Feagan v. Bethesda N. Hosp.Feagan v. Bethesda N. Hosp.
GLENN D. FEAGAN, ESQ., Appellant, and SARAH COOK, Plaintiff, vs. YASUDARA MIRA HITCH, R.N., and BETHESDA NORTH HOSPITAL, Defendants-Appellees, and
GLENN D. FEAGAN, ESQ., Appellant, and CARMELA BYUS, ADMINISTRATRIX OF THE ESTATE OF TORI BYUS, Plaintiff, vs. MERCY HEALTH-ANDERSON HOSPITAL, and JUNAID MALIK, M.D., Defendants-Appellees, and MACIE ROETTING, APRN-CNP, et al., Defendants.
OPINION.
Robert A. Winter Jr., James F. Maus, Benjamin M. Maraan II and Alan J. Statman for Appellant,
Rendigs, Fry, Kiely & Dennis, LLP, Thomas M. Evans, Brian D. Goldwasser and James J. Englert for Defendants-Appellees Bethesda North Hospital and Yasudara Mira Hitch, R.N.,
Rendigs, Fry, Kiely & Dennis, LLP, Michael P. Foley and James J. Englert, for Defendants-Appellees Mercy Health-Anderson Hospital and Junaid Malik, M.D.
{¶1} Appellant, Glenn D. Feagan, Esq., appeals the judgments of the Hamilton County Court of Common Pleas awarding sanctions against him under
I. Factual and Procedural History
{¶2} In each of these consolidated appeals, the plaintiff(s) initiated the underlying actions by filing a medical-malpractice complaint. No affidavit of merit or motion to extend was filed with any complaint. Subsequently, defendants-appellees Bethesda North Hospital (“Bethesda“), Yasudara Mira Hitch, R.N., Mercy Health-Anderson Hospital, and Junaid Malik, M.D., (collectively “defendants“), each, respectively, filed a motion to dismiss the underlying complaint in each action and a request for sanctions against Feagan—plaintiffs’ counsel in each action—under
{¶3} Shortly after the motions to dismiss were filed, the plaintiff(s) voluntarily dismissed each underlying action, without prejudice, pursuant to
{¶4} At the hearing on the request for sanctions, the trial court heard oral arguments from the parties. Defendants argued that Feagan was blatantly disregarding well-settled law as the requirements of
{¶5} On the other hand, Feagan argued that the failure to file an affidavit of merit did not lead to any inference that the underlying claims were frivolous or lacking in merit. He claimed that his law firm had four registered nurses on staff who reviewed the medical records and made initial recommendations, and the claims were good-faith claims. He asserted that a violation of
{¶6} The trial court expressed at the hearing that it was focusing solely on the cases before it and whether Feagan‘s conduct in filing the complaints without an accompanying affidavit of merit, or motion to extend, was frivolous and willful. The court ultimately found that this conduct was frivolous and willful as Feagan made “various assumptions” in the complaints without a supporting affidavit as required by
The court finds, specifically, that the attorney‘s conduct here was willful, and you can look at [Stevenson v. Bernard, 11th Dist. Lake No. 2006-L-096, 2007-Ohio-3192].
The court finds that this conduct is frivolous. The attorney makes various assumptions in the complaint without [a] supporting affidavit, a very specific violation of Civil Rule 10(D)(2)(d). The rule says the complaint shall have an affidavit of merit.
[Counsel for Mr. Feagan] has argued — and it appears that Mr. Feagan is familiar with this rule having filed numerous cases. [Counsel for Mr. Feagan] has asked me to decide that using Rule 41(A) is not frivolous, and I agree with him that using 41(A) is not frivolous; however, not using Rule 10(D)(2) in these three cases is frivolous conduct. I do not have to find the merits of the case are frivolous in
order to determine that the conduct [of] not following Rule 10(D)(2)(d) is frivolous.
{¶7} The trial court ultimately entered a decision consistent with its findings at the hearing and awarded attorney fees and costs to defendants pursuant to
{¶8} Feagan now appeals. In a single assignment of error, he argues that the trial court committed reversible error by grаnting the motions for sanctions against him for alleged frivolous conduct.
II. Law and Analysis
A. Sanctioning Frivolous Conduct Under Ohio Law
{¶9} Ohio law provides an aggrieved party with two separate mechanisms to recover attorney fees for frivolous conduct:
{¶10} First,
{¶11} “The standard for determining frivolous conduct under
{¶12} Conversely, the analysis under
Every pleading, motion, or other document of a party represented by an attorney shall be signed, by electronic signature or by
hand, by at least one attorney of record in the attorney‘s individual name, whose address, attorney registration number, telephone number, facsimile number, if any, and business e-mail address, if any, shall be stated. * * * The signature of an attorney * * * constitutes a certificate by the attorney * * * that the attorney * * * has read the document; that to the best of the attorney‘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 * * *, 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.
