IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ) ) ) ) ) ) ) ) ) ) ) ) )

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1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO KAREN PRASSER, v. PLAINTIFF/COUNTERCLAIM DEFENDANT, CITY OF SOLON, ET AL DEFENDANTS/COUNTERCLAIM PLAINTIFFS. Case No. CV JUDGE MICHAEL E. JACKSON JOURNAL ENTRY AND OPINION: COURT ORDERS SANCTIONS AGAINST ATTORNEYS GROEDEL AND FREEMAN; PRASSER S MOTION FOR SANCTIONS AGAINST FREEMAN IS DENIED. CITY OF SOLON S MOTION FOR SANCTIONS IS GRANTED AND DENIED IN PART. For the reasons stated in this Journal Entry and Opinion, the Court orders sanctions imposed upon attorney Barry Y. Freeman (Freeman of Buckingham, Doolitte, & Burroughs, LLC, counsel for Defendants/Counterclaim Plaintiffs City of Solon and Susan Drucker (collectively, Solon for $2,000.00, and imposed upon attorney Caryn M. Groedel (Groedel of Caryn Groedel & Associates Co., L.P.A. (Groedel Law, counsel for Plaintiff/Counterclaim Defendant Karen Prasser (Prasser for $2, These sanctions are for their conduct during trial, and must be paid to the Cuyahoga County Clerk of Courts within 30 days of this order. The Cuyahoga County Clerk of Courts is ordered to accept payment of $2, from Freeman and/or his firm, and $2, from Groedel and/or her firm. Failure to pay timely these sanctions will result in further sanctions starting at additional sanctions in the amount of $ per day until all sanctions are paid. In addition, the Court will determine at a separate hearing an amount, if any, that the Court may order Groedel and Groedel Law to pay Solon for its attorney fees and costs based on Groedel s conduct, as explained in this Journal Entry and Opinion.

2 After an eight-day jury trial held between August 1 and August 10, 2016, the jury entered verdicts in favor of Solon against Prasser for all of Solon s compensatory claims, Breach of Fiduciary Duty, Conversion, Civil Theft, and Injury by a Criminal Act. 1 After the verdict, but before final judgment, Solon exercised its right under the statute applicable to its Civil Theft claim to obtain a judgment three times the damages awarded by the jury. As a result, the Court entered final judgment in favor of Solon against Prasser in the amount of $73, plus interest from the date of judgment at the current statutory rate, and court costs. The Court denied Prasser s motion for a new trial and motion for judgment notwithstanding the verdict on March 16, The Court granted Solon s motion to tax costs in the total amount of $6, BACKGROUND REGARDING SANCTIONS Solon filed on July 25, 2016 its motion for sanctions 2 against Prasser and her attorney, Groedel, and supplemented that motion on September 28, 2016 (collectively, Solon s Motion. Prasser filed on September 27, 2016, a motion for sanctions against Freeman, who represented Defendants and Counterclaim Plaintiffs, Solon. Prasser supplemented her motion on December 2, 2016 (collectively, Prasser s Motion. During the trial, the Court notified each counsel at the time of or within a day of their conduct that sanctions were being considered, and stated in its September 14, 2016 Journal Entry that the Court was considering imposing sanctions arising out of each of lead counsel s conduct during the trial. The Court notified Freeman that he could be sanctioned for violating the separation of witnesses order, and for his conduct regarding witness Joan Long (Long. The Court notified Groedel that she could be sanctioned for violating the separation of witnesses order, and for unnecessarily delaying the trial regarding her failure to cite an Eighth Appellate 1 The Court granted Solon judgment as a matter of law on all of Prasser s claims against Solon prior to trial. 2 Solon included Frivolous Prosecution and Civ. R. 11 Sanctions as separate claims in its First Supplemental Answer and Counterclaim, filed June 6,

3 District case that was on point regarding a disputed point of law, but did not support her argument during a sidebar with the Court. In two of the Court s August 4, 2016, Journal Entries memorializing the Court s rulings on motions in limine, the Court put the parties on notice that counsel must be prepared with arguments, and supportive Supreme Court of Ohio or Eighth Appellate District case law. If there is none, then they must state that their research found no such cases. The Court made this point clear in conferences off the record throughout the litigation process. By agreement of the parties, the Court set a December 19, 2016, hearing on their Motions and the Court s to determine if the Court will impose sanctions for these acts of misconduct. If there was frivolous conduct that adversely affected the other party, the Court would set a separate hearing to determine the amount of damages to award the aggrieved party. R.C However, on the day of the hearing Groedel notified the Court and opposing counsel that due to illness, she was not able to attend the hearing. Freeman appeared with attorney Thomas G. Lobe, as a representative of Solon. Prasser appeared with attorney Tiffany C. Fischbach 3 (Fischbach, an associate of Groedel Law who represented both Prasser and Groedel at this hearing. The Court asked if any of the parties wanted a continuance. Attorney Fischbach on behalf of Prasser and Groedel, after conferring with Groedel, advised that they wished to move forward with the hearing, and that they had a stipulation with Solon and Freeman as to how to proceed with the hearing. The parties stipulated that the Court would make its rulings based upon the briefing, exhibits admitted into evidence, and stipulations related to what Prasser, and witness Tristan Seri (Seri, a law student clerking at Groedel Law, would have testified had he testified 3 On May, 10, 2017, Fischbach filed a notice of substitution of counsel on behalf of Groedel Law, and attorney Margaret Nowak advising the Court that as of May 12, 2017 Fischbach would no longer be employed with Groedel Law. 3

4 during this hearing. Attorney Fischbach represented into the record Seri s proffered testimony. Solon stipulated to these representations. The Court admitted exhibits on behalf of all the parties without objection, and took the motions under consideration. Before this matter was submitted to the Court at the hearing held on December 19, 2016, the Court informed the parties that the Court, on its own authority, would not impose any sanctions on either attorney, if both withdrew their respective motions. While Freeman on behalf of Solon agreed, neither Groedel 4 nor Prasser agreed. On June 9, 2017, the Court offered the parties the same opportunity to withdraw their respective motions, with the consideration that the Court would not impose sanctions on either attorney. Solon was the first to respond, and did not agree to withdraw. Prasser acknowledged Solon s response, and sought clarification about the hearing set for June 16, Accordingly, the Court reviewed Prasser s and Solon s Motions, the applicable transcripts, prior rulings and filings by the parties. APPLICABLE LAW, CIVIL RULES, AND PROFESSIONAL CONDUCT RULES R.C , Frivolous Conduct. "Conduct means any of the following:(a the filing of a civil action, the assertion of a claim, defense, or other position in connection with a civil action, the filing of a pleading, motion, or other paper in a civil action, including, but not limited to, a motion or paper filed for discovery purposes, or the taking of any other action in connection with a civil action. RC (A(1. Frivolous conduct means either of the following:(a Conduct of an inmate or other party to a civil action, of an inmate who has filed an appeal of the type described in division (A(1(b of this section, or of the inmate s or other party s counsel of record that satisfies any of the following: (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. 4 Fischbach conferred with Groedel by telephone. 4

5 (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. (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 (A(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 of the type described in that division 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 described in division (B(2(a of this section in accordance with this division, allows the parties and counsel of record involved to present any relevant evidence at the hearing, including evidence of the type described in division (B(5 of this section, determines that the conduct involved was frivolous and that a party was adversely affected by it, and then determines the amount of the award to be made. If any party or counsel of record who allegedly engaged in or allegedly was adversely affected by frivolous conduct is confined in a state correctional institution or in a county, multicounty, municipal, municipalcounty, or multicounty-municipal jail or workhouse, the court, if practicable, may hold the hearing by telephone or, in the alternative, at the institution, jail, or workhouse in which the party or counsel is confined (B(2. The amount of an award made pursuant to division (B(1 of this section that represents reasonable attorney s fees shall not exceed, and may be equal to or less than, whichever of the following is applicable: (a If the party is being represented on a contingent fee basis, an amount that corresponds to reasonable fees that would have been charged for legal services had the party been represented on an hourly fee basis or another basis other than a contingent fee basis; (b In all situations other than that described in division (B(3(a of this section, the attorney s fees that were reasonably incurred by a party. R.C (B(3. 5

6 An award made pursuant to division (B(1 of this section may be made against a party, the party s counsel of record, or both. R.C (B(4. This statute applies an objective standard in determining frivolous conduct. Civ. R. 11, Signing of Pleadings, Motions, or Other Documents. Every pleading, motion, or other document of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address, attorney registration number, telephone number, facsimile number, if any, and business address, if any, shall be stated. A party who is not represented by an attorney shall sign the pleading, motion, or other document and state the party's address. A party who is not represented by an attorney may further state a facsimile number or address for service by electronic means under Civ.R. 5(B(2(f. Except when otherwise specifically provided by these rules, pleadings, as defined by Civ.R. 7(A, need not be verified or accompanied by affidavit. 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 appropriate action, including an award to the opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule. Similar action may be taken if scandalous or indecent matter is inserted. Civ. R. 11. Civ.R. 11 requires the court to apply a subjective good faith/bad faith standard to determine if the conduct willful. Prof.Cond.R. 3.1: Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. Prof.Cond.R. 3.3: Candor Toward the Tribunal (a A lawyer shall not knowingly do any of the following: (1 make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2 fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; (3 offer evidence that the lawyer knows to be false. If a lawyer, the lawyer s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable measures to remedy the situation, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer 6

