COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70005, 70089 : ROBERT R. KRACHT : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION DENISE L. KRACHT, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 5, 1997 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court Case No. 230635 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: ROBERT R. KRACHT, ESQ. CLARK D. RICE, ESQ. The Galleria & Towers at Erieview BERTSCH, MILLICAN & WINSLOW 1301 East Ninth Street, Suite 1200 1280 West Third Street Cleveland, Ohio 44114-1824 Cleveland, Ohio 44113 JAMES E. POWELL, ESQ. 100 Courthouse Square 310 Lakeside Avenue., N.W. Cleveland, Ohio 44113 MARSHALL J. WOLF, ESQ. WOLF AND AKERS 1515 The East Ohio Building 1717 East Ninth Street Cleveland, Ohio 44114 - 3 - KARPINSKI, J.: Plaintiff-appellant, Robert R. Kracht, appeals from the judgment of the trial court which dismissed his case with prejudice for failure to prosecute. On appeal, plaintiff contends that the court erred, inter alia, by failing to allow plaintiff to dismiss the case voluntarily and by dismissing the case with prejudice without proper notice to plaintiff. We reverse and remand. The relevant facts follow. Plaintiff filed the within action against defendants Denise Kracht, attorney Joseph Stafford, attorney Marshall Wolf, and Denise Kracht's grandparents, Richard and Mildred Witzke. Wolf and Stafford represented Denise in her ongoing divorce litigation with plaintiff. In the complaint filed in general division of Cuyahoga County Common Pleas Court, plaintiff alleged that defendants collectively conspired wrongfully to prevent plaintiff from seeing his minor children. To fully understand the case at bar, we must review the history of the parties' divorce case. On July 12, 1989, plaintiff and defendant were granted a divorce. Thereafter, on June 1, 1990, Denise filed a "Petition to Remove Minor Children from the Jurisdiction." Service of this motion upon plaintiff was unsuccessful. The first attempt, via certified mail, was returned marked "refused." The second attempt, via ordinary mail, was not returned. A hearing was held before a referee on July 10, 1990 at which plaintiff did not appear because he did - 4 - not receive notice until July 13, 1990. The referee recommended that Denise be allowed to remove the children. After receiving notice of the pending motion, plaintiff filed objections to the referee's report. The trial court overruled these objections and plaintiff appealed. Because the failure of service rendered the judgment void ab initio, this court reversed and remanded. Kracht v. Kracht (Aug. 15, 1991), Cuyahoga App. No. 61101, unreported. This court found at 4 as follows: In the case sub judice, service of the appellee's motion to remove the three minor children, upon the appellant, was attempted by certified mail and by ordinary mail. In each case of service, however, the appellee forwarded the motion to the appellant's former business which was located at 1510 Ohio Savings Plaza, Cleveland, Ohio, 44114. The appellee did not attempt service at the appellant's known home address or known new business address. Thus, the appellant did not receive notice of the motion to remove until after a hearing was conducted by a referee with regard to the motion to remove. * * * Herein, a review of the record clearly demonstrates that the service of the motion to remove was not properly served upon appellant vis-a-vis his former business address. This failure of service thus resulted in a judgment on the part of the trial court which was void ab initio. 1 Id. at 4-5. The substance of plaintiff's case at bar is that the failure of service of the motion to remove was not inadvertent but intentionally designed to prevent plaintiff's opposition to the removal of his children. Plaintiff alleged that the defendants 1 Additionally, this court affirmed a finding of contempt against plaintiff wherein he was found to be in arrears for child support and spousal support in excess of $60,000.00. Kracht v. Kracht (Apr. 18, 1996), Cuyahoga App. Nos. 68281, 68985, unreported. - 5 - "colluded and conspired and deliberately caused the Petition and Summons to be sent to an address where they knew Plaintiff would not receive same in order to prevent Plaintiff from receiving actual knowledge of the Petition and proceedings thereon." Complaint at paragraph 3. Count one of the complaint alleged that these wrongful actions deprived plaintiff of his right to due process and thus stated a cause of action under 42 U.S.C. 1983. Count two alleged that defendants knowingly conspired to keep plaintiff away from his children in violation of R.C. 