[Cite as Williams v. Hung,
2024-Ohio-5093.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
THOMAS WILLIAMS, :
Plaintiff-Appellee, :
No. 113363
v. :
MICHELLE HUNG, ET AL., :
Defendants-Appellees. :
[Appeal by Brian Bardwell, :
Defendant-Appellant] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 24, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-22-971623
Appearances:
Novak LLP and William J. Novak, for appellee Thomas
Williams.
UB Greensfelder LLP and Alvin E. Mathews Jr., for UB
Greenfelder LLP and Amanda Martinsek.
Hanna, Campbell & Powell, LLP, and John D. Latchney,
for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Appellant Brian Bardwell (“Bardwell”) brings the instant appeal
challenging the trial court’s award of sanctions in the form of attorney fees pursuant
to Civ.R. 45 and 11. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
In November 2022, Thomas Williams (“Williams”) filed a complaint
naming Michelle Hung (“Hung”) “individually and in her official capacity” as a
Lorain County Commissioner; Harry Williamson (“Williamson”), the 9-1-1 Director
for Lorain County; and Bardwell, an attorney who sued Williams on behalf of
Williamson in a separate action filed in Lorain County. Williams’s complaint alleged
claims for civil abuse of process, civil recovery for criminal acts, civil conspiracy, and
negligence. On January 23, 2023, Williams filed his first amended complaint,
alleging the same claims but attaching different exhibits and evidence thereto. The
first amended complaint alleged the following facts that we briefly summarize for
context.
A. The Factual Allegations Giving Rise to the Complaint
Williams was employed by Lorain County as County Administrator
from January 4, 2021, until he was terminated on August 18, 2021, “without cause.”
Williams alleged, however, that he was not fired without cause and the
“true motive” in his termination stemmed from his knowledge of a “sexual affair”
between Hung and Williamson while Hung was Williamson’s direct superior. The
complaint detailed that in June and July 2021, Hung confided in Williams that she
was having an affair with Williamson.
Williams alerted Dan Petticord, an Assistant County Prosecutor for
Lorain County, about the affair because Williams was concerned that Hung had
“breached and was continuing to breach her statutory and other legal obligations to
the citizens of Lorain County.” Williamson was terminated from his position on
August 3, 2021, and the affair was publicly reported in the local media.
After the affair became a matter of public knowledge, Hung was urged
to resign. Hung responded that she would not resign, called the exposure of the
affair a “political stunt,” and warned that anyone involved should “consider the
consequences.” One day later, on August 18, 2021, Williams was terminated from
his position.
Williams filed a lawsuit in the Northern District of Ohio (“the federal
suit”), alleging that his termination violated 42 U.S.C. § 1983 and various Ohio laws.
Williamson, represented by Bardwell, also filed a lawsuit in Lorain County
stemming from his termination (“the Lorain County lawsuit”), asserting claims for
whistleblower retaliation, interference with civil rights, wrongful termination,
tampering with evidence, spoliation, falsification, intimidation, and destruction of
public records.
The complaint in the instant matter alleged that the Lorain County
lawsuit was a sham that Bardwell had been using to relentlessly “blackmail” the
parties into a quick settlement. It also alleged that during the discovery phase of the
federal suit, Bardwell and Hung were deposed by Williams’s counsel but Bardwell’s
attorney did not appear for the deposition, so Bardwell lodged objections on his own
behalf and “adamantly and improperly refused to answer questions regarding his
source for . . . text messages and confidential executive session information.” The
complaint further alleged that during her deposition, Hung “falsely misrepresented
[information] under oath” and “improperly asserted the attorney-client privilege.”
The federal suit settled for $450,000, “without [Williams] having the
benefit of the information [from the Lorain County lawsuit].” Williams alleged that
the federal case would have
resolved for more money had [Williams] had the benefit of the
information which Defendants shielded by Defendant Hung’s
misrepresentations and by the improper assertion of privileges when
in fact that information was already available and used by all of the
Defendants in this matter for the purpose of filing the sham and
extortionary Lorain County complaint.
Williams’s first amended complaint, ¶ 27.
B. Bardwell’s Conduct After the Initial Complaint was Filed
Pertinent to the instant appeal, after the initial complaint was filed but
before any party had answered, Williams filed a motion seeking to disqualify
Bardwell from representing Williamson because Bardwell was also a named
defendant. Supplements to the motion further sought disqualification and brought
to light that Bardwell had issued at least 17 subpoenas to nonparties without
notifying Williams’s counsel or the parties that were implicated by the subpoenas.
Bardwell issued the subpoenas directly to various cell-phone providers
and requested an incredibly wide breadth of information. Copies of the subpoenas
that were made part of the record all requested the following items for the specific
phone number:
1. Subscriber billing & account information, including account notes;
2. Incoming and outgoing cell tower records;
3. Incoming and outgoing call detail records;
4. Incoming and outgoing text messages;
5. Incoming and outgoing text-message detail records;
6. Cell tower location information;
7. All stored photographic or video images; and
8. All stored voice mail messages
This subpoena seeks the above records for the period from
September 1, 2020 through August 21, 2021 . . . .
In addition to numerous nonparties, Bardwell also issued the
subpoena to Williams’s cell-phone provider.
C. The Motions to Quash the Subpoenas
Williams eventually filed a separate motion titled “emergency motion
to quash subpoenas and motion for sanctions against attorney Brian Bardwell with
request for oral hearing.” The motion asked the court to quash the various
subpoenas issued to various nonparty providers. The motion pertinently argued
that the subpoenas should be quashed and that sanctions were warranted because
(1) the nonparty individuals and their phone records have nothing to do with the
conduct involving the defendants in this case; (2) Bardwell issued the subpoenas
without first appearing in the lawsuit; and (3) Bardwell did not provide Williams
with copies of the subpoenas.
