[Cite as Holloway v. Holloway Sportswear, Inc., 2012-Ohio-2135.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SHELBY COUNTY 

 

D’LORAH HOLLOWAY, ET AL., 

 PLAINTIFFS-APPELLEES, 

 v. CASE NO. 17-11-24 

HOLLOWAY SPORTSWEAR, INC., ET AL., 

 DEFENDANTS-APPELLEES, 

 -andRANDALL W. HOLLOWAY, O P I N I O N 

 DEFENDANT-APPELLANT, 

[MARK VONDENHUEVEL, ET AL., 

 - APPELLANTS]. 

 

Appeal from Shelby County Common Pleas Court 

Trial Court No. 96CV000061 

Judgment Reversed and Cause Remanded 

Date of Decision: May 14, 2012 

 

APPEARANCES: 

Robert R. Furnier and Christopher L. Muzzo for Appellants 

Neil F. Freund and Lindsay M. Johnson for Appellee Burton 
Case No. 17-11-24 

-2- 

PRESTON, J. 

{¶1} Defendants-appellants, Randall W. Holloway (“Randall”) and 

ARAICH, Inc. (“ARAICH”) (formerly “Holloway Sportswear, Inc.”) (collectively 

“defendants”), and appellant, Mark Vondenhuevel (“Vondenhuevel”), appeal the 

Shelby County Court of Common Pleas’ judgment entry granting the motion to 

enforce subpoena upon Vondenhuevel filed by appellee, M. David Burton, Esq. 

(“Burton”). For the reasons that follow, we reverse. 

{¶2} On April 12, 1996, J. Boyd Binning, Esq. (“Binning”) and Burton 

filed a complaint against defendants alleging breach of contract and fraud and 

requesting an accounting on behalf of their clients, D’Lorah A. Holloway, Lorinda 

Jill Holloway, and others (collectively “plaintiffs”), in the Shelby County Court of 

Common Pleas. (Doc. No. 1). On July 1, 1997, the first amended complaint was 

filed adding additional causes of action, including: Counts I and V of 

Misrepresentation/Concealment; Counts II and VI of Breach of Fiduciary Duty; 

Count III of Fraud; Counts IV and VII of Abuse of Fiduciary Relationship; and 

Count VIII Demand for Accounting. (Doc. No. 110). 

{¶3} On November 3, 1998, the trial court granted defendants summary 

judgment as to Counts I through VII but denied defendants summary judgment on 

Count VIII, and the trial court certified its entry as a final order pursuant to Civ.R. 

54(B). (Doc. No. 144). On May 20, 1999, plaintiffs filed a Civ.R. 60(B) motion 
Case No. 17-11-24 

-3- 

for relief from judgment, which the trial court overruled on August 28, 2000. 

(Doc. Nos. 160, 174). On June 7, 2001, this Court affirmed the trial court’s 

judgments. Holloway v. Holloway Sportswear, Inc., 3d Dist. Nos. 17-98-20, 17-

2000-18. On October 10, 2001, the Ohio Supreme Court declined jurisdiction. 

Holloway v. Holloway Sportswear, Inc., 93 Ohio St.3d 1451. (Doc. No. 182). 

Thereafter, on April 19, 2002, the trial court granted defendants summary 

judgment on the remaining claim (Count VIII). (Doc. No. 189). 

{¶4} On May 10, 2002, defendants filed a motion for sanctions pursuant to 

Civ.R. 11 and R.C. 2323.51 against plaintiffs D’Lorah and Lorinda Jill Holloway, 

and their attorneys, Burton, Binning, and Lewis E. Williams, Esq. (“Williams”). 

(Doc. No. 192). 

{¶5} On February 6 and 10, 2004, defendants withdrew their motion for 

sanctions against D’Lorah and Lorinda Holloway and Williams. (Doc. Nos. 238, 

240). 

{¶6} On March 22, 2004, Binning filed a motion to dismiss, arguing that 

the motion for sanctions was untimely. (Doc. No. 244). 

{¶7} On April 26, 2004, defendants filed a revised motion for attorney’s 

fees and litigation costs as sanctions under Civ.R. 11 and R.C. 2323.51 against 

Burton and Binning. (Doc. No. 249). 
Case No. 17-11-24 

-4- 

{¶8} On July 21, 2004, the trial court dismissed defendants’ motion for 

sanctions under R.C. 2323.51 on Counts I through VII as untimely. (Doc. No. 

