Cincinnati Ins. v. OanceaCincinnati Ins. v. Oancea
Lead Opinion
DECISION AND JUDGMENT ENTRY
{¶ 1} This is an accelerated appeal from an order of the Lucas County Court of Common Pleas, denying sanctions to the defendants in a dismissed subrogation suit.
{¶ 2} The facts of this matter are more fully discussed in our prior consideration of this case in Cincinnati Ins. Co. v. Oancea, 6th Dist. No. L-04-1050, 2004-Ohio-4272. In 1994, appellants, Jerry and Wendy Oancea, initiated a car chase with another driver which ultimately led to the other driver‘s car crash and the other driver‘s resulting injury. The victim was insured by appellee, Cincinnati Insurance Company.
{¶ 3} In February 1995, appellee sued Jerry Oancea, claiming subrogated damages. Appellee eventually dismissed that suit, pursuant to
{¶ 4} When appellee refiled the suit, appellants responded with a five-count counterclaim. In addition to abuse of process, intentional infliction of emotional distress and willful misconduct, appellants sought
{¶ 5} Eventually, appellants requested that the sanction counts be treated as motions. Appellee was granted summary judgment on the remaining three counts. That judgment was affirmed on appeal. CincinnatiIns. Co. v. Oancea, supra.
{¶ 6} Following appeal, appellants renewed their request for sanctions. On December 1, 2004, the trial court, without a hearing, denied sanctions, concluding that, “* * * the filing of the third complaint was a mistake and was not frivolous conduct as defined in [R.C.]
{¶ 7} From this order, appellants now bring this appeal, suggesting in a single assignment of error that the trial court abused its discretion in finding appellee‘s filing of a third complaint was not frivolous.
{¶ 8}
{¶ 9} In material part,
{¶ 10} “(A) As used in this section:
{¶ 11} “(1) `Conduct’ means any of the following:
{¶ 12} “(a) The filing of a civil action, the assertion of a claim, defense, or other position in connection with a civil action * * *
{¶ 13} “(2) “Frivolous conduct” means * * * the following:
{¶ 14} “(a) Conduct of [a] party to a civil action, * * * that satisfies any of the following:
{¶ 15} “(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.
{¶ 16} “(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.
{¶ 17} “* * *.”
{¶ 18} We have already ruled that appellants failed in their burden to show that the filing of a third complaint against Jerry Oancea was anything other than inadvertence. Id. at ¶ 22. Consequently, the volitional element found in
{¶ 19}
{¶ 20} Appellants insist that because the “two dismissal” rule of
{¶ 21} Although it is common shorthand to state that the double dismissal rule bars a third claim, it is more accurate to say that, when the rule applies, the dismissal of a second suit operates as an adjudication on the merits. Once there is an adjudication on the merits, it is the doctrine of res judicata that bars subsequent suits on the same cause of action. Chadwick v. Barba Lou (1982), 69 Ohio St.2d 222, 229; see, also, Olympia Mortgage Corp. v. Pugh (Fl.App., 2000), 774 So.2d 863, 867.
{¶ 22} Res judicata is an affirmative defense, State ex rel.Wilson-Simmons v. Lake Co. Sheriff (1998), 82 Ohio St.3d 37, 40, which must be raised, pursuant to
{¶ 23} In this matter, the trial court chose to forgo the ordinarily necessary hearing on
{¶ 24} The same is not true of
{¶ 25} Accordingly, to the extent that appellants’ sole assignment of error complains that their motion for sanctions was improperly denied, it is well taken. We remand this matter to the trial court to conduct a hearing on the
{¶ 26} On consideration whereof, the order of the Lucas County Court of Common Pleas is vacated. This matter is remanded to said court for the proceedings consistent with this decision. Appellee is ordered to pay the costs of this appeal for which sum judgment is rendered against appellee on behalf of Lucas County and for which execution is awarded. See App. R. 24.
Order vacated.
A certified copy of this entry shall constitute the mandate pursuant to App. R. 27. See, also, 6th Dist. Loc. App. R. 4, amended 1/1/98.
Singer, P.J. Skow, J. Concur.
Parish, J., dissents.
Dissenting Opinion
I respectfully dissent from the majority‘s conclusion that this case must be remanded to the trial court for a hearing, for the following reasons.
The majority concludes that, because the filing of third complaint is barred by
Ohio courts have held, even in instances where frivolous conductexists, “the decision to assess or not assess a penalty lies with the sound discretion of the trial court.” Finch v. Kailey Auto Sales, Inc., 10th Dist. Nos. 04AP-371, 04AP-512, 2005-Ohio-1944, at ¶ 14, citing Wiltberger v. Davis (1996), 110 Ohio App.3d 46, 52; Sain v. Roo, supra. It is well-established, “[w]here a trial court determines that there is no basis for the imposition of sanctions, it may deny the motion without a hearing.” Finch, supra, citing Justice v. Lutheran SocialServ. of Cent. Ohio (1992), 79 Ohio App.3d 439, 444. (Emphases added.). The use of the word “may” in
When a decision rests within the trial court‘s sound discretion, itwill not be overturned on appeal absent a finding of abuse of discretion. Riley v. Langer (1994), 95 Ohio App.3d 151, 159, overruled on other grounds, Riston v. Butler, 149 Ohio App.3d 390, 398, 2002-Ohio-2308. An abuse of discretion connotes more than a mere error of law or judgment, instead requiring us to find the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
In the judgment entry on appeal, the trial court stated it was “very familiar with the facts and circumstances of this case and therefore, * * * has sufficient knowledge to proceed with its determination of [appellants‘] motion for fees and costs without a hearing based on the fact that a hearing would be perfunctory, meaningless, or redundant.” Ultimately, the trial court concluded appellees were not entitled to monetary sanctions, a conclusion the majority apparently would affirm, but for appellees’ “frivolous” filing of the third complaint.
Based on a review of the record and the law set forth above, I believe the trial court‘s denial of appellees’ motion for sanctions pursuant to