In December 2022, Williams filed another motion titled “emergency
motion to quash subpoena directed at plaintiff’s phone records with request for oral
hearing.” This time, Williams sought to quash a subpoena issued to AT&T Wireless
for Williams’s cell phone records and sought sanctions pursuant to Civ.R. 45.
Numerous nonparties began to appear in the matter, individually
asking the trial court to quash the subpoenas issued by Bardwell to their respective
client’s cell-phone providers.
1. The Lorain County Parties
Nonparties Lorain County Board of Commissioners, Lorain County
Children Services, and Lorain County 9-1-1 Emergency Services filed a motion
asking the court to quash various subpoenas issued to these entities, including
several individual parties associated with these entities. The motions reasoned in
part that some of the individuals who were subpoenaed were attorneys and that
“some of the data which may be stored on several of the phones likely contains
attorney-client privileged material.” The motion indicated that copies of the
subpoenas were not provided to these entities and that these entities only found out
about them after Verizon reached out and informed the individuals that it would
respond to the subpoenas unless a motion to quash was filed and presented to
Verizon.
The Lorain County parties did not ultimately seek sanctions and did
not participate in the matter at all once the subpoenas were ultimately quashed.
2. Katherine Loos
Nonparty Katherine Loos (“Loos”) filed a motion to quash a subpoena
issued to Cellco Partnership d.b.a. Verizon Wireless that sought “voluminous and
highly sensitive information pertaining to the cellphone records of Ms. Loos’s
daughter, who is also a nonparty.” The motion indicated that “Ms. Loos and her
daughter were not involved with those prior lawsuits, nor is there an allegation in
this case that relates to Ms. Loos and her daughter.” Loos contacted Bardwell and
demanded that he withdraw the subpoena. Bardwell specifically refused, causing
Loos to file the motion to quash and request sanctions relating to the subpoena.
3. Ulmer and Berne LLP and Amanda Martinsek
Nonparties Ulmer and Berne LLP1 and partner Amanda Martinsek
(collectively “Ulmer”) also filed a motion to quash the subpoenas issued to Ulmer,
including Martinsek. Ulmer’s motion to quash alleged that like Loos, Ulmer
attempted to reason with Bardwell and asked him to withdraw the subpoenas; he
explicitly refused.
1 This court takes judicial notice that as of December 5, 2023, Ulmer merged with
Greensfelder Hemker & Gale PC and is now known as “UB Greensfelder.” Nonetheless,
we continue to refer to “Ulmer” throughout this opinion.
The motion included a copy of the letter that Ulmer sent to Bardwell,
urging him to withdraw the subpoena and putting him on notice that failure to do
so would cause Ulmer to seek sanctions and described the subpoenas as “the very
definition of harassment and sanctionable conduct for which my clients will seek
recourse.”
4. David Moore, Matt Lundy, James Cordes, and Thomas Williams
Several individual Lorain County commissioners and representatives:
David Moore, Matt Lundy, James Cordes, and Thomas Williams (in his official
capacity), also filed a motion to quash the subpoenas issued to their respective cell
phone service providers.
Unlike the other Lorain County parties that appeared, these Lorain
County parties ultimately sought sanctions related to the improper subpoenas and
remain relevant to the instant appeal. Therefore, any references to “Lorain County”
throughout this opinion hereinafter refer to David Moore, Matt Lundy, James
Cordes, and Thomas Williams in his official capacity.
D. Subpoenas Quashed
On December 9, 2022, the trial court ruled that “all subpoenas are
quashed” and set the issue of sanctions and attorney fees for a hearing on
December 12, 2022. Prior to the hearing, Williams filed another motion seeking
sanctions, this time alleging that Bardwell had violated Civ.R. 11, citing Bardwell’s
continued harassment relating to the subpoenas and the issuance of discovery
requests without appearing in the matter.
Following the hearing on December 12, 2022, the trial court issued a
judgment entry indicating that all subpoenas had been quashed; that all motions for
sanctions and/or attorney fees were held in abeyance; and that Bardwell was to
answer the complaint by January 11, 2023, and to respond to the requests for
sanctions and attorney fees by January 20, 2023. It also ordered Bardwell to
“consult [an] expert ethics person on propriety of representing deft Williamson
given Bardwell is also a deft in the action and whether conflict is waivable one or
not.” The judgment entry also indicated that Williams’s motion to disqualify
Bardwell as Williamson’s counsel was discussed and would be considered at a later
date.
The day after the hearing, Williams filed a protective order asking the
court to stay his time to respond to discovery until the issue of Bardwell’s
disqualification was resolved, which the court granted shortly thereafter.
E. Bardwell’s Continued Involvement and Disqualification
In January 2023, separate counsel appeared on Bardwell’s behalf,
filed an answer to the complaint, and represented Bardwell throughout the
pendency of the matter. Bardwell’s counsel filed a brief in opposition to Williams’s
motion for a protective order and sanctions and began filing oppositions to the
various nonparties’ motions for sanctions; several parties filed reply briefs.
Relevant to the instant matter, Williamson, acting pro se, filed a
motion to dismiss the complaint for service reasons. Williams responded
immediately with a motion to strike the motion to dismiss, claiming that the motion
was clearly “ghostwritten” by Bardwell.
On January 30, 2023, the trial court issued a journal entry
disqualifying Bardwell from “serving as legal counsel for his fellow defendant, Mr.
Williamson” and cited “ethical canons” as the reasoning. Disputing the trial court’s
disqualification order, Bardwell filed an interlocutory appeal to this court, Williams
v. Hung, 2023-Ohio-4540 (8th Dist.) (“Hung I”).
Several superseding events prevented this court from timely
reviewing Hung I; almost a year later, in December 2023, this court reversed the
judgment of the trial court disqualifying Bardwell, reasoning that the record was
insufficient to determine whether disqualification was proper and remanded the
matter for the trial court to hold an evidentiary hearing or issue written findings on
the disqualification matter. Id. at ¶ 21.
