[Cite as Ohio Metal Servs., L.L.C. v. All-In Metals, 2013-Ohio-2174.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

OHIO METAL SERVICES, LLC, et al.                            C.A. No.    26240
                                                                        26625
        Appellants

        v.
                                                            APPEAL FROM JUDGMENT
ALL-IN METALS, LLC, et al.                                  ENTERED IN THE
                                                            COURT OF COMMON PLEAS
        Appellees                                           COUNTY OF SUMMIT, OHIO
                                                            CASE No.   2008-03-2130

                                  DECISION AND JOURNAL ENTRY

Dated: May 29, 2013



        WHITMORE, Judge,

        {¶1}     Plaintiff-Appellants, Ohio Metal Services, LLC (“Ohio Metal”) and E. William

Glause, appeal from two judgments of the Summit County Court of Common Pleas in favor of

All-In Metals, Neil Armstrong, Carol Armstrong, the Estate of Bruce Meyer c/o Brent Meyer,

Executor, and Jane Meyer (collectively “All-In”). This Court affirms.

                                                       I

        {¶2}     All-In acquired two million pounds of steel from a bankruptcy estate and sold one

million pounds of the steel. Subsequently, one of All-In’s original shareholders split from the

company. Because that shareholder had been responsible for marketing the steel that All-In had

acquired, All-In and Ohio Metal negotiated for Ohio Metal to assume an ownership interest in

All-In and handle the sale of the remaining one million pounds of steel. Although a transfer of

the steel inventory to Ohio Metal’s facility took place, the agreement for Ohio Metal to purchase

an ownership interest in All-In fell through. According to Ohio Metal, it attempted to deliver its
                                                 2


payment for the purchase of the ownership interest, but All-In rejected payment. According to

All-In, Ohio Metal failed to make the payment for purchase.

       {¶3}    In March 2008, Ohio Metal brought suit against All-In for breach of contract.

All-In filed a counterclaim as well as a third-party complaint against Glause, Ohio Metal’s

manager, for conversion and replevin, citing Ohio Metal’s wrongful retention of All-In’s steel

inventory without payment. All-In also sought an injunction to enjoin Ohio Metal from taking

any action with regard to the inventory. A wealth of motion practice then ensued up until the

scheduled trial date in February 2010.

       {¶4}    Shortly before the trial commenced, the parties notified the court that they had

reached a settlement. Consequently, the court cancelled the scheduled trial and awaited a filed

settlement agreement. The parties came before the court several months later, however, because

they had been unable to succeed in drafting a written settlement agreement that satisfied all the

parties. The court held a hearing and issued an order on September 21, 2010, in which it

determined that the parties had settled in February 2010 and set forth the terms of their

settlement agreement.

       {¶5}    The settlement agreement provided that neither Ohio Metal, nor Glause had any

ownership interest in either All-In or its steel inventory, but that, by way of a broker agreement,1

Glause would act as an independent contractor for All-In. As an independent contractor, Glause

would have one year from the date of the court’s September 21, 2010 order to sell the steel

inventory in Ohio Metal’s possession in exchange for 1/3 of the gross profits on any sales. At

the end of that year, the unsold portions of the inventory would be returned to All-In. The only

exception was that, if during the one-year period Glause achieved gross sales in excess of

1
  The broker agreement was not a separate document. Rather, it was contained within the
provisions of the settlement agreement itself.
                                                  3


$300,000, the broker agreement would be extended for another six months. The settlement

agreement specifically provided for the creation of a joint escrow checking account for the

deposit of all proceeds from the sale of any inventory and the appointment of a receiver

(Attorney Ray Weber) to receive all funds for the account, deposit those funds into the account,

maintain the account, and make monthly distributions of any proceeds in the account. Per the

terms of the agreement, neither Ohio Metal, nor Glause was to accept “any cash, credit, swap, or

any other form of consideration for the sale of [the] steel inventory.” Glause also was required to

provide quarterly updates about the status of the inventory and, upon request by All-In, allow

All-In and its agents to view the inventory at any time. The agreement provided that the court

would maintain jurisdiction over the litigation and terms of the settlement agreement with regard

to “any questions, disputes, or claims to interpret or enforce any [of its] provisions.”

