[Cite as In re Carothers,

.]

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,

. 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,

. Although the trial court’s determination of legal issues is given

no deference, some deference is given to factual findings.

{¶ 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,

,

,

. “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.”

. 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,

; Rini v.

Rini, 8th Dist. No. 80225,

, ¶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),

,

.

{¶ 13} In Standard Oil Co. v. Grice (1975),

,

, 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 ***.”

. {¶ 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,

, 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,

(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,

,

,

. 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),

,

. 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

(the exercise of a right of voluntary dismissal

without prejudice cannot be construed as frivolous or fraudulent conduct). In

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.

. 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