7 evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false. Prof.Cond.R.3.4: Fairness to Opposing Party and Counsel A lawyer shall not do any of the following: (a unlawfully obstruct another party s access to evidence; unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value; or counsel or assist another person to do any such act; (b falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on a good faith assertion that no valid obligation exists; (d in pretrial procedure, intentionally or habitually make a frivolous motion or discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence or by a good-faith belief that such evidence may exist, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused; (f [RESERVED] (g advise or cause a person to hide or to leave the jurisdiction of a tribunal for the purpose of becoming unavailable as a witness. Prof.Cond.R. 3.5: Impartiality and Decorum of the Tribunal (a A lawyer shall not do any of the following: (1 seek to influence a judicial officer, juror, prospective juror, or other official by means prohibited by law; (2 lend anything of value or give anything of more than de minimis value to a judicial officer, official, or employee of a tribunal; (3 communicate ex parte with either of the following: (i a judicial officer or other official as to the merits of the case during the proceeding unless authorized to do so by law or court order; (ii a juror or prospective juror during the proceeding unless otherwise authorized to do so by law or court order; (4 communicate with a juror or prospective juror after discharge of the jury if any of the following applies: (i the communication is prohibited by law or court order; (ii the juror has made known to the lawyer a desire not to communicate; (iii the communication involves misrepresentation, coercion, duress, or harassment; (5 engage in conduct intended to disrupt a tribunal; (6 engage in undignified or discourteous conduct that is degrading to a tribunal. Prof.Cond.R. 4.4: Respect for Rights of Third Persons (a In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, harass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. Prof.Cond.R. 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers (c A lawyer shall be responsible for another lawyer s violation of the Ohio Rules of Professional Conduct if either of the following applies: (1 the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; 7

8 (2 the lawyer is a partner or has comparable managerial authority in the law firm or government agency in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Prof.Cond.R. 8.4: Misconduct It is professional misconduct for a lawyer to do any of the following: (a violate or attempt to violate the Ohio Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b commit an illegal act that reflects adversely on the lawyer s honesty or trustworthiness; (c engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d engage in conduct that is prejudicial to the administration of justice; (e state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Ohio Rules of Professional Conduct or other law; (f knowingly assist a judge or judicial officer in conduct that is a violation of the Ohio Rules of Professional Conduct, the applicable rules of judicial conduct, or other law; (g engage, in a professional capacity, in conduct involving discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability; (h engage in any other conduct that adversely reflects on the lawyer s fitness to practice law. Contempt of Court The Court has the inherent authority to do all things necessary to the administration of justice, to protect its own powers and processes, and to protect the rights of those who invoke its processes as grounded in the constitution, and under R.C (A, which can be relied upon for finding contempt of court and imposing sanctions on counsel. City of Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 119, 853 N.E.2d 1115; State ex rel. Pfeiffer v. Common Pleas Court, 13 Ohio St.2d 133, , 235 N.E.2d 232 (1968; Hale v. State, 55 Ohio St. 210, 45 N.E. 199 (1896; State ex rel. Raydel v. Raible, 92 Ohio App. 537, , 110 N.E.2d 139 (8th Dist.1952; Zakany v. Zakany, 9 Ohio St.3d 192, , 459 N.E.2d 870 (1984. Contempt of court consists of an act or omission substantially disrupting the judicial process in a particular case. It is disobedience of an order of a court, conduct which brings the administration of justice into disrespect, or which tends to embarrass, impede or obstruct a court in the performance of its functions. The law of contempt is intended to uphold and ensure the effective administration of justice. Of equal importance is the need to secure the dignity of the court and to affirm the supremacy of law. In re Contempt of Morris, 110 Ohio App.3d 475, , 674 N.E.2d 761 (8th Dist.1996 (citations omitted. An essential element of the trial court s inherent authority over the practice of law before it and the protection of the integrity of its proceedings is that authority and duty to see to the ethical conduct of the attorneys. Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 259, 510 N.E.2d 379 (1987. PRASSER S REQUEST FOR SANCTIONS Prasser s Motion for sanctions against Freeman is summarized as follows: Mr. Freeman claimed it was a requirement of the County s diversion program for Prasser to complete a written admission of guilt. 8

9 Mr. Freeman threatened claims of malicious (civil prosecution and Civ.R.11 sanctions if Prasser did not dismiss her lawsuit. Mr. Freeman tried to condition Long s settlement with Solon on her testifying favorably on Solon s behalf. Mr. Freeman bullied and intimidated Long in connection with her testimony. Mr. Freeman made material and malicious representations about Prasser s alleged theft of funds, mismanagement of funds, misappropriation of public monies. Mr. Freeman misrepresented to the Court that Prasser failed to allege a malicious purpose/intent on behalf of the Mayor. Mr. Freeman falsely told the Court he opposed Prasser calling Patricia Dawson, Solon s former IT Manager, as a trial witness because Dawson had not been identified as a trial witness until after final pretrial statements were filed. Mr. Freeman falsely told the Court he opposed Prasser calling Dawson as a witness beyond the scope of Solon s IT systems. Mr. Freeman failed to properly instruct Christine Madden not to discuss the police investigation. Mr. Freeman materially misrepresented his trial preparation to the Court. Mr. Freeman falsely misrepresented that Prasser s counsel failed to relay a settlement offer to Prasser. Mr. Freeman falsely misrepresented he always intended to call Long as a hostile witness. Mr. Freeman deliberately provided false statements in his clients discovery responses. Mr. Freeman deliberately provided false statements when he denied the Finance Director is the Solon employee who is ultimately responsible for all financial matters of Defendant Solon. Mr. Freeman deliberately provided false statements when he denied in approximately May 2012, Defendants prohibited Plaintiff from communicating with any other department Directors. Mr. Freeman deliberately provided false statements when he denied at no time between the commencement of her employment with Solon and August 29, 2012, was Plaintiff informed that she was not permitted to average the hours of her staff and/or allow them to bank hours and work flextime. Mr. Freeman falsely stated in open court that Joan Long was one of Ms. Prasser s subordinates who falsified their time cards. Mr. Freeman falsely stated he did not negotiate the Long settlement agreement but rather, drafted it after Ms. Ahern and Tom Lobe struck a deal. 9

10 Mr. Freeman misled the Court in claiming I only talked to [Long] and met her once, with Ann-Marie Ahern in the room, and Ann-Marie Ahern and Tom Lobe negotiating the settlement 5. Mr. Freeman misled the Court in claiming My recollection is there was no drafted agreement until after Mr. Lobe and Ms. Ahern struck the deal. Mr. Freeman represented Defendants against Prasser with extreme malice and vengeance. Mr. Freeman falsely stated at sidebar that he instructed his witnesses not to enter the courtroom until called to testify, on pain of death. SOLON S REQUEST FOR SANCTIONS Solon s motion for sanctions against Prasser and Groedel are summarized as follows: Prasser and/or Ms. Groedel pursued Prasser s age discrimination claim and resisted summary judgment despite lacking evidence of even a prima facie case. Prasser and/or Ms. Groedel pursued Prasser s age discrimination claim and resisted summary judgment despite lacking evidence of pretext. Prasser and/or Ms. Groedel pursued Prasser s retaliation claim and resisted summary judgment even though Prasser s admissions warrant the City s counterclaims. Prasser and/or Ms. Groedel pursued Prasser s promissory estoppel and fraud claims and resisted summary judgment despite lacking evidence of reasonable reliance. Prasser and/or Ms. Groedel sought summary judgment on the City s counterclaims despite lacking any factual or legal basis to do so. Prasser and/or Ms. Groedel pursued Prasser s false light and defamation claims and resisted summary judgment even though Defendants made no false statements and even the allegedly-false statements were quoted and attributed to third parties in writing. Ms. Groedel falsely accused Mr. Freeman of serving subpoenas without copying her when, in truth, the subpoenas were served by the county prosecutor in Prasser s criminal case. Ms. Groedel falsely accused Mr. Freeman of threatening a witness on the record and at a hearing without any evidence or basis in fact. Prasser and/or Ms. Groedel falsely and baselessly accused Mr. Freeman of being involved in Prasser s criminal proceedings. Prasser and/or Ms. Groedel baselessly attempted to depose and disqualify Mr. Freeman from the case. 5 This is a correct quote of the July 10, 2015 Hearing Transcript. Prasser s quote (Prasser Mot. at 10 is not. 10