       {¶6}    On August 29, 2011, All-In filed a motion to enforce the settlement agreement,

noting, among other things, that certain inventory was missing, Glause had not provided any

accountings, and the receiver had not received any money. The trial court held a hearing on All-

In’s motion on September 22, 2011; one day after the one-year period Glause was given to sell

the inventory. The court issued a decision on November 29, 2011. In its decision, the court

determined that a material breach of the settlement agreement had occurred. The court ordered

that, as a consequence of the breach, the broker agreement portion of the settlement agreement

was terminated and all portions of All-In’s steel inventory had to be returned to All-In. Ohio

Metal and Glause appealed from the court’s decision in Appeal No. 26240.

       {¶7}    While Appeal No. 26240 was pending, the trial court issued several journal

entries in which it ordered Ohio Metal and Glause to permit All-In to access its steel inventory.

In response, Ohio Metal and Glause filed a motion asking the court to vacate and/or clarify its
                                                 4


November 29th decision. Ohio Metal and Glause then asked this Court to partially remand the

matter for the trial court to consider their motion to vacate and/or clarify. This Court granted the

request. After this Court’s remand, All-In filed its response to Ohio Metal and Glause’s motion

to vacate and/or clarify. Additionally, the parties continued to seek the trial court’s intervention

with regard to All-In removing its inventory from Ohio Metal’s facility. On June 21, 2012, All-

In filed a motion in which it asked the court to order Ohio Metal and Glause to permit it access to

its inventory and to impose sanctions and attorney fees. Consistent with its earlier rulings, on

June 29, 2012, the trial court ordered Ohio Metal and Glause to provide All-In access to its steel

inventory on two specific dates. Ohio Metal and Glause later filed a motion to vacate the court’s

June 29th order on the basis that they had not been given an opportunity to respond before the

court issued the order.

       {¶8}    On August 7, 2012, the trial court held a hearing on the motions pending before it.

The court then issued a decision on August 14, 2012. In its decision, the court denied Ohio

Metal and Glause’s motion to vacate its November 29th decision as well as their motion to

vacate its June 29th order.     It further found that Ohio Metal and Glause’s request for a

clarification of the court’s November 29th decision was moot, as the parties had conceded at the

hearing that the remaining steel inventory had been returned to All-In. Additionally, the court

found Ohio Metal and Glause in contempt and awarded All-In $4,500 “representing sanctions

and reasonable attorney fees expended in repeated attempts to retrieve its steel inventory.” Ohio

Metal and Glause appealed from the court’s decision in Appeal No. 26625.

       {¶9}    Upon motion, this Court consolidated Appeal Nos. 26240 and 26625 for decision.

Ohio Metal and Glause’s appeals are now before this Court and raise a total of six assignments
                                                 5


of error for our review. For ease of analysis, we consolidate two of the assignments of error in

Appeal No. 26625.

                                                 II

                      Appeal No. 26240 Assignment of Error Number One

       THE TRIAL COURT ERRED, TO THE PREJUDICE OF OHIO METAL, BY
       PROCEEDING TO TAKE EVIDENCE AND RULE ON A REMEDY THAT
       HAD NOT BEEN RAISED BY MOTION.

       {¶10} In their first assignment of error in Appeal No. 26240, Ohio Metal and Glause

argue that the trial court erred by considering and ruling upon an issue that was not raised in All-

In’s written motion. We disagree.

       {¶11} Civ.R. 7 governs pleadings and motions and provides, in relevant part:

       An application to the court for an order shall be by motion which, unless made
       during a hearing or a trial, shall be made in writing. A motion, whether written
       or oral, shall state with particularity the grounds therefor, and shall set forth the
       relief or order sought. The requirement of writing is fulfilled if the motion is
       stated in a written notice of the hearing of the motion.

(Emphasis added.) Civ.R. 7(B)(1). The rule specifically permits oral motions so long as they are

stated with particularity. Gajarsky v. Kottler, 9th Dist. Nos. 25990 & 25994, 2012-Ohio-1817, ¶

16; Schrader v. Schrader, 9th Dist. No. 2899-M, 1999 WL 771882, *1 (Sept. 29, 1999).

