In re Krueger
APPELLANT
In the matter styled:
NANCY LOWRIE & ASSOCIATES, L.L.C., Plaintiffs
vs.
DEBORAH ORNOWSKI, et al., Defendants
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-795979
RELEASED AND JOURNALIZED: August 28, 2014
Jeffrey W. Krueger, pro se
J.W. Krueger, L.L.C.
P.O. Box 360135
Cleveland, OH 44136
ATTORNEYS FOR APPELLEES
For Deborah Ornowski
Barton A. Bixenstine
Vorys, Sater, Seymour & Pease, L.L.P.
2100 One Cleveland Center
1375 East Ninth Street
Cleveland, OH 44114
For Bridget A. Lind
Richard J. Stahl
18051 Jefferson Park Road
Suite 102
Middleburg Heights, OH 44130
{¶1} Appellant Jeffrey W. Krueger appeals the decision of the Cuyahoga County Court of Common Pleas that granted two motions for sanctions that were filed against him by appellees Deborah Ornowski and Bridget A. Lind. Appellee/cross-appellant Deborah Ornowski has raised a cross-appeal challenging the trial court’s determination of the sanction imposed. For the reasons stated herein, we affirm the trial court’s rulings in this matter.
{¶2} We adopt the factual background as set forth in the trial court’s opinion as follows:
Plaintiff Nancy Lowrie & Associates, LLC filed a verified complaint and motion for a temporary restraining order on November 21, 2012. The motion was granted ex parte that same date. The language of the journalized entry was almost entirely provided by the plaintiff, with minor changes by the court. In particular, although the plaintiff suggested a $100 bond, a $15,000 bond was ordered instead. Thе plaintiff never posted a bond.
The gist of the temporary restraining order against defendant Deborah Ornowski was to prohibit her from providing counseling services in competition with the plaintiff inside of 15 miles from the plaintiff’s office.1 Additionally, Ornowski аnd defendants Bridget Lind and Gabriel Consulting Group, LLC (Ornowski’s company) were enjoined from using or disclosing the plaintiff’s confidential information. The temporary restraining order was to last 14 days, until December 5.
On December 4, a joint agreement to extend the temporary restraining order for another 14 days was filed. The stipulation was drafted by plaintiff’s counsel Jeffrey W. Krueger and signed by all counsel without changes, then adopted by the court. Besides restating the language of the original temporary restraining order, the December 4 order also said that
“plaintiff shall continue to post the existing bond in the amount of $15,000.” After a hearing, the plaintiff’s motion for a preliminary injunction was denied January 8, 2013, and the plaintiff voluntarily dismissed the lawsuit on April 12.
On April 25 Ornоwski filed a motion to recover damages on the bond on the basis that the temporary restraining order was wrongly granted. Lind filed a similar motion on May 31. The plaintiff has opposed both motions and they are fully briefed.
With her motion to recovеr damages on the bond Lind also included a motion for sanctions pursuant to Rule 11 of the Ohio Rules of Civil Procedure. The grounds for that request are that the plaintiff and her counsel knew a bond was never posted as required by the temporary restraining order yet, as part of the 14-day extension, they represented that a $15,000 bond would “continue.” Ornowski filed a similar motion on June 14 that also cites section 2323.51 of the Ohio Revised Code as a basis for sanctions. The plaintiff has opposed both motions and they too are fully briefed.
A hearing on the pending motions was held on September 4, 2013[.]
{¶3} The trial court issued a decision on October 29, 2013, that granted the motions for sanctions, but denied the motions to recover damages under
{¶4} Krueger raises two assignments of error for our review. His first assignment of error claims the trial court erred in awarding Ornowski sanctions under
{¶5} We review de novo the interpretation of the timing provision of
[A]t any time not more than thirty days after the entry of final judgment in a civil action or appeal, any party adversely affected by frivоlous conduct may file a motion for an award of court costs, reasonable attorney’s fees, and other reasonable expenses incurred in connection with the civil action or appeal.
{¶6} In this action, the plaintiff voluntarily dismissed the action without prejudice on April 12, 2012.1 Ornowski’s motion for sanctions was not filed until June 14, 2012, more than 30 days later. The trial court found that because the actiоn was later refiled, the motion could be considered timely. The trial court relied upon Merino v. Salem
{¶7} The Ohio Supreme Court, in interpreting former
{¶8} Indeed, “the time frame within which a
{¶10} Unlike
{¶11} In this case, the trial court found Krueger’s conduct was sanctionable under
The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney’s or party’s knowledge, informatiоn, and belief there is good ground to support it; and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as
though the document had not been served. For a willful violation of this rule, an attorney or pro se party, upon motion of a party or upon the court’s own motion, may be subjected to appropriate action, including an award to thе opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule.
{¶12} In ruling on a
{¶14} Here, the trial court found that Krueger, with knowledge that a bond was never posted, proposed a stipulated temporary order that contained several misrepresentations. Krueger included prоposed language to “extend the Temporary Restraining Order currently in place” for “an additional fourteen (14) days.” As noted by the trial court, “Krueger included in the proposed entry at least seven explicit or implicit referencеs to extending the order.” However, because a bond was never posted, the order was never in place and was not one that could be extended. He further proposed language that the order “shall remain in full force and еffect for an additional 14 days” and included an assurance that the plaintiff “shall continue to post the existing bond in the amount of $15,000.” As stated by the trial court, the language chosen by Krueger “convey[ed] that a bond had been posted and not, аs the plaintiff argues, that the amount of the necessary bond wouldn’t be changed.” The trial court found that Krueger proposed this language despite knowing full well that the temporary restraining order was never operative.
{¶15} In the absence of a bond, the proposed order cannot simply be said to have been a bad judgment. There is competent, credible evidence in the record reflecting that Krueger prepared the proposed entry with knowledge that the plaintiff had never posted
{¶16} Krueger attempts to deflect his accountability by claiming a review of the docket would havе revealed that the bond was never posted and that it was a joint entry that was signed by opposing counsel. He further claims that at worst his conduct was merely negligent as opposed to a “willful violation” under
{¶17} Next, we consider Ornowski’s cross-аppeal, which challenges the trial court’s decision to limit the award of sanctions to attorney fees. Ornowski argues that the trial court should have included an award of damages they sustained while honoring the temporary restraining order. The trial court determined that since a bond was never posted, Ornowski and Lind were never restrained by an enforceable order of the court and that their attorneys are deemed to have knowledge of the case docket.
{¶18} Upon a determination of a willful violation of
{¶19} Judgment affirmed.
It is ordered that appellees recover from аppellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into exeсution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
TIM McCORMACK, J., CONCUR