[Cite as Wagner v. Cormeg, Inc., 2011-Ohio-1205.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



BRIAN WAGNER                                           JUDGES:
                                                       Hon. William B. Hoffman, P. J.
        Plaintiff                                      Hon. John W. Wise, J.
                                                       Hon. Julie A. Edwards, J.
-vs-
                                                       Case No. 2010 CA 00134
CORMEG, INC., et al.

        Defendants-Appellees                           OPINION




CHARACTER OF PROCEEDING:                            Civil Appeal from the Court of Common
                                                    Pleas, Case No. 2009 CV 01119


JUDGMENT:                                           Reversed



DATE OF JUDGMENT ENTRY:                             March 14, 2011



APPEARANCES:

For Appellant Jack Morrison, Jr.                    For Defendants-Appellees

THOMAS R. HOULIHAN                                  LORRIE E. FUCHS
AMER CUNNINGHAM CO., LPA                            Post Office Box 35787
159 South Main Street, Suite 1100                   Canton, Ohio 44735-5787
Akron, Ohio 44308-1322
Stark County, Case No. 2010 CA 00134                                                      2

Wise, J.

       {¶1}      Appellant Jack Morrison, Jr., Attorney for Plaintiff Brian Wagner, appeals

the May 4, 2010, decision of the Stark County Court of Common Pleas, adopting the

January 5, 2010, Magistrate’s Decision, granting Defendant-Appellee’s motion for

sanctions and finding that his conduct was frivolous.

                         STATEMENT OF THE CASE AND FACTS

       {¶2}      On March 30, 2007, Brian Wagner was at Miller's Tavern, owned by

Appellee Cormeg, Inc., when he was assaulted by another bar patron. (T. at 32). The

beating was so severe that Wagner suffered broken bones and spent five days in the

hospital. (T. at 62).

       {¶3}      Wagner retained Attorney Jack Morrison, Jr. to represent him to seek

compensation for his injuries as a result of the above incident. Wagner reported to

Morrison that a bar patron, later determined to be Calvin Lint, appeared intoxicated

when the bartender, Joneen Furbay, was serving him alcohol. (T. at 62). Wagner

reported to Morrison that he was assaulted at Miller's Tavern on March 30, 2007, that

Furbay was the bartender, and that he had picked out the assailant in a photo line-up.

(T. at 61-62).

       {¶4}      Atty. Morrison stated that he took several steps to gather factual material

concerning the underlying incident. Morrison obtained a copy of the police report,

followed the criminal proceedings against Lint, spoke with the Prosecutor, and obtained

statements of the parties involved from the Prosecutor. (T. at 19). Morrison also made

several attempts to talk to eyewitnesses Dan Watkins and Clinton Bressler, whose
Stark County, Case No. 2010 CA 00134                                                        3


statements were contained in the Prosecutor's file, but they would not return his calls.

(T. at 42-43).

       {¶5}      On March 13, 2008, on the basis of the information he gathered, Atty.

Morrison drafted and filed a complaint against Defendant Cormeg, Furbay, and Lint.

Morrison was unable to locate Lint to obtain service on him, and because Wagner was

out of state on a job assignment, he was unavailable to provide a deposition. (T. at 21-

22). As a result, Morrison voluntarily dismissed the matter on June 23, 2008. (T. at 22).

       {¶6}      Morrison made further efforts to find Lint, and then re-filed the case on

March 19, 2009. (T. at 22). Morrison conducted discovery and took depositions. (T. at

27). The matter proceeded, and on August 27, 2009, Morrison noticed the deposition of

a medical expert for September 8, 2009.

       {¶7}      On August 27, 2009, Cormeg filed a Motion for Summary Judgment. As

part of Cormeg's summary judgment motion, Cormeg attached the affidavits of two

eyewitnesses, Watkins and Bressler. These affidavits were inconsistent with statements

made by these witnesses to the Prosecutor. (T. at 30).

       {¶8}      The trial court scheduled a non-oral hearing for September 14, 2009, on

the motion for summary judgment.

       {¶9}      On September 8, 2009, the day of the scheduled medical deposition,

Morrison sat down with Wagner and told the client about the summary judgment motion

and supporting affidavits. (T. at 31).

       {¶10} Morrison states that at this time he explained to Wagner the change in

testimony of Watkins and Bressler, the risks of going forward to trial and the cost of

medical testimony. (T. at 34-35). Morrison told Wagner that he believed that Wagner's
Stark County, Case No. 2010 CA 00134                                                 4


case was likely to survive summary judgment, but chances weren't good at trial if there

were 3 or 4 people who were going to refute Wagner's recollection of the events. (T. at

36).

       {¶11} In light of the new information, Morrison recommended to Wagner that he

dismiss the case and Wagner gave him permission to do so. (T. at 36).

       {¶12} Morrison states that he then cancelled the deposition scheduled for later

that day, informing counsel for Cormeg approximately an hour and a half before the

deposition. (T. at 50).

       {¶13} On September 15, 2009, Morrison voluntarily dismissed the case.

       {¶14} On November 4, 2010, Cormeg filed a Motion for Sanctions and attorney

fees, claiming that Morrison's decision to file and maintain the suit was frivolous.

Cormeg also complained about the short notice before the cancellation of the

physician's deposition.

       {¶15} On November 20, 2009, the magistrate held an oral hearing on the Motion

for Sanctions, during which it heard arguments and testimony from Wagner, Atty.

Morrison and counsel for Cormeg.

       {¶16} On January 5, 2010, the magistrate entered a decision which found no

frivolous conduct in filing or maintaining the suit, but finding that Atty. Morrison's

decision to cancel the deposition was frivolous because it should have been made

earlier. In support of its finding, the Magistrate explained:

       {¶17} “With full knowledge of Dr. Cochran's scheduled deposition, Wagner's

counsel did not take immediate action in speaking with Wagner regarding the merits of

Cormeg's motion for summary judgment and/or the possibility of dismissing this action.
Stark County, Case No. 2010 CA 00134                                                   5


Instead, and without an appropriate and legitimate reason, Wagner's counsel did not

meet with Wagner for such a discussion until the day of Dr. Cochran's deposition,

which, notably, was only three days before Wagner's response to the motion for

summary judgment would have been due. See Assignment Notice, filed September 1,

2009. This inaction purposely caused a needless increase in the cost of litigation for

Cormeg. Accordingly, this Magistrate finds such action to constitute frivolous conduct in

violation of R.C. 2323.51.”

      {¶18} The decision was adopted by the trial court, who co-signed the entry, as is

permitted under Civ.R. 53(D)(4)(e)(1).

       {¶19} On January 19, 2010, Morrison timely filed objections to such decision.

       {¶20} The trial court, in a January 22, 2010, Order stated that it would hold the

objections in abeyance until the magistrate held a hearing assessing the amount of

sanctions.

       {¶21} On February 1, 2010, Morrison filed the transcript of the November 9,

2009, hearing.

       {¶22} On February 12, 2010, a hearing was conducted on the amount of

sanctions.

       {¶23} On February 16, 2010, the magistrate entered its opinion. This opinion

was countersigned by the trial court judge as "approved and adopted," but it did not

purport to dispose of the objections filed on January 19, 2010.

       {¶24} Morrison then filed objections to the February 16, 2010 decision.

       {¶25} On May 4, 2010, the court ruled upon both sets of objections.
Stark County, Case No. 2010 CA 00134                                                        6


         {¶26} Appellant Jack Morrison, Jr. now appeals, assigning the following error for

review:

                                ASSIGNMENT OF ERROR

         {¶27} “I. THE COURT OF COMMON PLEAS ERRED IN CONCLUDING THAT

JACK MORRISON, JR.’S CONDUCT WAS FRIVOLOUS.”

                                              I.

         {¶28} In his sole assignment of error, Appellant asserts that the trial court erred

in finding frivolous conduct. We agree.

         {¶29} Revised Code 2323.51(A)(2)(a)(i) defines "frivolous conduct” as that which

“obviously serves merely to harass or maliciously injure another party to the civil action

or appeal or is for another improper purpose, including, but not limited to, causing

unnecessary delay or a needless increase in the cost of litigation.”

         {¶30} As set forth above, the trial court herein adopted the Magistrate’s Decision

finding “that the actions by counsel for Wagner regarding the canceling of the deposition

of Dr. Cochran to constitute such “frivolous conduct.”

         {¶31} The trial court found that Atty. Morrison had “full knowledge of Dr.

Cochran's scheduled deposition” but failed to take immediate action to speak to his

client    “regarding the merits of Cormeg's motion for summary judgment and/or the

possibility of dismissing this action.” The trial court found that Atty. Morrison “[i]Instead,

and without an appropriate and legitimate reason, … did not meet with Wagner for such

a discussion until the day of Dr. Cochran's deposition, which, notably, was only three

days before Wagner's response to the motion for summary judgment would have been

due.”
Stark County, Case No. 2010 CA 00134                                                      7


       {¶32} The trial court further found that “prior to receiving such notice, counsel for

Cormeg had invested significant time in preparing for Dr. Cochran's deposition. At the

hearing in this matter, [Atty. Morrison] testified that the reason he was unable to give

opposing counsel more advanced notice regarding Wagner's decision to dismiss the

action was because Wagner traveled extensively for work and was out of

communication for periods of time. As such, according to [Atty. Morrison], he was

unable to speak with Wagner regarding the likelihood of success on his claims given the

evidence presented in Cormeg's motion for summary judgment until hours before Dr.

Cochran's scheduled deposition.”

       {¶33} However, after reviewing Wagner’s deposition, the trial court found that

Atty. Morrison’s stated reasons for not discussing these matters with his client earlier

were “not appropriate”, finding that there was no evidence presented that Wagner was

sent out to travel for work in at least the two and a half week period immediately prior to

Dr. Cochran’s scheduled deposition. It was based on these findings that the trial court

concluded that Atty. Morrison’s “inaction purposely caused a needless increase in the

cost of litigation for Cormeg” and thus constituted frivolous conduct.

       {¶34} This Court was presented with a similar case in Giles v. Central Ohio

Tech. College, Licking App. No. 07-CA-69, 2008-Ohio-3428, wherein the Cross-

Appellants argued that opposing counsel's assertion on November 28, 2006, that he

was prepared to proceed to trial on December 12, 2006, caused them to incur

significant expense in preparation for trial up to the Civ.R. 41(A) dismissal filed on

December 6, 2006.
Stark County, Case No. 2010 CA 00134                                                         8


       {¶35} In affirming the trial court’s finding that such action did not constitute

frivolous conduct, this Court held:

       {¶36} “Under Civ.R. 41(A)(1)(a), a plaintiff, without an order from the court, may

dismiss all claims asserted against a defendant by filing a notice of dismissal at any

time before the commencement of trial, unless a counterclaim that cannot remain

pending for independent adjudication by the court has been properly asserted by the

defendant. A dismissal under Civ.R. 41(A)(1)(a) is self-executing and gives a plaintiff an

absolute right to terminate his action voluntarily and unilaterally at any time prior to trial.

See Andrews v. Sajar Plastics, Inc. (1994), 98 Ohio App.3d 61, 66, 647 N.E.2d 854,

citing Clay Hyder Trucking Lines, Inc. v. Riley (1984), 16 Ohio App.3d 224, 225, 16

OBR 240, 475 N.E.2d 183. The dismissal is without order of the court, and notice to

opposing counsel is not required. Id.

       {¶37} “We therefore find that the trial court did not err in finding that Cross-

Appellee's conduct in dismissing her case was not frivolous conduct and therefore did

not err in denying that prong of Cross-Appellants' motion for sanctions.”

       {¶38} In the case sub judice, we likewise find that Wagner had an absolute right

to voluntarily dismiss his case when he did. Such dismissal, in and of itself, therefore

does not constitute frivolous conduct.

       {¶39} Here, the trial court found that Attorney Morrison’s delay in speaking with

his client and the timing of the dismissal amounted to frivolous conduct finding that he

“purposely caused a needless increase in the cost of litigation for Cormeg.”

       {¶40} “Purpose is defined in terms of a specific intention either to cause a

certain result, or to engage in conduct of a certain nature regardless of what the
Stark County, Case No. 2010 CA 00134                                                         9


offender intends to accomplish through that conduct.” R.C. §2901.22(A), 1973

Legislative Service Commission Notes.

       {¶41} Upon review, while we find that Atty. Morrison’s delay in speaking with his

client, whatever the reason, did result in an increase in litigation costs for Cormeg, we

fail to find that such inaction translates to frivolous conduct. However, we do not find

sufficient evidence that such was done for the purpose of “causing unnecessary delay

or a needless increase in the cost of litigation.”

       {¶42} In this case, we must look at the totality of the circumstances. The fact

that the trial court did not find Appellant’s explanation for the delay in filing his dismissal

to be factual, is not sufficient, in and of itself, to infer or impute to Appellant specific

malicious intent or “improper purpose” to cause “unnecessary delay or needless

increase in the cost of litigation.”

       {¶43} Appellant’s sole assignment of error is sustained.

       {¶44} For the foregoing reasons, the judgment of the Common Pleas Court of

Stark County, Ohio, is reversed.

By: Wise, J.
Hoffman, P. J., and
Edwards, J., concur.

                                               ___________________________________


                                               ___________________________________


                                               ___________________________________

                                                                    JUDGES
JWW/d 0208
Stark County, Case No. 2010 CA 00134                                         10


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




BRIAN WAGNER                              :
                                          :
       Plaintiff                          :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CORMEG, INC., et al.                      :
                                          :
       Defendants-Appellees               :         Case No. 2010 CA 00134




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is reversed.

       Costs assessed to Appellees.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
