[Cite as Griffin v. Churneys Bodyworks, Inc.,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

SEAN GRIFFIN, :

Plaintiff-Appellant, : No. 108782 v. :

CHURNEYS BODYWORKS, INC., : ET AL., : Defendants-Appellees.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 30, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-909656

Appearances:

Vick Law, L.L.C. and Gary A. Vick, Jr., for appellant.

Gallagher Sharp L.L.P., Todd M. Haemmerle, and Richard C.O. Rezie, for appellees.

MARY EILEEN KILBANE, J.:

Plaintiff-appellant, Sean Griffin (“Griffin”), appeals the trial court’s

decision granting defendants-appellees, Churneys Bodyworks, Inc., and Michael

Churney, (hereinafter, “Churneys”) motion for sanctions, filed pursuant to Civ.R. 37

and R.C. 2323.51. Griffin argues that the trial court lacked jurisdiction and that the fees awarded were excessive. For the following reasons, we affirm the decision of

the trial court granting the motion.

Facts

The facts of the underlying lawsuit are not relevant to this appeal. We

will, however, examine the facts that led to Churneys’s motion for sanctions.

On or about March 11, 2019, Churneys served a set of interrogatories

and a request for production of documents on Griffin. On March 20, 2019, Churneys

served a notice of deposition on Griffin, scheduling the deposition for April 29, 2019.

Churneys informed Griffin that they were amenable to a different date if April 29

did not work for him.

On April 18, 2019, having not received any response from Griffin,

Churneys followed up via email requesting the written discovery responses, which

they required to prepare for the deposition. Griffin did not respond. On April 25,

2019, Churneys emailed Griffin again, reminding Griffin that the deposition was

scheduled for April 29. Griffin again did not respond.

On April 29, 2019, Churneys had a court reporter present for the

deposition. Neither Griffin nor his attorney appeared. On April 29, 2019, Churneys

filed a motion to compel with the trial court. That same day, the trial court issued

the following order:

Court in receipt of motion to compel. Plaintiff has failed to provide discovery and has not sought nor obtained an extension. Plaintiff ordered to provid[e] defendant all outstanding discovery on or before 5/3/19 and to arrange for plaintiff’s deposition on or before 1PM on 5/13/19. Parties ordered to cooperate in the scheduling of the deposition.

Dates and orders remain as set. Court is to be notified by 3PM on 5/13/19 of the plaintiff’s compliance or noncompliance with this order. Failure to comply may result in sanctions including dismissal and/or contempt.

Notice issued.

On April 30, 2019, Churneys emailed Griffin, proposing either a

May 9, or May 13 deposition. On May 4, 2019, one day after the court’s deadline for

discovery, Griffin provided discovery responses and suggested that the parties could

discuss a deposition and/or a resolution the following week.

On May 4, 2019, Churneys responded that deposition dates had

already been proposed and that Churneys was waiting for Griffin’s response as to

the preferred date. Churneys also stated that the discovery responses were

incomplete because Griffin had failed to provide certain photographs. Griffin did

not respond.

On May 7, 2019, Churneys again reached out to Griffin, reminding

Griffin of the proposed deposition dates and the required discovery material. Griffin

did not respond to this message.

On May 13, 2019, Griffin filed a notice of dismissal without prejudice

pursuant to Civ.R. 41.

On May 17, 2019, Churneys filed a motion for sanctions pursuant to

both Civ.R. 37 and R.C. 2323.51. The court set a hearing for June 11, 2019, and

ordered that Griffin’s brief in response be submitted on or before May 28, 2019. Griffin requested two extensions of time; the court granted those extensions but

ordered on June 7, 2019, that the response be submitted before noon on June 10,

2019, in advance of the June 11 hearing. Griffin submitted a brief on June 10, 2019,

that included arguments that the court lacked the jurisdiction to grant the motion

for sanctions.

At the June 11, 2019 hearing, counsel for Churneys submitted exhibits

detailing the time and expenses associated with the lawsuit; the time charges totaled

$2,385. Counsel estimated that the legal fees associated with preparing for the

evidentiary hearing would equal $750. Finally, counsel submitted a $150 invoice for

the transcription services counsel used for the April 29, 2019 deposition at which

Griffin failed to appear.

