Sturm v. Sturm

• Decision Date: 20 May 1992
• Docket Number: No. 90-1929,90-1929
• Citation: 590 N.E.2d 1214,63 Ohio St.3d 671
• Parties: STURM, Appellee, v. STURM, Appellant.
• Court: Ohio Supreme Court

Page 671

63 Ohio St.3d 671

590 N.E.2d 1214

STURM, Appellee, v. STURM, Appellant.

No. 90-1929.

Supreme Court of Ohio.

Submitted Oct. 8, 1991.

Decided May 20, 1992.

SYLLABUS BY THE COURT

Civ. R. 41(D) grants jurisdiction to award costs for a dismissal pursuant to Civ.R. 41(A)(1)(a) to the court in which the action is refiled, but such costs do not include attorney fees.

On July 17, 1987, Mary Cook Sturm ("Cook"), appellee, filed a complaint for divorce in the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, alleging a common-law marriage to James A. Sturm ("Sturm"), appellant. On December 13, 1988, the day before the scheduled trial, Cook dismissed the action pursuant to Civ.R. 41(A)(1)(a), refiling the action that same day in the Court of Common Pleas of Ashtabula County. Sturm then filed a motion in the Cuyahoga County trial court to recover attorney fees pursuant to R.C. 2323.51. Sturm's motion alleged that Cook had engaged in frivolous conduct in dismissing the divorce action in Cuyahoga County, based upon both the timing of the dismissal and the immediate refiling of the action. The Cuyahoga County trial court granted the motion, awarding Sturm $3,000 in attorney fees in connection with preparation for trial and $2,000 for attorney fees in connection with the R.C. 2323.51 motion.

The court of appeals reversed the trial court, reasoning that after Cook exercised what that court characterized as an absolute right to dismissal once without prejudice under Civ.R. 41(A)(1)(a), the original court was divested of jurisdiction to award attorney fees pursuant to R.C. 2323.51. ¹

This cause is now before the court pursuant to the allowance of a motion to certify the record.

James B. Davis, Chagrin Falls, for appellee.

Kelley, McCann & Livingstone, James M. Wilsman, Cleveland and Linda M. Mette, Columbus, Hahn Loeser & Parks, John E. Schoonover, Cleveland and Jeffrey D. Van Niel, Columbus, for appellant.

BOWMAN, Judge.

The sole issue raised by the parties is whether, after Cook voluntarily dismissed her Cuyahoga County divorce action under Civ.R. 41(A)(1)(a) and refiled the action in Ashtabula County, the original trial court retained jurisdiction to determine that Cook's dismissal constituted frivolous conduct for the purposes of awarding attorney fees pursuant to R.C. 2323.51.

Sturm argues that the original trial court statutorily retained jurisdiction to award attorney fees within twenty-one days after final judgment, and that the phrase "entry of judgment" as used in R.C. 2323.51 includes an entry of dismissal filed by the plaintiff. Sturm urges that only this interpretation guards against the use of voluntary dismissals as a method of avoiding sanctions for litigation abuse.

R.C. 2323.51 provides, in part:

"(B)(1) * * * [A]t any time prior to the commencement of the trial in a civil action or within twenty-one days after the entry of judgment in a civil action, the court may award reasonable attorney's fees to any party to that action adversely affected by frivolous conduct. * * * "

The statute additionally defines frivolous conduct as "obviously serv[ing] merely to harass or maliciously injure another party to the civil action," and "not warranted under existing law" or "supported by a good faith argument for an extension, modification, or reversal of existing law." R.C. 2323.51(A)(2).

R.C. 2323.51, the "frivolous conduct statute," was enacted as part of Am.Sub. H.B. No. 327, which became effective October 20, 1987. Section 3 of the Act renders the statute prospective in application, and reads as follows:

"The provisions of this act shall apply only to civil actions that are commenced on and after the effective date of this act and that are based upon claims for relief that arise on or after that date, and only to conduct that occurs on or after that date." (Emphasis added.)

