       [Cite as Evans v. Quest Diagnostics, 2015-Ohio-3320.]
               IN THE COURT OF APPEALS
           FIRST APPELLATE DISTRICT OF OHIO
                HAMILTON COUNTY, OHIO



DERECO EVANS,                                      :      APPEAL NO. C-140479
                                                          TRIAL NO. A-1101017
     Plaintiff-Appellant,                          :

     vs.                                           :           O P I N I O N.

QUEST DIAGNOSTICS, INC.,                           :

     and                                           :

MEDPLUS, INC.,                                     :


     Defendants-Appellees.                         :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded in Part

Date of Judgment Entry on Appeal: August 19, 2015


Nadia Blaine, pro se, and for Plaintiff-Appellant Dereco Evans.

JonesPassodelis, P.L.L.C., and Constantine J. Passodelis, for Defendants-Appellees.


Please note: this case has been removed from the accelerated calendar.
                          OHIO FIRST DISTRICT COURT OF APPEALS


STAUTBERG, Judge.

           {¶1}    Dereco Evans and Nadia Blaine appeal the judgment of the trial court

imposing over $85,000 in attorney fees and costs as sanctions against them under

Civ.R. 11 and R.C. 2323.51. For the following reasons, we reverse the judgment of the

trial court. We remand for further proceedings the judgment against Blaine, only.

                        Evans is Assaulted and Unsuccessfully Sues

           {¶2}    The genesis of this case was a sexual assault on Evans while he was

recovering from a gunshot wound at University Hospital. The perpetrator, Chad

Thrasher, a.k.a. Chadea Thrasher, was working as a phlebotomist at University

Hospital at the time of the assault. Thrasher was eventually convicted of gross sexual

imposition.

           {¶3}    After the criminal case had concluded, Evans, who was represented by

Blaine, sued Thrasher and a number of other defendants,1 including appellees Quest

Diagnostics, Inc. and MedPlus, Inc., (“appellees”) for damages arising from the

assault. Evans voluntarily dismissed his case under Civ.R. 41. He later refiled.

Evans’s claims against appellees were based on theories of negligent hiring and

supervision of Thrasher. Appellees consistently maintained throughout the

proceedings that they did not hire or employ Thrasher, and thus could not be liable

to Evans. On November 7, 2012, the trial court entered final judgment, and granted

appellees summary judgment on the basis that no employer-employee relationship

existed between Thrasher and appellees. Evans appealed. We affirmed the trial

court’s judgment in Evans v. Thrasher, 1st Dist. Hamilton No. C-120783, 2013-Ohio-

4776. Evans attempted to appeal to the Ohio Supreme Court, but the court declined

jurisdiction on March 26, 2014.



1   Other defendants named in the lawsuit are not the subject of this appeal.


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                   Appellees’ Multiple Motions for Sanctions

       {¶4}      Appellees filed three motions for sanctions solely against Blaine as

follows:

           1. “Motion for Sanctions pursuant to Ohio Rule 11,” filed April 19,

           2011, and requesting “sanctions be imposed on plaintiff’s counsel”

           under Civ.R. 11 and/or R.C. 2323.51.

           2. “Motion for Sanctions Pursuant to Ohio Rule 11,” filed

           November 3, 2011, and requesting “sanctions be imposed on

           plaintiff’s counsel” under Civ.R. 11 and/or R.C. 2323.51.

           3. “Quest Diagnostics Incorporated’s Renewed Motion for

           Sanctions (Attorney Fees, Costs, and Expenses),” filed December 6,

           2012, in which it moved the trial court “to enter an order granting

           all    sanctions   related   relief       originally   requested   in   Quest

           Diagnostics’ Motion for Sanctions Pursuant to Ohio Rule 11 and

           supporting Memorandum filed with this Court on November 3,

           2011, and subsequently supported and requested in subsequent

           filings, all of which are incorporated.”

       {¶5}      Appellees filed memoranda supporting the April and November 2011

motions. In those memoranda, appellees describe the conduct of Blaine in pursuing

claims against appellees. Appellees blamed her for failing to conduct presuit

discovery to determine the employer of Thrasher, and for failing to move to dismiss

appellees from the litigation after numerous communications and filings from

appellees denying any employment or supervisory relationship with Thrasher. In

response, Blaine argued that appellees did not respond to discovery requests in a

timely manner, and were not forthcoming about their contractual relationship with



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                        OHIO FIRST DISTRICT COURT OF APPEALS



University Hospital. The trial court reserved ruling on appellees’ motions until the

appellate process had been exhausted.

