COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74809 GEORGETTE ROARK, ET AL. : ACCELERATED DOCKET : Plaintiffs-appellees: : JOURNAL ENTRY -vs- : AND : OPINION U.S. TRUCK & TRAILER SALES, : INC. : PER CURIAM : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 19, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-306371 JUDGMENT: Reversed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: MARK W. RUF, ESQ. Hoyt Block, Suite 300 700 West St. Clair Avenue Cleveland, Ohio 44113-1230 For Defendant-Appellant: JOHN M. MANOS, ESQ. MICHAEL IACOBELLI , JR., ESQ. MANOS, PAPPAS & STEFANSKI 1600 Guildhall-Landmark Office 45 West Prospect Avenue Cleveland, Ohio 44115 PER CURIAM: Attorneys John M. Manos and Michael A. Iacobelli, Jr. -2- ( appellants ) appeal from the order of the trial court which mandated that they pay opposing counsel Mark W. Ruf $750 as sanction for filing an Agreed Statement of the Case pursuant to Appellate Rule 9(D) without Ruf's assent. For the reasons set forth below, we reverse. The record reveals that appellants represent U.S. Truck and Trailer Sales, Inc. ( U.S. Truck ) in an action for breach of contract and negligence filed by Ruf on behalf of Georgette and Al Roark. The record further reveals that the jury returned a verdict in favor of the Roarks on the negligence claim and awarded them $500. The jury found in favor of U.S. Truck on the breach of contract claim. Appellants filed a notice of appeal to this court. On the accompanying praecipe, appellants indicated that the appeal would proceed upon an Agreed Statement of the Case pursuant to Appellate Rule 9(D). On September 23, 1997, Ruf filed motions in this court and the trial court noting that he would not assent to an agreed statement and that the matter would have to proceed with a verbatim transcript. On September 29, 1997, appellants filed an Agreed Statement of the Case pursuant to Appellate Rule 9(D). This document contained appellants' signature block and a provision for the judge's signature. It did not contain Ruf's signature block or spuriously indicate that Ruf had concurred with its contents. Thereafter, Ruf filed motions with this court and the trial court urging that the Agreed Statement, be stricken because he had never assented to its contents. This court granted the motion -3- to strike and instructed appellants to file an amended praecipe. Proceeding with the original journal entries, motions and pleadings, pursuant to App.R. 9(A), i.e., without a verbatim transcript, this court eventually reversed the judgment of the trial court in this underlying action on April 16, 1998. See Roark v. U.S. Truck & Trailer Sales, Inc. (April 16, 1998), Cuyahoga App. No. 73164, unreported. The record further reveals that the trial court sua sponte scheduled a hearing pursuant to Civ.R. 11 to determine whether appellants should be sanctioned for filing the agreed statement without Ruf's consent. At this hearing, the trial court stated that it was considering whether there was a willful violation of Civ.R. 11. Iacobelli explained that he prepared the agreed statement at issue. He concluded that this court would not require a verbatim transcript and indicated on the praecipe that an agreed statement would be filed pursuant to App.R. 9(D). Iacobelli drafted this document to contain both appellants' signatures as well as Ruf's. Ruf subsequently notified him that he would not entertain any type of agreed statement (Tr. 11) and he removed Ruf's name from the document before filing it with the court. He anticipated that in accordance with the provisions set forth in App.R. 9(E), the trial court would ultimately settle the matter and determine the correct contents of the document. The trial court held the matter in abeyance throughout the pendency of this court's review. Thereafter, on June 5, 1998, the trial court sanctioned appellants, noting: -4- Plaintiff did not agree to a joint statement of the facts in lieu of a transcript. Plaintiff also contended that Defendant's Agreed Statement of the Case was an attempt to subvert the obligation to provide a transcript under the Rules of Appellate Procedure and that the statement of the case did not accurately reflect the two full days of trial which took place. At this point the Court became more concerned that actual misrepresentations to the court transpired and became convinced that the previously scheduled sanctions hearing against Attorneys Manos and Iacobelli was appropriate. *** There are only two possibilities to explain why Attorneys Iacobelli and Manos did not follow App.R.9(D):(1) they did not understand the process inherent in App.R.9(D), either because they never read 9(D), or they read it and did not understand it; or, (2) Attorneys Iacobelli and Manos knew exactly what App.R.9(D) required and inten- tionally did not follow its requirements. Neither possibility functions well as an excuse. At the hearing held on October 30, 1997, Attorney Iacobelli claimed that [he] did not understand the terms set forth in App.R.9(D) . Plaintiffs' attorney Mark Ruf's testimony deduced that Defendant's Attorney Iacobelli previously filed the agreed statement in front of the Court of Appeals, which was stricken because it did not comply with App.R.9(D). After it was stricken at the Court of Appeals, Defendant filed the Agreed Statement in front of this court, without the express or implied agreement of the plaintiff through Attorney Ruf. Attorney Ruf informed Attorney Iacobelli of his mistake, and of Plaintiffs' non-consent to the Agreed Statement and the incomplete and biased manner in which it was written; nonetheless, Attorney Iacobelli never withdrew, modified or corrected his filing, which he knew or should have known was incorrect, and which was ripe with blatant misrepresentations to this Court. Although this Court will not delve into potential textual vagaries or interpretations of App.R.9(D), suffice it to say that App.R.9(D) CLEARLY sets forth the procedure and manner in which to present an Agreed Statement as the record on appeal. It should not be difficult for an attorney to decoct that an Agreed Statement requires the consent of both parties. Attorney Iacobelli's statement that he did not understand the requirements of App.R.9(D) is not well taken, especially in light of the fact that the exact same agreed statement was previously stricken in the Court of Appeals for the very reason that -5- the statement was not presented with the consent of the Plaintiff. *** This Court, having carefully reviewed and considered said Agreed Statement , the testimony elicited at hearing, and having carefully reviewed App.R.9(D) as well as other evidence presented, hereby finds that Defendant's attorneys willfully, wantonly, and with intentional disregard to Appellate Rule 9(D), filed said agreed statement in contradiction to Appellate Rule 9(D), with the purpose of deceiving and misrepresenting certain facts to the Court, including but not limited to mis- representing that Plaintiff agreed to the statement when such simply was not the case. Appellants now appeal from this order and assign the following error for our review: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DETERMINED THAT DEFENSE COUNSEL WILLFULLY, WANTONLY, AND WITH INTEN- TIONAL DISREGARD FILED AN AGREED STATEMENT IN CONTRAVENTIONOF APPELLATE RULE 9(D) WITH THE PURPOSE OF DECEIVING AND MISREPRESENTING CERTAIN FACTS TO THE TRIAL COURT THEREBY WARRANTING THE IMPOSITION OF SANCTIONS. Appellants maintain that the trial court erred in imposing sanctions pursuant to Civ.R. 11 and in determining that appellants willfully violated App.R. 9(D). With regard to procedure, we note that Civ.R. 11 states, in pertinent part, that: "*** The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading 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 pleading had not been served. For a willful violation of this rule an attorney may be subjected to appropriate action. Similar action may be taken if scandalous or indecent matter is inserted." (Emphasis added.) An attempt to invoke Civ.R. 11, which seeks more than a mere -6- striking of the offensive pleading, requires the court to first determine whether there has been a violation of Civ.R. 11. Burns v. Henne (1996), 115 Ohio App.3d 297, 302. If such violation is found, the court must then consider whether it was willful as opposed to merely negligent. Ceol v. Zion Industries, Inc. (1992), 81 Ohio App.3d 286, 290. In this connection, the attorney's subjective intent must be considered in imposing sanctions pursuant to Civ.R. 11, although an objective standard is employed in proceedings undertaken pursuant to R.C. 2323.51. Id. Accord Toth v. Toth (1994), 94 Ohio App.3d 561, 570-571 (question of frivolity of pleading requires evidence attesting to attorney's subjective reasons for filing the motion rather than another party's objective conclusory opinion as to the reasons). If a willful violation is found, the appropriate sanction must be considered. Broad discretion is afforded to the determination of what, if any, sanction is to be administered. Stevens v. Kiraly (1985), 24 Ohio App.3d 211, 213-214. Thus, as the Ceol court explained, a three-part inquiry is required: First, the court must consider whether the attorney signing the document (1) has read the pleading, (2) harbors good grounds to support it to the best of his or her knowledge, information, and belief, and (3) did not file it for purposes of delay. If any one of these requirements is not satisfied, the next question is whether the violation was "willful" as opposed to merely negligent. Haubeil & Sons Asphalt & Materials, Inc. v. Brewer & Brewer Sons, Inc. (1989), 57 Ohio App.3d 22, 23, 565 N.E.2d 1278, 1279. If so, the court may impose an "appropriate action." With regard to the law governing the preparation of a record -7- on appeal, we note, as an initial matter, that a verbatim transcript is not necessary in each matter heard by this court. See Roark v. U.S. Truck & Trailer Sales, Inc. (April 16, 1998), Cuyahoga App. No. 73164, unreported (This court reversed the instant matter upon the original court papers and docket and journal entries pursuant to App.R. 9(A)); Conway v. Ford Motor Co. (1976), 48 Ohio App.2d 233, 236-237. That is, if an appellant can demonstrate the error complained of by use of original papers and exhibits or by docket and journal entries, the appeal may be considered on the basis of those materials pursuant to App.R. 9(A). Conversely, the appellant may determine that a verbatim transcript is necessary and proceed pursuant to App.R. 9(B). Pursuant to App.R. 9(C), if no report of the proceedings was made or a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings which must be submitted to the appellee then submitted to the trial court for settlement and approval. State ex rel. Fant v. Trumbo (1986), 22 Ohio St.3d 207, 208-209. App.R. 9(D) provides for an agreed statement submitted by both parties but authorizes the trial court to amend the document or return it to the parties for further review. Finally, App.R. 9(E) provides: "If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the court of -8- appeals, or the court of appeals, on proper suggestion, or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals." (Emphasis added.) Applying the foregoing, we note that App.R. 9(E) specifically vests this court with the authority to address all matters other than the correction and supplementation of the record. We there- fore believe that it was within the province of this court to consider whether a violation of Civ.R. 11 occurred in this matter, and in fact, this court remedied the problem of regarding Ruf's lack of consent by simply requiring the filing of a new praecipe. In any event, we find insufficient evidence to support the trial court's determination that a willful violation of Civ.R. 11 occurred in this instance. The undisputed facts of record demonstrate that the agreed statement was originally prepared for submission to Ruf and contained a provision for his signature. Once Ruf notified appellants that he would refuse to cooperate in submitting any proposed agreed statement, appellants deleted his name from the document and filed it with the lower court, anticipating that the trial court would settle any specific factual disputes. While appellants clearly should have captioned the document a Proposed Agreed Statement, it is obvious from even a cursory examination of the document that it was prepared and submitted exclusively by appellants. While the incorrect procedure was employed, there was absolutely no evidence from which the trial court could conclude that appellants filed the document incorrectly -9- with the intention of deceiving the court or otherwise willfully violated Civ.R. 11 herein. Reversed. -10- It is therefore considered that said appellants recover of said appellees their 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. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE TERRENCE O'DONNELL, 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 of decision by the .