259). The trial court however determined that defendants’ motion for sanctions 

under R.C. 2323.51 on Count VIII was timely. (Id.). The trial court also held that 

defendants’ motion for sanctions under Civ.R. 11 were timely on all counts. (Id.). 

{¶9} On July 26-27, 2004, December 2, 2004, and March 25, 2005, the trial 

court held hearings on the motion for sanctions. (Doc. Nos. 282, 314). Thereafter, 

the parties filed post-hearing briefs. (Doc. Nos. 287-289). 

{¶10} On July 11, 2005, defendants filed a motion to substitute Peter 

Binning, Administrator of the Estate of J. Boyd Binning, as the proper party 

following Binning’s death. (Doc. No. 293). On December 20, 2005, the trial court 

sustained the motion. (Doc. No. 301). 

{¶11} On January 13, 2009, the trial court concluded that Burton and 

Binning had committed frivolous conduct in violation of Civ.R. 11 for filing the 

original and first amended complaints; and, Binning had committed frivolous 

conduct in violation of Civ.R. 11 for filing the memo contra to defendants’ motion 

for summary judgment dated March 13, 2002. (Doc. No. 314). The trial court 

denied defendants’ motion for sanctions under R.C. 2323.51 as to Count VIII of 

the amended complaint, as well as all defendants’ remaining grounds for sanctions 
Case No. 17-11-24 

-5- 

under Civ.R. 11. (Id.). A hearing on the amount of sanctions was scheduled for 

April 26-28, 2010. (Doc. No. 326). 

{¶12} Following the trial court’s judgment entry granting sanctions, the 

parties began mediating the amount of sanctions, along with the malpractice 

claims set forth in Holloway Sportswear, Inc. et al. v. Binning, Case No. 05 CV 

018. (Doc. No. 328). 

{¶13} On March 18, 2010, Burton filed a motion to dismiss the sanctions 

for failure to prosecute and failure to join a real party in interest. (Id.). Burton 

alleged that defendants’ counsel failed to send him documentation necessary to 

complete the mediation as ordered by the trial court. (Id.). Burton further alleged 

that, on May 2, 2006, Holloway Sportswear, Inc. (“HSI”) was sold to Augusta 

Sportswear, Inc.; and therefore, the former is no longer the real party in interest for 

sanctions. (Id.). On March 29, 2010, Binning’s estate joined the motion to 

dismiss. (Doc. No. 330). 

{¶14} On April 2, 2010, defendants filed a response to the motions. (Doc. 

No. 331). On April 5, 2010, the trial court overruled the motions. (Doc. No. 333). 

The trial court ordered defendants’ counsel to provide all supporting documents 

and a list of witnesses he intended to call at the April 26-28, 2010 hearing to 

determine the amount of sanctions to Burton’s counsel by April 15, 2010. (Id.). 

The trial court also instructed defendants’ counsel that the first day of the hearing 
Case No. 17-11-24 

-6- 

to determine the amount of sanctions would be reserved to demonstrate the real 

party in interest following the sale of HSI. (Id.). 

{¶15} On April 7, 2010, Burton filed a motion to continue the hearing. 

(Doc. No. 336). On April 8, 2010, the trial court held a telephone conference. 

(Doc. No. 338). On April 19, 2010, the trial court amended its April 5, 2010 

judgment entry, rescheduling the hearing to October 21-22, 2010. (Id.). The trial 

court ordered defendants’ counsel to deliver all supporting documents and a 

witness list for the rescheduled sanctions hearings and a real party in interest 

hearing, scheduled for July 1, 2010, to opposing counsel by May 3, 2010. (Id.). 

{¶16} On June 17, 2010, defendants filed a notice of name change and 

motion for summary judgment on the real party in interest issue. (Doc. No. 340). 

The motion for summary judgment alleged that, in 2006, HSI sold all of its assets 

to Holloway Acquisition, Inc., except for the right to pursue claims against Burton 

and Binning. (Id.). Attached to the motion was an “Acknowledgement and 

Modification of Asset Purchase Agreement,” executed on April 30, 2010, 

representing that the transfer of HSI’s assets to Holloway Acquisition, Inc. did not 

include any rights of recovery in the actions against Burton and Binning in Case 

Nos. 96CV000061 (sanctions) and 05CV000018 (malpractice claim). (Id.). 
Case No. 17-11-24 

-7- 

{¶17} Also on June 17, 2010, Burton and Binning’s estate filed a joint 

motion to continue the July 1, 2010 hearing for the purpose of conducting 

discovery on the real party in interest issue. (Doc. No. 344, 346). 

{¶18} On June 24, 2010, the trial court granted the motion to continue and 

held defendants’ motion for summary judgment in abeyance until Burton and 

Binning’s estate conducted discovery concerning the 2006 sale of HSI. (Doc. No. 

349). The trial court scheduled a conference call for July 1, 2010. (Id.). 

{¶19} On June 30, 2010, Burton filed a motion to continue the briefing and 

decision on defendants’ motion for summary judgment. (Doc. No. 351). On July 

7, 2010, the trial court granted the motion to continue the discovery deadline until 

September 29, 2010. (Doc. No. 355). On July 16, 2010, the trial court granted 

Burton’s Civ.R. 56(F) motion to extend the deadline for responding to defendants’ 

motion for partial summary judgment. (Doc. No. 356). 

{¶20} On September 30, 2010, Burton filed another motion to continue 

discovery until January 31, 2011 since HSI’s current president, Vondenhuevel, 

failed to attend deposition and bring certain documents, even though he was 

subpoenaed. (Doc. No. 361). 

{¶21} On October 13, 2010, the trial court approved and filed an agreed 

entry vacating both the October 12, 2010 status hearing and October 21, 2010 real 

party in interest hearing. (Doc. No. 364). 
Case No. 17-11-24 

-8- 

{¶22} On December 27, 2010, Burton filed a motion to enforce the 

subpoena directed at Vondenhuevel and HSI. (Doc. No. 370). On January 10, 

2011, the trial court held a hearing on the motion, and Vondenhuevel filed a 

memorandum in opposition. (Doc. Nos. 371, 377). 

{¶23} On February 16, 2011, the trial court granted Burton’s motion to 

enforce the subpoena as revised by the trial court to allow Vondenhuevel an 

opportunity to compile a privilege log for communications he believed were 

protected under the attorney-client privilege. (Doc. No. 384). On February 24, 

2011, a protective order governing the confidentiality of documents produced 

concerning the 2006 sale of HSI was entered upon the record. (Doc. No. 388). 

{¶24} On April 22, 2011, Burton filed a motion for in-camera review of the 

documents subpoenaed from Vondenhuevel, which Vondenhuevel listed as 

privileged communications. (Doc. No. 393). On April 27, 2011, defendants filed a 

motion for a protective order and to quash the subpoena. (Doc. No. 395). 

{¶25} On May 23, 2011, the trial court held a hearing on the pending 

motions. (May 31, 2011 JE, Doc. No. 412). The trial court granted Burton’s 

motion to enforce the subpoena of Vondenhuevel stating: 

[Burton]’s counsel will be permitted to again subpoena and depose 

Mark Vondenhuevel related to the real party in interest issue, 

including but not limited to documents Mr. Vondenhuevel has 
Case No. 17-11-24 

-9- 

executed and produced in this case, his knowledge of and 

involvement in the 2006 asset purchase of [HSI] and the 2010 

Acknowledgement and Modification of Asset Purchase Agreement. 

Nothing in this Entry shall limit counsel’s ability to question Mr. 

Vondenhuevel related to the issue of real party in interest. (Id.). 

The trial court also granted defendants’ motion for in camera review of documents 

and determined that the documents were, in fact, entitled to attorney-client 

privilege and not helpful to the real party in interest issue. (Id.). 

{¶26} On June 29, 2011, appellants Holloway, ARAICH, and 

Vondenhuevel filed a notice of appeal from the trial court’s judgment entry. (Doc. 