       {¶12} The trial court here held a hearing on September 22, 2011, to consider a motion

that All-In filed to enforce the parties’ settlement. At the time All-In filed its motion, the one-

year period established in the broker agreement portion of the settlement agreement had yet to

expire. The written motion, therefore, focused on All-In’s suspicions that Ohio Metal/Glause

had sold a portion of All-In’s steel inventory without delivering payment to the receiver. The

September 22, 2011 hearing was scheduled for one day after the expiration of the broker

agreement. At the beginning of the hearing, All-In notified the court that the one-year period had
                                                6


expired. All-In further notified the court that Ohio Metal/Glause had not deposited proceeds in

excess of $300,000 with the receiver so as to justify a six-month extension of the broker

agreement, as per the terms of the parties’ settlement agreement. Therefore, All-In told the court

that it was “seeking to retrieve the steel inventory owned by [All-In].” The trial court took

evidence at the hearing and ultimately concluded that Ohio Metal/Glause had not complied with

the terms of the settlement agreement and had not satisfied the conditions warranting a six-month

extension of the broker agreement. Therefore, the court terminated the broker agreement portion

of the settlement agreement and ordered All-In’s steel inventory be returned.

       {¶13} Ohio Metal and Glause argue that the court erred by considering the issue of

whether a six-month extension of the broker agreement was warranted. According to Ohio

Metal and Glause, All-In’s written motion only challenged their compliance with the terms of the

settlement agreement, not whether they had satisfied the conditions for a six-month extension.

Therefore, Ohio Metal and Glause argue that, under Civ.R. 7(B), the court erred by considering

the additional issue of the extension.

       {¶14} Initially, we note that all the parties here were aware that the hearing the court

conducted was to take place one day after the expiration of the one-year term established by the

broker agreement portion of their settlement agreement. Ohio Metal and Glause filed a hearing

brief the morning of the hearing. In their hearing brief, Ohio Metal and Glause wrote:

       It is anticipated that [All-In] is going to attempt to prove that Ohio Metal has not
       performed its end of the Settlement Agreement. It is going to try pointing to the
       aforesaid “facts” (disputed vigorously by Ohio Metal) in order to persuade this
       Court that Ohio Metal should not be entitled to the agreed six (6) month extension
       of Ohio Metal’s ability to continue selling the subject steel product. Even if
       proven, all the supposed facts do not amount to a material breach of the
       settlement, sufficient to deprive Ohio Metal of its extension.

Similarly, in concluding their hearing brief, Ohio Metal and Glause wrote:
                                                 7


       Ohio Metal will prove at the hearing that it has not violated either the letter or the
       spirit of the Settlement Agreement. However, even if this Court should find any
       of [All-In’s] assertions valid, same do not constitute a material breach of the
       Settlement Agreement and they cannot serve to defeat Ohio Metal of its right to a
       six month extension of the time to sell the remaining steel.

Ohio Metal and Glause’s hearing brief, therefore, evidences that they were on notice that the

issue of the six-month extension would likely be considered at the hearing.

       {¶15} All-In specifically notified the court at the beginning of the hearing that the one-

year period established by the broker agreement had expired, Ohio Metal/Glause had not

satisfied the conditions for an extension, and, consequently, All-In was seeking to retrieve its

steel inventory. As set forth above, Civ.R. 7(B) permits oral motions so long as they are stated

with particularity. Gajarsky, 2012-Ohio-1817, at ¶ 16; Schrader, 1999 WL 771882, at *1. Ohio

Metal and Glause have not explained why the trial court could not have considered All-In’s

request for relief by way of oral motion. They also have not argued that All-In failed to state its

requested remedy at the hearing with particularity. Additionally, the record does not support

Ohio Metal and Glause’s claim of surprise and prejudice, as their own hearing brief indicates that

they were prepared to discuss the issue of the six-month extension at the hearing. Ohio Metal

and Glause’s argument that the trial court erred by considering the issue of the six-month

extension at the hearing and ordering relief on that issue lacks merit. Their first assignment of

error in Appeal No. 26240 is overruled.

                      Appeal No. 26240 Assignment of Error Number Two

       EVEN IF THE TRIAL COURT POSSESSED THE ABILITY TO CONSIDER
       ALL-IN’S REQUEST FOR TERMINATION, WHICH IT RAISED FOR THE
       FIRST TIME AT THE SEPTEMBER 22, 2011 HEARING, THE LEGAL
       INTERPRETATION OF THE SETTLEMENT ORDER (T. DOCKET #144) DID
       NOT PERMIT TERMINATION.
                                                 8


       {¶16} In their second assignment of error in Appeal No. 26240, Ohio Metal and Glause

argue that the trial court erred by concluding that they did not substantially perform under the

settlement agreement and that they were not entitled to a six-month extension of the broker

agreement. We disagree.

