Case Information
*1
[Cite as
In re Krueger
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 100694
RE SANCTIONS: JEFFREY W. 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 BEFORE: S. Gallagher, P.J., Blackmon, J., and McCormack, J. RELEASED AND JOURNALIZED: August 28, 2014 *2 FOR APPELLANT
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
SEAN C. GALLAGHER, P.J.:
{¶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. 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. The plaintiff never posted a bond.
The gist of the temporary restraining order against defendant Deborаh Ornowski was to prohibit her from providing counseling services in competition with the plaintiff inside of 15 miles from the plaintiff’s office.[fn.1] Additionally, Ornowski and defendants Bridget Lind and Gabriel Consulting Group, LLC (Ornowski’s company) were enjoined from using or disclosing the plaintiff’s confidentiаl information. The temporary restraining order was to last 14 days, until December 5.
[fn. 1] Given that she had opened an office within two miles of the plaintiff’s, this effectively prohibited Ornowski from running her business. 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 *4 “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 Ornowski filed a motion to recover damаges 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 recover damages on the bond Lind also included a motion fоr 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[.] The trial court issued a decision on October 29, 2013, that granted the motions for sanctions, but denied the motions to recover damages under Civ.R. 65(C). The court entered judgment awarding sanctions against Krueger and in favor of Ornowski in the amount of $3,442.22, and in favor of Lind in the amount of $1,800. The sanction was limited to the reasonable attorney fees incurred by Ornowski and Lind. Krueger filed an appeal, and Ornowski raised a cross-appeal. Krueger raises two assignments of error for our review. His first assignment
оf error claims the trial court erred in awarding Ornowski sanctions under R.C. 2323.51. He asserts that the trial court lacked subject matter jurisdiction to consider Ornowski’s *5 motion under R.C. 2323.51(B)(1) because the motion was filed after the statutory deadline had passed, and that the trial сourt erred in awarding sanctions under the statute. Under his second assignment of error, Krueger claims the trial court erred in awarding sanctions against him and to the appellees under Civ.R. 11. We review de novo the interpretation of the timing provision of R.C.
2323.51(B)(1).
Adams v. Pitorak & Coenen Invests., Ltd.
, 11th Dist. Geauga No.
2013-G-3129,
[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 frivolous conduct may file a motion for an award оf court costs, reasonable attorney’s fees, and other reasonable expenses incurred in connection with the civil action or appeal.
R.C. 2323.51(B)(1). The 30-day time period for filing a motion under the statute begins to run when a “final judgment” is issued. Adams at ¶ 12. 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 action was later refiled,
the motion could be considered timely. The trial court rеlied upon
Merino v. Salem
*6
Hunting Club
, 7th Dist. Columbiana No. 11 CO 2,
that the General Assembly manifested its intent that there be a cutoff time for the sanction
for frivolous conduct to be imposed and that the statute provides a means for an
immediate judicial determination and a speedy sanctioning of such abuse, but also affords
the aggrieved party the option of waiting until the conclusion of the action to seek
sanctions.
Soler v. Evans, St. Clair & Kelsey
, 94 Ohio St.3d 432, 435-436,
{¶9} Because Ornowski’s motion for sanctions was not filed within the time limit set forth in the statute, the trial court erred by considering the motion under R.C. 2323.51. While Ornowski argues that the doctrine of equitable estoppel should be applied because Krueger did not disclose that he had never filed a bond until after Ornowski filed a motion to recover damages under Civ.R. 65(C), the failure to post the bond would have been apparent from the record. In any event, we find the trial court’s error in considering the motion under R.C. 2323.51 was harmless because, as discussed below, the trial court properly granted Ornowski’s request for an award of sanctions under Civ.R. 11.
{¶10}
Unlike R.C. 2323.51, Civ.R. 11 does nоt have a specific time limitation for
seeking sanctions under the rule. A Civ.R. 11 motion must be filed within a “reasonable
time” of the final judgment.
See Fast Property Solutions, Inc. v. Jurczenko
, 11th Dist.
Lake Nos. 2012-L-015 and 2012-L-016,
Civ.R. 11, which governs the signing of pleadings, motions, and other documents. Civ.R. 11 provides in pertinent part:
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 knоwledge, information, 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 *8 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 the оpposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule. In ruling on a Civ.R. 11 motion for sanctions, a trial court “‘must consider
whether the attorney signing the document (1) has read the pleading, (2) harbors good
grounds to supрort it to the best of his or her knowledge, information, and belief, and (3)
did not file it for purposes of delay.’”
Evans
, 8th Dist. Cuyahoga No. 96120,
{¶13} A trial court’s decision to impose sanctions under Civ.R. 11 is reviewed for an abuse of discretion. Id . at ¶ 9. As long as some competent, credible evidence exists to support the lower court’s judgment, no abuse of discretion will be found to have occurred. Id . Here, the trial court found that Krueger, with knowledge that a bond was
never posted, proposed a stipulated temрorary order that contained several misrepresentations. Krueger included proposed 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 рroposed entry at least seven explicit or implicit references 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 prоposed language that the order “shall remain in full force and effect 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 “сonvey[ed] that a bond had been posted and not, as 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. 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 *10 the bond necessary to render the original temporary restraining order effective or “in full force and effect” and subject to being “extended” for an “additional” period of timе. As the trial court determined, Krueger’s conduct violated Civ.R. 11 because when he signed the proposed order, he “knew there was no good faith ground to support it.”
{¶16} Krueger attempts to deflect his accountability by claiming a review of the dockеt would have 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 Civ.R. 11. We are not persuaded by his arguments. Our review reflects that there was competent, credible evidence to support the trial court’s determination and that the trial court did not abuse its discretion in awarding sanctions against Krueger under Civ.R. 11. Next, we consider Ornowski’s cross-appеal, 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. Upon a determination of a willful violation of Crim.R. 11, a trial court has
broad discretion in imposing an appropriate sanction.
Evans
, 8th Dist. Cuyahoga No.
96120,
It is ordered that appellees recover from appellant costs herein taxed. The court finds thеre 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 execution.
A certified copy of this entry shall constitute the mandatе pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
TIM McCORMACK, J., CONCUR
Notes
[1] It has been recognized that trial courts retain jurisdiction to resolve collateral matters, such
as a motion for sanctions pursuant to Civ.R. 11 or R.C. 2323.51, despite a voluntary dismissal. ABN
AMRO Mtge. Group, Inc. v. Evans , 8th Dist. Cuyahoga No. 96120,