No. 419). Appellants raise a single assignment of error for our review. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ERRED BY DENYING THE JOINT 

MOTIONS TO QUASH AND FOR PROTECTIVE ORDER OF 

RESPONDENT MARK VONDENHUEVEL AND 

DEFENDANTS RANDY HOLLOWAY AND ARAICH, INC. 

[DOCKET NO. 412.] 

{¶27} In their sole assignment of error, appellants argue that the trial court 

erred by expanding the discovery process in a post-trial sanctions proceeding 

absent extraordinary circumstances. Specifically, appellants contend that the 

expansive discovery in this case will only reveal what is known by the parties 

already—that HSI did not transfer the rights to Shelby County Case Nos. 
Case No. 17-11-24 

-10- 

96CV000061 (sanctions) and 05CV000018 (malpractice) to Holloway 

Acquisition, Inc. in 2006. 

{¶28} Generally speaking, a trial court’s decision regulating the procedure 

of a Civ.R. 11 sanctions proceeding should not be disturbed on appeal absent an 

abuse of discretion. Stevens v. Kiraly, 24 Ohio App.3d 211, 214 (9th Dist.1985), 

citing 2A Moore, Federal Practice (1985) 11-20, paragraph 11.02[2]. As the 

Court of Appeals in Stevens v. Kiraly observed: 

Civ.R. 11 is silent on the procedure to be followed in seeking 

sanctions against an attorney for violations of the rule, but some 

guidance may be found in the federal rule and case law. The federal 

rule provides that sanctions may be invoked upon motion of either 

the court or the aggrieved party. Once again, wide latitude is 

granted the courts, according to the Advisory Committee Note: 

“* * * [I]t is within the court’s discretion to decide the procedure, 

timing and appropriateness of imposing a particular sanction. * * *” 

24 Ohio App.3d at 214. 

The Sixth and Tenth Districts have followed the Ninth District’s decision in 

Stevens, supra, and, likewise, concluded that trial courts have discretion 

concerning the procedure of Civ.R. 11 proceedings. Woods v. Savannah Foods 

and Industries, Inc., 6th Dist. No. L-92-160, *7-9 (Feb. 26, 1993); Huntington 
Case No. 17-11-24 

-11- 

Natl. Bank v. Abbot, 10th Dist. No. 89AP-432, *5 (Sept. 26, 1989). An abuse of 

discretion implies more than a mere error in judgment; rather, it implies that the 

trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶29} Neither Civ.R. 11 nor Ohio case law interpreting it addresses the 

proper scope of discovery for sanction proceedings. Since Civ.R. 11 was adopted 

nearly identical to Fed.R.Civ.P. 11 and has been amended over the years 

consistent with Fed.R.Civ.P. 11, federal case law addressing this issue, while not 

controlling, is instructive. Ceol v. Zion Indus., Inc., 81 Ohio App.3d 286, 290 (9th 

Dist.1992), citing 2A Moore’s Federal Practice (1990), Paragraph 11.01[3], at 11-

3; Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, ¶ 18, citing First Bank 

of Marietta v. Mascrete, Inc., 79 Ohio St.3d 503, 508 (1997); Stevens, 24 Ohio 

App.3d at 214, citing 2A Moore, Federal Practice (1985) 11-20, paragraph 

11.02[2]. For purposes of Fed.R.Civ.P. 11, federal circuit courts have concluded 

that trial courts “‘* * * must to the extent possible limit the scope of sanction 

proceedings to the record. Thus, discovery should be conducted only by leave of 

the court, and then only in extraordinary circumstances.”’ Amwest v. Mortg. Corp. 

v. Grady, 925 F.2d 1162, 1165 (9th Cir.1991), quoting Fed.R.Civ.P. 11, Notes of 

1983 Advisory Committee on Rules; Borowski v. DePuy, Inc., 876 F.2d 1339, 

1341 (7th Cir.1989), citing Indianapolis Colts v. Mayor and City Council of 
Case No. 17-11-24 

-12- 

Baltimore, 775 F.2d 177, 173 (7th Cir.1985); Donaldson v. Clark, 819 F.2d 1551, 

1560-1561 (11th Cir.1987); McLaughlin v. Bradlee, 803 F.2d 1197, 1205 (D.C. 