F. Sanctions Issue Continues while Disqualification is Pending
While Hung I was pending, the court continued to adjudicate the
numerous motions for sanctions that had been filed. The court set a hearing for
February 15, 2023, to discuss the outstanding motions for sanctions.
On February 13, 2023, Williams filed another motion for sanctions
pursuant to Civ.R. 11, alleging that Bardwell should be sanctioned for his
“ghostwritten” motion to dismiss filed on behalf of Williamson, in an attempt to
contravene the court’s order directing him to seek advice regarding his
representation. The motion provided that Bardwell had used his own email to serve
Williams with a copy of the motion to dismiss that was signed by Williamson in his
pro se capacity.
After the February 15, 2023 hearing, the trial court’s journal entry
advised that the trial court heard arguments relating to all motions for sanctions
excluding Williams’s recently filed motion from February 13, 2023, relating to
Bardwell’s alleged “ghostwriting.” The journal entry pertinently provided that “[t]he
court heard only argument on the grounds for sanctions and not on the
amount/form of sanctions sought or to be imposed. Hearing will be continued to
provide defendant Bardwell sufficient time to prepare for the remainder of the
hearing . . . .” Shortly after the hearing, Lorain County filed its first motion for
sanctions related to Bardwell’s deluge of subpoenas.
The same day as the hearing, Williamson filed a notice that he had
removed the matter to federal court and the court journalized that it would proceed
“no further unless and until the case is remanded.”
G. Reinstatement and Continuation of Sanctions Issues
The case was remanded back from federal court in April 2023. Shortly
thereafter, Williams filed a motion asking the court to hold the second portion of the
sanctions hearing. Ulmer followed with a similar filing. Lorain County, Ulmer,
Loos, and Williams ultimately refiled their requests for sanctions following
reinstatement of the matter.
In July 2023, following a pretrial, the trial court’s journal entry
pertinently provided that “[a]ny party or non-party pursuing sanctions against
Attorney Bardwell is to file such motion no later than 8/11/2023[.]” The entry set
the hearing on the outstanding sanctions motions for September 6, 2023.
On August 7, 2023, Williams filed a motion to show cause and
requested sanctions from Bardwell, arguing that despite the trial court’s order
disqualifying Bardwell from representing Williamson, “Bardwell filed a complaint
in Federal Court against numerous defendants, and Plaintiff Thomas Williams” and
noted that it contained allegations like those in the Lorain County case. Williams
speculated that it appeared that Bardwell was attempting to use the federal court to
circumvent the trial court’s disqualification order. At this time, Williams also
submitted a fee schedule detailing the sanctions he was seeking — attorney fees in
the amount of $18,980 for work performed relating to Bardwell’s alleged
misconduct from December 2022 to February 2023.
H. Court Addresses Sanctions and Contempt
The court held the second portion of the hearing on September 6,
2023. The following journal entry pertinently provided that “[t]he court heard
argument on the amount/form of sanctions sought or to be imposed. Additional
evidence heard and exhibits offered and admitted . . . . A judgment entry
determining whether grounds for sanctions exist, and the amount/form of sanctions
to be imposed (if applicable) is forthcoming . . . .” The court also incorporated the
transcript from the February 2023 sanctions hearing as an exhibit and ordered
Bardwell’s briefs in opposition to the sanctions/fee schedules to be filed by
October 6, 2023.
The transcript of the hearing indicates that there was some confusion
at the beginning: Bardwell’s counsel requested rulings on the motions for sanctions
because such rulings were never issued after the February sanctions hearing. The
trial court believed that the hearing was only on the amount of sanctions, but
promised Bardwell it would issue rulings as to the motions for sanctions and then
issue a later, separate ruling on the amount of sanctions.
After the hearing, Ulmer filed copies of all exhibits that were
submitted and accepted by the court following the sanctions hearing. The exhibits
pertinently included the letter sent to Bardwell asking that he withdraw the
subpoenas and Bardwell’s response refusing to withdraw the subpoenas. Ulmer also
filed an affidavit, attesting to the accuracy and reasonableness of the legal services
rendered in connection with this matter and seeking $37,270.50 in attorney fees as
sanctions for Bardwell’s misconduct. Loos filed similar materials in October 2023.
On September 12, 2023, the trial court issued rulings on the motions
for sanctions. It granted Williams’s “motion to show cause and request for
sanctions, most recently submitted on 8/7/2023”; Lorain County’s motion for
sanctions; Ulmer’s motion for sanctions; and Loo’s motion for sanctions. The court
provided that “having considered all briefing, arguments, and exhibits presented,
finds that defendant Brian Bardwell has engaged in sanctionable conduct as it
relates to this matter. Attorneys’ fee[s] to be awarded in a forthcoming entry after
the issue has been fully briefed.” The court again cited its October 6, 2023 deadline
for Bardwell to file briefs in opposition and set another hearing for October 12, 2023.
On October 6, 2023, Bardwell filed a motion for a two-day extension
of time to file a brief in opposition to the sanctions. No party filed a response, the
court did not formally rule on the motion, and Bardwell’s brief in opposition was
untimely filed on October 10, 2023.
Bardwell’s brief in opposition was not aimed at any specific party, did
not contain any objections to the specific arguments or fee bills submitted, and
instead directed the court to be guided by “four general principles,” as follows:
1. A trial court must impose the least severe sanction consistent with
the purpose of the rules of discovery.
2. Since the principal goal is deterrence, not compensation, a court
should impose the least severe sanction likely to deter, which does not
mean actual legal expenses.
3. An individual attorney’s ability to pay is a mandatory consideration.
4. The fees incurred must have been directly caused or attributable to
the sanctionable conduct.
The scheduled hearing was held on October 12, 2023. There is no
transcript of this hearing, and the trial court’s journal entry following the hearing
explains why and makes a final ruling on the amount of sanctions:
Attorney conference held in lieu of motion hearing. All named parties
and non-parties appear through counsel. Parties do not reach a
resolution as it relates to the amount of attorney’s fees to be levied
against defendant Brian Bardwell to the movants. Parties agree to let
the issue rest on the arguments presented at past hearings and the filed
briefs. Parties forego oral argument/testimony on the record.
Accordingly, pursuant to the hearings conducted on 02/15/2023 and
09/06/2023, as well as the 10/12/2023 conference, in addition to the
movants’ briefings, affidavits, and exhibits, Defendant Brian Bardwell
is sanctioned as follows:
(1) To movant/plaintiff Thomas Williams: attorney’s fees in the
amount of $18,980.00.
(2) To movant/non-parties Lorain County Board of Commissioners,
David Moore, Matt Lundy, James Cordes, and Tom Williams:
attorney’s fees in the amount of $15,631.50.
(3) To movant/non-parties Ulmer & Berne LLP’s and Amanda
Martinsek: attorney’s fees in the amount of $37,270.50.
(4) To movant/non-party Katherine Loos: attorney’s fees in the
amount of $8,077.50.
I. Reconsideration
Shortly thereafter, Bardwell filed a motion for reconsideration
pertaining to the trial court’s award of sanctions. In this motion, he specifically
argued, for the first time, that Williams’s fee award included matters not before the
court and that the billed amounts and times were not reasonable. Williams
responded, and Bardwell filed a response, raising arguments suggesting that the
court never ruled on Williams’s Civ.R. 11 motions and that it was his understanding
that the September 6 hearing pertained only to motions brought pursuant to
Civ.R. 45 and, for the first time, raising the argument that merely supplying an
itemized bill is insufficient to establish the reasonableness of the fees and that there
was no sworn testimony accompanying the fee bills.
On October 26, 2023, Bardwell filed an “omnibus motion for
reconsideration” that specifically provided that the trial court’s award of sanctions
was “not directed to the individual amounts each Movant was awarded, but rather
the amount of fees awarded as a sanction in the aggregate.” The motion included an
affidavit from Bardwell averring that the sanctions exceeded his net worth and that
the sanctions would likely push him into filing for bankruptcy and discontinuing to
practice law. The affidavit also averred that he desired to address the issue of
sanctions at the October 12, 2023 hearing, but the court refused to let him.
On November 1, 2023, the trial court issued a journal entry indicating:
Defendant Brian Bardwell’s motion for reconsideration re the award of
fees to Plaintiff Williams’ counsel and/or a nunc pro tunc entry, filed
10/17/2023, is denied as moot. Motion is moot as defendant Brian
Bardwell filed a superseding omnibus motion for reconsideration on
October 26, 2023.
Bardwell did not respond to, object, or otherwise contest this ruling.
Loos, Williams, and Ulmer filed briefs in opposition to Bardwell’s omnibus motion
for reconsideration. Notably, Loos’s brief detailed that Bardwell’s affidavit was
inaccurate as to the October 12, 2023 hearing and described that “Defendant
Bardwell — through counsel — voluntarily declined to contest the reasonableness of
the fee requests, and chose not to submit evidence concerning his financial status
and ability to satisfy a fee award.”
Bardwell filed a single reply to all oppositions, arguing that the
movants erroneously suggested that the burden was on Bardwell to prove the
reasonableness of the fees, that the sanctioned parties did not submit sworn
evidence to demonstrate their fees, and that itemized legal bills alone are insufficient
to establish reasonableness.
On November 11, 2023, Bardwell filed a motion for reconsideration
regarding Ulmer’s sanctions award, arguing that Ulmer’s attorney fees were not
directly caused by or attributable to the sanctionable conduct.
On November 14, 2023, the trial court issued a journal entry denying
Bardwell’s omnibus motion for reconsideration and the motion for reconsideration
of Ulmer’s attorney fee award. The court reasoned:
The court finds Defendant [Brian] Bardwell’s omnibus motion to
reconsider not well-taken.
First, the arguments are untimely. These arguments could and should
have been raised in a pre-ruling brief in opposition. Bardwell’s brief in
opposition was due 10/06/2023. Bardwell untimely submitted a brief
in opposition on 10/12/2023 re[garding] attorney’s fees. The
arguments contained in the present motion could have been addressed
in the untimely 10/12/2023 brief in opposition, but they were not.
Further, the issues and arguments raised in Bardwell’s omnibus
motion for [re]consideration could have been addressed at the motion
hearing that was scheduled for 10/12/2023. However, Bardwell (and
all other parties and non-parties) agreed to forego oral
arguments/testimony on the matter.
Second, even having considered the omnibus motion to reconsider on
its own accord, the court finds the issues and arguments raised
unpersuasive, non-meritorious, and ultimately not well-taken.
Accordingly, the omnibus motion to reconsider, filed 10/26/2023, and
the supplemental motion, filed 11/11/2023, are not well-taken, and the
motions are denied.
The award of sanctions issued in this court’s order dated 10/13/2023 is
maintained.
J. Judgment on the Pleadings
While these sanctions issues were being sorted out, the court was also
deciding the merits of the case through motions for judgment on the pleadings filed
by Hung, Williamson, and Bardwell. In August 2023, Williamson and Hung
individually filed motions for judgment on the pleadings pursuant to Civ.R. 12(C).
Bardwell later filed his own motion for judgment on the pleadings.
The trial court granted the motions for judgment on the pleadings on
January 26, 2024, reasoning that Williams’s claims were barred by the settlement
agreement obtained following the federal case. Williams immediately filed a notice
of appeal from the court’s decision on the three motions for judgment on the
pleadings, which is the companion to the instant appeal and was affirmed separately
in Williams v. Hung, 2024-Ohio-4682 (8th Dist.) (“Hung II”).