At the hearing, Griffin’s counsel apologized for his lack of

responsiveness and his conduct generally. Griffin’s counsel did not object to the

expenses; in fact both parties spoke off the record and agreed that “the court should

enter an order.” (Tr. 12.) Following these discussions, the court stated:

Okay. And [t]he [c]ourt is granting the motion with the amount of money of attorney fees and costs to be [$]150 for the deposition; [$]750 for today’s cost and $2,385 which will be a total of $3,385. We discussed in the back time as far as payment so 45 days from today’s date.

(Tr. 12.)

This appeal followed. Griffin provides two assignments of error for

our review. Assignments of Error

Assignment of Error No. 1 The trial court committed reversible error in granting Appellee’s Motion for Sanctions after Appellant had dismissed the case.

Assignment of Error No. 2 The Trial Court committed reversible error in awarding excessive attorney fees and costs.

We will consider them in turn.

Jurisdiction following dismissal

Griffin argues that the trial court did not have jurisdiction to hear

Churneys’s motion for sanctions — filed pursuant to Civ.R. 37 and R.C. 2323.51 —

after Griffin had already voluntarily dismissed the case under Civ.R. 41. We

disagree.

We note initially that in his June 10, 2019 brief to the trial court where

he opposed sanctions, Griffin did raise the issue of whether the court lacked

jurisdiction. However, at the hearing itself, Griffin’s attorney did not object to

jurisdiction; instead, the attorneys discussed the appropriate sanctions and costs off

the record before agreeing to a suitable amount and asking that the court enter an

order. Nonetheless, Griffin is entitled to raise this jurisdictional question, and we

will address it now.

Our precedent is clear; a Civ.R. 41 dismissal does not divest a trial

court of jurisdiction to entertain collateral issues, such as the imposition of sanctions

filed pursuant to R.C. 2323.51. Jefferson Capital Sys. v. Gibson, 8th Dist. Cuyahoga

No. 108384,

. This is a well-trodden path we have walked before: While a Civ.R. 41(A)(1) voluntary dismissal generally divests a court of jurisdiction, a court may still consider collateral issues not related to the merits of the action. State ex rel. Hummel v. Sadler,

[-]Ohio[-]3605,

, ¶ 23, citing Cooter & Gell v. Hartmarx Corp.,

,

,

[(1990)]; State ex rel. Corn v. Russo,

, 2001- Ohio-15,

[(2001)]; Grossman v. Mathless & Mathless, C.P.A.,

,

[(10th Dist. 1993)]. A consideration of sanctions pursuant to Civ.R. 11 and R.C. 2323.51 are collateral issues. Schwartz v. Gen. Acc. Ins. of Am.,

,

[(1st Dist. 1993)]; Lewis v. Celina Fin. Corp.,

,

[(3d Dist. 1995)].

ABN AMRO Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No. 96120, 2011-Ohio-

5654, ¶ 6; see also Gitlin v. Plain Dealer Publishing Co.,

, 2005-

Ohio-3024,

(8th Dist.) (a Civ.R. 41 voluntary dismissal does

not divest the trial court of jurisdiction to consider collateral matters, including a

motion for sanctions, regardless of whether the motion for sanctions was filed before

or after the voluntary dismissal).

Griffin does not dispute this general rule; instead, he argues that,

because the motion for sanctions was filed after the voluntary dismissal, it cannot

be heard by the trial court. In support he relies on our decision in Dyson v.

Adrenaline Dreams Adventures,

,

(8th

Dist. 2001). Dyson is not dispositive, however. Our holding there is limited to a

particular set of facts.

In Dyson, the motion for sanctions was filed after the voluntary

dismissal and, critically, was only filed pursuant to Civ.R. 37. We have discussed the

correct interpretation of Dyson before: The Dyson court focused its attention on when the motion for costs was filed in correlation to when the plaintiff voluntarily dismissed its complaint. We agree that the issue in Dyson was the timeliness of the motion for costs because the relief that was being sought was pursuant to Civ.R. 37 and 41. Dyson held that motions for discovery sanctions filed prior to the Civ.R. 41 dismissal are considered collateral and may survive a voluntary dismissal.