11 In discovery, Prasser and Ms. Groedel claimed Prasser did not have any records from her criminal case despite those records being in the possession of Prasser s criminal attorney Jerome Emoff. Prasser and/or Ms. Groedel repeatedly raised the same disputes regarding Prasser s criminal records on matters previously (and repeatedly decided by Judge Matia and Judge Jackson. Prasser and/or Ms. Groedel attempted to file new exhibits into the record at the April 27 th summary judgment hearing contrary to the Court s journal entry that no reply briefs or exhibits would be permitted. Prasser and/or Ms. Groedel repeatedly sought to dismiss the City s counterclaims even after the Court denied their request to do so. Prasser and/or Ms. Groedel sought to dismiss the City s counterclaims on the pleadings by arguing the City s allegations were factually untrue. In Prasser s summary judgment briefs, Prasser and/or Ms. Groedel made factual assertions found nowhere in the record. At the April 27 th summary judgment hearing, Ms. Groedel made factual assertions found nowhere in the record. Prasser and/or Ms. Groedel opposed Defendants motion to excuse Mayor Drucker from the April 27 th hearing for no valid reason only to make this case more difficult and inconvenient for the Mayor. Prasser and/or Ms. Groedel attempted to refile Prasser s constructive discharge claim 6 months after the Court dismissed that claim as a matter of law. Prasser and/or Ms. Groedel pursued Prasser s retaliation claim based on the criminal investigation without bothering to confirm whether the investigation predated Prasser s threat of a lawsuit and despite ample available evidence the investigation predated Prasser s threatened suit. Prasser and/or Ms. Groedel argued against individual statutory immunity despite binding Eighth Appellate District Court authority in which Ms. Groedel was the attorney of record. Ms. Groedel represented on the record and at a hearing that she obtained Solon s privileged documents through a public records request, when they were actually documents obtained through the county prosecutor. Prasser and/or Ms. Groedel filed a time-barred appeal. Ms. Groedel made documents false statements to the Court when seeking an extension of time. 11

12 COURT S ANALYSIS AND OPINION The substantial number of suggested sanctions asserted by each party, as well as the tenor and tone of these sanctions illustrates the manner Freeman and Groedel characterized the other when dealing with each other, the Court, and this lawsuit. The Court has reviewed each suggested sanction, and has decided not to impose any sanction other than as discussed in this section. The Court certainly does not condone the alleged conduct regarding the other suggested sanctions. Rather, the Court has selected the most serious conduct to impose sanctions on each counsel. During trial, as explained in detail below, both lead counsel for the parties violated Professional Conduct Rules; Groedel 3.1 Meritorious Claims and Contentions, 3.3 Candor to the Tribunal, 3.4 Fairness to Opposing Party and Counsel, 3.5 Impartiality and Decorum of the Tribunal (a(5, (6, 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers, and 8.4 Misconduct (a, (c, (d, (h: Freeman 3.5 Impartiality and Decorum of the Tribunal (a(5, (6, 4.4 Respect for Rights of Third Persons (a, 8.4 Misconduct (a, (d, (h. Both counsels conduct during trial served to undermine the integrity of the proceedings, and the effective administration of justice. In re Contempt of Morris, 110 Ohio App.3d 475, Freeman: Unnecessarily Aggressive Conduct Toward and Intimidation of a Witness Causing Delay of the Trial. Long was one of the key witnesses in this trial. During a break in proceedings while Long was testifying, and outside the presence of the jury, Groedel stated on the record that she believed Freeman intimidated Long and was unnecessarily aggressive toward Long when he attempted to communicate with her about her courtroom testimony. The Court stopped the trial, and held a hearing outside the presence of the jury to question Long regarding these allegations. 12

13 She testified that Freeman contacted her about being a witness in this case and asked if she would discuss her testimony with him, especially any statements made to Prasser s counsel in preparation for trial. Long stated that she would not because her deposition was already taken and she did not want to meet with him before trial. She also indicated that she would not meet with Prasser s counsel for the same reason. Nevertheless, Freeman believed that Long had conversations with Prasser s counsel and again contacted Long about meeting to discuss her statements to Prasser s attorney. Long testified that she felt threatened and intimidated by Freeman s aggressive conduct in these conversations, in text messages to her, and also by his conduct toward her directly outside the courtroom just before her testimony. She further testified that as a result of Freeman s conduct, she was nervous and having difficulty remembering facts. Each counsel had the opportunity to question Long, and at the conclusion of that hearing, the Court stated on the record that Freeman had been overly aggressive and intimidated Long, and that an instruction to that effect would be given to the jury. Evid.R Long also indicated that she believed she could testify truthfully and not have Freeman s previous conduct affect her testimony. Thereafter, the Court issued its limiting instruction to the jury regarding this matter including why Long was having difficulty answering Freeman s questions, and Long continued to testify. Id. Freeman apologized to Long for his conduct in open court with the jury present. The Court notified Freeman outside the presence of the jury that it was considering additional sanctions for this conduct. Freeman overstepped his bounds in his desire to know what if anything, this witness stated to counsel for Prasser prior to her trial testimony. Prof.Cond.R. 3.5(a(5, and (6; Prof.Cond.R. 4.4(a; Prof.Cond.R. 8.4(a, (d, and (h. Long repeatedly told him that she did not 13