K. Bardwell’s Appeal
Bardwell’s appeal included the trial court’s judgments from
October 12, 2023; November 1, 2023; and November 14, 2023.
Bardwell’s merit brief assigns the following four errors for our review:
1. The trial court erred, as a matter of law, when it granted Williams’
Motion to Show Cause finding Attorney Bardwell in contempt of the
disqualification order and attorneys’ fees sanctions where: (1) the court
lacked subject matter jurisdiction over the proceedings in other courts;
(2) Attorney Bardwell was not a co-defendant in the other court
proceedings; and (3) where this Court reversed the disqualification
order.
2. The trial court erred, as a matter of law, when the court improperly
failed to require sworn testimony from Movants and shifted the burden
of proof regarding the reasonableness of the attorney’s fees from the
Movants to Attorney Bardwell.
3. The trial court erred and abused in its [sic] discretion when it
“rubberstamped” the Movants’ attorney’s fees petitions and failed to
scrutinize the requested fees to determine causation, i.e. whether they
were “directly attributable” to the sanctionable conduct.
4. The trial court abused its discretion when it failed to consider
evidence of Attorney Bardwell’s ability to pay the sanctions awarded.
II. Law and Analysis
For ease of discussion, we elect to address Bardwell’s assignments of
error together and out of order where necessary.
Our review of a trial court’s order granting sanctions, including
attorney fees, for failing to comply with the discovery rules is reviewed for an abuse
of discretion; trial courts have broad discretion to fashion appropriate sanctions for
a party’s failure to comply with the discovery rules. Nakoff v. Fairview Gen. Hosp.,
75 Ohio St.3d 254, 260 (1996); see also Whitman v. Whitman,
2023-Ohio-2732,
¶ 31 (5th Dist.). Likewise, a trial court’s decision on a motion for reconsideration of
an interlocutory order is reviewed for an abuse of discretion. Picciuto v. Lucas Cty.
Bd. of Commrs.,
69 Ohio App.3d 789, 797 (6th Dist. 1990). “To prove abuse of
discretion, the appealing party must show that the lower court’s decision to grant
attorney fees was unreasonable, arbitrary, or unconscionable.” State ex rel. Davis
v. Metzger,
2016-Ohio-1026, ¶ 10, citing State ex rel. Cydrus v. Ohio Pub. Emps.
Retirement Sys.,
2010-Ohio-5770, ¶ 28.
As for demonstrating the reasonableness of the fees, the party seeking
attorney fees bears the burden of establishing the reasonableness of the fees. Bales
v. Forest River, Inc., 2019-Ohio-4160, ¶ 19 (8th Dist.).
The Ulmer parties and Lorain County sought sanctions in the form of
attorney fees pursuant to Civ.R. 45(E). Civ.R. 45(E) provides that “[t]he court from
which a subpoena was issued may impose upon a party or attorney in breach of the
duty imposed by division (C)(1) of this rule an appropriate sanction, which can
include, but is not limited to, lost earnings and reasonable attorney’s fees.”
Civ.R. 45(C)(1) requires a party or attorney issuing a subpoena to “take reasonable
steps to avoid imposing undue burden or expense on a person subject to a
subpoena.” Though the “appropriate sanction[s]” under Civ.R. 45(E) are
discretionary and not limited to attorney fees, the trial court in this case elected to
award the attorney fees submitted by each party. Williams, through his various
motions for sanctions, sought attorney fees pursuant to Civ.R. 45 as well as Civ.R. 11.
A. Burden of Demonstrating Reasonableness of Fees
Within his second assignment of error, Bardwell contends that the
trial court ignored the law requiring the party seeking fees to establish the
reasonableness of the requested fees. Bardwell cites Metron Nutraceuticals, L.L.C.
v. Thomas, 2022-Ohio-79, ¶ 36 (8th Dist.), which relies on R.C.H. Co. v. 3-J
Machining Serv.,
2004-Ohio-57, ¶ 25 (8th Dist.). In 3-J Machining, this court
noted that evidence establishing the reasonableness of requested attorney fees “may
take the form of testimony, affidavits, answers or other forms of sworn evidence. As
long as sufficient evidence is presented to allow the trial court to arrive at a
reasonable attorney-fee award, the amount of the award will not be disturbed absent
an abuse of discretion.” And, in Metron, this court noted that “an itemized bill alone
is insufficient to establish the reasonableness of the requested attorney fees.”
Metron at ¶ 36.
Bardwell argues, “Of the four Movants (Loos, Plaintiff Williams,
Ulmer Berne, and Lorain County), the only Movant who presented sworn evidence,
i.e. an Affidavit, supporting the fee request was counsel for Movant Loos.”
Bardwell, however, seems to ignore that after the September 6, 2023
hearing, Ulmer submitted an affidavit establishing the reasonableness of the fees.
Bardwell’s brief in opposition to all parties’ motions for sanctions addressed the
sanctions in the aggregate and did not specifically contest Ulmer’s fees, though these
arguments were argued before the trial court during the September 6, 2023 hearing.
Accordingly, we find no merit to Bardwell’s contention that Ulmer did not submit
“sworn evidence” demonstrating the reasonableness of its fees after Bardwell
contested them at trial.
Regarding Lorain County’s and Williams’s motions for attorney fees,
we note that Bardwell never specifically lodged an objection to or contested the
reasonableness of the fees. Indeed, at the September 6, 2023 hearing, Lorain
County, through its attorney, specifically acknowledged that Bardwell had never
contested the amount or reasonableness of the fees that it sought:
[LORAIN COUNTY’S COUNSEL]: This is [Lorain County’s counsel]
on behalf of the Lorain County Commissioners and the individual non-parties here. I wanted to just for the record purposes incorporate and
submit the arguments based on the motion prior submitted and the
oral argument in the transcript from the February 15th, I think,
hearing, whenever that was. That’s part of the record now.
In addition, I would like to submit the fee bill that’s part of the motion
that [Bardwell’s counsel] should have.
(09/06/2023, tr. 39.)
During the September 6, 2023 hearing, Bardwell challenged whether
Ulmer’s submitted bills were tied to this case since Ulmer’s counsel was also
representing Ulmer in the Lorain County lawsuit and the bills as submitted were
coded under the Lorain County matter. Ulmer’s counsel admitted that it did not
create a separate matter for this litigation and placed the billing into the billing for
the Lorain County lawsuit but that there was no “double billing,” as Bardwell’s
counsel was concerned about. Williams’s counsel and Lorain County’s counsel were
present at the hearing, but neither the sanctions nor the bills were specifically
contested at the hearing in the manner that Ulmer’s were. In fact, the following
exchange occurred during the hearing:
THE COURT: Is there a written motion in the — to their demand for
the damages, the bills?
[BARDWELL’S COUNSEL]: Not in terms of the fee petition, Your
Honor.
THE COURT: All right. Well, unless you have — I’ve given you a
chance anyhow. If you can show a fundamental weakness, like, you
know, it’s related to two matters that’s already paid for by the other
matter or something. If you have some argument, give it. Now’s the
time to do it. We’re here now on the damages issue.
(9/6/2023, tr. 28.)
Bardwell proceeded to, for the second time at the hearing, address the
Ulmer bills and questioned Williams regarding whether his bills included fighting
removal of the matter to federal court. Williams’s counsel clarified that he had asked
for sanctions for the frivolous removal to federal court, but was denied them, so he
was not asking for them as part of these damages. Bardwell’s counsel then returned
to contesting the Ulmer damages, explaining that he felt that it was improper that
they charged for monitoring the docket after the case was removed because, at that
point, the motions to quash were already granted. Moreover, Ulmer was involved
in the Lorain County lawsuit, which was still ongoing, so the docket monitoring
could have also benefitted them in that case.
The court then presented Bardwell with another chance to contest the
damages and afforded Bardwell an opportunity to file written objections, to which
Bardwell’s counsel responded, “That’s fair, Your Honor.” (Tr. 37.) The trial court
asked all parties if two weeks would be enough time for written responses, stated
that it would review all submitted written materials and transcripts, and concluded,
“I don’t see any further need to take evidence on the damages. I have evidence on
the damages. If you want to add evidence, go ahead.” (Tr. 38.)
The court also stated, “I don’t see any need to trot up to the witness
stand.” (Tr. 38.) Nobody objected, including Bardwell. This would have been the
opportunity for Bardwell to advocate that the evidence of attorney fees needed to be
sworn. It is not shifting the burden to Bardwell. All of the parties appeared to come
prepared to discuss the amount and reasonableness of their fees but were not met
with any opposition by Bardwell at the hearing; when Bardwell filed his brief in
opposition to the amount and reasonableness of the sanctions, in lieu of attacking
the individual movants and their requested fees, he chose to address all of the issues
in the aggregate. Then, at the October 12, 2023 hearing, the parties were again,
presumably prepared to take the stand and testify as to their fees but rightfully
believed that there was no opposition to the amounts of fees because Bardwell’s brief
in opposition was tailored to the aggregate of fees sought and did not individually
address any of the movants’ fee bills.
Rejecting an argument under the waiver doctrine “protect[s] the role
of the courts and the dignity of the proceedings . . . by imposing upon counsel the
duty to exercise diligence in his or her own cause and to aid the court rather than
silently mislead it into the commission of error.” State ex rel. Quarto Mining Co. v.
Foreman, 79 Ohio St.3d 78, 81 (1997), citing State v. Williams,
51 Ohio St.2d 112,
117 (1977). Additionally, we need not consider an error that the complaining party
“could have called, but did not call, to the trial court’s attention at a time when such
error could have been avoided or corrected by the trial court.” Williams at
id.
We find that Bardwell’s counsel acquiesced to any error that the trial
court may have committed, including any deficiencies in requiring sworn evidence.
At no point during any of the three separate hearings addressing sanctions and the
damages did Bardwell argue that Williams or Lorain County failed to introduce
sworn evidence.2 When Bardwell finally raised the issue in one of his numerous
motions for reconsideration, the trial court did not choose to exercise its discretion
and revisit the issue. Accordingly, we reject Bardwell’s arguments pertaining to the
trial court erroneously shifting the burden to him to prove reasonableness and
Bardwell’s arguments that evidence must be sworn.
We therefore overrule Bardwell’s second assignment of error.
B. Causation/Allegedly Unrelated Fees
Bardwell’s third assignment of error suggests that the trial court
merely “rubberstamped” the fee bills and did not scrutinize the fees and determine
whether they were “directly attributable” to the sanctionable conduct.
First, Bardwell cites to State ex rel. Citizens for Open, Responsive &
Accountable Govt. v. Register, 2007-Ohio-5542, ¶ 24, as standing for the
proposition that the attorney fees requested as sanctions must be directly caused by
the sanctionable conduct.
Bardwell specifically contests that the trial court “abdicated its
responsibilities in this case and even awarded Plaintiff Williams fees that were
unrelated to the Motion for Sanctions before the court.” In making this argument,
2 We also note that some of Williams’s fees were sought pursuant to Civ.R. 11. This
court has held that “[w]e have rejected this type of argument in the context of Civ.R. 11,
finding that the trial court has no obligation to hear sworn evidence in awarding attorney
fees.” In re Estate of Abraitis, 2017-Ohio-5577, ¶ 30 (8th Dist.), citing Brady v. Hickman
& Lowder Co.,
2004-Ohio-4745, ¶ 30 (8th Dist.). Nonetheless, given our choice to invoke
the waiver doctrine, we need not address the distinction between fees sought under Civ.R.
45 versus Civ.R. 11.
Bardwell states that the trial court never ruled on each of Williams’s specific motions
for sanctions and believed that both the September 6, 2023 hearing and the
October 12, 2023 hearing were just for sanctions awarded as a result of the
subpoenas. In other words, Bardwell contests all of the charges on Williams’s fee
bill that are unrelated to the improper subpoenas, which includes sanctions related
to the “ghostwritten” brief and the protective order. Bardwell’s arguments, however,
are directly contradicted by the record.
First, during the February 15, 2023 sanctions hearing, the trial court
itself went into the hearing believing that only the motions from Loos, Lorain
County, and Ulmer would be heard. However, at this point, Williams’s counsel had
already requested sanctions for the improper subpoenas, the “ghostwritten” motion,
and the protective order, and that was brought to the trial court’s attention:
THE COURT: What motions are you prepared to defend here today?
[BARDWELL’S COUNSEL]: Well, again, the Ulmer Berne Plaintiff and
Ms. Loos’s motion for sanctions regarding the subpoenas which were
quashed.[3]
I’m also prepared to address — [Williams’s counsel] filed a
second motion for protective order, and that was in the context of what
his other motion for sanctions was. I opposed it, and I think you went
ahead and granted the second motion for protective order, but I’m
prepared to address that as well.
THE COURT: Well, if I granted it, why are we addressing it?
3 There was earlier conversation on the record about how Lorain County’s motion
for fees was originally made orally back in December 2022, but an accompanying brief
was never filed. The trial court informed Lorain County that if it was seeking sanctions,
it would need to seek those in writing out of fairness to Bardwell.
[BARDWELL’S COUNSEL]: Because he appended his motion for —
that’s what he’s asking for. He’s asking for sanctions relative to the
second motion for protective order.
THE COURT: So my apologies for bad communication. I did not
appreciate that all of these motions for sanctions were set today. It’s
fine. I’m glad that they are rather than multiple hearings.
(02/15/2023, tr. 14-15.)
Second, Williams submitted his actual fee bill spelling out the specific
motions and activities for which he was requesting sanctions in August 2023, before
the September and October hearings and before Bardwell was given an opportunity
to file a brief in opposition to the fees. At no point was the relatedness as it pertained
to Williams’s fee bills contested.
Moreover, we cannot find any instance on the record that would lead
Bardwell to believe that the sanctions hearings that commenced in September were
solely for the sanctions awarded pursuant to the improper subpoenas. Williams’s
motions encompassed under the fee bill were related to the motions filed before the
February 2023 hearing, where Bardwell conceded that he was ready to defend all
pending sanctions motions. Even though Williams filed additional motions, the
court never ruled on these motions or awarded fees beyond Williams’s requested
fees, which only covered hours performed until February 2023. Williams never
contested or chose to further pursue any sanctions motions filed after February
2023. When the court granted the motions for sanctions after Bardwell asked for a
specific ruling on the merits of the sanctions, the trial court indicated that it was
granting Williams’s motions for sanctions and stated the date that the most recent
motion for sanctions was filed, which was the motion to show cause in August 2023
stemming from Bardwell’s violation of the court’s disqualification order. While we
agree that this most recent show-cause motion was not adjudicated or rewarded,
any error therefrom would be harmless because Williams’s fee bill did not contain
any time entries stemming from these disqualification entries. Again, Williams’s fee
bill only encompassed work performed from December 2022 through February
2023, and Williams did not seek fees related to any conduct thereafter; thus, no fees
for conduct after February 2023 were awarded.
Moreover, the record does not support Bardwell’s contention. The
court was intent on adjudicating all motions for sanctions, not just the ones relating
to the motion to quash, as indicated by the journal entry following the September
2023 hearing, which provided that “case called for hearing on all motions for
sanctions.” (Emphasis added.)
Bardwell also contests, as he did at the trial-court level, the
reasonableness of Ulmer’s requested fees for monitoring the federal court docket
after the case was removed. He suggests that the fee bills submitted by Ulmer
contained “insufficient information for the trial court to discern whether the fees
were caused by or attributable to the Motion to Quash and pursuit of sanctions.”
These objections to Ulmer’s fees were well briefed and thoroughly
discussed and then brought up again to the trial court in Bardwell’s motions for
reconsideration. The trial court determined that Ulmer’s fees were reasonable after
the argument that they were not reasonable was presented by Bardwell multiple
times. We take particular notice of Ulmer’s explanation during the September 6,
2023 hearing:
[ULMER’S COUNSEL]: I had to file a reply brief. We had to come
down here for at least two hearings, then they remove [to federal court].
You know, so this idea that he gets a cut off the moment the motion to
quash is granted is preposterous because, again, this all flows from Mr.
Bardwell’s improper conduct here. And because we were not getting
notices because we weren’t parties in this case, I absolutely do believe
that it’s within the standard of care a lawyer that defense lawyers in
legal malpractice actions that I need to monitor the docket about what’s
going on. It’s a very small percentage from the time of the removal back
here, 10 hours or so, from the total amount of damages . . . .
(09/06/2023, tr. 33-34.)
We are unpersuaded by Bardwell’s argument that the trial court
abused its discretion in awarding fees for “unrelated” conduct or conduct that was
“insufficiently detailed” within Williams’s and Ulmer’s fee bills. Ulmer felt that it
was necessary for the representation of its clients, Bardwell disagreed, and the court
ultimately agreed with Ulmer after reviewing both arguments. We cannot say that
this constitutes an abuse of discretion.
We therefore overrule Bardwell’s third assignment of error.
C. Disqualification and Contempt
We next address Bardwell’s first assignment of error that contests the
trial court’s judgment finding Bardwell in contempt of the court’s disqualification
order and awarding sanctions under multiple legal theories. We find, however, that
based on the affirmance in Hung II, and our disposition of the previous assignments
of error4 and in consideration of Williams’s fee bill, this assignment of error is moot.
In granting the three pending Civ.R. 12(C) motions, the trial court
clarified that
this ruling and order are not inconsistent with any appellate court case
or decision as it relates to any and all pending collateral issues in this
matter which are or may be up on appeal. Namely, in No. CA-23-
112645, the Eighth District reversed and remanded the trial court’s
decision to disqualify defendant-attorney Brian Bardwell from serving
as counsel of record for co-defendant Williamson in the present action.
However, this court’s ruling on the pending motions for judgment on
the pleadings does not bear any relevance and has no consequence as
it relates to Williamson’s initial choice of counsel, co-defendant Brian
Bardwell. As demonstrated by the pleadings themselves, Plaintiff’s
claims in the present suit have no merit irrespective of Williamson’s
choice of counsel. Accordingly, Plaintiff’s motion to comply with court
of appeals mandate, filed 01/25/2024, is denied as moot.
There is no dispute that Hung I reversed the trial court’s
determination disqualifying Bardwell. It is impossible to issue or uphold sanctions
for an order that no longer exists.
But, in reviewing the fee bill submitted by Williams’s counsel, no fees
or damages were sought pursuant to contempt of the disqualification order. Counsel
for Williams’s attorney-fee bill includes billing that is all easily matched to the docket
and the record before us. We are able to discern that Williams’s requests for fees are
4 Bardwell once again argues that the court’s journal entry indicating that it was
granting the recently filed motion for sanctions, which happened to be related to
contempt of the disqualification order in August 2023, was improper. We addressed this
briefly in the previous assignment of error. However, we again note that even though the
order was granted, Williams’s attorney did not seek fees stemming from the
disqualification order and his fee bill is sufficient for us to determine what motions/events
he sought fees for. None of the fees sought occurred after February 2023.
related to (1) the subpoenas issued to both Williams and the third parties;
(2) corresponding with the third parties that were the subject of these subpoenas
and otherwise had no other involvement in this matter; and (3) various alleged
violations of Civ.R. 11 encapsulating conduct that Bardwell engaged in prior to the
court formally disqualifying him from the matter, which includes the “ghostwritten”
motion.
Accordingly, we find that Bardwell’s first assignment of error is moot
because it is impossible to be in contempt of an order that does not exist. Moreover,
none of the sanctions awarded stem from disobedience of the disqualification order.
Based on the foregoing, we disregard Bardwell’s first assignment of
error as moot.
D. Ability to Pay
In his fourth assignment of error, Bardwell argues that the trial court
abused its discretion in failing to consider evidence of Bardwell’s ability to pay the
sanctions awarded. The first two issues outlined in Bardwell’s brief again argue that
the court should have imposed the “least severe sanction” and that the trial court
should have considered that the sanctions were for deterrence rather than
compensation of legal expenses. We reiterate that both of these are within the
discretion of the trial court, and Bardwell, in regurgitating law that he put before the
trial court, has not persuaded us that the trial court abused its discretion in awarding
the amount of sanctions that it did.
Turning to the third issue within this assignment of error, Bardwell
argues that the trial court abused its discretion in failing to consider that an
individual attorney’s ability to pay is a mandatory consideration.
Bardwell cites to several federal cases which review the ability to pay
under the federal civil rules, as well as an Eighth District case that pertinently
provides:
While there is no single right amount to fine a pro se litigant for
violating Civ.R. 11, and much must be left to the sound judgment of the
trial court, which is most familiar with the case and counsel, there still
must be a method of getting to the amount of the sanction, including a
fine. Moreover, this method should be characterized by intellectual
discipline, which here means consideration of the appellant’s ability to
pay . . . .
Sawchyn v. Middleburg Hts., 1995 Ohio App. LEXIS 4288, *30 (8th Dist. Sept. 28,
1995), citing Clark v. Hawkes Hosp. of Mt. Carmel,
9 Ohio St.3d 182 (1984); Doe v.
White,
97 Ohio App.3d 585 (2d Dist. 1994).5
Sawchyn specifically says that the trial court should consider the
ability of the sanctioned party to pay. It does not mandate or require it as Bardwell’s
citations to federal cases suggest. He has not cited to an Ohio case that stands for
this proposition.
Bardwell also points us to R.C. 2315.21(D)(2)(b), which governs
punitive damages awarded in a trial as opposed to sanctions awarded for
5 Doe addressed punitive damages awarded following a trial, which is
distinguishable from sanctions, but nonetheless specifically held that “[a]lthough
evidence of a defendant’s net worth is relevant to determining a proper amount of
punitive damages, the trier of fact is not required to consider such evidence before
awarding punitive damages to the prevailing party.” Doe at 594.
misconduct and provides that punitive damages shall not exceed ten percent of the
individual’s net worth when the tort was committed. We are not persuaded that this
is applicable to the instant matter.
Additionally, Bardwell did not submit any evidence of his ability to
pay until after the trial court awarded damages, despite the opportunity to present
this with an affidavit indicating as much numerous times prior to the trial court
issuing sanctions. It was not until the motion for reconsideration was filed that
Bardwell provided an affidavit demonstrating his financial status.
Based on the foregoing, we overrule Bardwell’s fourth assignment of
error.
III. Conclusion
Bardwell has not demonstrated that the trial court abused its
discretion in arriving at the attorney-fee award based on Bardwell’s sanctionable
conduct.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, JUDGE
MICHELLE J. SHEEHAN, P.J., and
EMANUELLA D. GROVES, J., CONCUR
