       [Cite as B.J. Alan Co. v. Andrews, 2011-Ohio-5165.]




                          STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


B.J. ALAN COMPANY,                               )
                                                 )       CASE NO.    10 MA 87
       PLAINTIFF-APPELLEE,                       )
                                                 )
       - VS -                                    )       OPINION
                                                 )
FRED ANDREWS, et al.,                            )
                                                 )
       DEFENDANTS-APPELLANTS.                    )


CHARACTER OF PROCEEDINGS:                            Civil Appeal from Common Pleas Court,
                                                     Case No. 05CV3942.

JUDGMENT:                                            Affirmed.

APPEARANCES:
For Plaintiff-Appellee:                              Attorney Timothy Jacob
                                                     Attorney C. Scott Lanz
                                                     201 East Commerce Street
                                                     Atrium Level Two
                                                     Youngstown, Ohio 44503-1641

For Defendants-Appellants:                           Attorney Michael Rossi
                                                     151 East Market Street
                                                     P.O. Box 4270
                                                     Warren, Ohio 44482

JUDGES:
Hon. Joseph J. Vukovich
Hon. Timothy Cannon,
      Judge of the Eleventh District Court
      Of Appeals, Sitting by Assignment
Hon. Mary Jane Trapp,
      Judge of the Eleventh District Court
      Of Appeals, Sitting By Assignment

                                                     Dated: September 30, 2011
                                                                                      -2-


VUKOVICH, J.

       ¶{1}   Defendant-appellant Fred Andrews, et al., appeals the decision of the
Mahoning County Common Pleas Court ordering him to pay attorney fees to plaintiff-
appellee B.J. Alan Co. due to B.J. Alan’s expenditures in enforcing an injunction
against Andrews in a contempt proceeding.           Appellant first argues that under the
original order, he was not required to pay attorney fees unless he wished to purge his
contempt. He states that said order was final and thus no later order can modify his
obligation to pay attorney fees from conditional to mandatory. He also asserts that a
procedural issue requires reversal, arguing that although he stipulated at a hearing
that $20,000 constituted reasonable attorney fees, the court improperly entered an
order for this amount without waiting for the issuance of a magistrate’s decision first.
For the following reasons, the judgment of the trial court is affirmed.
                               STATEMENT OF THE CASE
       ¶{2}   B.J. Alan received an injunction against appellant for violating a non-
compete clause. Thereafter, B.J. Alan filed a motion to show cause for violating the
injunction. On June 23, 2009, the magistrate agreed that appellant was in contempt of
the court’s prior order, finding:
       ¶{3}   “44. As a result of the Defendant’s violations of the injunction, Plaintiff
has been deprived of the remedy which this court ordered. The Courts finds that an
extension of the injunction for the 12 month period from the date this order is a
reasonable sanction and will restore the status quo which existed at the time of the
Magistrate’s Decision of June 1, 2006.
       ¶{4}   “45. The Court further finds that an award of attorney fees and costs
incurred by Plaintiff in prosecuting these contempt proceedings is appropriate and just.
An award of attorney fees is within the Court’s discretion. While proof of a willful and
intentional violation of the injunction is not a prerequisite to an award of attorney fees,
the Court notes that Defendants had actual notice of the injunction orders and
nevertheless continued to violate the restrictions ordered by the Court.”
       ¶{5}   In the Decision section of the order, the magistrate fined appellant $250,
sentenced him to thirty days in jail, and stated:
                                                                                      -3-