{¶13} The rule “employs a subjective bad-faith standard to invoke sanctions by requiring that any violation of [
{¶14} Despite the differing standards,
{¶15} “The standard of review to be applied to a trial court‘s decision on a request for sanctions under
{¶16} The standard of review to be applied to a trial court‘s decision on a request for sanctions under
{¶17} We begin by noting that the record in this case lacks any evidence beyond the complaints. The underlying actions were dismissed shortly after the filing of the complaints, and the trial court merely heard oral argument in response to the motions for sanctions. Accordingly, the only factual basis in this case for the award of sanctions is the filing of the three medical-claim complaints without an accompanying affidavit of merit or motion to extend, a fact which is undisputed.2 Therefore, the limited question now before this court is whether the filing of those three complaints, in violation of
{¶18}
{¶19} The purpose of the affidavit of merit “is to winnow out utterly frivolous claims; its purpose is not to test the sufficiency of the plaintiff‘s evidence on the ultimate issue of the defendant‘s liability.” Tranter v. Mercy Franciscan Hosp. Western Hills, 1st Dist. Hamilton No. C-061039, 2007-Ohio-5132, ¶ 12. In fact,
{¶20} With that background in mind, we first address the trial court‘s award of sanctions under
{¶21} We next address the trial court‘s award of sanctions under
{¶22} In Stevenson, attorney Frost filed a complaint alleging that two other attorneys—Bernard and Adinolfi—committed slander and made certain statements about her client. Id. at ¶ 2, 11. The accusations were based on аssumptions made after a conversation Frost had with attorney Cahill, which she ultimately failed to further investigate or confirm. Id. at ¶ 3-4. Bernard and Adinolfi denied making the alleged statements before the complaint was filed. Id. at ¶ 10. Further, Cahill called Frost after the complaint was filed and told her that Bernard and Adinolfi were not the individuals he was discussing during their conversation. Id. at ¶ 14. Even further, a partner from Bernard and Adinolfi‘s law firm told Frost that her allegations were incorrect based on his conversation with Cahill, and that he would pursue remedies under
{¶23} We fail to see how Stevenson provides support for the award of sanctions in the instant case as there is no evidence that Feagan failed to investigate the underlying claims or that the underlying claims were merely based on assumption or suspicion. Rather, an inference would need to be made based on the lack of an affidavit of merit in order to reach such a conclusion, and we hold that such an inference is improper where—as mentioned above—the affidavit of merit speaks only to the adequacy of the complaint and does not speak to the merits of the underlying claims. See Tranter, 1st Dist. Hamilton No. C-061039, 2007-Ohio-5132, at ¶ 12;
{¶24} Feagan argues, in essence, that the strategy of filing and then dismissing a medical-claim complaint to garner more time, rather than filing a motion to extend, is a procedural workaround under the civil rules—as plaintiffs have an unfettered and unpunishable right to voluntarily dismiss an action under
{¶25}
{¶26} The question we are presented with here is whether the failure to follow a procedural prerequisite to the filing of a cause of action amounts to a finding that the complaint wаs not warranted under existing law.
{¶27} We first note that the instant case is distinguishable from a case where the missing prerequisite to the filing of a cause of action ultimately affects the merits of the cause of action and results in a claim that is not warranted under the law in the absence of such prerequisite. See, e.g., Shertock (finding that a party engaged in frivolous conduct where the party attempted to bring a cause of action for the unauthorized practice of law under
{¶28} Rather, here, the procedural prerequisite in question—the filing of an affidavit of merit or motion to extend under
{¶30} Further, we are cautious not to stifle good-faith zealous representation—even where such a strategy ultimately misses the mark—and the mere filing of the complaints in violation of the rule has yet to reach the realm of abuse of process. Notably, there is no evidence here that Feagan has previously been warned against this behavior by the trial court or that suсh behavior has previously been litigated and found to be improper.
{¶31} Accordingly, we hold that sanctions were not warranted under
III. Conclusion
{¶32} Having sustained the sole assignment of error, we reverse the judgments of the trial court.
Judgments reversed.
KINSLEY, J., concurs.
BERGERON, J., dissents.
Bergeron, J., dissenting.
{¶33} On appeal, Mr. Feagan argues only that his voluntary dismissal of the complaints under
{¶34} Mr. Feagan filed the three cases consolidated here—and according to defendants, at least 11 additional cases—without an affidavit of merit or any type of motion for extension. Because he repeatedly filed complaints without either of these alternatively required documents, the trial court determined, and Mr. Feagan did not contest, that he willfully engaged in a pattern of noncompliance with the mandatory requirements of
{¶35} In his reply brief, Mr. Feagan declares that filing a medical malpractice complaint without an affidavit of merit or a motion for extension is a strategy plaintiff‘s counsel can employ in medical malpractice cases to circumvent the extension process explicitly created by
{¶36} Mr. Feagan argues that
{¶37} On this record, the trier of fact determined Mr. Feagan willfully violated
Please note:
The court has recorded its own entry this date.