans") appeals from the
February 18, 2015 Judgment Entry of the Stark County Court of Common Pleas,
Family Court Division. Plaintiff-appellee is Robert Miller ("Miller").
FACTS AND PROCEDURAL HISTORY
{¶2} This case is related to but not consolidated with Robert Miller v.
Nancy Evans, 5th Dist. Stark No. 2015CA00044. In that case, Miller is the
appellant and Evans the appellee. The two appeals arise from the same
underlying case and raise different but related assignments of error. The facts
and procedural histories are therefore identical but we will address each appeal
in a separate opinion. The parties agree upon the following relevant facts and
procedural history.
{¶3} In August 2013, Miller executed a Power of Attorney giving his
daughter, attorney Bobbie L. Marsh, fiduciary power to transact business on his
behalf.
{¶4} On May 27, 2014, Miller filed a complaint for divorce against his
wife, Evans.1 Evans filed a counterclaim for divorce against Miller.2
{¶5} In September 2014, Evans moved the trial court to determine the
validity of the Power of Attorney. On October 22, 2014, Miller dismissed his
complaint pursuant to Civ.R. 41(A)(1).3
1 Miller was represented by attorney Susan Pucci Sutton.
2 Evans was represented by attorney Arnold F. Glantz.
3 The dismissal was filed by attorney Craig Conley.
Stark County, Case No. 2015CA00042 3
{¶6} On January 8, 2015, Evans voluntarily dismissed her counterclaim
pursuant to Civ.R. 41(A)(1).
{¶7} On January 9, 2015, the trial court entered a Judgment Entry
stating in pertinent part:
* * * *.
Findings of Fact:
Ms. Marsh was properly served by subpoena on
December 4, 2014 and failed to appear. She demands
witness fees paid in advance. Mr. Glantz argues that Ms.
Marsh is a party as she filed, through alleged power of
attorney, filed (sic) the initial complaint that brought this
matter to court. While Ms. Marsh's actions in this case are
found to be contrary to behavior expected of an attorney in
this state (sic).
Order:
The power of attorney was not valid when this case or
the domestic violence case were filed. Case number
2014DV00051 is ordered sealed. [Evans] moves to
voluntarily dismiss her counterclaim. Case number
2014DR00566 is also ordered sealed.
* * * *.
{¶8} On January 20, 2015, attorney Marsh moved to strike the following
language from the court's Judgment Entry of January 9: "While Ms. Marsh's
Stark County, Case No. 2015CA00042 4
actions in this case are found to be contrary to behavior expected of an attorney
in this state (sic)."4
{¶9} On February 9, 2015, Evans moved for sanctions against Miller's
counsel pursuant to Civ.R. 11 and R.C. 2323.51 on the basis of the trial court's
finding that the Power of Attorney was not valid.5 Both attorneys responded with
memoranda in opposition.
{¶10} On February 18, 2015, the trial court filed a Judgment Entry stating
in pertinent part:
* * * *.
Findings of Fact:
This case was closed on January 9, 2015 after the
court found that the Power of Attorney was not valid and
upon the dismissal of [Evans'] counterclaim for divorce.
[Miller] previously dismissed his Complaint for divorce.
The Court was informed that there have been
numerous filings since the closing of the case. None of
these filings appropriately opened a closed domestic
relations case and therefore the court does not have
jurisdiction to address same.
Order:
4Attorney Craig Conley filed the motion to strike on behalf of attorney Marsh.
5The motion for sanctions was filed by attorney Warner Mendenhall on behalf of
Evans and was served upon attorneys Susan Pucci Sutton and Craig Conley.
Stark County, Case No. 2015CA00042 5
All outstanding motions dismissed for lack of
jurisdiction.
* * * *.
{¶11} In the instant appeal, Evans appeals from the trial court's Judgment
Entry of February 18, 2015, arguing the motion for sanctions survived the
dismissal and the trial court should have held a hearing thereon.
{¶12} In the related appeal, Miller appeals from the trial court's judgment
entries of January 9 and February 18, 2015, arguing the trial court lacked
jurisdiction to issue either order because the case was dismissed in its entirety as
of January 8, 2015.
{¶13} Evans raises one assignment of error:
ASSIGNMENT OF ERROR
{¶14} "THE DOMESTIC RELATIONS COURT DEPRIVED NANCY
EVANS OF HER RIGHTS TO DUE PROCESS WHEN IT DISMISSED HER
MOTION FOR SANCTIONS WITHOUT A HEARING."
ANALYSIS
{¶15} Evans argues the trial court erred in dismissing the motion for
sanctions. Miller agrees the trial court retained jurisdiction to decide the motion
for sanctions but argues a hearing on the motion is not necessarily required. We
agree with Miller and remand this matter to the trial court to determine the motion
for sanctions.
{¶16} "* * * [A] sanction issue is a collateral issue to the underlying
proceedings." Barbato v. Mercy Med. Ctr., 5th Dist. Stark No. 2005 CA 00044,
Stark County, Case No. 2015CA00042 6
2005-Ohio-5219, ¶ 29. If a motion for sanctions is before the court, the motion
may still be ruled upon even if the matter is voluntarily dismissed. Id. at ¶ 32,
citing Lewis v. Celina Financial Corp., 101 Ohio App. 3d 464, 655 N.E.2d 1333
(3rd Dist.1995).
{¶17} Allowing the trial court to resolve collateral matters in
circumstances such as these effectively provides a remedy for abuse of process.
Trial courts may consider collateral issues like criminal contempt and Civ.R. 11
sanctions despite a dismissal. State ex rel. Ahmed v. Costine, 100 Ohio St. 3d 36,
2003-Ohio-4776, 795 N.E.2d 672, 673, ¶ 5 (2003), citing State ex rel. Hummel v.
Sadler, 96 Ohio St. 3d 84, 2002-Ohio-3605, 771 N.E.2d 853, ¶ 23; see also, State
ex rel. Fifth Third Mtge. Co. v. Russo, 129 Ohio St. 3d 250, 2011–Ohio–3177, 951
N.E.2d 414, ¶ 13. To hold otherwise would effectively leave an alleged
aggrieved party without a remedy to pursue a claim for frivolous conduct. ABN
AMRO Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No. 96120, 2011-Ohio-
5654, ¶¶ 20-21, citing State ex rel. J. Richard Gaier Co., L.P.A. v. Kessler, 97
Ohio App. 3d 782, 785, 647 N.E.2d 564 (2nd Dist.1994). "Absent such a result, a
party could force a defendant to expend significant time and money to defend
against an arguably frivolous action and then dismiss that action just prior to trial
with little if any consequence. In that circumstance, the goal of Civ.R. 11 and its
statutory counterpart, R.C. 2323.51, which is to prevent parties from using the
judicial process to harass one another, would be significantly less achievable."
Kessler, supra, 97 Ohio App.3d at 566.
Stark County, Case No. 2015CA00042 7
{¶18} Evans further argues the trial court must resolve the motion with a
hearing; Miller disagrees. We note a hearing is required only under certain
circumstances. It has been uniformly held that a hearing on a motion for
sanctions under R.C. 2323.51(B)(2) is only required when the trial court grants
the motion. Galena v. Delaware Cty. Regional Planning Comm., 5th Dist.
Delaware No. 2011-CAE-07-0068, 2012-Ohio-182, ¶ 28 (Delaney, J. dissenting),
citing Shields v. City of Englewood, 172 Ohio App. 3d 620, 2007–Ohio–3165, 876
N.E.2d 972 (2nd Dist.); McKinney v. Aultman Hosp., 5th Dist. Stark No. CA-8603,
unreported, 1992 WL 100451 (Apr. 27, 1992); McPhillips v. United States Tennis
Assoc. Midwest, 11th Dist. Lake No. 2006–L–235, 2007–Ohio–3595; Avon
Poured Wall, Inc. v. Boarman, 9th Dist. Lorain No. 04CA008448, 2004–Ohio–
4588; Coretext Ltd. v. Pride Media Ltd., 10th Dist. Franklin No. 02AP–1284,
2003–Ohio–5760. A trial court must schedule a hearing only on those motions
which demonstrate arguable merit; if the trial court determines there is no basis
for the imposition of sanctions, it may deny the motion without hearing. Id. at ¶
12. Such a determination is subject to the sound discretion of the trial court. Id. at
¶ 15.
{¶19} To the extent that we find the trial court retained jurisdiction over
the motion for sanctions, Evans' sole assignment of error is sustained and the
matter is remanded to the trial court to rule upon the motion. We further note the
trial court must schedule a hearing on the motion for sanctions only if, within the
court's discretion, the motion demonstrates arguable merit.
Stark County, Case No. 2015CA00042 8
CONCLUSION
{¶20} Evans' sole assignment of error is sustained and the matter is
remanded to the Stark County Court of Common Please, Family Court Division,
for further proceedings in accord with this opinion.
By: Delaney, J. and
Wise, P.J.
Baldwin, J., concur.