Gallagher v. AMVETS Post 17Gallagher v. AMVETS Post 17
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Thomas J. McGuire, for appellee.
Timothy H. Dempsey, for appellant.
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HANDWORK, P.J.
{¶ 1} This accelerated case is before the court on appeal from a judgment of the Erie County Court of Common Pleas.
{¶ 2} Briefly, appellee, Jeanne Gallagher, was a member and an officer of appellant, AMVETS Post 17 (“Post 17“). Appellee was first suspended from Post 17 for
{¶ 3} On October 8, 2008, the common pleas court granted appellant‘s motion for summary judgment. The court found that appellee failed to offer any evidentiary materials demonstrating gender discrimination in support of her memorandum in opposition. The judge further noted that her suspension was admittedly based upon the fact that she made an obscene gesture to two other Post 17 officers as they were leaving the boardroom, but failed to provide any evidence that any male member of Post 17 in a similar situation was treated differently.
{¶ 4} Following the trial court‘s judgment, appellant filed a motion for sanctions pursuant to
{¶ 5} Appellant timely appeals this decision and claims that the following error occurred in the proceedings below:
{¶ 7} “A. ORC 2323.51 [sic]
{¶ 8} “B. Civil Rule 11
{¶ 9} “C. Sanction hearing”
{¶ 10} Our “standard of review of
{¶ 11} Nonetheless, appellate review of a trial court‘s ultimate decision to impose sanctions pursuant to
Post 17 asserts that appellant‘s conduct was frivolous within the meaning of
{¶ 12} “(A) As used in this section:
{¶ 13} “(1) * * *
{¶ 14} “(2) ‘“Frivolous conduct“’ means any of the following:
{¶ 16} “(i) It obviously serves merely to harass or maliciously injure another party to the civil action * * * including, but not limited to, * * * a needless increase in the cost of litigation.
{¶ 17} “(ii) It is not warranted under existing law * * *.
{¶ 18} “(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation and discovery.”
{¶ 19} Appellant first notes, as it did below, that appellee initially elected to pursue a remedy for gender discrimination pursuant to
{¶ 20} An individual who opts to pursue a gender discrimination claim under
{¶ 21} Appellant further maintains that appellee pursued this case knowing that her claim was baseless; therefore, her conduct in instituting a civil suit was solely for the purpose of harassing Post 17 within the meaning of
{¶ 22} As mentioned above, appellee filed her complaint on September 5, 2007. Appellant filed its answer on October 5, 2007. Post 17 filed its notice of discovery on October 23, 2007, and a motion to compel discovery on January 8, 2008. In the motion to compel, appellant indicated that appellee responded to discovery as of December 21, 2007, but that answers to requests for admissions were incomplete and were not verified and signed by appellee. Appellant also asserted that appellee had not provided documents requested pursuant to
{¶ 23} On January 22, 20081, the trial court granted appellant‘s motion to compel holding:
{¶ 25} On February 11, 2008, appellee filed a notice informing the trial court that she had supplemented her discovery. On February 19, 2008, appellant notified the trial court of the fact that it sent a combined second set of interrogatories and requests for admissions to appellee. There is no evidence in the record of this cause demonstrating that appellee ever responded to appellant‘s second discovery requests. Moreover, none of the discovery, e.g., answers to interrogatories and/or admissions, are in the record of this cause.
{¶ 26} In the affidavit filed in support of appellee‘s memorandum in opposition to appellant‘s request for sanctions, her attorney, Thomas McGuire, averred that appellee told him she had witnesses who were willing to testify on her behalf. McGuire swore, however, that over the course of this cause appellee was finding it difficult to provide him with the names and addresses of these witnesses. He, therefore, responded to any and all of appellant‘s discovery requests as best he could with the information that was provided. According to McGuire, he also provided all of the necessary responses to appellant‘s discovery requests. He further stated that he conducted extensive legal research before
{¶ 27} Based upon the forgoing, we cannot say that appellee‘s discrimination action was brought solely for the purpose of harassing Post 17. Furthermore, based upon the record filed in this court, we are unable to find that this cause is frivolous within the meaning of
{¶ 28} Appellant further argues that the trial court should have granted its motion for sanctions under
{¶ 29} We note at the outset of this discussion of the trial court‘s alleged error in overruling appellant‘s
{¶ 30}
{¶ 31} “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. If a document is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the document had not been served. 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. Similar action may be taken if scandalous or indecent matter is inserted.”
{¶ 32} When ascertaining if sanctions should be imposed pursuant to
{¶ 33} The term “willful” is defined as “voluntarily, knowingly, deliberate * * * intentional, purposeful, not accidental or involuntary.” Black‘s Law Dictionary (6 Ed.1991) 1103. Assuming, arguendo, that appellee‘s trial counsel failed to satisfy one of the requirements of
{¶ 34} Appellant‘s sole assignment of error is found not well-taken. The judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, P.J. _______________________________
JUDGE
Mark L. Pietrykowski, J. _______________________________
Thomas J. Osowik, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.