2919.23. Count three alleged that defendants' actions have caused severe emotional distress to plaintiff. Count IV alleged abuse of court process. Counts V and VI alleged that defendants' actions have proximately caused plaintiff to suffer the loss of his children's society. Count VII asked for equitable relief to bar defendants from further interfering with the rights of plaintiff's children. Count VIII prayed for punitive damages against defendants. Finally, Count IX sought an award of attorney fees against defendants. Plaintiff specifically requested a jury in his complaint. In support of his position, plaintiff filed the affidavit of Pamila Block, a former legal secretary for Denise's attorney, Joseph Stafford. In this affidavit Block avers as follows: 5. At the end of May, 1990, Mr. Stafford directed me to prepare a document titled "Petition for Authorization to Remove Minor Children to Michigan," a copy of which is attached hereto and incorporated herein as Exhibit "1." 6. At the time the Petition was prepared, the residential address of the defendant, Robert R. Kracht, was at 550 Tollis Parkway, Broadview Heights, Ohio, and - 6 - that address was the address utilized by Mr. Stafford to correspond with Mr. Kracht on matters prior to the preparation and filing of the Petition. 7. In conjunction with the petition, Mr. Stafford requested that I also prepare a praecipe directing the Clerk's office to send the Petition to an address other that Mr. Kracht's residential address. A copy of the praecipe that I prepared at Mr. Stafford's direction is attached hereto and incorporated herein as Exhibit "2." 8. Because Mr. Kracht's residential address was different than the address Mr. Stafford asked me to have the Petition served, I brought this discrepancy to Mr. Stafford's attention. He advised me that he wanted the Petition to be sent in the manner that it was in order to prevent Mr. Kracht from receiving notice so that Mr. Stafford's client, Denise Kracht, could move to Michigan before Mr. Kracht could take any action to prevent her from doing so. 9. During my employ, Mr. Stafford routinely directed me to prepare various pleadings, motions and correspondence and then deliberately not send a pleading, motion or correspondence to certain parties or their counsel, despite that [sic] fact that Mr. Stafford executed a proof of service on such pleading or motion certifying that a copy of same was in fact served upon the parties or counsel designated in the proof of service. If Mr. Stafford was questioned by opposing counsel as to why they were not served with a copy of such pleading, motion or correspondence, Mr. Stafford would instruct me to prepare a backdated letter indicating that a service copy had in fact been sent to that party. Affidavit of Pamila Block, attached as Exhibit D to plaintiff's brief in opposition to defendant's motion for summary judgment. Plaintiff also filed an affidavit of Cynthia M. Hetman, another former legal secretary of Joseph Stafford. In this affidavit, which was originally filed in another case, Hetman averred that Stafford would often not send service pleadings to opposing counsel and, if the other side questioned why a service copy was not sent, Stafford would instruct Hetman to send a back- dated letter after turning back the office postage meter. The - 7 - affidavit of Block, along with that of Hetman, was central to plaintiff's case. On January 26, 1995, Stafford filed a motion to strike the affidavit of Pamila Block on the basis of attorney-client privilege. This motion was overruled as moot on February 7, 1995. However, as will be discussed in more detail infra, on the morning of trial, a new judge assigned to the case granted defendant's motion in limine excluding any testimony of Pamila Block or Cynthia Hetman. A few hours later, plaintiff filed his voluntary dismissal. Pre-Trial History The pretrial history of this case extended over three years. The docket reflects 261 journal entries. The following dates are relevant to this appeal. On February 26, 1993, Denise Kracht filed motions to dismiss, for sanctions, and for attorney fees, pursuant to Rule 37, alleging plaintiff failed to attend a deposition. Denise's grandparents, who were also named as defendants, filed a concurrence in Denise Kracht's motion. In a journal entry dated May 10, 1993, Judge Angelotta overruled all three motions. On April 11, 1994, Denise Kracht filed a second motion to dismiss, pursuant to Rule 18, for want of prosecution. Marshall Wolf filed a motion to dismiss which adopted the substance of this motion. Stafford and the grandparents also filed motions to dismiss, similarly incorporating