       ¶{6}      “5. Defendant may purge himself of contempt and avoid serving a jail
sentence by strictly complying with all the Orders set forth below:
       ¶{7}      “A. The Defendant Fred Andrews and Andbloom L.L.C. are refrained
from competing in the retail distribution of fireworks within the geographical area
specified in the Protective Agreement for a period of one year from the date of filing of
this decision;
       ¶{8}      “B. Defendants Andrews and Andbloom shall pay Plaintiff for attorney
fees and costs incurred in the prosecution of these contempt proceedings.              The
amount and reasonableness of the fees and costs will be determined at the hearing
presently scheduled * * *.”
       ¶{9}      The parties filed objections. B.J. Alan argued in part that paragraph 5 of
the Decision portion of the order appeared to make attorney fees conditional and
payable only if appellant wished to avoid jail. On March 8, 2010, the court summarily
overruled all objections, affirmed the magistrate’s decision, and adopted it as the order
of the court. The court then copied the Decision portion of the magistrate’s order into
its judgment entry.
       ¶{10} On April 9, 2010, B.J. Alan filed a motion for attorney fees incurred in the
prosecution of the contempt proceedings, attaching an affidavit and fee statements
totaling $25,055.22. B.J. Alan also filed a motion for reconsideration of the March 8,
2010 order asking that methods of purging be ordered unconditional and not just as
ways to avoid jail. Appellant’s only response to the reconsideration motion was that
the March 8, 2010 order was final and thus could not be modified by reconsideration.
       ¶{11} On April 26, 2010, the magistrate held a compliance hearing. A decision
was entered that same day finding that appellant failed to purge himself of contempt
because he was still in competition with B.J. Alan. The magistrate then imposed the
thirty-day jail sentence. The court adopted the magistrate’s decision the same day.
       ¶{12} According to both parties’ admissions on appeal, the parties entered a
stipulation at the hearing before the magistrate agreeing that $20,000 was a fair and
reasonable amount for attorney fees and this was done in lieu of requiring an “amount
and reasonableness” hearing. The magistrate did not enter a decision regarding this
topic. On April 26, 2010, the trial court signed an order, which was date-stamped the
                                                                                      -4-


next day. This entry stated that the matter came before the court on consideration of
B.J. Alan’s motion for attorney fees filed on April 9, 2010. The court ruled that $20,000
was fair and reasonable in the prosecution of the case and ordered judgment against
appellant in this amount stating that execution may issue forthwith. Appellant filed
timely notice of appeal from this order, and sets forth the following assignment of error:
       ¶{13} “THE TRIAL COURT ERRED IN ENTERING JUDGMENT AGAINST
DEFENDANT, FRED ANDREWS, ‘IN THE AMOUNT OF $20,000 [AND COSTS], AND
FOR ALL OF WHICH EXECUTION MAY ISSUE FORTHWITH.’”
       ¶{14} As appellant breaks his arguments into three separate issues presented,
we shall present our decision accordingly.
                              FIRST ISSUE PRESENTED
       ¶{15} “Where reversal is supported by conceded or controlling facts which
were not substantially disputed below, the appellate court should render the judgment
which the trial court ought to have rendered.”
       ¶{16} Appellant urges here that the attorney fees mentioned in the March 8,
2009 entry were conditional in nature and that if appellant did not wish to purge his
contempt but rather chose to serve his thirty-day jail sentence, then he was not
obligated to pay the fees. He contends that the hearing where he stipulated that
$20,000 was a reasonable amount in fees merely occurred in case he elected not to
purge. Appellant thus claims that the language in the court’s April 27, 2010 order, that
execution can occur forthwith, was a mistake that we should merely delete.
       ¶{17} Initially, we point out that appellant’s argument is focused on paragraph 5
of the Decision portion of the magistrate’s June 23, 2009 order.            However, he
overlooks paragraph 45 finding that attorney fees were appropriate in this case. The
trial court adopted the magistrate’s decision in whole. Thus, there was an attorney
fees entitlement without regard to the language of the Decision portion of the
magistrate’s order that the court copied into its judgment entry.
       ¶{18} Regardless, paragraph 5 of the Decision, which was copied into the
court’s judgment entry, did not provide that appellant had no obligation to pay attorney
fees if he chose to go to jail. There are two important points to be made about the
opening sentence of paragraph 5. First, it states that jail can be avoided by complying
                                                                                     -5-


with “Orders” set forth thereafter, one of which was payment of attorney fees. This
means that the attorney fees constituted an order itself, not just a condition of purging.
Second, the decision states that the “jail sentence” could be avoided by complying with
certain orders; it did not state that attorney fees could be avoided.
       ¶{19} Finally, even if it were originally only a purge condition, the court later
stated that the attorney fees were subject to immediate execution.          There is no
indication that this was a mistake. Notably, B.J. Alan had sought reconsideration so
that this matter could be clarified. Moreover, B.J. Alan had simultaneously filed a
motion for attorney fees, on which the court was ruling. “A trial court may, within its
discretion, include attorney fees as part of the costs taxable to a defendant found guilty
of civil contempt.” Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho
(1990), 52 Ohio St.3d 56, 67. In any event, appellant does not argue that imposition of
attorney fees is erroneous or substantively unwarranted in this case.         Rather, he
focuses on more procedural aspects of the case.           This leads to appellant’s next
argument.
                             SECOND ISSUE PRESENTED
       ¶{20} “After the time for appeal has run, a trial court’s final judgment may be
attacked only via Civil Rule 60(B), not by some ancillary post-judgment motion.”
       ¶{21} Here, appellant contests B.J. Alan’s ability to file the motions for
reconsideration and for attorney fees after the entry of the March 8, 2010 judgment.
Appellant states that the court’s entry adopting the magistrate decision was a final
order, which should have been appealed (or protested by way of Civ.R. 60(B) motion
for relief from judgment). He urges that by failing to do so, the motions were nullities
and the court’s April 27, 2010 is likewise a nullity.
       ¶{22} A contempt order is not final unless it contains both a finding of contempt
and the imposition of a sanction.       In re Estate of Orville, 7th Dist. Nos. 04MA97,
04MA100, 2004-Ohio-6510, ¶36; Board of Trustees of Chester Twp. v. Baumgardner,
11th Dist. No. 2002-G-2430, 2003-Ohio-4361, ¶11.            Where the contempt order
imposes a conditional sanction with the opportunity to purge, it is not final until the
opportunity to purge has been removed. Carroll Cty. Bur. of Support v. Brill, 7th Dist.
No. 05CA818, 2005-Ohio-6788, ¶22, citing Davis v. Davis, 11th Dist. No. 2004-G-
                                                                                    -6-


2572, 2004-Ohio-4390, ¶6;. Baumgardner, 11th Dist. No. 2002-G-2430 at ¶12 (a
conditional order of sentence is not the same as the imposition of sentence). Here,
the March 8, 2010 judgment entry contained a conditional imposition of sentence only.
       ¶{23} Additionally, the order specifically set the case for further hearing on the
amount of attorney fees. Thus, neither the purge order itself nor the attorney fees
issue was final at that time. “The mere finding that a party is entitled to attorney fees
from another party is not a final appealable order for purposes of review until the
amount of attorney fees is actually ordered.” Dayton Women’s Health Ctr. V. Enix
(1993), 86 Ohio App.3d 777, 780. As such, B.J. Alan’s motion for attorney fees was
not filed post-judgment. Similarly, the reconsideration request was not improper as the
court’s March 8, 2010 judgment entry was still interlocutory at that time. As such, the
order was subject to modification, and/or the motion for attorney fees was properly
filed while the contempt proceedings were still pending.
                              THIRD ISSUE PRESENTED
       ¶{24} “Under Civil Rule 53(D), a court judgment is voidable if entered without
the benefit of magistrate decision or transcript of proceedings.”
       ¶{25} Appellant briefly argues that the case should be remanded for a
magistrate’s decision memorializing the stipulation to the amount of attorney fees. He
cites Erb v. Erb (1989), 65 Ohio App.3d 507 for the proposition that a court cannot
adopt a magistrate’s recommendation after a trial before a magistrate where no
magistrate’s decision was ever filed and no transcript of proceedings had been
prepared for the trial court’s review since there is a lack of information upon which a
decision can be reached.
       ¶{26} B.J. Alan responds by citing In re Estate of Hughes (1994), 94 Ohio
App.3d 551 for proposition that a failure to comply Civ.R. 53 constitutes grounds for
reversal only if the appellant shows the alleged error has merit and the error worked to
the prejudice of appellant. Appellant replies that no prejudice was found in Hughes
because the procedural irregularities were irrelevant since the appellant eventually had
the opportunity to object to all portions of the magistrate’s decision, but here, he had
no opportunity to object.
                                                                                      -7-