14 want to discuss the matter with him and that he should rely on her deposition testimony. Freeman was unnecessarily aggressive and, the Court finds that he intimidated this witness. Prof.Cond.R. 4.4(a. Freeman s conduct demonstrated an intent to disrupt Long s testimony and the proceedings, and undignified and discourteous conduct degrading to the Court, and the practice of law. Prof.Cond.R. 3.5(a(5, and (6. Finally, Freeman s conduct caused unnecessary delay of the trial and administration of justice, and reflects poorly on his fitness to practice law. Prof.Cond.R. 8.4(a, (d, and (h. Freeman apologized to the jury, which was appropriate, but it does not excuse his conduct and a sanction for this act of contempt of court is accordingly warranted. In re Contempt of Morris, 110 Ohio App.3d 475, ; Mentor Lagoons, 31 Ohio St.3d 256, 259. Therefore, the Court fines Freeman $2, The Court is not sanctioning Freeman for violation of the separation of witness order, despite the fact that it also caused a needless delay in trial. The Court reviewed all of Prasser s reasons for sanctions against Freeman, supporting arguments, and the various filings and proceedings in this case and denies Prasser s motion for sanctions. While these allegations are very serious and may warrant further review in other disciplinary proceedings, the Court determines that Prasser did not demonstrate that Freeman engaged in frivolous conduct pursuant to Civ.R. 11 or R.C Groedel: Unnecessary Trial Delay and Misleading the Court Regarding the Law. During the trial, the Court routinely inquired if the parties were aware of any issues that needed to be discussed outside of the presence of the jury, before the jury would be brought into open court after a recess. Before resuming day five of the trial, the Court met with counsel to determine the scheduling for the next several days and to ascertain who the witnesses would be. 14

15 The Court then asked counsel if there were other issues and when neither counsel raised other issues, the meeting concluded. The trial resumed. During the cross examination of one of Solon s witnesses, Groedel presented a document for that witness to examine and Solon objected. The Court held a sidebar to address this objection; after a few moments regarding this discussion, the Court determined this issue was much more complicated and could not be resolved in a short time. Accordingly, the Court excused the jury and instructed them to return to the jury room. In open court on the record and outside the presence of the jury, the Court continued the discussion with the counsel. Groedel cited an appellate court decision that was not from the Eighth Appellate District Court, which indicated that cross-examination of a witness using the information contained in this document was not prohibited by the unemployment compensation statute in question. Solon presented other authority and objected to the use of the document. The Court then reviewed the statute and the case cited by Groedel. While she correctly stated the holding in the case she cited, as determined by the Ninth Appellate District Court, Groedel also failed to disclose that the Ninth Appellate District Court cited an Eighth Appellate District Court decision that held the opposite conclusion which was unfavorable to Prasser s position. Groedel s excuse was that her law clerk found that case and that she read the case late the night before. After the Court took a prolonged recess to review the cases and the statute, and hear arguments from the parties, the Court sustained Solon s objection and prohibited Prasser from using this document on cross examination because of the Eighth Appellate District Court s holding on the issue, and that court s mandatory authority over this Court. Either Groedel failed to read the next paragraph in the Ninth Appellate District Court s opinion, which referenced the Eighth Appellate District Court, or she intentionally did not 15

16 mention the Eighth Appellate District Court s opinion. Either way, Groedel mislead the Court by her failure to do the basic fundamental research expected of any trial counsel when presenting legal authority for the Court to rely upon. She also failed to advise the Court that her research of the Supreme Court of Ohio and the Eighth Appellate District Court did not produce any results before arguing a position of another appellate court. The Court reiterated this obligation throughout litigation, especially in anticipation of evidentiary issues during trial. It is also clear that this issue with this witness was known to the parties, because Groedel came prepared to argue her position with persuasive case law. Groedel had every opportunity to review this issue long before the trial started and file the appropriate motion in limine. Further, she had every opportunity to bring the issue to the Court s attention in the morning conference before trial started, but she waited to raise this issue with the Court, until testimony resumed. A sanction for contempt of court is warranted in this case because Groedel is an experienced trial lawyer who unnecessarily delayed trial on a matter that should have been discussed and reviewed either by motion in limine or at the very least in the morning conference before resuming trial testimony. Her decision to argue persuasive case law without first directing the Court to the mandatory authority violated Court orders, local rules, and Professional Conduct Rules. The Court notified Groedel during trial that it was considering sanctioning her for this conduct. Moreover, this is not an isolated event. Groedel has misstated the law or the record in a number of filings in this case. The following examples are a non-exhaustive list. She misstated the law in Prasser s motion for new trial or in the alternative for judgment not withstanding verdict by consistently arguing a new trial standard while specifically requesting judgment notwithstanding verdict. 16

17 In Prasser s motion for sanctions against Freeman, she materially misstated Prof.Cond.R. 3.3 (Candor to the tribunal, by including a reckless standard which is not in the rule. She misstates R.C , the statute on frivolous conduct and fails to advise if it is objective or subjective. She then makes legal conclusions without law or rules to support her argument. She also pursued sanctions against Freeman under Ohio s statute on perjury, and falsification, but provided no basis why those laws apply to this situation. Additionally, and as previously noted she misquoted Freeman from remarks during the July 10, 2015 hearing 6. In Prasser s Motion against Freeman, she plainly misquoted Civ.R. 5(B, and Civ.R. 5(D. Her citation to Civ.R. 11 includes only parts of the rule favorable to her position, and omitted portions that are less favorable to her position. In Prasser s pre-trial statement she cites the wrong statute number as the statue on Civil Theft. The statue is R.C , but she cites it as R.C While it is possible that she may have been trying to cite R.C the criminal statue of theft in office - this statute is still not the governing statute on Civil Theft. The last example is Prasser s brief in opposition to Solon s motion for summary judgment. It contained several misstatements and interpretations of Prasser s testimony, Lobe s testimony, and information in the news articles submitted as exhibits. There was also a false assertion that Prasser s interim replacement of the Solon Center of the Arts (SCA was never made the Director of SCA. It is difficult for the Court to find that all of these examples are mistakes innocent mistakes when there are numerous circumstances when the law or record is not accurately cited. Rather, these examples constitute a pattern of conduct that the Court was aware of when Groedel misled the Court regarding the unemployment compensation matter. 6 See supra fn

18 Groedel s conduct violated the Court s orders regarding introduction of persuasive authority, Prof.Cond.R. 3.3(a(2, Prof.Cond.R. 3.4(c. To the extent Groedel intended to have her law clerk accept responsibility for her conduct at trial, as lead counsel and the sole partner of Groedel Law, the Court finds her responsible for the conduct of this law student pursuant to Prof.Cond.R. 5.1 who was acting under her direction. Groedel s conduct needlessly delayed the trial because these evidentiary issues were clearly foreseeable and anticipated by Groedel, but she waited until testimony with the witness began before raising the issues. Prof.Cond.R. 3.5(a(5. Groedel demonstrated that she violated these rules, court orders, and misrepresented the law by failing to disclose mandatory case law on the evidentiary issue, engaged in conduct that was prejudicial to the administration of justice, and demonstrated a pattern of conduct that reflects adversely on her fitness to practice law. Prof.Cond.R. 8.4(a, (c, (d, (h; In re Contempt of Morris, 110 Ohio App.3d 475, ; Mentor Lagoons, 31 Ohio St.3d 256, 259. The Count finds Groedel s conduct in contempt of Court, and therefore, sanctions Groedel $2, The Court is not sanctioning Groedel for violation of the separation of witness order, despite the fact that it also caused a needless delay in trial. Groedel: Filing Motions for Summary Judgment, Opposing Summary Judgment, then Asserting that Disputed Material Facts Existed at a Subsequent Hearing. Solon s motion for sanctions against Prasser and her counsel, Groedel and Groedel Law, pursuant to R.C is granted and denied in part. Solon s motion for sanctions against Prasser pursuant to R.C is denied. The Court reviewed all of Solon s reasons for sanctions against Prasser and her counsel, supporting arguments, and the various filings and proceedings. The Court does not find that Prasser is responsible for these legal decisions and strategies that are the responsibility of legal counsel. While all of Solon s allegations are very 18

