COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60307 HATHAWAY BROWN SCHOOL : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MICHAEL TROY WATSON : and : MAVIS WATSON : : Defendant-appellants : : and : : ALVIA SHAW : : Appellee/cross-appellant : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 26, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Cleveland Heights Municipal Ct. : Case No. 89 CVF 1473 JUDGMENT : AFFIRMED IN PART; : REVERSED IN PART AND : REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: ROBERT H. YOUNG Attorney at Law 601 Rockwell Building, #610 Cleveland, Ohio 44114 For defendant-appellants: MICHAEL TROY WATSON Attorney at Law 1367 East Sixth Street 400 Lincoln Building Cleveland, Ohio 44114 For appellee/cross-appellant JOYCE H. NEIDITZ-SNOW Alvia Shaw: Attorney at Law 630 Leader Building Cleveland, Ohio 44114 - 1 - FRANCIS E. SWEENEY, J.: Defendant-appellants, Michael Troy Watson and Mavis Watson, timely appeal the trial court's judgment for plaintiff-appellee, Hathaway Brown School, on appellee's breach of contract com- plaint. Defendant-appellee/cross-appellant Alvia Shaw, timely appeals the trial court's overruling of cross-appellant's motion for attorney fees and costs pursuant to Civ. R. 11. For the rea- sons set forth below, we affirm, in part, the judgment of the trial court and reverse only that portion of the trial court's judgment denying cross-appellant's motion for Civ. R. 11 sanc- tions and remand this matter to the trial court solely for a hearing on whether appellant Michael Troy Watson violated Civ. R. 11. The pertinent facts are as follows: Appellee filed a complaint against appellant Michael Troy Watson and his ex-wife Mavis Watson based on a contract they signed with appellee to enroll Ashley Shaw-Watson in appellee's kindergarten program. Appellee filed an amended complaint naming cross-appellant Alvia Shaw as a new-party defendant. Appellant Michael Troy Watson filed an answer and a cross-claim against - 3 - Alvia Shaw. Service of the amended complaint and cross-claim on cross-appellant was made by certified mail to his California residence. Cross-appellant filed a motion to dismiss the amended complaint and cross-claim against him for lack of personal juris- diction, as a non-resident of Ohio, and for failure to state a claim. Appellee filed no response to the motion to dismiss, which was granted by the trial court on July 16, 1990. Cross- appellant also filed a motion for attorney's fees and costs in defending the groundless cross-claim which the trial court over- ruled without a hearing. After a bench trial, the court found that appellee established by a preponderance of the evidence that appellants, Michael Troy Watson and Mavis Watson, are jointly and severally liable to appellee under a contract entered into be- tween appellee and the Watsons. Appellants now timely appeal, raising three assignments of error for our review. Cross-appel- lant timely raises one assignment of error for our review. ASSIGNMENT OF ERROR I. THAT THE TRIAL COURT ERRED IN DISMISSING THE CROSS-COMPLAINT OF DEFENDANTS VS. DEFENDANT, ALVIA SHAW FROM THE LAWSUIT WITHOUT BENEFIT OF TRIAL. Appellant Michael Troy Watson contends the trial court erred in granting cross-appellant's motion to dismiss the cross-claim for lack of personal jurisdiction over him where (1) appellant entered an appearance in the action and (2) appellant had sufficient minimum contacts with Ohio based on his alleged oral - 4 - request to be guarantor of a contract. These arguments are with- out merit. Plaintiff's complaint must sufficiently plead facts alleging a non-resident defendant's minimal contacts with Ohio, thereby alleging the court's jurisdiction over a person in order to with- stand such defendant's motion to dismiss based on Civ. R. 12(B)(- 2) defense of lack of personal jurisdiction. Jurko v. Jobs Eu- rope Agency (1975), 43 Ohio App. 2d 79. Where a defendant as- serts that the court lacks personal jurisdiction over him, the plaintiff has the burden to establish the court's jurisdiction by a preponderance of the evidence. Giachetti v. Holmes (1984), 14 Ohio App. 3d 306. In the present case, cross-appellant filed a motion to dis- miss the cross-claim on the ground that the amended complaint fails to allege any facts establishing that cross-appellant, a non-resident, had minimum contacts in Ohio, which are essential before jurisdiction can be acquired. Cross-appellant alleged that he has been a resident of Cali- fornia since at least 1983, was not in Ohio at the time he re- ceived service, and has not transacted business in Ohio nor com- mitted any act in Ohio which could form the basis for personal jurisdiction. Furthermore, Hathaway Brown School admitted in its response to cross-appellant's request for admissions that at no time did Alvia Shaw enter into an oral or written contract to enroll Ashley Shaw-Watson in Hathaway Brown School, nor did Alvia - 5 - Shaw ever guarantee payment of the bill or agree to pay the account in question. The record demonstrates that the amended complaint and cro- ss-claim fail to set forth any facts establishing that cross- appellant transacted any business in Ohio or committed any act in Ohio and, therefore, failed to plead facts necessary to sustain personal jurisdiction over cross-appellant. Furthermore, no party opposed or raised any objection to cross-appellant's motion to dismiss. Thus, appellant failed to meet his burden of estab- lishing the court's personal jurisdiction over cross-appellant. Accordingly, we conclude that the trial court did not err in granting cross-appellant's motion to dismiss the amended com- plaint and cross-claim against him. Assignment of Error I is overruled. ASSIGNMENT OF ERROR II. THAT THE TRIAL COURT ERRED IN AWARDING JUDG- MENT FOR PLAINTIFF, HATHAWAY BROWN SCHOOL, AS AGAINST DEFENDANT, MICHAEL TROY WATSON (ONLY), NO DISPUTE AS TO JUDGMENT AS AGAINST MAVIS WATSON IS HEREIN RAISED. Appellant Michael Troy Watson apparently contends that the trial court's judgment was against the manifest weight of the evidence. This argument is without merit. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weig- - 6 - ht of the evidence. C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. We will make every reasonable pre- sumption in favor of the trial court's judgments. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77. At trial, Julie Stanger, a Business Manager at Hathaway Brown School, identified, as Exhibit A, a contract for enrollment at Hathaway Brown signed by appellants Mavis and Michael Troy Watson. Ms. Stanger identified, as Exhibits B and C, billing statements sent by Hathaway Brown to the appellants showing the balance due and owing to be in the amount of $2,906.50. Appellant Michael Troy Watson testified that he was married to Mavis Watson at the time the contract was made and that Ashley Shaw-Watson resided in his household during the contract period. Mr. Watson admitted to signing the contract to enroll Ashley Shaw-Watson for kindergarten at Hathaway Brown School. Mr. Watson, a lawyer, testified in narrative form that he felt he was not responsible for the debt because Ashley Shaw-Watson was not his natural or adopted child, nor did he believe that he derived any benefit from his signing of the enrollment contract. Based upon the above, we find that competent, credible evi- dence exists to support that appellants are jointly and sever- ally liable to appellee pursuant to the contract entered into be- tween appellee and the Watsons. Accordingly, we find that the trial court's judgment is not against the manifest weight of the evidence. - 7 - Assignment of Error II is overruled. ASSIGNMENT OF ERROR III. THAT THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENDANTS (SIC.) DEMAND FOR A JURY TRIAL IN THIS LAWSUIT. Appellant contends the trial court erred in denying his demand for a jury trial. This argument is without merit. Civ. R. 38(B) provides that a party may demand a trial by jury not later than fourteen days after the service of the last pleading directed to such issue. In the present case, the last responsive pleading sent to appellant was filed on March 19, 1990. The demand for jury trial was not filed until May 3, 1990. Accordingly, the trial court did not err in finding that the jury demand was out of rule and in striking the jury demand. Assignment of Error III is overruled. CROSS-ASSIGNMENT OF ERROR I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT AWARDING MR. SHAW, APPELLEE/CROSS-APPELLANT HEREIN, REASONABLE ATTORNEY FEES AS COSTS, PURSUANT TO OHIO CIVIL RULE 54(D), WHERE APPELLANT WILLFULLY VIOLATED RULE 11 OF THE OHIO CIVIL RULES. Cross-appellant, Alvia Shaw, contends the trial court erred in denying cross-appellant's motion for sanctions against appellant Michael Troy Watson, attorney for himself, pursuant to Civ. R. 11, which included a request for attorney fees and reim- - 8 - bursment for expenses incurred by Mr. Shaw with respect to travel from California to Ohio for the purpose of defending the action. The purpose of Civ. R. 11 is to ensure that a pleading is filed in good faith with adequate grounds to support it. Stevens v. Kiraly (1985), 24 Ohio App. 3d 211. A trial court's decision regarding the imposition of sanctions will not be reversed absent an abuse of discretion. State, ex rel. Fant, v. Sykes (1987), 29 Ohio St. 3d 65. However, in order to make a determination of whether a willful Civ. R. 11 violation occurred, a hearing should be held to receive evidence. Stevens, supra; Warner v. Zuccola (Dec. 24, 1987), Cuyahoga App. No. 53070, unreported. The Civ. R. 11 issue is independent of the issues being litigated in the parties' action. Id. To rely exclusively on the evidence pre- sented in the primary action precludes the court from hearing other evidence which may relate solely to the Civ. R. 11 issue; e.g., any mitigating circumstances. Therefore, this matter is remanded for a hearing, at which time evidence is to be presented on the issue of whether Civ. R. 11 was violated by appellant, an attorney for himself, when he signed and filed a cross-claim against the cross-appellee in this matter. Cross-Assignment of Error I is sustained in part. Judgment affirmed and reversed in part for proceedings con- sistent with this opinion. - 9 - It is ordered that appellee recover of appellants its costs herein taxed and? The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cleveland Heights Municipal 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. DYKE, P.J. JAMES D. SWEENEY, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .