Burrell v. Kassicieh

• Citation: 128 Ohio App.3d 226,714 NE 2d 442
• Decision Date: 05 June 1998
• Docket Number: No. 13-97-54.,13-97-54.
• Parties: BURRELL, Appellant, v. KASSICIEH, Appellee.
• Court: United States Court of Appeals (Ohio)

128 Ohio App.3d 226

714 NE 2d 442

BURRELL, Appellant, v. KASSICIEH, Appellee.^*

No. 13-97-54.

Court of Appeals of Ohio, Third District, Seneca County.

Decided June 5, 1998.

COPYRIGHT MATERIAL OMITTED

Geoffrey L. Oglesby, for appellant.

Bradley S. Warren, for appellee.

SHAW, Presiding Judge.

Plaintiff-appellant Joel L. Burrell, M.D., appeals from the decision of Court of Common Pleas of Seneca County that rendered judgment in favor of defendant-appellee, Charles B. Kassicieh, M.D.

On April 3, 1997, Burrell filed a complaint alleging assault and battery claims against Kassicieh for an incident that occurred on April 3, 1996. In response, Kassicieh's filed an answer on May 23, 1997. Within this same document, a twocount counterclaim was also asserted, alleging that Burrell's complaint violated the frivolous conduct prohibition within R.C. 2323.51 and Civ.R. 11.

At the time Burrell filed his complaint, he was represented by counsel. However, this representation ended prior to the filing of Kassicieh's answer and counterclaim. In a July 15, 1997 pretrial conference order, Burrell was ordered to obtain legal representation by August 8, 1997, the scheduled pretrial date.

Burrell failed to respond to Kassicieh's counterclaim within the twenty-eightday time frame. On August 11, 1997, Kassicieh filed a motion requesting a default judgment. Burrell, pro se, filed an answer on August 22, 1997. In this document, he stated that the complaint failed to be filed timely due to errors made by the initial attorney, despite Burrell's attempts to promptly pursue the matter. Burrell also stated that the answer was not timely filed because of difficulties in obtaining subsequent representation. Burrell further responded to Kassicieh's motion by requesting that the court deny an entry of default judgment and permit him to voluntarily dismiss the alleged charges against Kassicieh. Finally, Burrell included an affidavit with these documents.

A hearing on Kassicieh's default motion was held on October 6, 1997. Burrell was present at this hearing, pro se. On October 8, 1997, Burrell's claims against Kassicieh were formally dismissed. Regardless, in the October 10, 1997 entry, Kassicieh was awarded his requested default judgment, and, thus, Burrell was found to have engaged in frivolous conduct in violation of Ohio statute and rules. On November 4, 1997, the attorney fees and expenses hearing was held. Both parties were represented by counsel at this hearing, and, in its subsequent judgment entry, the trial court awarded a monetary sanction to Kassicieh.

From this order, Burrell appeals and lists the following assignment of error:

"The trial court erred in awarding attorney fees, pursuant to R.C. 2323.51 and Civ.R. 11, against an individual when the individual did not file the `pleading' but instead had a licensed attorney file the pleading who later withdrew from representation of the plaintiff."

As an initial issue, we note that Burrell's voluntary dismissal of his claims against Kassicieh did not divest trial court jurisdiction to render a decision on Kassicieh's frivolous conduct counterclaim. As stated in Lewis v. Celina Fin. Corp. (1995), 101 Ohio App.3d 464, 470, 655 N.E.2d 1333, 1337:

"While a voluntary dismissal under Civ.R. 41(A)(1) generally divests a court of jurisdiction citation omitted, a hearing on sanctions is considered collateral to the underlying proceedings, and a trial court therefore retains jurisdiction for the limited purpose of applying Civ.R. 11 and R.C. 2323.51. See Risk Insurers v. Lorenz Equip. (1994), 69 Ohio St.3d 576, 580, 635 N.E.2d 14, 17-18, citing Cooter & Gell v. Hartmarx Corp. (1990), 496 U.S. 384, 396-397, 110 S.Ct. 2447, 2456-2457, 110 L.Ed.2d 359, 375-377, (Rule 11 sanctions are collateral to the action and may be considered by the trial court after an action is no longer pending); Schwartz v. Gen. Acc. Ins. of Am. (1993), 91 Ohio App.3d 603, 606, 632 N.E.2d 1379, 1381, (trial court does not lose jurisdiction to consider properly filed motions for sanctions pursuant to Civ.R. 11 and R.C. 2323.51 following plaintiff's voluntary dismissal of the complaint under Civ.R. 41). Accordingly, the trial court retained jurisdiction for the limited purpose of considering the appellees' motion for attorney fees as a sanction for engaging in frivolous conduct, as any other result would permit a party to voluntarily dismiss an action to evade an award of sanctions under Civ.R. 11 or R.C. 2323.51." See, also, State ex rel. Richard v. Cuyahoga Cty. Bd. of Commrs. (1995), 100 Ohio App.3d 592, 596, 654 N.E.2d 443, 445-446.

Thus, the trial court possessed jurisdiction to make a determination of Burrell's conduct.

Turning to the merits of the listed assignment of error, Burrell challenges the trial court's finding that he engaged in frivolous conduct in violation of Ohio rules and statute. Civ.R. 11 and R.C. 2323.51 address frivolous claims. "A frivolous claim is a claim that is not supported by facts in which the complainant has a good-faith belief, and which is not grounded in any legitimate theory of law or argument for future modification of the law." Jones v. Billingham (1995), 105 Ohio App.3d 8, 12, 663 N.E.2d 657, 659.

The initial decision of whether a party's conduct is frivolous is a factual determination, particularly if the alleged conduct was intended to harass or maliciously injure. Ceol v. Zion Indus., Inc. (1992), 81 Ohio App.3d 286, 291, 610 N.E.2d 1076, 1078-1079. Because the trial judge has the benefit of observing the course of proceedings and is familiar with the parties and attorneys involved, a reviewing court is obligated to defer to the trial court's findings that one party harassed or injured another. Id. at 292, 610 N.E.2d at 1079-1080. On the other hand, a trial court's determination of whether a party has a good-faith argument under the law is a question of law, which an appellate court may competently review. Lable & Co. v. Flowers (1995), 104 Ohio App.3d 227, 233, 661 N.E.2d 782, 785-786.

In either case, appellate review of a trial court's decision to impose sanctions pursuant to Civ.R. 11 and R.C. 2323.51, and upon whom to impose such sanction, is on an abuse-of-discretion standard. See, Lewis, 101 Ohio App.3d at 471, 473, 655 N.E.2d at 1337-1338, 1339. An abuse of discretion occurs when a trial court's decision is unreasonable, arbitrary, or unconscionable and is more than an error in law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1141-1142.

The Ohio Civil Rule pertaining to frivolous conduct is Civ.R. 11, which states:

"Every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address and attorney registration number, if any, shall be stated. * * * The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. * * * For a willful violation of this rule an attorney or pro se party, upon motion of a party or upon the court's own motion, may be subjected to appropriate action, including an award to the opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule. * * *"

This rule has been interpreted as applicable only to the party signing the document. Lewis, 101 Ohio App.3d at 472, 655 N.E.2d at 1338-1339; Riley v. Langer (1994), 95 Ohio App.3d 151, 162-163, 642 N.E.2d 1, 7-8. Thus, had Burrell's first attorney been the only person signing pleadings, motions, or other papers placed before the court, any court assessment of sanctions upon Burrell might have been in error. However, in the time period Burrell was pro se, he placed documents before the court. Accordingly, the provisions of Civ.R. 11 apply to Burrell as much as the rule...