[Cite as Bowers v. Herron, 2016-Ohio-766.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



                                                      JUDGES:
BRANDY D. BOWERS, et al.                      :       Hon. John W. Wise, P.J.
                                              :       Hon. Patricia A. Delaney, J.
                      Plaintiffs-Appellees    :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
LISA A. HERRON, et al.                        :
                                              :
                 Defendants-Appellants        :       Case No. 15 CA 34
                                              :
DAVID M. BEST and                             :
SAM N. GHOUBRIAL, M.D.                        :
                                              :
                 Interested Third Parties     :       OPINION




CHARACTER OF PROCEEDING:                          Civil Appeal from the Court of Common
                                                  Pleas, Case No. 2013 CV 403


JUDGMENT:                                         Reversed and Remanded


DATE OF JUDGMENT ENTRY:                           February 26, 2016


APPEARANCES:

For Plaintiffs-Appellees                          For Defendants-Appellants

ROBERT S. ROBY                                    STEPHEN P. GRIFFIN
CURRY, ROBY & MULVEY CO., LLC                     MICHAEL J. KAHLENBERG
30 Northwoods Boulevard                           WINKHART, RAMBACHER & GRIFFIN
Suite 300                                         825 South Main Street
Columbus, Ohio 43235                              North Canton, Ohio 44720
[Cite as Bowers v. Herron, 2016-Ohio-766.]


Wise, P.J.,

         {¶1}   Appellants Sam N. Ghoubrial, M.D. and Attorney David M. Best appeal from

the May 19, 2015, decision of the Court of Common Pleas, Fairfield County, awarding

$1,525.00 to Defendants for attorney fees.

         {¶2}   Appellees did not file a brief in this matter.

                               STATEMENT OF THE FACTS AND CASE

         {¶3}   The relevant facts as taken from Appellants’ brief and the record are as

follows:

         {¶4}   The underlying civil action was filed on May 3, 2013, by Plaintiffs Brandy

Bowers and Bobby Reese against Defendants Lisa A. Herron and Steve Herron for

personal injuries sustained in a September 28, 2012, automobile collision.

         {¶5}   Appellant, Sam N. Ghoubrial, M.D. was one of Plaintiffs' treating physicians

and appeared for a videotaped trial deposition on November 4, 2014. During the

deposition, Defendants' Counsel asked nine (9) separate questions regarding Dr.

Ghoubrial's medical practice, including whether he is "referred" patients, his billing

practices, and the method of transportation Dr. Ghoubrial uses to travel to patient

appointments. (Deposition of Sam N. Ghoubrial, M.D. at pgs. 26-38, 50-51, 53, and 56).

Dr. Ghoubrial was instructed not to answer these questions by his counsel, David M. Best,

Esq. due to the sensitive and confidential nature of the information. (Ghoubrial Depo. pgs.

1-61).

         {¶6}   On December 9, 2014, Defendants filed a Motion to Compel Discovery, or

Alternatively, Motion to Strike relative to the unanswered questions at Dr. Ghoubrial's trial

deposition.
Fairfield County, Case No. 15 CA 34                                                     3


      {¶7}   Also on December 9, 2014, Defendants filed a Motion for Attorneys' Fees

and Costs against Dr. Ghoubrial and Attorney Best related to the Motion to Compel and

the nine unanswered questions from the deposition. The Motion for Attorneys' Fees

specifically asked the trial court to award fees for all costs incurred in conducting Dr.

Ghoubrial's deposition.

      {¶8}   On December 11, 2014, Defendants' Motions were opposed by Plaintiffs.

      {¶9}   On December 29, 2014, Dr. Ghoubrial filed a Brief in Opposition to

Defendants' Motion for Attorneys' Fees and Costs.

      {¶10} On January 12, 2015, after obtaining leave of court, Defendants filed their

Reply in Support of the Motions.

      {¶11} On January 22, 2015, the trial court entered an Order granting Defendants'

Motion to Compel (in part) and granting Defendants' Motion for Attorneys' Fees. In its

order, the trial court specifically ordered that Attorney Best compensate: 1) Defendants'

reasonable attorneys' fees, costs, and expenses arising from a follow-up deposition of Dr.

Ghoubrial upon the nine (9) unanswered questions from the November 4, 2014 Trial

Deposition; and, 2) Defendants' reasonable attorneys' fees for time spent preparing the

Motion to Compel, Motion for Attorneys' Fees and Costs, and the Reply in Support of the

Motions.

      {¶12} On February 4, 2015, Dr. Ghoubrial submitted sworn written responses to

each of the nine (9) pending questions from the Trial Deposition, answering each in turn.

      {¶13} On March 3, 2015, Plaintiffs and Defendants proceeded to trial.

      {¶14} On March 4, 2015, the jury rendered a defense verdict. (March 30, 2015

Judgment Entry on Verdict, hereinafter "Final Entry").
Fairfield County, Case No. 15 CA 34                                                          4


       {¶15} In the Final Entry, the trial court specifically noted that it was issuing a final

judgment upon all matters concerning the dispute:

              It is therefore ORDERED, ADJUDGED and DECREED that final

       judgment is entered in favor of Defendant on Plaintiff's Complaint. Court

       costs to Plaintiffs.

              This is a final appealable order and there is no just cause for delay.

       (emphasis added).

       {¶16} Neither Plaintiffs nor Defendants appealed the Final Entry.

       {¶17} On May 19, 2015, the trial court issued an Order in which it awarded

$1,525.00 to Defendants relative to their Motion for Attorneys' Fees.

       {¶18} Appellants David Best, Esq. and Sam N. Ghoubrial, M.D. now appeal,

assigning the following errors for review:

                                      ASSIGNMENTS OF ERROR

       {¶19} “I.    THE       TRIAL   COURT    ERRED      BY    PROCEEDING         WITHOUT

JURISDICTION FOLLOWING ITS MAY 19, 2015 FINAL JUDGMENT ENTRY

RESOLVING ALL CLAIMS SET FORTH IN THE COMPLAINT.

       {¶20} “II. THE TRIAL COURT ERRED IN AWARDING ATTORNEYS' FEES TO

APPELLEES WHEN IT CONSIDERED EVIDENTIARY MATERIALS NOT REFLECTED

IN THE RECORD.

       {¶21} “III. THE TRIAL COURT ERRED IN AWARDING ATTORNEYS' FEES TO

APPELLEES AGAINST APPELLANTS IN FAILING TO CONDUCT A HEARING.”
Fairfield County, Case No. 15 CA 34                                                         5


                                                  I.

       {¶22} In their First Assignment of Error, Appellants argue that the trial court did

not have jurisdiction to grant attorney fees in this matter. We disagree.

       {¶23} Upon review of the record, we find that the trial court ordered that attorney

fees be paid in its January 22, 2014, Judgment Entry to reimburse Defendants'

reasonable attorneys' fees, costs, and expenses arising from a follow-up deposition of Dr.

Ghoubrial upon the nine (9) unanswered questions from the November 4, 2014, trial

Deposition; and for Defendants' reasonable attorneys' fees for the time spent preparing

the Motion to Compel, Motion for Attorneys' Fees and Costs, and the Reply in Support of

the Motions.

       {¶24} Although Defendants did not present the trial court with the time records

requested until after final judgment in this matter, the court’s order was made prior to final

judgment in this case. We therefore find that the trial court had jurisdiction when it made

the decision to award attorney fees to Defendants.

       {¶25} Appellants’ First Assignment of Error is overruled.

                                               II., III.

       {¶26} In their Second and Third Assignments of Error, Appellant argues that the

trial court erred in considering evidence not in the record and in not conducting a hearing

prior to making an award of attorney fees. We agree.

       {¶27} Upon review of the record, we find that on March 10, 2015, pursuant to the

trial court’s Order of January 22, 2015, counsel for Defendants sent a letter to the trial

court which included an itemized list of expenses incurred, listing 8.5 hours spent and

$1,525.00 incurred. On May 19, 2015, the trial court filed an Order stating:
Fairfield County, Case No. 15 CA 34                                                       6


               The Court received Defendants’ affidavit on March 16, 2015. Upon

        the Court’s review of the expenses set forth therein, the Court finds that all

        such expenses were reasonable and specifically included only those fees,

        costs and expenses that were permitted by the Court’s January 22, 2015

        Entry. Therefore, pursuant to Defendants’ affidavit and the Court’s January

        22, 2015 Entry, the Court ORDERS that Attorney David M. Best

        compensate Defendants $1,525 for fees, costs, and expenses. Attorney

        David M. Best is to submit payment care of Defendants’ counsel Robert S.

        Roby on or before 30 days of the filing of this Order.

        {¶28} Civil Rule 37, Failure to make discovery: sanctions, provides in pertinent

part:

        (A) Motion for order compelling discovery

        Upon reasonable notice to other parties and all persons affected thereby, a

        party may move for an order compelling discovery as follows:

        ***

        (4) Award of expenses of motion. If the motion is granted, the court shall,

        after opportunity for hearing, require the party or deponent who opposed

        the motion or the party or attorney advising such conduct or both of them to

        pay to the moving party the reasonable expenses incurred in obtaining the

        order, including attorney's fees, unless the court finds that the opposition to

        the motion was substantially justified or that other circumstances make an

        award of expenses unjust.
Fairfield County, Case No. 15 CA 34                                                     7

      {¶29} In the case sub judice, the trial court did not provide an opportunity for

hearing in this matter prior to its award of attorney fees. This Court further takes issue

with the trial court’s treatment of the document provided to it from Atty. Roby as an

“affidavit” when same is nothing more than an itemized list of time and expenses.

      {¶30} Based on the foregoing, the trial court’s award of attorney fees and costs is

reversed, and this matter is remanded for an evidentiary hearing on the reasonableness

of the award.

      {¶31} For the forgoing reasons, the judgment of the Fairfield County Court of

Common Pleas is reversed and remanded for further proceedings consistent with the

law and this opinion.



By: Wise, P.J.,

Delaney, J., and

Baldwin, J., concur.



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