. However, Dyson also implicitly held that motions for sanctions filed pursuant to Civ.R. 11 and its statutory counterpart, R.C. 2323.51, are considered collateral, even though those motions are filed postdismissal.

; Williams v. Thamann,

,

,

.

ABN AMRO Mtge. Group, Inc. at ¶ 12.

While a Civ.R. 37 motion for sanctions cannot be heard when filed

after a voluntary dismissal, R.C. 2323.51 explicitly allows for a filing after a

dismissal. R.C. 2323.51(B)(1) provides that “at 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 of court costs,

reasonable attorney fees, and other reasonable expenses incurred in connection with

the civil action or appeal.”

We have explained that the “thirty-day” time limit applies even when

a case is dismissed without prejudice and there is not a final appealable order.

Edwards v. Lopez, 8th Dist. Cuyahoga No. 95860,

, citing

Gitlin,

,

,

. Therefore, a court

retains jurisdiction over a motion for sanctions pursuant to R.C. 2323.51 when the

motion has been timely filed after a voluntary dismissal under Civ.R. 41. Because Churneys filed their motion pursuant to R.C. 2323.51 in a

timely manner, we find that the court retained jurisdiction to consider this collateral

matter even though the motion for sanctions was filed after the case was voluntarily

dismissed.

This assignment of error is without merit.

Attorney fees and costs

Griffin also argues that the court abused its discretion by ordering

that he pay attorney fees and other costs because his counsel’s behavior was not

“frivolous conduct” pursuant to R.C. 2323.51. However, Griffin has waived the right

to appeal this issue.

It is unclear from the record as to why Griffin is appealing this issue.

At the hearing, Griffin’s counsel apologized for his handling of the case and

represented to the court that he understood that he had missed opportunities to

correct the issues that had arisen. After apologizing, the attorneys for both parties

went off the record in order to discuss a resolution on the question of sanctions and

costs. They agreed that the trial court should enter an order — the very order that

Griffin now appeals.

It is certainly true that Griffin submitted a response to Churneys’s

motion for sanctions in which he argued that sanctions were inappropriate and costs

excessive. However, it is also undisputed that Griffin effectively withdrew his

objections during the June 11 hearing. In short, he agreed to the amount of fees and

costs. The following exchange makes this clear:

THE COURT: It does not absolve the defendant of what they’ve incurred. I mean we’re talking almost $4,000 in bills that they’ve incurred that could have been avoided. I think they may have a good case for attorney fees and expenses. And, you know, you’re welcome to talk to [Churneys’s counsel] and see if he’ll want to work on an amount that’s less than what he’s asking for but — [Griffin’s counsel], I understand that people have problems but like I said, there were many ways you could have stopped the bleeding here and you just chose not to stop it.

***

THE COURT: So I’ll give you a few minutes to talk to each other and then let me know.

(Thereupon, a break was had.)

THE COURT: We’re back on the record. The two lawyers had the opportunity to talk for a few minutes. They have agreed that the court should enter an order.

***

THE COURT: Okay. And [t]he [c]ourt is granting the motion with the amount of money of attorney fees and costs to be [$]150 for the deposition; [$]750 for today’s cost and $2,385 which will be a total of $3,385. We discussed in the back time as far as payment so 45 days from today’s date.

(Emphasis added.) (Tr. 11-12.)

As this quoted language demonstrates, Griffin waived the right to

challenge the imposition and amount of fees by agreeing to the imposition of fees

and costs. See Tradesmen Internatl. v. Kahoe, 8th Dist. Cuyahoga No. 74420,

(Mar. 16, 2000). Furthermore, counsel’s objection to

attorney fees in the lower court is a prerequisite to appellate review. See, e.g.,

Proctor v. Proctor,

,

(3d Dist. 1988) (failure to object to referee’s report ordering attorney fees held to waive the matter on

appeal).

Griffin agreed to the imposition of fees and the amount of fees. As a

result, there was no objection and the argument is waived on appeal. The second

assignment of error is overruled.

Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court 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.

_____________________________ MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, P.J., CONCURS; MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY