Court ordered to pay attorney fees and costs

Ohio Appellate Reports

Unpublished

ROGERS v. GOODYEAR TIRE & RUBBER CO., Unpublished Decision
(12-26-2006) 2006-Ohio-6854 TRIDO ROGERS,
PLAINTIFF-APPELLANT v. THE GOODYEAR TIRE & RUBBER COMPANY,
DEFENDANT-APPELLEE. No. 14-05-34. Court of Appeals of
Ohio, Third District, Union County. DATE OF JUDGMENT ENTRY:
December 26, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Civil Appeal from Common Pleas Court.

Judgment affirmed in part and reversed in part.

BYRON L. POTTS, Attorney at Law, Eric L. LaFayette,
Attorney at Law, Reg. #0077662, Columbus, OH, For
Appellant.

JOEL HLAVATY, Attorney at Law, Reg. #0027005, Cleveland,
OH 44114-1230, For Appellee.

OPINION

CUPP, J.

{¶ 1} Plaintiff-appellant, Trido Rogers (“Rogers”),
appeals the judgment of the Court of Common Pleas of Union
County granting defendant-appellee The Goodyear Tire &
Rubber Company’s (“Goodyear”) motion to enforce the
parties’ settlement agreement.

{¶ 2} On June 13, 2003, Rogers filed a complaint
against Goodyear alleging employment discrimination. Rogers
voluntarily dismissed the original complaint under Civ. R.
41(A). Rogers later refiled a complaint against Goodyear.
Settlement negotiations followed and an agreement was
entered on May 24, 2005, However, Rogers alleged that he
never authorized the settlement and refused to abide by the
settlement.

{¶ 3} On June 13, 2005, Goodyear filed a motion to
enforce the settlement. Rogers filed a memorandum contra
admitting an oral agreement, but stating that he did not
believe the agreement was final until it was put into
writing. On July 25, 2005, the trial court held a hearing
on the motion. The trial court granted Goodyear’s motion
and ordered Rogers to pay attorney fees and costs to
Goodyear in the amount of $8,925 as a sanction. Rogers
appeals from this judgment and raises the following
assignments of error.

The trial court abused its discretion by not allowing
[Rogers] to question the credibility of [Goodyear’s]
witness during cross-examination.

The trial court abused its discretion by granting
sanctions against [Rogers] without allowing [Rogers] a
hearing on whether [Rogers’] actions constituted frivolous
conduct.

The trial court abused its discretion by not allowing
[Rogers] a separate damages hearing to properly address
[Goodyear’s] reasonable attorney fees.

{¶ 4} In his first assignment of error, Rogers
argues that the trial court abused its discretion when it
did not permit him to cross-examine his prior attorney,
Nicholas Kennedy (“Kennedy”), regarding credibility and
bias issues. “Cross-examination shall be permitted on all
relevant matters and matters affecting credibility.”
Evid.R, 611(B). The scope of cross-examination is a matter
within the sound discretion of the trial court. O’Brien v.
Angley (1980), 63 Ohio St.2d 159, 163, 407 N.E.2d 490, 17
O.O.3d 98. Consequently, the trial court’s decision “will
not be reversed unless that has been a clear and
prejudicial abuse of discretion.” Id., citations omitted.
Abuse of discretion implies that the trial court’s attitude
was unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219; 450 N.E.2d 1140.

{¶ 5} Kennedy testified regarding the settlement
negotiations between the parties. A review of the record
indicates that Rogers’ counsel questioned Kennedy
concerning the discussions between the two of them
regarding the settlement. Counsel then attempted to question
concerning the relationship between Kennedy and Rogers.
After several questions concerning the fact that Rogers had
filed a complaint against Kennedy with the Columbus bar
association, Goodyear’s counsel objected to relevance. This
objection was sustained. The trial court determined that
the issues of Kennedy’s alleged bias and lack of credibility
had already been addressed and no further discussion was
necessary. The record does not indicate that the trial
court abused its discretion in limiting cross-examination
of Kennedy. Thus, Rogers’ first assignment of error is
overruled.

{¶ 6} In his second assignment of error, Rogers
argues he did not get a hearing date regarding the
sanctions nor was he provided notice of the hearing. Rogers
further argues that he was not given sufficient notice or
time and that he was prejudiced by not being able to have a
full evidentiary hearing. R.C. 2323.51 provides in
pertinent part:

(B)(1) * * * at any time not more than thirty days after
the entry of final judgment in a civil action or appeal,
any party adversely affected by frivolous conduct may file
a motion for an award of court costs, reasonable
attorney’s fees, and other reasonable expenses incurred in
connection with the civil action or appeal. The court may
assess and make an award to any party to the civil action
or appeal who was adversely affected by frivolous conduct,
as provided in division (B)(4) of this section.

(2) An award may be made pursuant to division (B)(1) of
this section upon the motion of a party to a civil action
or an appeal* * * or on the court’s own initiative, but
only after the court does all of the following:

(a) Sets a date for a hearing to be conducted in
accordance with division (B)(2)(c) of this section, to
determine whether particular conduct was frivolous, to
determine, if the conduct was frivolous, whether any party
was adversely affected by it, and to determine, if an
award is to be made, the amount of that award;

(b)Gives notice of the date of the hearing described in
division (B)(2)(a) of this section to each party or
counsel of record who allegedly engaged in frivolous
conduct and to each party who allegedly was adversely
affected by frivolous conduct;

(c) Conducts the hearing * * * allows the parties and
counsel of record involved to present any relevant
evidence at the hearing * * * determines that the conduct
involved was frivolous and that party was adversely
affected by it, and then determines the amount of the
award to be made.

R.C. 2323.51.

{¶ 7} An appellate court reviews a trial’s courts
imposition of sanctions pursuant to R.C. 2323.51 under an
abuse of discretion standard. Lewis v. Celina

Fin. Corp, 101 Ohio App.3d 464, 471, 655 N.E.2d 1333. In
this case, the trial court sua sponte ruled to impose
sanctions of attorney fees. However, the hearing was held
on a motion to enforce a settlement agreement, not on a
request for sanctions. The trial court inquired into the
number of hours and costs for attorneys involved in
Goodyear’s motion to enforce settlement, and even took a
short recess to allow Goodyear’s counsel to obtain the
requested information. At no time prior to the hearing did
the trial court inform the parties that it was considering
sanctions against Rogers. No separate hearing date or
advance notice of the hearing as required under R.C.
2323.51(B)(2) was provided. Furthermore, the trial court
did not include any finding on the record that Rogers’
conduct was frivolous. Based upon the facts and
circumstances of this case, the trial court abused its
discretion in awarding attorney fees as a sanction pursuant
to R.C. 2323.51. Rogers’ second assignment of error is
sustained.

{¶ 8} Rogers third assignment of error claims that
the trial court erred in not granting him a separate
hearing to determine the reasonableness of the attorney fee
award. In light of our disposition of the second assignment
of error, holding that the award of attorney fees was
improper, Rogers’ third assignment of error is moot.

{¶ 9} The judgment of the Court of Common Pleas of
Union County is affirmed in part and reversed in part. The
matter is remanded to the trial court for further
proceedings in accord with this judgment.

Judgment affirmed in part and reversed in part.

BRYANT, P.J., and ROGERS, J., concur.