COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61346 KATHRYN A. KEELER : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION SOHIO PROCARE, ET AL. : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. CP-164117 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: ROBERT J. VECCHIO Vecchio & Schulz Co., L.P.A. 720 Leader Building Cleveland, Ohio 44114 For Defendant-Appellant: ROBERT C. McCLELLAND CATHRYN R. ENSIGN Petro, Rademaker, Matty & McClelland 55 Public Square Suite 1775 Cleveland, Ohio 44113 - 2 - KRUPANSKY, J. Defendant-appellant Sohio ProCare ("ProCare") appeals from an order of the trial court denying its motion for sanctions without conducting a hearing following plaintiff-appellee Kathryn A. Keeler's voluntary dismissal of the underlying action. Plaintiff filed her complaint in the trial court January 30, 1989 against two defendants, viz., ProCare and Republic Industries, Inc. ("Republic"). Plaintiff alleged ProCare negligently diagnosed and serviced her leased 1984 Audi 5000S causing the transmission to fail and that Republic wrongfully denied warranty coverage for the necessary repairs. Plaintiff eventually settled her claim against Republic and dismissed Republic as a party to the action. During the course of discovery shortly before the scheduled trial date, ProCare filed two Civ. R. 37(D) motions for sanctions in the trial court based upon plaintiff's alleged failure to provide certain requested discovery. Plaintiff voluntarily dismissed the action November 27, 1990 prior to any ruling by the trial court on these pending motions for sanctions. ProCare subsequently filed another motion for sanctions pursuant to Civ. R. 11 and R.C. 2323.51. The trial court denied ProCare's motion for sanctions without conducting an evidentiary hearing. Defendant ProCare timely appeals raising two assignments of error relating to the trial court's failure to conduct a hearing and the merits of the trial court's denial of sanctions. Since - 3 - we reverse the trial court's denial of defendant's motion under defendant's first assignment of error due to the trial court's failure to conduct a hearing on defendant's motion, we decline to address the merits of the trial court's ruling under defendant's second assignment of error and remand for further proceedings 1 consistent with this opinion. App. R. 12(A)(1)(c). Defendant argues the trial court should have conducted an evidentiary hearing prior to ruling on its motion for sanctions as follows: THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING AS REQUIRE BY O.R.C. 2323.51 PRIOR TO RULING ON AND DENYING APPELLANT'S MOTION FOR ATTORNEY'S FEES DUE TO FRIVOLOUS CONDUCT. Defendant's first assignment of error is well-taken. Defendant argues the trial court improperly denied its motion for sanctions stemming from various alleged "frivolous conduct" by plaintiff and/or her counsel without conducting an evidentiary hearing pursuant to R.C. 2323.51. R.C. 2323.51 provides in pertinent part as follows: (B)(1) Subject to divisions (B)(2) and (3), (C), and (D) of this section, at any time prior to the commencement of the trial in a civil action or within twenty-one days 1 Defendant's second assignment of error provides as follows: THE TRIAL COURT ERRED IN FAILING TO DETERMINE THAT APPELLEE, KATHRYN A. KEELER AND/OR HER COUNSEL ENGAGED IN FRIVOLOUS CONDUCT AND THAT APPELLANT SHOULD HAVE BEEN AWARDED ITS REASONABLE ATTORNEY'S FEES. - 4 - after the entry of judgment in a civil action, the court may award reasonable attorney's fees to any party to that action adversely affected by frivolous conduct. The award may be assessed as provided in division (B)(4) of this section. (2) An award of reasonable attorney's fees may be made pursuant to division (B)(1) of this section upon the motion of a party to a civil action, but only after the court does all of the following: (a) Sets a date for a hearing 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 allegedly adversely affected by frivolous conduct; (c) Conducts the hearing described in division (B)(2)(a) of this section, 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 in question was frivolous and that a party was adversely affected by it, and then determine the amount of the award to be made. This Court has repeatedly held when construing these provisions that a trial court must conduct an evidentiary hearing to resolve factual disputes when a party makes an adequately supported motion for attorney fees pursuant to R.C. 2323.51 as in the case sub judice. Sawchyn v. City of Middleburg Heights (July 2, 1992), Cuyahoga App. No. 60642, unreported; Belfiore v. Nat'l - 5 - Engineering & Contracting Co. (Mar. 14, 1991), Cuyahoga App. No. 58205, unreported; Dreger v. Bundas (Nov. 15, 1990), Cuyahoga App. No. 57389, unreported; Hildreth v. Mims (1990), 70 Ohio App. 3d 282. Plaintiff's contention that a trial court lacks jurisdiction to sanction a party or counsel upon the filing of a notice of voluntary dismissal pursuant to Civ. R. 41(A)(1)(a) is unpersuasive. Although courts recognize that a party has an "absolute right" to dismiss an action once under Civ. R. 41(A)(1)(a), such a voluntary dismissal does not insulate a party or counsel from operation of the trial court's authority to impose sanctions for improper conduct which occurred during the course of the proceedings prior to the voluntary dismissal. Pisanik-Miller v. Roulette Pontiac-Cadillac GMC, Inc. (1991), 62 Ohio App. 3d 757 (motion for sanctions pursuant to R.C. 2323.51 filed one month after voluntary dismissal); see also Slabinski v. Seruisteel Holding Co. (1986), 33 Ohio App.3d 345 (discussing inherent authority of trial court to impose sanctions). This result is particularly warranted when prior motions for sanctions were pending in the trial court for related conduct immediately prior to the voluntary dismissal. Accordingly, defendant's first assignment of error is well- taken. Judgment reversed and remanded to the trial court to conduct an evidentiary hearing pursuant to R.C. 2323.51. - 6 - Judgment accordingly. - 7 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. 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. DAVID T. MATIA, C.J., and SPELLACY, J., CONCUR JUDGE BLANCHE KRUPANSKY 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. .