[Cite as Giusti v. Felten, 2014-Ohio-3115.]


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

GEORGE GIUSTI                                          C.A. Nos.      26611
                                                                      26695
        Appellant/Cross Appellee

        v.
                                                       APPEAL FROM JUDGMENT
SCOTT FELTEN, M.D., et al.                             ENTERED IN THE
                                                       COURT OF COMMON PLEAS
        Appellees/Cross Appellants                     COUNTY OF SUMMIT, OHIO
                                                       CASE No.   CV 2010 04 2909

                                  DECISION AND JOURNAL ENTRY

Dated: July 16, 2014



        MOORE, Presiding Judge.

        {¶1}     Plaintiff-Appellant/Cross-Appellee,    George     Giusti,    individually   and   as

Administrator of the Estate of Jason Rinehart, appeals from the August 2, 2012 judgment entry

of the Summit County Court of Common Pleas.                 Further, Defendants-Appellees/Cross-

Appellants, Scott Felten, M.D., Christ Kyriakedes, D.O., and General Emergency Specialists,

Inc. (“Appellees”) cross-appeal from the October 1, 2012 judgment entry of the Summit County

Court of Common Pleas. We affirm both judgments.

                                                 I.

        {¶2}      On March 8, 2005, Jason Rinehart was admitted to Akron General Medical

Center’s emergency department with severe back pain, vomiting, nausea, abdominal pain, and

some numbness in his right hand and left foot. While in the emergency room, Mr. Rinehart was

treated by Dr. William Kurtz and Drs. Felten and Kyriakedes. Because Mr. Rinehart had a

history of kidney stones, an abdominal and pelvic CT scan was performed, as well as a
                                                  2


urinalysis. Upon learning that the results of the CT scan were negative, Mr. Rinehart was

discharged and sent home. He died the next day from a ruptured aortic dissection.

          {¶3}   In 2010, George Giusti, individually and as Administrator of the Estate of Jason

Rinehart, refiled a wrongful death action alleging negligence against Appellees. After several

years of litigation, the matter proceeded to jury trial. During voir dire, Mr. Giusti challenged, for

cause, jurors number 1, 2, 4, and 6. The trial court denied these challenges for cause, and Mr.

Giusti then used his three peremptory challenges to remove jurors number 1, 2, and 4 from the

venire.

          {¶4}   Following trial, the jury rendered a unanimous verdict in favor of Appellees. Mr.

Giusti timely appealed, raising one assignment of error for our review. Additionally, Appellees

filed a cross-appeal, raising three assignments of error for our review.

                                                 II.

Appeal

                                   ASSIGNMENT OF ERROR

          THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN
          OVERRULING FOUR MOTIONS TO EXCUSE JURORS FOR CAUSE
          WHICH RESULTED IN A VERDICT THAT WAS NOT FREE FROM BIAS
          AND PREJUDICE[] AS THE JURORS CLEARLY INDICATED FACTS THAT
          DEMONSTRATED A PROPENSITY AND DANGER OF BIAS AND
          PREJUDICE[.]

          {¶5}   In his sole assignment of error, Mr. Giusti argues that the trial court erred in

overruling his motions to excuse jurors number 1, 2, 4, and 6 for cause because they

demonstrated a propensity of bias and prejudice in favor of Appellees.

          {¶6}   “A trial court has broad discretion in determining a prospective juror's ability to

be impartial.” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 94, citing State v. White,

82 Ohio St.3d 16, 20 (1998). “Former R.C. 2313.42(J) (now R.C. 2313.17(B)(9)) stated that
                                                  3


good cause exists for the removal of a prospective juror when ‘he discloses by his answers that

he cannot be a fair and impartial juror or will not follow the law as given to him by the court.’”

Id. “‘A prospective juror who has been challenged for cause should be excused if the court has

any doubt as to the juror’s being entirely unbiased.’” Id., quoting former R.C. 2313.43 (now R.C.

2313.17(D)); see State v. Cornwell, 86 Ohio St.3d 560, 563 (1999). As such, “[a] trial court's

ruling on a challenge for cause will not be disturbed on appeal absent an abuse of discretion.”

Maxwell at ¶ 94. A trial court abuses its discretion when it acts in an unreasonable, arbitrary, or

unconscionable manner. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Further,

when applying the abuse of discretion standard, an appellate court may not substitute its

judgment for that of the trial court. See Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993).

          {¶7}   “In cases where a juror gives conflicting answers regarding a possible bias, the

trial court must determine which answer truly reflects the prospective juror’s state of mind.”

Gurley v. Nemer, 9th Dist. Summit No. 21965, 2004-Ohio-5169, ¶ 6, citing State v. Jones, 91

Ohio St.3d 335, 339 (1991). “As long as a trial court is satisfied, following additional

questioning of the prospective juror, that the juror can be fair and impartial and follow the law as

instructed, the court need not remove that juror for cause.” Gurley at ¶ 6, citing Berk v.

Matthews, 53 Ohio St.3d 161, 169 (1990).

          {¶8}   In the present matter, Mr. Giusti challenges the impartiality of jurors number 1, 2,

4, and 6. Specifically, he argues that: (1) juror number 1 should have been excused for cause

because he indicated that he had similar medical issues to those in this case, and that “he did not

see how anyone could put that knowledge aside,” (2) juror number 2 should have been excused

for cause because he indicated that he would be distracted by work and that he was predisposed
                                                 4


to believing that 99.9% of doctors do the right thing, (3) juror number 4 should have been

excused for cause because she had a strong bias in favor of doctors, and (4) juror number 6

should have been excused for cause because she “has worked in the same institution for 38 years

as the Defendant Doctors and cannot be considered free from bias and prejudice.”

       {¶9}    In response, Appellees assert that Mr. Giusti has mischaracterized the jurors’

statements, and that “Mr. Giusti cannot cite to any portion of [the jurors’] respective voir dire

examinations in which the [t]rial [c]ourt would have any doubt about their commitment to being

fair and impartial jurors.”

Juror No. 1

       {¶10} Juror No. 1 stated that he had undergone heart surgery and was diagnosed with

connective tissue disease. Appellees’ attorney questioned him about the effect his medical

conditions may have upon his ability to be impartial at trial as follows:

       MS. DELGROS: That is an important fact, one of the facts that we’re going to be
       talking a lot about, and its role in Mr. Rinehart’s death. Your personal experience
       with bicuspid valve and connective tissue disease, is that going to affect your
       ability to be fair and impartial?

       [JUROR NO. 1]: No.

       MS. DELGROS: The decision of this jury has to be based on evidence that is
       presented in this courtroom and only this courtroom. You have personal
       experience with these disease processes. Can you set aside the knowledge that
       you gained about those disease processes and listen to and base your decision on
       the evidence here?

       [JUROR NO. 1]: I can set aside—I can listen to the facts. Can I set aside my
       own personal knowledge of what I know?

       MS. DELGROS: That is an almost impossible thing.

       [JUROR NO. 1]: I don’t think anybody can.

       MS. DELGROS: Can you base your decision on the evidence and not your own
       personal knowledge?
                                                  5


       [JUROR NO.1]: Yes.

(Emphasis added.)

       {¶11} Upon review of the totality of Juror No. 1’s testimony, we conclude that the trial

court did not abuse its discretion by refusing to remove him for cause from the jury. Juror No. 1

unequivocally indicated that he could be a fair and impartial juror regardless of his personal

medical conditions. Juror No. 1 also stated that he could listen to the evidence presented in this

case, and make a decision based upon it, instead of his personal knowledge.

Juror No. 2

       {¶12} Juror No. 2 stated that he is a senior vice-president of construction for a real estate

developer in Cleveland, Ohio, that he travels extensively, and receives 100 emails per day.

When questioned by Mr. Giusti’s attorney whether he is willing to be a juror, and if he thinks he

can do it without being distracted from the case, Juror No. 2 answered “[d]istractions aside, it is

part of being a citizen. If I have to do it, I have to do it.” Further, when asked if he believed that

“doctors need to live up to a certain standard of care and whether [he] favor[s] one side or the

other,” Juror No. 2 testified, “I think they do have to live up to a professional standard of care.

In my opinion, 99.9 percent they’re not in there to make hasty decisions.” (Emphasis added.)

Juror No. 2 was also asked if he “realize[s] that sometimes [doctors] make decisions that aren’t

right,” and he replied “[e]verybody is human[.]”

       {¶13} Upon review of the totality of Juror No. 2’s testimony, we conclude that the trial

court did not abuse its discretion by refusing to remove him for cause from the jury. Juror No. 2

never indicated that he would be too busy or distracted by work to perform his duties as a juror.

Additionally, while he stated a generally positive opinion of doctors, he added that doctors are
                                                 6


human, and that they have to live up to a standard of care, which clearly supports Mr. Giusti’s

position in this matter.

Juror No. 4

        {¶14} Juror No. 4 stated that she had recently returned from living in Thailand and

Shanghai for fifteen years. She expressed that, in Asia, people have high esteem for doctors and

it is almost unheard of to file a lawsuit. She also stated that her son-in-law is an ophthalmologist

and is worried about lawsuits. However, she agreed that everybody is human and makes

mistakes. Additionally, when asked if she favors doctors, Juror No. 4 answered “[n]o, because I

think we have—we shouldn’t just take the doctors’ * * * we don’t just take their word for it.”

Juror No. 4 did not describe any other experiences that would sway her opinion one way or the

other in this case.

        {¶15} Upon review of the totality of Juror No. 4’s testimony, we conclude that the trial

court did not abuse its discretion by refusing to remove her for cause from the jury. Although

Juror No. 4 may hold doctors in high esteem, she also acknowledged that they are human, and

that she would question them in certain situations. Further, Juror No. 4 indicated that she did not

favor doctors.

Juror No. 6

        {¶16} Juror No. 6 stated that she is employed with the Akron General Internal Medicine

Center of Akron, which is a resident teaching practice. Further, Juror No. 6 stated that she does

not “have a lot of dealings with the emergency room,” does not know either of the defendant

doctors, and works in a separate building from the emergency room. Mr. Giusti’s counsel

elicited the following testimony regarding whether Juror No. 6’s job would cause her to be

biased or partial toward Appellees:
                                        7


MR. WHITAKER: * * * Do you feel there is anything about your work that
might make you not want to find against—regardless of the facts, that you might
favor doctors a little more?

[JUROR NO. 6]: I would like to think not. I’m a pretty logical person.

MR. WHITAKER: Knowing that you have to go back after this trial to Akron
General, and know that one of the doctors may be also going back to Akron
General, would that cause you any concern?

[JUROR NO. 6]: No.

MR. WHITAKER: Would you be worried about what some of your other
workers would feel about you having ruled in favor of a Plaintiff?

[JUROR NO. 6]: No.

***

MR. WHITAKER: What exactly do you do in your job?

[JUROR NO. 6]: I’m a discharge clerk. When the patients leave the office, we
take care of the follow-up appointments, schedule tests, do all of that.

MR. WHITAKER: There will be some testimony or at least some discussion
about a nurse involved in the discharge process. Can you separate your
responsibilities and your duties in evaluating that discharge process?

[JUROR NO. 6]: Well, I think everybody, every department at Akron General,
their discharge process is totally different from each other. I would almost
guarantee that [the] ER discharge nurse process is nothing like ours.

MR. WHITAKER: I take it that is a yes?

[JUROR NO. 6]: That is a yes. They’re totally different, totally separate.

MR. WHITAKER: Would you feel comfortable if you were sitting—bringing
this lawsuit and it was a medical negligence case involving doctors from Akron
General, would you feel comfortable having jurors that feel the way you do?

[JUROR NO. 6]: I don’t know. I can’t answer that.

MR. WHITAKER: That’s a tough question. It is really, simply, do you think that
given everything about your background you have a tendency to favor the doctors
above the damages and above the claim that Mr. Giusti is bringing on behalf of
[Mr. Rinehart]?

[JUROR NO. 6]: I’d like to think not, but again, I’m only human too.
                                                8


       MR. WHITAKER: * * * Can you—can you do it, or can’t you do it? If you
       think that you can’t, then we need to know. If you feel you can—

       [JUROR NO. 6]: I think I can. * * *

(Emphasis added.) Appellees’ counsel then further questioned Juror No. 6 about her job with the

clinic as follows:

       MS. DELGROS: In this case, Jason Rinehart was referred to the internal
       medicine clinic when he was discharged from Akron General. How long have
       you worked at the clinic?

       [JUROR NO. 6]: About 15 years.

       MS. DELGROS: That would have encompassed the time period in 2005?

       [JUROR NO. 6]: Yes.

       MS. DELGROS: The name Jason Rinehart doesn’t sound familiar to you?

       [JUROR NO. 6]: No.

       MS. DELGROS: Does the fact that this patient was referred to you, where you
       worked, have impact on you whatsoever in your ability to be fair?

       [JUROR NO. 6]: No. Most patients that go to the emergency room that do not
       have a primary care physician, they are sent to us.

       MS. DELGROS:         Do you handle the patient’s scheduling appointments and
       follow[]up?

       [JUROR NO. 6]: Correct, correct.

       ***

       {¶17}     Upon review of Juror No. 6’s testimony, we conclude that the trial court did not

abuse its discretion by refusing to remove her for cause from the jury. Although Juror No. 6

works for a clinic affiliated with Akron General, she disclosed several important facts: (1) she

does not know either of the defendant doctors, (2) she works in a separate building, (3) she did

not know Mr. Rinehart, (4) she is a logical person and can separate her work from the facts of

this case, (5) she works in an administrative role as a discharge clerk, and (6) the fact that Mr.
                                                   9


Rinehart was referred to the internal medicine clinic, after being discharged from the ER, would

not affect her ability to be fair.

        {¶18} As previously stated, if the trial court is satisfied that a juror can be fair, impartial,

and follow the law as instructed, it need not remove that juror for cause. See Gurley, 2014-Ohio-

5169, at ¶ 6, citing Berk, 53 Ohio St. at 169. Therefore, because the testimony of Jurors number

1, 2, 4, and 6 did not indicate that they could not be fair and impartial jurors, or that they would

not follow the law as given to them by the trial court, we cannot say that the trial court acted

unreasonably, arbitrarily, or unconscionably in overruling Mr. Giusti’s challenges for cause.

        {¶19} Accordingly, Mr. Giusti’s sole assignment of error is overruled.

Cross-Appeal

                                     ASSIGNMENT OF ERROR I

        THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [CROSS-
        APPELLANTS’] MOTION FOR ATTORNEY’S FEES, EXPENSES AND
        COSTS[.]

                                     ASSIGNMENT OF ERROR II

        THE TRIAL COURT ABUSED IT DISCRETION IN DENYING [CROSS-
        APPELLANTS’] MOTION FOR ATTORNEY’S FEES, EXPENSES AND
        COSTS WITHOUT CONDUCTING A HEARING PURSUANT TO CIV.R.
        11[.]

        {¶20} In their first and second assignments of error, Cross-Appellants argue that the trial

court erred in denying their motion for attorney fees, expenses and costs pursuant to R.C.

2323.51 and Civ.R. 11. We review this matter for an abuse of discretion. See Ceol v. Zion

Indus., Inc., 81 Ohio App.3d 286, 291 (9th Dist.1992). An abuse of discretion implies that the

trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at

219.
                                                10


       {¶21} R.C. 2323.51(B)(1) proves that a court may award attorney fees to any party to a

civil action who is adversely affected by frivolous conduct. R.C. 2323.51(A)(2)(a) states that

“frivolous” conduct occurs when:

       (i) It 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[;]

       (ii) It is not warranted under existing law, cannot be supported by a good faith
       argument for an extension, modification, or reversal of existing law, or cannot be
       supported by a good faith argument for the establishment of new law[;]

       (iii) The conduct consists of allegations or other factual contentions that have no
       evidentiary support or, if specifically so identified, are not likely to have
       evidentiary support after a reasonable opportunity for further investigation or
       discovery[;] [or]

       (iv) The conduct consists of denials or factual contentions that are not warranted
       by the evidence or, if specifically so identified, are not reasonably based on a lack
       of information or belief.

“‘R.C. 2323.51 does not purport to punish a party for failing on a claim. Rather, it addresses

conduct that serves to harass or maliciously injure the opposing party in a civil action or is

unwarranted under existing law and for which no good-faith argument for extension,

modification, or reversal of existing law may be maintained.’” Harold Pollock Co., L.P.A. v.

Bishop, 9th Dist. Lorain No. 12CA010233, 2014-Ohio-1132, ¶ 19, quoting Indep. Taxicab Assn.

of Columbus, Inc. v. Abate, 10th Dist. Franklin No. 08CA-44, 2008-Ohio-4070, ¶ 22.

       {¶22} Civ.R. 11 states, in relevant part, that:

       The signature of an attorney or pro se party constitutes a certificate by the
       attorney or party that the attorney or party has read the document; 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. If a document is not
       signed or is signed with intent to defeat the purpose of this rule, it may be stricken
       as sham and false and the action may proceed as though the document had not
       been served. For a willful violation of this rule, an attorney or pro se party, upon
       motion of a party or upon the court’s own motion, may be subjected to
                                                 11


        appropriate action, including an award to the opposing party of expenses and
        reasonable attorney fees incurred in bringing any motion under this rule.

(Emphasis added.) Further, Civ.R. 11 specifically requires that the frivolous conduct be willful;

mere negligence is insufficient. See Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, ¶ 9

(1st Dist.).

        {¶23} Here, Cross-Appellants specifically allege that Mr. Giusti: (1) caused trial to be

postponed multiple times, (2) delayed identifying expert witnesses, and (3) repeatedly

stonewalled their attempts to depose his expert witnesses.

        {¶24} In denying Cross-Appellants’ motion, the trial court stated:

        The trial of this matter was cancelled and rescheduled many times for various
        reasons. This case was also plagued with discovery disputes and unnecessary
        motions practice. Nevertheless, upon a review of the totality of the circumstances
        of this case, there is no evidence that [Mr. Giusti or his attorney] acted maliciously
        or with an improper purpose in these proceedings and there is no just cause to
        further sanction [Mr. Giusti or his attorney] for delays in identifying and deposing
        expert witnesses because this Court already sanctioned [Mr. Giusti] by excluding
        certain witnesses during the course of these proceedings.

(Emphasis added.)

        {¶25}    Based upon the record before us, and because the same trial judge presided over

this case from its inception, and is especially familiar with the timing and nature of the pleadings,

we cannot say that the decision denying Cross-Appellants’ motion was unreasonable, arbitrary,

or unconscionable. See Ceol, 81 Ohio App.3d. at 292 (“The trial judge, of course, will have had

the benefit of observing the entire course of proceedings and will be most familiar with the

parties and attorneys involved. Consequently, a finding as to the commission of frivolous

conduct is entitled to substantial deference upon review.”)

        {¶26} Accordingly, Cross-Appellants’ first and second assignments of error are

overruled.
                                                12


                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [CROSS-
       APPELLANTS’] MOTION FOR ATTORNEY’S FEES, EXPENSES AND
       COSTS WITHOUT CONDUCTING A HEARING[.]

       {¶27} In their third assignment of error, Cross-Appellants’ argue that the trial court

erred in denying their motion without first conducting a hearing.

       {¶28} It is well-settled that “[a] trial court must hold a hearing before granting a motion

for sanctions.” (Emphasis sic.) Harold Pollock Co., L.P.A., 2014-Ohio-1132, at ¶ 20. However,

“[n]either R.C. 2323.51 nor Civ.R. 11 require a trial court to conduct a hearing before denying a

motion for attorney fees.” (Emphasis added.) Donaldson v. Todd, 174 Ohio App.3d 117, 2007-

Ohio-6504, ¶ 9 (10th Dist.), citing Capps v. Milhem, 10th Dist. Franklin No. 03AP-251, 2003-

Ohio-5212, ¶ 7; Ohio Dept. of Adm. Servs. v. Robert P. Madison Internatl., Inc., 138 Ohio

App.3d 388, 399 (10th Dist.2000); and Woodworth v. Huntington Natl. Bank, 10th Dist. Franklin

No. 95APE02-219, 1995 WL 723664, *5 (Dec. 7, 1995). “If a trial court determines that there is

no basis for an award of attorney fees, it may deny the motion without a hearing.” Donaldson at

¶ 9.

       {¶29} As stated above, the same trial judge presided over the entirety of the

proceedings and was fully aware of the issues relating to continuances and discovery. With this

knowledge, the trial court made a specific finding that there was no evidence of malice or

willfulness on the part of Mr. Giusti and his attorney. The record before us supports this finding.

Because there was no basis for awarding sanctions, we conclude that the trial court did not abuse

its discretion in denying Cross-Appellants’ motion without a hearing.

       {¶30} Accordingly, Cross-Appellants’ third assignment of error is overruled.
                                                13


                                                III.

       {¶31} In overruling Mr. Giusti’s sole assignment of error, the August 2, 2012 judgment

of the Summit County Court of Common Pleas is affirmed. In overruling Cross-Appellants’

first, second, and third assignments of error, the October 1, 2012 judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgments 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.

       Costs taxed equally to all parties.




                                                       CARLA MOORE
                                                       FOR THE COURT



HENSAL, J.
CARR, J.
CONCUR
                                      14



APPEARANCES:

WILLIAM T. WHITAKER, Attorney at Law, and ANDREA WHITAKER, Attorney at Law, for
Appellant/Cross Appellee.

STACY R. DELGROS, Attorney at Law, and DOUGLAS G. LEAK, Attorney at Law, for
Appellees/Cross Appellants.