The use of the word "and" in this section indicates that, in order for R.C. 2323.51 to apply, the civil action, the underlying claims which gave rise to the civil action, and the allegedly frivolous conduct must all occur on or after October 20, 1987, the effective date of the statute. The provision constitutes an unequivocal expression by the General Assembly that this statute, in accordance with R.C. 1.48, is intended to be prospective, not retrospective, in scope. See Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262, 28 OBR 337, 339, 503 N.E.2d 753, 756 (where there is no clear indication of retroactive application, statute may only apply to cases arising subsequent to its enactment). R.C. 1.48 provides that "[a] statute is presumed to be prospective in its operation unless expressly made retrospective." ²

In the matter before us, the Civ.R. 41(A)(1)(a) dismissal of the original complaint, which comprised the allegedly frivolous conduct, occurred in December 1988, after the effective date of the statute; however, the complaint for divorce had been filed on July 17, 1987, and was based upon underlying claims for relief which arose even earlier. Because only one of the three conjunctive events which would trigger the applicability of R.C. 2323.51 occurred after October 20, 1987, the trial court's use of R.C. 2323.51 to award attorney fees in this matter was an impermissible retrospective application of a statute intended to be prospective in scope. ³

We hold that because the original divorce complaint was filed prior to the effective date of R.C. 2323.51, and was based on claims for relief occurring before October 20, 1987, that statute was inapplicable to allegedly frivolous conduct occurring after the effective date of the statute.

The question nevertheless remains whether other authority for awarding attorney fees existed and could have supplied a basis for the award in this action. See Society Natl. Bank v. Jacobson (1990), 54 Ohio St.3d 15, 18, 560 N.E.2d 217, 220 (a court properly applies pre-existing law where the relevant statute is prospective in scope and, thus, inapplicable).

Civ.R. 41(A)(1) provides, in part:

" * * * [A]n action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by the defendant or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim."

Under Civ.R. 41(A)(1)(a), a voluntary dismissal will be without prejudice, thus allowing the plaintiff to terminate the action once at any time before trial without prejudice, absent the existence of a counterclaim. An obvious purpose for the rule is to encourage the plaintiff to bring a rapid and complete conclusion to an action, which, for whatever the reason, cannot or should not be tried. The rule does not require the trial court to investigate the plaintiff's motivation for dismissing the action.

Civ.R. 41(D) provides, in full:

"If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order."

Although the plaintiff may dismiss once without prejudice, Civ. R. 41(D) indicates that upon refiling, the plaintiff may nevertheless be subject to the payment of costs of the previously dismissed action. This court has recently rejected the view that "costs" would include attorney fees under Civ.R. 41(D). Muze v. Mayfield (1991), 61 Ohio St.3d 173, 573 N.E.2d 1078. In Muze, an action was dismissed by agreement of the parties without prejudice under Civ.R. 41(A)(1)(b). When the plaintiff refiled, the trial court granted defendant's motion for a stay of proceedings until plaintiff paid the costs of the previously dismissed action, which costs the trial court found included attorney fees. This court upheld a reversal by the court of appeals on the basis that attorney fees may not be included as "costs" of litigation unless so specified by statute. Id. at 174, 573 N.E.2d at 1079.

While this court has repeatedly held that an award of attorney fees must be predicated upon statutory authority, in Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177, 75 O.O.2d 224, 347 N.E.2d 527, we recognized a bad-faith exception to the American Rule that a prevailing party may not recover attorney fees as part of the costs of the litigation absent statutory authority for doing so. Id. at 183, 75 O.O.2d at 227, 347 N.E.2d at 531. Under the facts in that case, however, we found that attorney fees were not warranted, since the party seeking attorney fees failed to prove the existence of the requisite bad-faith conduct. Id. at 182-183, 75 O.O.2d at 226-227, 347 N.E.2d at 530-531.

Sorin indicates that in order to support a finding of an exception to the American Rule, a party seeking attorney fees must be the prevailing party in the litigation, and then must prove that his opponent acted in bad faith. In the case sub judice, there is no prevailing party, since a voluntary dismissal without prejudice is not an "adjudication upon the merits" pursuant to Civ. R. 41(A)(1). Hensley v. Henry (1980), 61 Ohio St.2d 277, 279, 15 O.O.3d 283, 284, 400 N.E.2d 1352, 1353.

Even if Sturm was the prevailing party in this matter, he would be unable to show that by voluntarily dismissing the original divorce action pursuant to Civ.R. 41(A)(1)(a), then filing in another county, Cook's actions were "in bad faith, vexatious, wanton, obdurate or oppressive," thus justifying an...