       {¶17} A trial court’s legal interpretation of a settlement agreement is a matter of contract

law that this Court reviews de novo. Dellagnese Const. Co. v. Nicholas, 9th Dist. No. 22951,

2006-Ohio-4350, ¶ 6. If the court’s ruling on the settlement agreement is a question of evidence,

however, “this Court will not overturn the trial court’s finding if there was sufficient evidence to

support such finding.” Tech. Constr. Specialties, Inc. v. New Era Builders, Inc., 9th Dist. No.

25776, 2012-Ohio-1328, ¶ 18. The standard of review that applies “depends primarily on the

question presented.” Id.

       {¶18} Per the terms of the parties’ settlement agreement, Ohio Metal/Glause had one

year (until September 21, 2011) to achieve “gross sales in excess of $300,000” in order to trigger

a six-month extension of the broker agreement. The settlement agreement specifically defined

“gross sales” as “sales in which the cash is in hand.” It further provided that “[a]ll sale proceeds

shall be sent to [the receiver], and neither Ohio Metal[] nor Mr. Glause shall accept any cash,

credit, swap, or any other form of consideration for the sale of such steel inventory.”

       {¶19} At the September 22, 2011 hearing, Glause testified that Ohio Metal had sold

$310,000 worth of All-In’s steel inventory to a company named Barberton Steel Industries. Two

purchase orders for the steel were completed in June and July 2011, respectively, and the checks

from the transactions were received in early September. Glause admitted, however, that he only

sent some $206,000 to the receiver. Glause testified that he accepted Ohio Metal’s 1/3 portion of

the $310,000 from Barberton Steel Industries in trade. Specifically, he accepted scrap metal as
                                                  9


payment for Ohio Metal’s portion of the transaction.            All-In’s portion of the proceeds

($206,213.56) was then forwarded to the receiver. Glause claimed that it was his understanding

of the settlement agreement that only All-In’s portion of the proceeds would be handled by the

receiver because, as the broker, Ohio Metal/Glause was entitled to immediate payment. He

further claimed that it was his understanding that Ohio Metal could receive its 1/3 portion of the

proceeds in any form it desired “so long as we didn’t barter or trade with [All-In’s] side of it.”

       {¶20} The plain language of the parties’ settlement agreement defined “gross sales” as

“sales in which the cash is in hand.” The testimony set forth at the hearing established that only

$206,213.56 of the proceeds received from Barberton Steel Industries constituted a gross sale

because Ohio Metal/Glause accepted the remainder of the payment in scrap. Moreover, Glause

admitted at the hearing that the sale to Barberton Steel Industries was the only sale that had

occurred. The one-year period established by the broker agreement portion of the settlement

agreement expired on September 21, 2011. Therefore, the record contains sufficient evidence

that Ohio Metal/Glause failed to achieve “gross sales in excess of $300,000” during the one-year

period. Because Ohio Metal/Glause failed to satisfy the conditions necessary to trigger a six-

month extension of the broker agreement, they were not entitled to it.

       {¶21} The trial court found that Ohio Metal/Glause breached the settlement agreement

(1) by personally accepting proceeds rather than forwarding all proceeds to the receiver, and (2)

by accepting a portion of the proceeds in scrap metal; “a form of consideration not contemplated

or permitted by the Settlement Agreement.” Based upon its finding that Ohio Metal/Glause had

breached the settlement agreement, the trial court ruled that the broker agreement portion of the

settlement agreement was terminated and that the steel inventory had to be returned to All-In.

Ohio Metal and Glause argue that the court erred in its decision because, even if they breached
                                                10


the agreement, the breach “did not amount to a material breach of the settlement, sufficient to

deprive Ohio Metal of its extension.”

       {¶22} Initially, we note that All-In never sought to undo the sales that Ohio Metal and

Glause made to Barberton Steel Industries. All-In accepted the money from the sales. It only

requested to retrieve the steel inventory it owned, which was the steel inventory in Ohio

Metal/Glause’s possession. Therefore, the relief All-In sought was limited to a return of its

remaining steel inventory. All-In never requested to be restored to its original position. That is,

it never requested a return of all of its original inventory or to be compensated for the same.

Therefore, as explained below, this Court need not determine whether Ohio Metal and Glause

breached the settlement agreement in order to affirm the trial court’s decision.

       {¶23} “[A]n appellate court shall affirm a trial court’s judgment that is legally correct on

other grounds, that is, one that achieves the right result for the wrong reason, because such an

error is not prejudicial.” Cook Family Invests. v. Billings, 9th Dist. Nos. 05CA008689 &

05CA008691, 2006-Ohio-764, ¶ 19. By its own terms, the broker agreement here was set to

expire on September 21, 2011, unless Ohio Metal/Glause achieved gross sales in excess of

$300,000. The testimony set forth at the September 22, 2011 hearing supports the conclusion

that Ohio Metal/Glause failed to do so. The broker agreement specifically defined “gross sales”

as “sales in which the cash is in hand.” Ohio Metal/Glause only received $206,213.56 “cash in

hand” from the sale of the steel inventory during the one-year period established by the broker

agreement. Because they only achieved $206,213.56 in gross sales, Ohio Metal/Glause did not

satisfy the condition necessary to trigger a six-month extension of the broker agreement.

Therefore, regardless of any breach that might have occurred, the broker agreement expired by

its own terms on September 21, 2011.
                                                11


       {¶24} Ohio Metal and Glause were not entitled to a six-month extension of the broker

agreement. The agreement expired when they failed to meet the condition necessary to trigger

the extension. Therefore, Ohio Metal and Glause were not prejudiced by the trial court’s

termination of the broker agreement. Ohio Metal and Glause’s second assignment of error in

Appeal No. 26240 is overruled.

                      Appeal No. 26625 Assignment of Error Number One

       THE TRIAL COURT ERRED, TO THE PREJUDICE OF OHIO METAL,
       CONTRARY TO OHIO CIV.R. 6(D), SUMMIT COUNTY COMMON PLEAS
       LOCAL RULE 7.14(A) AND IN VIOLATION [OF] OHIO METAL’S DUE
       PROCESS RIGHTS, BY GRANTING ORDERS WITHOUT PROVIDING
       REQUIRED NOTICE.

       {¶25} In their first assignment of error in Appeal No. 26625, Ohio Metal and Glause

argue that the trial court erred by issuing its June 29, 2012 order and August 14, 2012 decision.

Specifically, they argue that they did not receive sufficient notice of and opportunities to respond

to the motions upon which the order and decision were based.

       {¶26} Civ.R. 6 sets forth the general notice provision that applies to written motions.

That rule provides that “[a] written motion, other than one which may be heard ex parte, and

notice of the hearing thereof shall be served not later than seven days before the time fixed for

the hearing, unless a different period is fixed by these rules or by order of the court.” Former

Civ.R. 6(D). “Underlying this rule is the premise that the party opposing the motion must have

sufficient notice and opportunity to respond to avoid undue prejudice.” Portage Broom & Brush

Co. v. Zipper, 9th Dist. No. 16409, 1994 WL 440441, *1 (Aug. 17, 1994). In a similar vein, the

Summit County Local Rules provide that “[a]t any time after fourteen (14) days from the date of

filing of [a] motion, the assigned judge may rule upon the motion. In the interest of justice, the

assigned judge may enter a ruling at an earlier date if so required.” S.C.C. 7.14(A).
                                                12


The June 29, 2012 Order

        {¶27} The trial court’s June 29, 2012 journal entry ordered Ohio Metal and Glause to

“provide [All-In] with uninterrupted access to the steel inventory owned by [All-In] from July 23

through July 27, 2012, from 8:00 a.m. to 5:00 p.m.” The court issued the order in response to a

motion All-In filed on June 21, 2012. Ohio Metal and Glause argue that the trial court’s order

violated Civ.R. 6 and S.C.C. 7.14(A) because the court issued it only eight days after All-In filed

its motion.

        {¶28} “Appellate courts will not review questions that do not involve live

controversies.” Aurora Loan Servs. v. Kahook, 9th Dist. No. 24415, 2009-Ohio-2997, ¶ 6. The

only effect of the court’s June 29, 2012 order was to provide All-In with access to its steel

inventory.    There is no dispute that All-In successfully retrieved its inventory from Ohio

Metal/Glause in July 2012. Therefore, no live controversy exists with respect to the court’s June

29, 2012 order. Ohio Metal and Glause’s argument is moot, and we decline to address it. See id.

at ¶ 6-7.

The August 14, 2012 Decision

        {¶29} The trial court’s August 14, 2012 decision resolved several pending motions.

Relevant to the argument here, the decision imposed sanctions and attorney fees against Ohio

Metal and Glause in response to a request for the same in All-In’s June 21, 2012 motion; the

same motion that led to the court’s aforementioned June 29, 2012 order. In its motion, All-In

sought sanctions and fees based on its assertion that Ohio Metal/Glause had denied it access to

its steel inventory on no less than 11 occasions when All-In attempted to retrieve it. According

to Ohio Metal and Glause, “[i]t should have been assumed” that the court denied All-In’s request

for sanctions and fees when the court entered its June 29, 2012 order without addressing the
                                                 13


request. Ohio Metal and Glause argue that the court failed to notify them of its intention to

address the issue of sanctions and fees at a later time and imposed them without giving Ohio

Metal and Glause a sufficient opportunity to respond.

       {¶30} The record reflects that, on July 10, 2012, Ohio Metal/Glause filed a

memorandum in opposition to All-In’s June 21, 2012 motion. The memorandum in opposition,

filed 11 days after the trial court’s ruling on All-In’s motion for access to its inventory, included

a response on the issue of sanctions and also included a motion for sanctions against All-In.

Further, Ohio Metal/Glause filed a motion to vacate on July 24, 2012. In that motion, Ohio

Metal/Glause specifically asked the court to reconsider All-In’s June 21, 2012 motion at an

upcoming hearing the court had scheduled for August 7, 2012. The items Ohio Metal and

Glause filed with the court, therefore, sought to place the issue of sanctions and fees before the

court for its consideration.

       {¶31} Further, at the scheduled August 7, 2012 hearing, the court discussed all the

motions pending before it. The following exchange took place:

       THE COURT: There’s a motion for sanctions that hasn’t been addressed yet by
       the Court, motion for sanctions and attorney[] fees * * *. I didn’t rule on the
       motion for sanctions and attorney[] fees based on the alleged 11 times [All-In]
       had to try to set up obtaining this access, so maybe we should have Mr. Glause on
       the stand.

       [OHIO METAL/GLAUSE’S COUNSEL]: Then that’s what we’ll do, Your
       Honor.

       THE COURT: All right.

       [OHIO METAL/GLAUSE’S COUNSEL]: All right. With that said, Mr. Glause,
       would you take the witness stand, please.

Ohio Metal/Glause never objected to the court’s consideration of All-In’s request for sanctions

and fees at the hearing. They also never indicated that they did not understand the basis for All-
                                               14


In’s request. Instead, both sides presented evidence at the hearing with regard to whether Ohio

Metal/Glause had denied All-In access to its inventory on multiple occasions.

       {¶32} The trial court did not rule upon All-In’s June 21, 2012 request for sanctions and

attorney fees until August 14, 2012, well after the deadlines contained within Former Civ.R.

6(D) and S.C.C. 7.14(A). Moreover, the record does not support Ohio Metal and Glause’s

assertion that they did not have a sufficient opportunity to respond to All-In’s request for

sanctions and fees. Ohio Metal/Glause discussed the sanction issue in several items they filed.

They also indicated that they were prepared to go forward on All-In’s motion for sanctions and

fees at the August 7, 2012 hearing and presented evidence on that issue. The record does not

support Ohio Metal and Glause’s argument that the court ruled upon All-In’s motion for

sanctions and attorney fees without first providing them notice and an opportunity to respond.

Ohio Metal and Glause’s first assignment of error in Appeal No. 26625 is overruled.

                      Appeal No. 26625 Assignment of Error Number Two

       THE TRIAL COURT ERRED, TO THE PREJUDICE OF OHIO METAL, BY
       GRANTING THE PART OF THE AUGUST 14 ORDER THAT IMPOSED
       ATTORNEY’S FEES AND SANCTIONS AGAINST OHIO METAL.

                     Appeal No. 26625 Assignment of Error Number Four

       THE TRIAL COURT ERRED, TO THE PREJUDICE OF OHIO METAL, BY
       DENYING ITS MOTION FOR SANCTIONS.

       {¶33} In their second and fourth assignments of error in Appeal No. 26625, Ohio Metal

and Glause argue that the trial court erred by granting All-In’s motion for sanctions and fees and

by denying their motion for sanctions.

       {¶34} Initially, we reject Ohio Metal and Glause’s assertion that the trial court lacked

jurisdiction to grant All-In’s request for sanctions and fees. Ohio Metal and Glause appealed

from the trial court’s November 29, 2011 decision in Appeal No. 26240 and were granted a
                                                15


partial remand so that the trial court could rule upon their motion to vacate and/or clarify that

decision. Post-remand, All-In filed its motion for sanctions and fees. Ohio Metal and Glause

argue that the court lacked jurisdiction to consider All-In’s motion because the remand was

limited to the trial court’s consideration of Ohio Metal and Glause’s motion to vacate and/or

clarify its November 29, 2011 decision.2 It is true that “[o]nce a case has been appealed, the trial

court loses jurisdiction except to take action in aid of the appeal.” In re S.J., 106 Ohio St.3d 11,

2005-Ohio-3215, ¶ 9. A trial court, however, “retains jurisdiction over issues not inconsistent

with the appellate court’s jurisdiction to reverse, modify, or affirm the judgment appealed from.”

King v. King, 9th Dist. No. 11CA0109-M, 2012-Ohio-5926, ¶ 4. The first appeal in this instance

arose from the trial court’s ruling that the broker agreement was terminated and All-In’s steel

inventory had to be returned to it due to Ohio Metal/Glause’s breach of the settlement agreement.

The court’s award of sanctions and fees arose as a result of Ohio Metal/Glause’s refusals to

comply with the court’s command to provide All-In with access to its steel inventory. The

court’s award, therefore, was not inconsistent with this Court’s jurisdiction. See Cardone v.

Cardone, 9th Dist. No. 18873, 1998 WL 597704, *3 (Sept. 2, 1998).                 We reject Ohio

Metal/Glause’s jurisdictional challenge.

       {¶35} “[C]ourts possess the inherent power to do all things necessary to the

administration of justice and to protect their own powers and processes.” Latson v. Chrysler

Corp., 9th Dist. No. 19478, 2000 WL 762793, *1 (June 14, 2000). “A knowing failure to obey

the lawful order of the court is a ground for a finding of contempt.” Schaffter v. Rush, 9th Dist.




2
  Ohio Metal and Glause’s jurisdictional challenge appears not to extend to their fourth
assignment of error, wherein they argue that the court erred by denying their own post-remand
motion for sanctions.
                                                   16


04CA0028-M, 2004-Ohio-6542, ¶ 22. A court may order a party to pay sanctions and attorney

fees for the party’s failure to comply with the court’s prior order. Latson at *2.

        {¶36} Brent Meyer, an agent for All-In, testified at the August 7, 2012 hearing that,

despite a judgment in its favor and two court orders ordering that it be given access to its

inventory, All-In was never able to gain uninterrupted access to its steel inventory prior to the

court’s June 29, 2012 order. Meyer described his interaction with Glause on several occasions

and testified that Glause continually placed conditions upon All-In’s removal of its inventory.

Specifically, Glause indicated that Ohio Metal wanted to be compensated for storing the

inventory, for supervising the removal of the inventory, and for the disruption to Ohio Metal’s

business. Meyer testified that he personally had made five to six trips to Ohio Metal’s Akron

facility from Cincinnati to try to retrieve All-In’s steel.

        {¶37} Glause testified on behalf of Ohio Metal at the hearing and stated that Ohio Metal

never denied All-In access to its inventory.            He further testified that Ohio Metal never

conditioned the removal of the inventory upon things such as payment for its storage. According

to Glause, he was available for All-In to remove its inventory on numerous occasions, but, on

those occasions, either no one from All-In appeared or someone appeared but was unprepared to

actually move the steel inventory from Ohio Metal’s facility. Glause admitted that he told Meyer

that, before All-In retrieved its steel, Ohio Metal wanted proof of insurance from All-In, a release

bonding it from any damage to Ohio Metal’s property as a result of the removal, a letter

explaining how All-In planned on “paying [Ohio Metal the] fees that [All-In] ha[d] cost [it],” and

a document to memorialize all of the foregoing. According to Glause, however, the items

“weren’t necessarily conditions,” but were “fair and reasonable things for any business person”

to request.
                                                 17


       {¶38} All-In sought sanctions and fees against Ohio Metal/Glause due to the efforts it

expended “in repeatedly attempting to retrieve its own steel inventory.” Meanwhile, Ohio

Metal/Glause moved for sanctions on the basis that it had incurred expenses due to All-In’s

failure to timely remove its inventory. The trial court specifically noted in its decision that it had

not found Glause to be a credible witness.         The court found that Ohio Metal/Glause had

repeatedly denied All-In access to its inventory by placing conditions on the inventory’s return

and had acted “in a generally uncooperative matter.” The court held that “Glause’s actions fly in

the face of this Court’s rulings and amount to clear contempt of the November 29, 2011 Order.”

Consequently, the court granted All-In’s motion for sanctions and fees, denied Ohio

Metal/Glause’s motion for sanctions, and ordered Glause to pay to All-In “a total of $4,500.00

representing sanctions and reasonable attorney fees expended in repeated attempts to retrieve its

steel inventory.”

       {¶39} Having reviewed the record, we cannot conclude that the court erred by granting

All-In’s motion for sanctions and by denying Ohio Metal/Glause’s motion. Despite the court’s

original ruling in November 2011 and several subsequent orders ordering Ohio Metal/Glause to

provide All-In access to its steel inventory, Ohio Metal/Glause continued to impede All-In’s

attempts to retrieve its inventory. The court did not err by concluding that Ohio Metal/Glause

were in contempt for knowingly failing to obey the court’s orders. See Schaffter, 2004-Ohio-

6542, at ¶ 22. It also did not err by awarding All-In sanctions and fees as a result of Ohio

Metal/Glause’s contempt. See Latson, 2000 WL 762793, at *2.

       {¶40} To the extent that Ohio Metal and Glause argue that the court failed to justify the

amount of the award it ordered with a proper analysis, we also reject that argument. Ohio Metal

and Glause’s only argument is that the trial court was required to perform an analysis under
                                               18


Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143 (1991), before it could award All-In

attorney fees. Bittner, however, was not a case involving a sanction for contempt. The trial

court here awarded a flat sanction of $4,500 against Ohio Metal and Glause and described the

award as “representing sanctions and reasonable attorney fees expended.” The court did not

conduct an attorney fee hearing or premise the size of the award upon the rate All-In’s attorney

charged or the hours he expended. Rather, the court simply sought to impose a penalty upon

Ohio Metal and Glause for their failure to comply with its orders. Ohio Metal and Glause have

not pointed this Court to any authority standing for the proposition that, before a court may

award a sanction for contempt, it is required to perform a Bittner analysis. See App.R. 16(A)(7).

As this Court has repeatedly held, “[i]f an argument exists that can support [an] assignment of

error, it is not this [C]ourt’s duty to root it out.” Cardone, 1998 WL 224934, at *8. Ohio Metal

and Glause’s second and fourth assignments of error in Appeal No. 26625 are overruled.

                     Appeal No. 26625 Assignment of Error Number Three

       THE TRIAL COURT ERRED, TO THE PREJUDICE OF OHIO METAL, BY
       DENYING ITS MOTION TO VACATE JUDGMENT OR CLARIFICATION.

       {¶41} In their third assignment of error in Appeal No. 26625, Ohio Metal and Glause

argue that the trial court erred by denying their motion to vacate and/or clarify its November 29,

2011 decision.

       {¶42} As previously set forth, “[a]ppellate courts will not review questions that do not

involve live controversies.” Kahook, 2009-Ohio-2997, at ¶ 6. The trial court’s November 29,

2011 decision found Ohio Metal/Glause to be in breach of the settlement agreement and ordered

them to allow All-In to retrieve its inventory. There is no dispute that All-In retrieved its

remaining inventory in July 2012. All-In never sought to undo any of the sales that Ohio

Metal/Glause made to Barberton Steel Industries. All-In accepted the money from all of the
                                                19


sales that took place. The relief All-In sought was limited to a return of its remaining steel

inventory. Because All-In retrieved its remaining inventory in July 2012, no live controversy

remains. Ohio Metal and Glause’s third assignment of error in Appeal No. 26625 is, therefore,

moot, and we decline to address it.

                                                III

       {¶43} Ohio Metal and Glause’s first and second assignments of error in Appeal No.

26240 are overruled. Their first, second, and fourth assignments of error in Appeal No. 26625

are overruled, and their third assignment of error in that appeal is moot. The judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                          20


      Costs taxed to Appellants.




                                               BETH WHITMORE
                                               FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

SIDNEY N. FREEMAN, Attorney at Law, for Appellants.

MARK W. BERNLOHR and ALAN M. MEDVICK, Attorneys at Law, for Appellees.

JAMES K. FERRIS, Attorney at Law, for Appellees.