       ¶{27} Initially, we point out that the only portion of the court’s decision that
related to a topic discussed at the magistrate’s hearing was the amount of attorney
fees. The decision regarding whether attorney fees would be solely a purge condition
or also an unconditional obligation was a legal decision before the court pursuant to
various motions. (See prior issue presented.) Merely because a magistrate is hearing
factual issues does not preclude a court from making legal decisions on motions filed
concerning its interlocutory orders.
       ¶{28} It is thus the trial court’s ability to enter a decision on attorney fees that
appellant contests here. As aforementioned, appellant does not contest the amount
per se but contests the court’s ability to put on the order setting the amount when the
court did not have a magistrate’s decision before it; nor does appellant believe the
court had before it a transcript of proceedings. As B.J. Alan notes, the court did have
before it a motion for attorney fees requesting $25,055.02 supported by an affidavit
with fee statements attached, and no response was filed by appellant.
       ¶{29} More importantly, a stipulation existed. Because this case involves a
stipulation, it is distinguishable from Erb or Hughes. A stipulation eliminates any need
for proof of the issue. See, generally, Ish v. Crane (1862), 13 Ohio St. 574. Appellant
admits that he stipulated on the record that $20,000 was a reasonable amount for B.J.
Alan’s attorney fees in prosecuting the contempt proceedings.            We cannot find
prejudice to appellant in the court’s adoption of this stipulation. Appellant does not cite
us to a requirement that a stipulation must be made in some particular manner before
the judge who memorializes it.
       ¶{30} For instance, if a party admits on appeal that he stipulated to an issue in
chambers, he cannot expect to prevail on appeal merely because he never entered
the stipulation in writing or in front of a court reporter. He can contest that he ever
made such a stipulation, but he cannot admit that he did so and then ask for reversal
just for the sake of procedure. See, generally, Jackson v. Jackson (1865), 16 Ohio St.
163 (one cannot appeal a judgment to which they agreed). In fact, appellant admits
that he entered the stipulation on the record. Yet, appellant did not provide this court
with the transcript of proceedings before the magistrate to establish that the stipulation
                                                                                     -8-


was entered before a magistrate as opposed to the trial court or that the trial court was
not present at the hearing. See App.R. 9(B).
       ¶{31} In conclusion, prejudice is required in order for this court to reverse on
such a matter. See Hallworth v. Republic Steel Co. (1950), 153 Ohio St. 349, 357;
Elser v. Parke (1943), 142 Ohio St. 261, 272-273. Error in a civil case is harmless
unless it results in a situation that is inconsistent with substantial justice. Civ.R. 61.
See, also, Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150 (holding that
even where a court erred in refusing to grant summary judgment, the error will become
harmless later if the nonmovant thereafter provides evidence at trial).        Under the
particular facts of this case regarding an admission that a stipulation was entered
below agreeing that $20,000 was a reasonable amount for attorney fees (and an
undisputed affidavit establishing that over $25,000 was actually spent in fees), there is
no prejudice in the trial court entering a judgment finding that $20,000 was a
reasonable amount for attorney fees. The court’s action in journalizing a stipulation
here did not render a lack of substantial justice. See R.C. 2309.59 (reviewing court to
disregard certain errors).
       ¶{32} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Cannon, J., concurs.
Trapp, J., concurs.