19 serious and may warrant further review in other disciplinary proceedings, the Court determines that Solon only demonstrated frivolous conduct by Groedel as outlined below. Groedel filed a motion for summary judgment regarding Solon s counterclaims for breach of fiduciary duty, unjust enrichment, conversion, and civil theft. She also, filed a motion for summary judgment on Prasser s claims for age discrimination, retaliation, and promissory estoppel. At the motion for summary judgment hearing, associate attorney Fischbach, with Groedel present, stated on the record that material issues of fact exist with regard to all matters before the Court on summary judgment, including Solon s counterclaims. At no time prior to this event did counsel for Prasser make such statement. Solon spent a considerable amount of time and resources in responding to Prasser s motions for summary judgment, and preparing for the hearing. The Court also spent a considerable amount of time reviewing the motions, and briefs in opposition in preparation for the motion for summary judgment hearing, and in anticipation of making a ruling on the motions. By making such admission that material facts exist, counsel for Prasser was acknowledging that her motions for summary judgment should not been filed and that there was no basis for such filings. Moreover, even after this admission, counsel unequivocally advised that Prasser was not withdrawing the motions. The Court determines that this conduct illustrates the conduct of Groedel and Groedel Law throughout the litigation process, and these admissions establish that Groedel engaged in frivolous conduct by filing these motions based on improper purposes resulting in unnecessary delay, and a needless increase in litigation costs. R.C (a(i. Solon was adversely affected by Groedel s conduct by incurring expenses related to responding to these motions for summary judgment, and preparation for the summary judgment hearing. R.C (c. As a result, a sanction is 19

20 warranted against Groedel, and her firm, Groedel Law, as she has always been lead counsel and senior counsel in this case. She never disputed the statements made by her assisting counsel, and she is responsible for the conduct of a subordinate attorney. Prof.Cond.R On May 24, 2016, the Court granted summary judgment for Solon as a matter of law on Prasser s claims against it for False Light and Defamation. In that opinion, the Court referenced Solon s pending claims for Frivolous Conduct and Civ.R. 11 sanctions against Prasser and her counsel for filing claims of defamation and false light. The Court determined that as a matter of law Prasser could not demonstrate any facts that Solon provided any false statements of facts about Prasser. While defamation was one of Prasser s original claims, false light was added by amendment in a third amended complaint after the completion of discovery on March 9, The Court found by examining the evidence presented by both parties on summary judgment that the allegedly false or defamatory information Prasser complained of being published in the media was obtained by her own statements, statements of her legal counsel in criminal and these proceedings, by the Cuyahoga County Prosecutor s office, or were the news reporter s own statements and inferences. In review of the evidence presented, and the Court s findings on these claims it is plain that these allegations had no evidentiary support, even after a reasonable opportunity to conduct discovery on them. R.C (a(iii. Groedel s decision to pursue these claims, including amending false light into the complaint after discovery was completed and all facts were investigated was frivolous conduct. Id. Solon was adversely affected by defending against the motion to file the third amendment of Prasser s complaint by filing an objection, filing another answer to the third amended complaint, and filing a motion for 7 Prasser obtained leave of court to amend her complaint a second time to add false light and a second retaliation claim on August 6, 2015, after this case was reassigned to this Court. However, the second amended complaint that was filed did not include the false light claim, which counsel realized after the close of discovery, and obtained leave for the third amended complaint on the basis that leave was previously granted, but through counsel s inadvertence, the claim was not filed. 20

21 summary judgment on these claims which were not supported by any facts. R.C (c. Additionally, when Solon filed its motion for summary judgment, including a request for judgment on these claims, rather than amending these claims out of the complaint or notifying Solon that she would not object to dismissing these claims, she filed opposition to summary judgment on these claims. R.C (a(iv. Then at the hearing, Groedel argued that there was a genuine issue of material fact, despite the fact that the evidence plainly did not support these claims. Id. These denials of the facts after reasonable discovery and investigation constitute frivolous conduct. Id. Solon was additionally adversely affected by having to prepare for and argue its prevailing position during the hearing on summary judgment motions. R.C (c. CONCLUSION A hearing will be held on June 16, 2016 at 1:30 PM in Courtroom 15-D to determine the amount of attorney fees and costs that were unnecessarily incurred by Solon because of Groedel frivolous conduct. Prasser s motions for sanctions against Freeman, filed September 27, 2016, supplemented on December 2, 2016, are denied. Solon s motion for sanctions against Groedel, filed July 25, 2016 and supplemented September 28, 2016 are granted and denied in part. IT IS SO ORDERED. DATED: JUDGE MICHAEL E. JACKSON THE CLERK OF COURT SHALL SERVE A COPY OF THE FOREGOING JOURNAL ENTRY AND OPINION ON ALL COUNSEL OF RECORD AT THE ADDRESS LISTED ON THE COURT DOCKET. 21