Nancy Lowrie & Assoc., LLC v. Ornowski, 102913 OHCP, CV 12 795979

Docket Nº:CV 12 795979
Opinion Judge:John P. O'Donnell, J.
Party Name:NANCY LOWRIE & ASSOC., LLC, Plaintiff, v. DEBORAH ORNOWSKI, et al., Defendants
Case Date:October 29, 2013
Court:Court of Common Pleas of Ohio
 
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NANCY LOWRIE & ASSOC., LLC, Plaintiff,

v.

DEBORAH ORNOWSKI, et al., Defendants

No. CV 12 795979

Court of Common Pleas of Ohio, Cuyahoga

October 29, 2013

JOURNAL ENTRY GRANTING THE DEFENDANTS' MOTIONS FOR SANCTIONS

John P. O'Donnell, J.

Plaintiff Nancy Lowrie & Associates, LLC filed a verified complaint and motion for a temporary restraining order on November 21, 2012. The motion was granted ex parte that same date. The language of the journalized entry was almost entirely provided by the plaintiff, with minor changes by the court. In particular, although the plaintiff suggested a $100 bond, a $15, 000 bond was ordered instead. The plaintiff never posted a bond.

The gist of the temporary restraining order against defendant Deborah Ornowski was to prohibit her from providing counseling services in competition with the plaintiff inside of 15 miles from the plaintiff's office.1 Additionally, Ornowski and defendants Bridget Lind and Gabriel Consulting Group, LLC (Ornowski's company) were enjoined from using or disclosing the plaintiff's confidential information. The temporary restraining order was to last 14 days, until December 5.

On December 4, a joint agreement to extend the temporary restraining order for another 14 days was filed. The stipulation was drafted by plaintiff's counsel Jeffrey W. Krueger and signed by all counsel without changes, then adopted by the court. Besides restating the language of the original temporary restraining order, the December 4 order also said that " plaintiff shall continue to post the existing bond in the amount of $15, 000."

After a hearing, the plaintiff's motion for a preliminary injunction was denied January 8, 2013, and the plaintiff voluntarily dismissed the lawsuit on April 12.

On April 25 Ornowski filed a motion to recover damages on the bond on the basis that the temporary restraining order was wrongly granted. Lind filed a similar motion on May 31. The plaintiff has opposed both motions and they are fully briefed.

With her motion to recover damages on the bond Lind also included a motion for sanctions pursuant to Rule 11 of the Ohio Rules of Civil Procedure. The grounds for that request are that the plaintiff and her counsel knew a bond was never posted as required by the temporary restraining order yet, as part of the 14-day extension, they represented that a $15, 000 bond would " continue." Ornowski filed a similar motion on June 14 that also cites section 2323.51 of the Ohio Revised Code as a basis for sanctions. The plaintiff has opposed both motions and they too are fully briefed.

A hearing on the pending motions was held on September 4, 2013, and this entry follows.

Civil Rule 65(C)

Civil Rule 65(C) provides that " no temporary restraining order or preliminary injunction is operative until the party obtaining it gives a bond" fixed by the court. By virtue of this rule, which is mandatory, an injunction does not become effective until the bond is posted. Summers v. Moore , 4th Dist. No. 80 X 19 (July 30, 1981). Since the bond here was never posted, the order was never operative and Ornowski and Lind were never restrained by an enforceable court order. As a result, neither of them could have sustained damages because of a temporary restraining order that " should not have been granted" 2 and the two motions for damages under Civil Rule 65(C) are denied.

Timeliness of Ornowski's R.C. 2323.51 motion

R.C. 2323.51(B)(1) allows a party adversely affected by frivolous conduct to file a motion for an award of the party's expenses " at any time not more than 30 days after the entry of final judgment in a civil action." The plaintiff argues that Ornowski's motion for sanctions under R.C. 2323.51 is time barred because the lawsuit was voluntarily dismissed on April 12 and the motion was not filed until June 14, more than 30 days later. The Ohio Supreme Court has construed the word " judgment" in the frivolous conduct statute to mean a final appealable order. Soler v. Evans, St. Clair & Kelsey , 94 Ohio St.3d 432, 436, 2002 Ohio 1246, 763 N.E.2d 1169 (2002). But a Civil Rule 41(A)(1)(a) voluntary dismissal is not a final judgment. See, e.g., Hensley v. Henry , 61 Ohio St. 2d 277, 279, 400 N.E.2d 1352 (1980). Indeed, that...

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