        {¶6}    After the Ohio Supreme Court declined jurisdiction over Evans’s

appeal from this court’s decision, appellees filed a motion in the trial court entitled

“Quest Diagnostics Incorporated’s and MedPlus, Inc.’s Supplemental Motion for

Sanctions Pursuant to Civ. R. 11 and R.C. 2323.51 (Attorney Fees, Costs and

Expenses).” In that motion, appellees moved for sanctions against Blaine, and—for

the first time—against Evans, and requested that the trial court “enter an order

granting all sanctions requested . . . in this Supplemental Motion for Sanctions

Pursuant to Civ. R. 11 and R.C. 2323.51.”

        {¶7}    Based on the filings and arguments from counsel, but without

conducting an evidentiary hearing, the trial court entered judgment granting over

$85,000 in sanctions against Blaine and Evans, and held them jointly and severally

liable for the amount. In its judgment, the trial court indicated that it had granted

three2 of appellees’ motions for sanctions, including the “renewed motion” brought

under R.C. 2323.51 against both Evans and Blaine. Raising five assignments of error,

Blaine and Evans now appeal.

                              Timeliness of Appellees’ Motions

        {¶8}    In their first assignment of error, Evans and Blaine contend that the

trial court did not have jurisdiction to hear appellees’ motions after the court had

journalized a final order in the underlying case. Appellants are mistaken in their

assertion regarding the trial court’s jurisdiction. However, appellees’ motion as to

Evans was untimely, and therefore the trial court erred by entertaining it.



2 The entry notes that the trial court is ruling on one of appellees’ “Motion for Sanctions Pursuant
to Ohio Rule 11” without specifying which of the two.


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          {¶9}   A motion for Civ.R. 11 sanctions is a collateral matter and can be filed,

heard, and ruled upon even after a final order has been issued in the underlying case.

ABN Amro Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No. 98777, 2013-Ohio-

1557; Schwartz v. Gen. Acc. Ins. Co. of Am., 91 Ohio App.3d 603, 632 N.E.2d 1279

(1st Dist.1993). Moreover, R.C. 2323.51(B)(1) allows a party to move for sanctions “at

any time not more than thirty days after the entry of final judgment in a civil action *

* * .” Consequently, a trial court has jurisdiction to entertain such motions after

judgment has been entered in the underlying lawsuit. And in this case the trial court

specifically reserved ruling on the motions pending the outcome of the appellate

process.

          {¶10} In this case, appellees failed to request sanctions against Evans until

their “renewed motion,” filed in June 2014. This was well past the 30-day time limit

contained in R.C. 2323.51. An untimely motion does not deprive the trial court of

jurisdiction. However, where a party properly objects to an untimely motion, the

trial court is without authority to exercise its jurisdiction. See Thomas v. Cincinnati,

1st Dist. Hamilton No. C-050643, 2006-Ohio-3598; Mason v. Meyers, 140 Ohio

App.3d 474, 477, 748 N.E.2d 100 (3d Dist.2000); Whitt v. Whitt, 2d Dist. Greene No.

2003-CA-82, 2004-Ohio-5285. Here, Evans properly objected.

          {¶11} Because appellees’ motion was not timely filed as to Evans, it was not

properly before the trial court. The trial court therefore erred when it considered the

motion. See Nancy Lowrie & Assoc., LLC v. Ornowski, 8th Dist. Cuyahoga No.

100694, 2014-Ohio-3718, ¶ 9.          And because Civ.R. 11 does not allow for the

imposition of sanctions against a party unless that party appeared pro se, the trial

court did not have the authority to award sanctions against Evans under that rule,

either.



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       {¶12} The first assignment of error is sustained to the extent that the trial

court was without authority to exercise its jurisdiction to order sanctions against

Evans. It is overruled in all other respects.

       {¶13} We address the arguments in the remaining assignments of error as to

Blaine, only.

                   Motion for Reconsideration and Res Judicata

       {¶14} In the second assignment of error, Blaine alleges that appellees’

“renewed” motion for sanctions was really a motion for reconsideration and

therefore a legal nullity. In the third assignment of error, Blaine argues that the trial

court erred because the issues raised by appellees were res judicata. We address

these assignments of error together.