Cir.1986). Similarly, federal courts have noted that Rule 11 hearings are much 

narrower in scope than civil proceedings and cautioned against allowing sanction 

proceedings to expand into full-blown litigation. Amwest, 925 F.2d at 1165; 

Faigin v. Kelly, 184 F.3d 67, 79 (1st Cir.1999) (“The scope of a Rule 11 hearing is 

generally much more circumscribed than that of a trial or comparable 

proceeding.”); McIntyre’s Mini Computer Sales Group Inc. v. Creative Synergy 

Corp., 644 F.Supp. 589, 592 (E.D.Mich. 1986) (“The Advisory Committee 

cautioned against allowing sanctions proceedings to expand into full-blown 

litigation * * *.”); Klayman v. Barmak, 602 F.Supp.2d 110, 117 (D.D.C. 2009) 

(“A motion for sanctions does not provide parties an opportunity to litigate fully—

conduct discovery, present and cross-examine witnesses * * *.”). The 1983 

Advisory Committee on Rules noted that the limitation on discovery during 

sanction proceedings was “[t]o assure that the efficiencies achieved through more 

effective operation of the pleading regimen will not be offset by the cost of 

satellite litigation over the imposition of sanctions * * *.” Fed.R.Civ.P. 11, 1983 

Advisory Committee Notes. 

{¶30} The trial court abused its discretion by allowing further discovery in 

the Civ.R. 11 sanctions proceedings herein. Prior to the trial court’s order 
Case No. 17-11-24 

-13- 

enforcing the subpoena served upon Vondenhuevel, defendants filed an 

“Acknowledgement and Modification of Asset Purchase Agreement” in which the 

original parties to the sale of HSI clarified that HSI, now ARAICH, did not 

transfer any rights or liabilities related to litigation in the Shelby County Court of 

Common Pleas against Burton and Binning in Case Nos. 96CV00061 (sanctions) 

and 05CV000018 (malpractice) to Holloway Acquisition, Inc., now HSI. (Doc. 

No. 342, attached). This document was signed by W. Randall Holloway, president 

of ARAICH, and ARAICH Group, Inc., and Vondenhuevel, president of the newly 

formed Holloway Sportswear, Inc. (Id.). Prior to the trial court’s order, 

Vondenhuevel, president of both the former and newly formed HSI, submitted an 

affidavit detailing the history of the parties’ original sale of former HSI’s assets 

and the subsequent acknowledgment and modification agreement. (Doc. No. 404). 

In relevant part, Vondenhuevel averred that the Shelby County litigation was 

considered personal to Randall, and that Augusta management, the purchasers of 

the former HSI, had approved the execution of the Acknowledgement and 

Modification of Asset Purchase Agreement to that effect. (Id.). Despite these 

filings indicating that Randall and ARAICH (former HSI) are the real parties in 

interest herein, the trial court enforced the subpoena upon Vondenhuevel for 

Burton and Binning to further investigate the real party in interest issue. 

Consequently, this case failed to present any “extraordinary circumstance” 
Case No. 17-11-24 

-14- 

meriting further discovery on this issue; and therefore, the trial court abused its 

discretion in enforcing the subpoena upon Vondenhuevel. 

{¶31} The trial court’s order granting further discovery on the real party in 

interest issue is also unreasonable in light of the extreme delay that has already 

occurred in the sanctions proceedings. This case was originally filed in 1996 and 

was finally disposed of by summary judgment in 2002. Seven years later, the trial 

court determined that Burton and Binning committed frivolous conduct under 

Civ.R. 11. Now, more than three years later, the trial court has yet to determine 

the amount of sanctions to impose. This case epitomizes the expression “justice 

delayed is justice denied,” and the record demonstrates that the parties and the trial 

court share the blame for the extreme delay in this case. Absent our intervention, 

we fail to see this case coming to a much-needed, expeditious end. There is no 

need to expand the sanctions proceedings into full-blown litigation contrary to the 

intent of Civ.R. 11. 

{¶32} Appellants’ assignment of error is, therefore, sustained. 

{¶33} Having found error prejudicial to the appellants herein in the 

particulars assigned and argued, we reverse the judgment of the trial court and 

remand for further proceedings consistent with this opinion. 

Judgment Reversed and 

Cause Remanded 

SHAW, P.J. and ROGERS, J., concur.