Denise Kracht's motion. In - 8 - orders journalized on May 19, 1994, Judge Angelotta overruled all four motions to dismiss. On August 25, 1994, Denise Kracht filed a third motion to dismiss, for sanctions, and for attorney fees, again alleging plaintiff failed to comply with discovery requests. The grandparents filed a concurrence in this motion. In an order journalized September 7, 1994, Judge Angelotta overruled this tripartite motion of both parties as moot. Joseph Stafford filed a motion for summary judgment on July 11, 1994. After plaintiff filed his brief in opposition, Judge Angelotta overruled Stafford's motion for summary judgment. On March 8, 1995, the trial court overruled Stafford's subsequent motion for reconsideration. Denise Kracht also filed a motion for summary judgment on November 11, 1994, and plaintiff filed his brief in opposition. On March 8, 1995, the trial court granted Denise Kracht's motion for summary judgment on counts one and two and overruled the motion for summary judgment as to counts three, four, and six. Denise Kracht filed a motion to vacate or, in the alternative, a motion to reconsider the trial court's ruling on her motion for summary judgment. The trial court overruled this motion on July 3, 1995. Additionally, defendant Marshall Wolf filed a motion for summary judgment on February 14, 1995. On August 1, 1995, the trial court granted summary judgment as to count one of - 9 - plaintiff's complaint but denied summary judgment on the remaining counts. On October 18, 1994, Denise Kracht filed a motion to dismiss pursuant to Civ.R. 37. Marshall Wolf filed a separate Motion to Dismiss, pursuant to Rule 37. On October 28, 1994, Stafford filed a motion to dismiss and requested sanctions. In orders journalized on November 4, 1994, Judge Angelotta overruled the motions of all three defendants. The Day of Trial The case was set for trial on November 20, 1995. On that date, Stafford moved for leave to file an amended answer instanter. This motion was never ruled upon. The amended answer listed as an affirmative defense that the complaint was initiated in bad faith in violation of civil Civ.R. 11 and R.C. 2323.51. On the same day, because of Judge Angelotta's heavy schedule, the case was transferred to visiting Judge McAllister for trial the next day. Plaintiff avers that, although the defense attorneys received notice of the November 21 trial date on the afternoon of November 20, plaintiff's counsel was not notified of the new trial date until the morning of November 21 and, furthermore, plaintiff, himself was not notified. On November 20, plaintiff filed a motion for continuance in Euclid Municipal Court, where he, as an attorney, was representing a client in a matter scheduled for trial on November 22, 1997. The municipal court denied this request. The order transferring the case to Judge McAllister was not journalized until December 12, 1995. - 10 - On the morning of the rescheduled trial, November 21, 1995, defendants filed, at 9:27 a.m., eleven motions in limine, including one to prohibit the testimony of Pamila Block and Cynthia Hetman, on the basis of attorney-client privilege. That morning, after hearing oral argument, the visiting judge granted all eleven motions. Further complicating matters on the morning of the rescheduled trial was that plaintiff was not present. He explains he was not given notice of this new trial date and, therefore, did not appear for trial, but his counsel did. Plaintiff states further that on the morning of November 21, 1995, he had a meeting scheduled in Mentor, Ohio with the client from the Euclid case and went to the municipal court to file a voluntary dismissal of that case so as to not conflict with the case at bar. Plaintiff further claimed that his counsel could 2 not reach him that morning. When the court recessed for lunch, with plaintiff still absent, the court warned plaintiff's counsel not to dismiss the case in order to refile it later. The record shows that at 1:21 p.m. plaintiff's counsel filed a written voluntary dismissal. When the court reconvened at 1:30 p.m., the trial judge stated 2 At this point, plaintiff explains, he was attempting to clear his schedule in general anticipation of the trial in this case, but he was not yet aware of the new trial date or rulings. - 11 - that he anticipated plaintiff's dismissal and, therefore, had 3 dismissed the case with prejudice in the noon hour. The trial court then granted defendants' motions for attorneys' fees under R.C. 2323.51 and sanctions under Civ.R. 11. The court awarded as follows: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant Denise Kracht is awarded the sum of Twenty Thousand Dollars ($20,000.00) in attorneys' fees and for sanctions against Robert R. Kracht and Thomas Lynn Meros, each being liable fifty percent (50%) of said amount, for which judgment is rendered and execution may issue; IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant Joseph G. Stafford is awarded the sum of Fifteen Thousand Dollars ($15,000.00) in attorneys' fees and for sanctions against Robert R. Kracht and Thomas Lynn Meros, each being liable fifty percent (50%) of said amount, for which judgment is rendered and execution may issue; IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant Marshall Wolf is awarded the sum of Fifteen Thousand Dollars ($15,000.00) for sanctions against Robert R. Kracht and Thomas Lynn Meros, each being liable fifty percent (50%) of said amount, for which judgment is rendered and execution may issue. Plaintiff filed two appeals, the first from the order dismissing the case, the second from the imposition of sanctions. These two appeals have been consolidated herein. Plaintiff's first assignment states as follows. I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY ENTERING THE INVOLUNTARY DISMISSAL. In this assignment, plaintiff argues that the trial court erred by dismissing the case with prejudice and thus not allowing plaintiff to dismiss the case voluntarily without prejudice. 3 This entry, however, was not journalized until December 14, 1995. - 12 - Because (1) a plaintiff may voluntarily dismiss a case at any time prior to the commencement of trial and (2) the trial court did not give sufficient notice before dismissing the case, we find merit to plaintiff's first assignment. On the morning of November 21, 1995, plaintiff did not appear for trial before the visiting judge. While waiting for plaintiff to appear, the trial judge heard arguments on the eleven motions in limine filed by the defendants. After granting all the motions, the trial judge became increasingly impatient with plaintiff's absence. When the court recessed for lunch, the court admonished plaintiff's counsel as follows: THE COURT: -- at this point and I don't want to see any unprofessional shenanigans like a dismissal submitted here. I think a trial is going to test the professionalism of all of us and we should all govern ourselves accordingly. I'll see you back here at 1:30. The parties then broke for lunch. The record then reflects that at 1:21 p.m. on November 21, 1995, plaintiff filed a voluntary dismissal pursuant to Civ.R. 41(a). When the parties reconvened at 1:30 on November 21, 1995, the court stated as follows: THE COURT: Can we let the record show in the case of Robert R. Kracht, et al, plaintiffs versus Denise L. Kracht, defendant, Case No. 230635, the defendant's [sic] orally moved for dismissal of this case before the lunch period. This Court was concerned that plaintiff's counsel and plaintiff would file a voluntary dismissal and obtain from plaintiff's counsel, Mr. Tom Meros, a statement that, as I understood it, he would not file a motion for dismissal pursuant to Rule 41A and that this case would proceed to proper conclusion. The Court indicated that since counsel for the plaintiff -- since plaintiff himself did not appear all - 13 - morning, that the Court would give him some opportunity to appear after lunch, but considering the demeanor demonstrated and demeanor by plaintiff's counsel, this Court determined during the noon hour that in all probability Mr. Meros would file his motion for voluntary dismissal and thereby prolong this litigation, which on the surface at least appears not to have been justified in the first instance. Accordingly, during the noon hour, this Court entered its dismissal with prejudice as to all counts. This case is over and was over at the time that you filed your notice of voluntary dismissal, Mr. Meros. I have been around this Court long enough to be able to judge character, and I was able to judge it apparently successfully in this instance. What you have done here in my view is contemptuous. (Tr. 81-82.) Pursuant to Civ.R. 41(A)(1)(a), a plaintiff has an absolute right to terminate his cause of action voluntarily and unilaterally at any time prior to the commencement of trial. Douthitt v. Garrison (1981), 3 Ohio App.3d 254. "In Ohio trial has ordinarily been deemed commenced when the jury is impaneled and sworn. Wagner v. State (1885), 42 Ohio St. 537; and Meyer v. Welsbacher (1947), 80 Ohio App. 200 [35 O.O 518]." Id. at 255- 256. This right to dismiss a case without prejudice is absolute and exists regardless of the party's motive. Sturm v. Sturm (1992), 63 Ohio St.3d 671. Ohio law encourages voluntary terminations, even though such terminations may be subject to inconvenience or abuse. Standard Oil Company v. Grice (1975), 46 Ohio App. 2d 97. This right exists even when a plaintiff files a notice of dismissal after the court announced its intent to grant motions to dismiss and instructed counsel to prepare a judgment entry but before that final judgment entry is journalized. Conley v. Jenkins (1991), 77 Ohio App.3d 511. Once a plaintiff - 14 - dismisses a case under Civ.R. 41(A), a trial court loses jurisdiction over the case and no action remains pending before the court. State ex rel. Hunt v. Thompson (1992), 63 Ohio St.3d 182; Torres v. Sears, Roebuck & Co. (1980), 68 Ohio App.2d 87. "Ohio law has not yet developed a clear cut test to determine when a trial commences for purposes of Civ.R. 41(A)(1)." Van Drivers v. Radigan & McGilly Moving and Storage Co. (Nov. 20, 1986), Cuyahoga App. No. 51155, unreported. McCormac has stated that under this rule, "[c]ommencement of the trial *** takes place when the case is called by the court and counsel indicates that they are ready to proceed." McCormac, Ohio Civil Rules Practice (2 Ed. 1992) 352, Section 13.03. In Frazee v. Ellis Brothers, Inc. (Aug. 22, 1996), Knox App. No. 95CA000045, unreported, the court held that for purposes of a voluntary dismissal, a bench trial commences at opening statements. In the case at bar, plaintiff filed his notice of dismissal at 1:21 p.m., November 21, 1995. At this point, the trial court had not dismissed the case. Although the court may have stated at 1:30 p.m. that the case had been dismissed in the noon hour, 4 no journal entry reflects this point. As stated supra, the entry whereby the trial court attempted to dismiss the case was not filed until December 14, 1995. "A court speaks only through 4 See Nichols v. Chrysler-Plymouth East (Dec. 24, 1991), Franklin App. No. 91 AP-458, unreported, in which the court reinstated a plaintiff's voluntary dismissal filed after the trial court granted summary judgment in favor of defendants but before the summary judgment decision was journalized. - 15 - its journal entry, and until journalized, a court's decision can have no effect on a party's right to voluntarily dismiss an action pursuant to Civ. R. 41(A)." Bank One v. O'Brien (Dec. 31, 1991), Franklin App. Nos. 91AP-165, 91AP-440, unreported at 11; Torres, supra. Under any standard previously stated, the trial had not commenced at the time plaintiff filed his voluntary dismissal. First, plaintiff's counsel filed his dismissal prior to opening statements. Second, plaintiff's counsel unequivocally indicated that he was not ready to proceed because plaintiff was not present. Third, plaintiff had requested a jury and the dismissal was filed before the jury was impaneled and sworn. Therefore, at the point of plaintiff filing his notice, the trial court lost jurisdiction over the case. Because plaintiff exercised his right to dismiss the case prior to the commencement of trial, the first assignment is sustained. Even if the court had jurisdiction--and it did not--there was not sufficient notice to plaintiff to dismiss the case with prejudice for failure to prosecute. A trial court must give notice of dismissal to plaintiff before dismissing a case for want of prosecution. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, paragraph one of the syllabus. McCormac stated this proposition as follows: An action or claim may be dismissed for failure of the plaintiff to prosecute the action or to comply with the Civil Rules or any order of the court. The provisions of this rule may be invoked (1) by defendant's motion for dismissal, or (2) by the court's own motion. In either event, plaintiff must be given - 16 - notice, thereby affording him an opportunity to correct the defect or proceed with the action. * * * The majority of the litigation surrounding involuntary dismissals for failure to prosecute or to comply with orders of the court have centered around the failure of the court to provide notice to plaintiff's counsel. Trial courts frequently have been incensed that plaintiff failed to appear at a pretrial or trial, or to comply with some other order important to the court and have immediately entered a dismissal without notice. Almost across the board, the dismissal without notice has been reversed as contrary to the provisions of Civil Rule 41(B)(1). As one court has recently said, notice is an absolute prerequisite for dismissal for failure to prosecute or comply with a court order. * * * It is error for the trial court to dismiss plaintiff's case without notice for failure to prosecute when plaintiff and his counsel fail to appear for trial on the assigned trial date. Notice of intended dismissal is a condition precedent to dismissal in order to provide the party in default an opportunity to explain why the case should not be dismissed with prejudice. McCormac, Ohio Civil Rules Practice, 13.07 Involuntary Dismissal For Failure to Prosecute, pp. 356-357 (footnotes omitted), cited in Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 128. Finally, before dismissing a case for want of prosecution, the trial court must consider other alternatives to a dismissal. Ina v. George Fraam & Sons, Inc. (1993), 85 Ohio App.3d 229. In the case at bar, the requisite notice was not given. The trial court never warned plaintiff that it was going to dismiss the case with prejudice during the noon break. Before breaking for lunch, the trial court said, "I'll see you back here at 1:30." The court thus gave no indication that it would attempt - 17 - to dismiss the case for failure to prosecute in the noon hour. In Logsdon at 129, the Ohio Supreme Court observed the same error: "[t]he record discloses no notice to plaintiffs' counsel or to plaintiffs that the action was subject to dismissal with prejudice. Accordingly, the trial court erred in failing to provide prior notice before dismissing plaintiffs' action with prejudice." Similarly, this assignment of error is sustained because of the lack of notice before the court dismissed the case with prejudice. Accordingly, the judgment of the trial court is reversed, and plaintiff's voluntary dismissal is reinstated. Plaintiff's third and fourth assignments of error raise the issue of the imposition of sanctions and will be addressed together. III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY CONSIDERING AND ENTERING THE SANCTIONS AWARD. IV. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY ENTERING THE SANCTIONS AWARD. In the case at bar, after plaintiff filed his voluntarily dismissal, the trial court attempted to dismiss the matter with prejudice and further granted defendants' motions for sanctions. In open court after the notice of voluntary dismissal was filed, the trial court stated that plaintiff's action of filing the notice of voluntary dismissal was contemptuous. (Tr. 82.) The trial court then informed counsel that it would entertain requests for sanctions at 2:00 p.m. that afternoon. At 2:01 p.m., plaintiff filed a request for a continuance of this - 18 - hearing. Neither he nor his attorney, however, appeared in court. As stated supra, once plaintiff filed the voluntary dismissal, the trial court lost jurisdiction over the matter. However, as defendants point out, the trial court did retain the limited jurisdiction over the motion for sanctions. State ex rel. J. Richard Gaier Co., L.P.A. v. Kessler (1994), 97 Ohio App.3d 782, 785. The trial judge did not specify his reasons for granting this motion. At the hearing on sanctions, defendants offered four reasons why sanctions should be imposed against plaintiff. None has merit. First, they noted that plaintiff filed his voluntary dismissal after the visiting judge told him not to. (Tr. 106.) A plaintiff cannot be sanctioned, however, for exercising his absolute right to dismiss an action. State ex. rel. J. Richard Gaier Co.. L.P.A., supra; Sturm v. Sturm (1992), 63 Ohio St.3d 671, 677. Second, defendants argued that plaintiff's repeated failure to comply with discovery requests was sanctionable. A review of the docket reveals that this argument was made in seven motions to dismiss (including concurrent motions.) The trial judge who presided over the case for over three and a half years denied each of these motions. Because of the prior history of the case, we find it an abuse of discretion for the visiting judge to award sanctions for alleged noncompliance with discovery. The original trial judge, who presided over the discovery portion of the case, - 19 - expressly overruled defendants' motions, which, inter alia, requested sanctions on the same basis--failure to comply with discovery--whereas the visiting judge had the case for less than a day and received no new evidence on this point. Third, defendants argue that plaintiff's failure to appear for the 2:00 p.m. hearing was sanctionable. We have no basis to doubt plaintiff's claim he failed to receive notice. We agree that plaintiff's attorney should have appeared at this hearing, but we do not agree that this action was sanctionable in light of the fact that the attorney was given only twenty minutes' notice of the hearing. This was not reasonable notice. We note, moreover, that plaintiff's counsel did file a motion for continuance of this hearing, which motion, technically, offered a modicum of respect for the court. Fourth, defendants argue that plaintiffs' lawsuit itself was frivolous and merely brought to harass defendants. From the fact that plaintiff survived eleven motions to dismiss and three motions for summary judgment, it is reasonable to infer that the original trial judge thought the case had merit. That the case survived all these motions for over three years must remove it from the charge that it was frivolous. Moreover, plaintiff has made serious allegations of unethical conduct against the defendant attorneys. The substance of these allegations can be found in the affidavits of the two former secretaries. While the scope of this appeal does not require this court to rule on the admissibility of the affidavits, we must address the issue in the - 20 - context of defendants' charge that the case was without merit. Defendants argue that the affidavits and expected testimony of Pamila Block and Cynthia Hetman are covered by the attorney- client privilege. This argument is unpersuasive for a number of reasons. First, the affidavits contain no communication with the client; rather, they contain statements about how defendant wanted service to be performed. The privilege covers "communications" between a client and her attorney. The policy behind the privilege is "to encourage clients to make full disclosures to their attorneys." Upjohn Co. v. United States (1981), 449 U.S. 383, 389. Nothing in the affidavits compromises this policy. Second, the contested evidence contains nothing derived from a communication from the client. Communications between attorneys or their staff will be covered by this privilege only to the extent the communication reveals privileged client communications. See, Rice, Attorney-Client Privilege In The United States (1993) 306-320, Section 5.2. Defendant's reliance on Kler v. Mazzeo (Mar. 21, 1991), Cuyahoga App. No. 58310, unreported, is misplaced because in Kler, the privilege covered the legal secretary's testimony regarding communications from the client. Third, the affiants' statements imply deliberate violations of the civil rules. Such statements are sufficient to prevent the operation of the privilege. Communications otherwise - 21 - protected by the attorney-client privilege or work product doctrine are not protected if the communications are made in furtherance of crime, fraud, or other misconduct. In Re Sealed Case (D.C. Cir. 1985), 754 F.2d 395, 399. The Ohio Supreme Court has recently followed this rule and stated that the privilege is not absolute and must yield as justice requires, as in the case where the information relates to some future unlawful or fraudulent transaction. Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 639, 661. Fourth, the lawyer's conduct is a central issue in the case at bar; thus the work product protection does not apply. Epstein, The Attorney-Client Privilege and the Work Product Doctrine (1997), 388, Section 2(V)(c). Fifth, issues regarding the termination of Block's employment go to the weight of her testimony, not, as defendant claimed, its admissibility. While we emphasize that we express no opinion as to the truth or falsity of these allegations, we cannot conclude that the bringing of this lawsuit was frivolous. Finally, defendants argue because plaintiff's attorney did not file a separate appeal, the imposition of sanctions against him cannot be reversed. In the case at bar, plaintiff and his attorney were so "interwoven or dependent on each other" that a reversal of the sanctions imposed upon plaintiff requires a reversal of the sanctions imposed upon plaintiff's attorney. Wigton v. Lavender (1984), 9 Ohio St.3d 40, syllabus. - 22 - Appellant's remaining assignments of error, quoted below, are rendered moot. App.R. 12(A)(1)(c). II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO GRANT PLAINTIFF'S MOTION FOR CONTINUANCE. V. THE TRIAL COURT ABUSED ITS DISCRETION AND DEMONSTRATED BIAS AND PREJUDICE TOWARD PLAINTIFF AND HIS COUNSEL MANDATING VACATION OF THE SANCTION AWARD AND INVOLUNTARY DISMISSAL. VI. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT CONSIDERED AND GRANTED DEFENDANTS' MOTION IN LIMINE. VII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO GRANT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST THE DEFENDANTS. Judgment reversed. - 23 - This cause is reversed and remanded. It is, therefore, ordered that appellant recover of appellees his costs herein taxed. 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. NAHRA, P.J., and PATTON, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .