[Cite as Miller v. Evans, 2015-Ohio-4571.]


                                   COURT OF APPEALS
                                  STARK COUNTY, OHIO
                               FIFTH APPELLATE DISTRICT


ROBERT MILLER                                :   JUDGES:
                                             :
                                             :   Hon. John W. Wise, P.J.
       Plaintiff-Appellee                    :   Hon. Patricia A. Delaney, J.
                                             :   Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :   Case No. 2015CA00042
                                             :
NANCY EVANS                                  :
                                             :
                                             :
       Defendant-Appellant                   :   OPINION


CHARACTER OF PROCEEDING:                         Appeal from the Stark County
                                                 Court of Common Pleas,
                                                 Domestic Relations Division,
                                                 Case No. 2014DR00566



JUDGMENT:                                        REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                          November 2, 2015




APPEARANCES:

For Plaintiff-Appellee:                          For Defendant-Appellant:

CRAIG T. CONLEY                                  WARNER MENDENHALL
604 Huntington Plaza                             190 N. Union St., Ste. 201
220 Market Ave. South                            Akron, OH 44304
Canton, OH 44702
Stark County, Case No. 2015CA00042                                                      2

Delaney, J.

          {¶1} Defendant-appellant Nancy Evans ("Evans") appeals from the

February 18, 2015 Judgment Entry of the Stark County Court of Common Pleas,

Family Court Division. Plaintiff-appellee is Robert Miller ("Miller").

                       FACTS AND PROCEDURAL HISTORY

          {¶2} This case is related to but not consolidated with Robert Miller v.

Nancy Evans, 5th Dist. Stark No. 2015CA00044.             In that case, Miller is the

appellant and Evans the appellee.          The two appeals arise from the same

underlying case and raise different but related assignments of error. The facts

and procedural histories are therefore identical but we will address each appeal

in a separate opinion. The parties agree upon the following relevant facts and

procedural history.

          {¶3} In August 2013, Miller executed a Power of Attorney giving his

daughter, attorney Bobbie L. Marsh, fiduciary power to transact business on his

behalf.

          {¶4} On May 27, 2014, Miller filed a complaint for divorce against his

wife, Evans.1     Evans filed a counterclaim for divorce against Miller.2

          {¶5} In September 2014, Evans moved the trial court to determine the

validity of the Power of Attorney. On October 22, 2014, Miller dismissed his

complaint pursuant to Civ.R. 41(A)(1).3




1 Miller was represented by attorney Susan Pucci Sutton.
2 Evans was represented by attorney Arnold F. Glantz.
3 The dismissal was filed by attorney Craig Conley.
Stark County, Case No. 2015CA00042                                               3


       {¶6} On January 8, 2015, Evans voluntarily dismissed her counterclaim

pursuant to Civ.R. 41(A)(1).

       {¶7} On January 9, 2015, the trial court entered a Judgment Entry

stating in pertinent part:

              * * * *.

              Findings of Fact:

                         Ms. Marsh was properly served by subpoena on

              December 4, 2014 and failed to appear.           She demands

              witness fees paid in advance. Mr. Glantz argues that Ms.

              Marsh is a party as she filed, through alleged power of

              attorney, filed (sic) the initial complaint that brought this

              matter to court. While Ms. Marsh's actions in this case are

              found to be contrary to behavior expected of an attorney in

              this state (sic).

              Order:

                         The power of attorney was not valid when this case or

              the domestic violence case were filed.           Case number

              2014DV00051 is ordered sealed.              [Evans] moves to

              voluntarily     dismiss   her   counterclaim.    Case   number

              2014DR00566 is also ordered sealed.

              * * * *.

       {¶8} On January 20, 2015, attorney Marsh moved to strike the following

language from the court's Judgment Entry of January 9: "While Ms. Marsh's
Stark County, Case No. 2015CA00042                                                   4


actions in this case are found to be contrary to behavior expected of an attorney

in this state (sic)."4

        {¶9} On February 9, 2015, Evans moved for sanctions against Miller's

counsel pursuant to Civ.R. 11 and R.C. 2323.51 on the basis of the trial court's

finding that the Power of Attorney was not valid.5 Both attorneys responded with

memoranda in opposition.

        {¶10} On February 18, 2015, the trial court filed a Judgment Entry stating

in pertinent part:

                * * * *.

                Findings of Fact:

                           This case was closed on January 9, 2015 after the

                court found that the Power of Attorney was not valid and

                upon the dismissal of [Evans'] counterclaim for divorce.

                [Miller] previously dismissed his Complaint for divorce.

                           The Court was informed that there have been

                numerous filings since the closing of the case.       None of

                these filings appropriately opened a closed domestic

                relations case and therefore the court does not have

                jurisdiction to address same.

                Order:




4Attorney Craig Conley filed the motion to strike on behalf of attorney Marsh.
5The motion for sanctions was filed by attorney Warner Mendenhall on behalf of
Evans and was served upon attorneys Susan Pucci Sutton and Craig Conley.
Stark County, Case No. 2015CA00042                                                     5


                            All outstanding motions   dismissed for lack   of

                 jurisdiction.

                 * * * *.

       {¶11} In the instant appeal, Evans appeals from the trial court's Judgment

Entry of February 18, 2015, arguing the motion for sanctions survived the

dismissal and the trial court should have held a hearing thereon.

       {¶12} In the related appeal, Miller appeals from the trial court's judgment

entries of January 9 and February 18, 2015, arguing the trial court lacked

jurisdiction to issue either order because the case was dismissed in its entirety as

of January 8, 2015.

       {¶13} Evans raises one assignment of error:

                                 ASSIGNMENT OF ERROR

       {¶14} "THE DOMESTIC RELATIONS COURT DEPRIVED NANCY

EVANS OF HER RIGHTS TO DUE PROCESS WHEN IT DISMISSED HER

MOTION FOR SANCTIONS WITHOUT A HEARING."

                                        ANALYSIS

       {¶15} Evans argues the trial court erred in dismissing the motion for

sanctions. Miller agrees the trial court retained jurisdiction to decide the motion

for sanctions but argues a hearing on the motion is not necessarily required. We

agree with Miller and remand this matter to the trial court to determine the motion

for sanctions.

       {¶16} "* * * [A] sanction issue is a collateral issue to the underlying

proceedings." Barbato v. Mercy Med. Ctr., 5th Dist. Stark No. 2005 CA 00044,
Stark County, Case No. 2015CA00042                                                        6


2005-Ohio-5219, ¶ 29. If a motion for sanctions is before the court, the motion

may still be ruled upon even if the matter is voluntarily dismissed. Id. at ¶ 32,

citing Lewis v. Celina Financial Corp., 101 Ohio App.3d 464, 655 N.E.2d 1333

(3rd Dist.1995).

       {¶17} Allowing    the   trial   court   to   resolve   collateral   matters   in

circumstances such as these effectively provides a remedy for abuse of process.

Trial courts may consider collateral issues like criminal contempt and Civ.R. 11

sanctions despite a dismissal. State ex rel. Ahmed v. Costine, 100 Ohio St.3d 36,

2003-Ohio-4776, 795 N.E.2d 672, 673, ¶ 5 (2003), citing State ex rel. Hummel v.

Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853, ¶ 23; see also, State

ex rel. Fifth Third Mtge. Co. v. Russo, 129 Ohio St.3d 250, 2011–Ohio–3177, 951

N.E.2d 414, ¶ 13.       To hold otherwise would effectively leave an alleged

aggrieved party without a remedy to pursue a claim for frivolous conduct. ABN

AMRO Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No. 96120, 2011-Ohio-

5654, ¶¶ 20-21, citing State ex rel. J. Richard Gaier Co., L.P.A. v. Kessler, 97

Ohio App.3d 782, 785, 647 N.E.2d 564 (2nd Dist.1994). "Absent such a result, a

party could force a defendant to expend significant time and money to defend

against an arguably frivolous action and then dismiss that action just prior to trial

with little if any consequence. In that circumstance, the goal of Civ.R. 11 and its

statutory counterpart, R.C. 2323.51, which is to prevent parties from using the

judicial process to harass one another, would be significantly less achievable."

Kessler, supra, 97 Ohio App.3d at 566.
Stark County, Case No. 2015CA00042                                                       7


        {¶18} Evans further argues the trial court must resolve the motion with a

hearing; Miller disagrees.    We note a hearing is required only under certain

circumstances.    It has been uniformly held that a hearing on a motion for

sanctions under R.C. 2323.51(B)(2) is only required when the trial court grants

the motion. Galena v. Delaware Cty. Regional Planning Comm., 5th Dist.

Delaware No. 2011-CAE-07-0068, 2012-Ohio-182, ¶ 28 (Delaney, J. dissenting),

citing Shields v. City of Englewood, 172 Ohio App.3d 620, 2007–Ohio–3165, 876

N.E.2d 972 (2nd Dist.); McKinney v. Aultman Hosp., 5th Dist. Stark No. CA-8603,

unreported, 1992 WL 100451 (Apr. 27, 1992); McPhillips v. United States Tennis

Assoc. Midwest, 11th Dist. Lake No. 2006–L–235, 2007–Ohio–3595; Avon

Poured Wall, Inc. v. Boarman, 9th Dist. Lorain No. 04CA008448, 2004–Ohio–

4588; Coretext Ltd. v. Pride Media Ltd., 10th Dist. Franklin No. 02AP–1284,

2003–Ohio–5760. A trial court must schedule a hearing only on those motions

which demonstrate arguable merit; if the trial court determines there is no basis

for the imposition of sanctions, it may deny the motion without hearing. Id. at ¶

12. Such a determination is subject to the sound discretion of the trial court. Id. at

¶ 15.

        {¶19} To the extent that we find the trial court retained jurisdiction over

the motion for sanctions, Evans' sole assignment of error is sustained and the

matter is remanded to the trial court to rule upon the motion. We further note the

trial court must schedule a hearing on the motion for sanctions only if, within the

court's discretion, the motion demonstrates arguable merit.
Stark County, Case No. 2015CA00042                                            8


                                  CONCLUSION

       {¶20} Evans' sole assignment of error is sustained and the matter is

remanded to the Stark County Court of Common Please, Family Court Division,

for further proceedings in accord with this opinion.

By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.