       {¶15} Blaine’s arguments are premised upon a flawed assumption of the

procedural history of this case. The trial court did not rule on appellees’ motions

while the underlying case was pending and, indeed, specifically reserved ruling on

these motions until the conclusion of the case and any appeals. Therefore, appellees’

“renewed motion,” while perhaps unnecessary, was not a motion for reconsideration.

Because a motion for sanctions may be entertained even after the trial court enters

judgment in the underlying case, and because the trial court did not rule on any of

appellees’ motions, res judicata did not bar consideration of appellees’ motions for

sanctions. See State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824,

¶ 17-18. Therefore, the second and third assignments of error are overruled.

           The Trial Court Failed to Conduct an Evidentiary Hearing

       {¶16} In the fourth assignment of error, Blaine argues that the trial court

erred by failing to hold an evidentiary hearing before imposing sanctions. In the fifth

assignment of error, Blaine argues that appellees failed to prove that sanctions were



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warranted under either R.C. 2323.51 or Civ.R. 11. We address these assignments of

error together.

       {¶17} The decision to grant sanctions under R.C. 2323.51 and Civ.R. 11 rests

within the sound discretion of the trial court, and we review the trial court’s

judgment for an abuse of discretion. DiBenedetto v. Miller, 180 Ohio App.3d 69,

2008-Ohio 6506, 904 N.E.2d 554, ¶ 20 (1st Dist.); Gearhart v. Cooper, 1st Dist.

Hamilton Nos. C-050532 and C-060170, 2007-Ohio-25, ¶ 25.

       {¶18} Under Civ.R. 11, an attorney’s or pro se litigant’s signature on a

pleading constitutes a certificate “that to the best of the attorney's or party's

knowledge, information, and belief there is good ground to support it[,] and that it is

not interposed for delay.” Civ.R. 11 employs a subjective bad-faith standard to invoke

sanctions by requiring that any violation of that rule must be willful. State ex rel.

Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510, ¶ 19; State

ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs., 127 Ohio St.3d 202, 2010-Ohio-

5073, 937 N.E.2d 1274, ¶ 7. A motion for sanctions under R.C. 2323.51 requires a

court to determine whether the challenged conduct constitutes frivolous conduct, as

defined by the statute, and, if so, whether any party has been adversely affected by

the frivolous conduct. R.C. 2323.51(B)(2)(c). To award sanctions under R.C. 2323.51,

the test is whether no reasonable lawyer would have brought the action in light of the

existing law. Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d

857, ¶ 36 (1st Dist.).    The statute was designed to chill egregious, overzealous,

unjustifiable, and frivolous action. Id. at ¶ 35.

       {¶19} Blaine is correct that the trial court was required to conduct an

evidentiary hearing before imposing sanctions under either R.C 2323.51 or Civ.R. 11.

R.C. 2323.51(B)(2)(a) specifically provides that an evidentiary hearing is required.



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And the Ohio Supreme Court has held that an evidentiary hearing is required in

cases where the trial court imposes sanctions under Civ.R. 11. State ex rel. Ebbing v.

Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 25.

        {¶20} Here, the trial court relied on arguments of counsel and the pleadings,

only. It therefore abused its discretion in awarding sanctions. The fourth assignment

of error is sustained. And because the court failed to conduct an evidentiary hearing,

the record does not support an award of sanctions against Blaine. We therefore

sustain the fifth assignment of error.

        {¶21} We also note that, based upon what is in the record before us, the

amount of sanctions imposed by the court was clearly not justified. The trial court

awarded all of the expenses and fees requested by appellees, which were supported

by an affidavit and submission of invoices. Some of the invoices submitted were for

legal work performed on Evans’s first, dismissed lawsuit.3 There are no grounds to

support awarding attorney fees that predate the filing of the lawsuit in which the

motion for sanctions is brought.

                                             Conclusion

        {¶22} In sum, we hold that the trial court did not have the authority to award

sanctions against Evans. We also hold that the court abused its discretion when it

awarded sanctions against Blaine without first conducting an evidentiary hearing.

The trial court’s judgment is reversed, and we remand this cause for the trial court to

conduct an evidentiary hearing on appellees’ motions requesting Civ.R. 11 and R.C.

2323.51 sanctions against Blaine, only, and for further proceedings consistent with

law and this opinion.


3 This was in direct contradiction to appellees’ counsel’s representation to the trial court at the
July 15, 2014 hearing, “And the fee petition we put in is the beginning of this second action
forward.”


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                    OHIO FIRST DISTRICT COURT OF APPEALS



                                                                 Judgment accordingly.

CUNNINGHAM, P.J., and MOCK, J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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