[Cite as Claybrooks v. Giant Eagle Inc., 2016-Ohio-7966.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104347

ADRIAN CLAYBROOKS 

PLAINTIFF-APPELLANT 

vs. 

GIANT EAGLE INC., ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

DISMISSED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-15-841726 

BEFORE: S. Gallagher, J., McCormack, P.J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: December 1, 2016 
ATTORNEY FOR APPELLANT 

Michael T. Conway 

3456 Sandlewood Drive 

Brunswick, Ohio 44212 

ATTORNEYS FOR APPELLEES 

Bonnie L. Kristan 

Littler Mendelson P.C. 

1100 Superior Avenue, East 

20th Floor 

Cleveland, Ohio 44114 

James F. Rosenberg 

Elly Heller Toig 

Marcus & Shapira 

301 Grant Street, 35th Floor 

One Oxford Center 

Pittsburgh, Pennsylvania 15219
SEAN C. GALLAGHER, J.: 

{¶1} Adrian Claybrooks belatedly challenges an award of discovery sanctions 

imposed under Civ.R 37(D), brought in the guise of appealing the trial court’s 

post-dispositive imposition of a two-week deadline to comply with the sanctions order.1

 

We must dismiss for the want of jurisdiction. 

{¶2} Claybrooks filed a wrongful termination action against his former employer 

based on claims of racial discrimination. During the discovery phase, Claybrooks failed 

to attend his scheduled deposition. The trial court, in November 2015, imposed 

sanctions against Claybrooks in the amount of $2,904.57 under Civ.R. 37(D). The trial 

court expressly considered the reasonableness of the attorney fees and expenses incurred 

in attending the deposition and prosecuting the motion for sanctions, and also noted that 

 1

Claybrooks also appeals the denial of his motion to correct a supposedly defamatory 

judgment entry issued by the trial court. On March 16, 2016, the trial court issued an order in part 

granting and denying “Defendants’ Motion to Enforce Sanctions and for Imposition of Additional 

Sanctions Due to the Contempt of Court of Plaintiff and His Counsel, filed 12/22/2015.” Claybrooks 

believes the trial court’s reference to the defendants’ motion is defamatory and the trial court should 

have used “neutral language” when denying that part of the motion. Instead of providing authority 

and arguments in support of the assigned error in his appellate brief, Claybrooks stated that “I don’t 

think we need to get into a big discussion about how unfair it is to make it appear that an innocent 

party is in contempt of Court on the docket when they are not.” App.R. 16(A)(7) requires not only 

the discussion, but also citations to relevant case or statutory authority. Because the appeal from the 

trial court’s order denying a motion to correct the record omitted a discussion of the assigned error 

accompanied with relevant authority, we will not consider it. App.R. 12(A)(2); Hawley v. Ritley, 35 

Ohio St.3d 157, 159, 519 N.E.2d 390 (1988).
Claybrooks failed to present anything other than his counsel’s personal opinion that the 

fees and expenses were unreasonable. Claybrooks voluntarily dismissed his action in 

December 2015, but did not timely appeal or settle the sanctions issue. 

{¶3} Following this dismissal of the action, defendants Giant Eagle, Riser Foods 

Company, and Larry Doubrava filed a motion to enforce the discovery sanction order. In 

response, Claybrooks contended that his notice of voluntary dismissal divested the trial 

court of jurisdiction to enforce the Civ.R. 37(D) sanctions already imposed. The trial 

court disagreed, referring to long-standing precedent that although a voluntary dismissal 

under Civ.R. 41(A)(1) generally divests a court of jurisdiction, a court may consider 

collateral issues not related to the merits of the action, including consideration of 

sanctions. Dyson v. Adrenaline Dreams Adventures, 143 Ohio App.3d 69, 72, 757 

N.E.2d 401 (8th Dist.2001), citing State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 

556-557, 740 N.E.2d 265 (2001); Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio 

St.3d 576, 580, 635 N.E.2d 14 (1994). This is especially true as long as a motion for 

sanctions under Civ.R. 37(D) is filed before the dismissal of the action. Id. In such a 

case, the trial court acquired jurisdiction of the collateral matters before and retained 

jurisdiction after a Civ.R. 41(A)(1) dismissal. Id.; ABN AMRO Mtge. Group, Inc. v. 

Evans, 8th Dist. Cuyahoga No. 96120, 2011-Ohio-5654, ¶ 11. Relying on that retained 

jurisdiction, the trial court imposed a two-week deadline to comply with the previously 

imposed sanctions. 
{¶4} Instead of resolving the outstanding collateral issue before the deadline, 

Claybrooks appealed, attaching the trial court’s post-dispositive order imposing the 

two-week deadline. Claybrooks, however, is not challenging the trial court’s authority to 

enforce the previous sanction order. Instead, the crux of his appellate argument 

challenges the imposition of discovery sanctions itself. Claybrooks’s appeal is 

necessarily based on two assumptions: (1) that we have jurisdiction to consider the merits 

of any challenges to the discovery sanctions imposed before the notice of voluntary 

dismissal was filed; and (2) that the post-dispositive order imposing a two-week deadline 

is a final appealable one under R.C. 2505.02. Neither of Claybrooks’s assumptions is 

true. 

{¶5} We lack jurisdiction to consider the merits of the November 2015 order 

imposing the discovery sanctions in this appeal filed in April 2016. The trial court’s 

sanction order was final, at the latest, on December 20, 2015, when the notice of 

voluntary dismissal was filed under Civ.R. 41(A)(1), which disposed of all underlying 

claims advanced in the complaint. See, e.g., Wilkins v. Sha’ste Inc., 8th Dist. Cuyahoga 

No. 99167, 2013-Ohio-3527, ¶ 6 (appeal of discovery sanctions filed upon resolution of 

all underlying claims before the trial court); Maurer v. DaimlerChrysler Corp., 8th Dist. 

Cuyahoga No. 92493, 2009-Ohio-5375, ¶ 22 (the imposition of sanctions is not final, and 

thus cannot be appealed, until all underlying claims are resolved). Claybrook failed to 

perfect an appeal from that order within the following 30 days as required by App.R. 

4(A). State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60, 531 
N.E.2d 713 (1988) (“[w]here a notice of appeal is not filed within the time prescribed by 

law, the reviewing court is without jurisdiction to consider issues that should have been 

raised in the appeal.”). We, therefore, cannot consider the reasonableness of the fees 

awarded under Civ.R. 37(D) or whether separate service of the motion for sanctions was 

required under Civ.R. 5 — issues that could have been raised in the direct appeal had one 

been timely filed. Id. 

{¶6} The only remaining issue is the post-dispositive, contempt proceedings 

addressing Claybrooks’s failure to abide by the trial court’s order imposing sanctions, 

which must be presumed to be valid based on the failure to appeal. The contempt 

proceedings, however, have not been concluded, and the order imposing a deadline for 

compliance or to show cause is not a final appealable one under R.C. 2505.02. Appellate 

courts have jurisdiction to only review final orders or judgments. Ohio Constitution, 

Article IV, Section 3(B)(2); Supportive Solutions, L.L.C. v. Electronic Classroom of 

Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490, ¶ 10. A party cannot 

appeal contempt proceedings until the trial court issues an order finding the party in 

contempt and, if the contempt is civil in nature, also imposes a conditional sentence. 

Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St.3d 107, 

2014-Ohio-4254, 22 N.E.3d 1035. Claybrooks’s appeal from the order imposing a 

two-week deadline to comply with the outstanding discovery sanctions is premature. 

{¶7} We cannot review the contempt proceedings until those are resolved, and we 

lack jurisdiction to consider the merits of the discovery sanctions order because it was not 
timely appealed under AppR. 4(A). The appeal is dismissed for the lack of a final 

appealable order and for the want of jurisdiction to consider the merits of the imposition 

of discovery sanctions. 

It is ordered that appellees recover from appellant costs herein taxed. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

SEAN C. GALLAGHER, JUDGE 

TIM McCORMACK, P.J., and 

EILEEN T. GALLAGHER, J., CONCUR