Stevens v. KiralyStevens v. Kiraly
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This is an appeal by plaintiff-appellant’s attorney from a sanction imposed by the trial court against him under
“Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. * * * Except when otherwise specifically provided by these rules, pleadings need not be verified or accompanied by affidavit. The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; * * *. If a pleading * * * is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false * * *. For a willful violation of this rule an attorney may be subjected to appropriate action. * * *” (Emphasis added.)
The complaint in this case, as amended, claimed that the designated survivor on a bank account held by Bank One of Wooster, N.A., was improperly changed from the plaintiff-appellant, Ivan E. Stevens, to his sister, defendant-appellee Betty Kiraly. Further, a claim was made that Stevens was entitled to the proceeds of that account upon his brother’s death or that the proceeds should be included within the deceased’s estate for distribution.
Upon the death of the owner of the account, Bank One paid the proceeds to Betty Kiraly. Stevens’ prayer in the complaint was approximately $9,000 in excess of the proceeds in question, plus $500,000 in punitive damages, without any allegation of conduct which would justify punitive damages.
Motions to dismiss on the basis of
Both judgments were appealed by Stevens and the appeals were consolidated for consideration by this court. This court affirmed the dismissal of the complaint pursuant to
“The trial court assessed attorney’s fees against plaintiff. Both the language and the spirit ofCiv. R. 11 provide for sanctions against the attorney who signed the pleading rather than the party for whom the attorney acted. United States v. Standard Oil Co. of California (1979),603 F. 2d 100 , 103, n. 2. WhileFed. R. Civ. P. 11 has been subsequently amended to allow for sanctions against the party as well as the attorney, the Ohio rule has not been so amended. Accordingly, we reverse the award of attorney’s fees against plaintiff, and remand the cause to the trial court.”
Upon remand, the trial court entered the judgment against the attorney who represented the plaintiff for attorney fees in the amounts previously found to be reasonable, i.e., $500 to Bank One and $250 to Kiraly. It is from this judgment that the attorney so sanctioned now brings an appeal.
Assignment of Error I
“The January 28,1985 judgment entry awarding $750 attorney fees against appellant as a financial sanction in favor of appellees is contrary to law because there has never been a specific finding of a willful violation of Ohio Civil Rule of Procedure Number 11 by appellant, which is a condition precedent to any imposition of sanctions against appellant.”
Appellant’s first assignment of error, claiming the award was contrary to law because the trial court did not make a specific finding of a “willful” violation, is barred by the doctrine of the law of the case. The decision of a reviewing court establishes the law of that case for all subsequent proceedings thereon, not only in the trial court, but also on subsequent proceedings in the same reviewing court.
Nolan
v.
Nolan
(1984),
Assignment of Error II
“The January 28,1985 judgment entry awarding $750 attorney fees against appellant in favor of appellees is contrary to law because an award of attorney fees must be made at the time of final judgment, to wit: The October 27, 1983 final judgment entry, which dismissed the entire case without prejudice or the October 27, 1983 final judgment entry had to contain a specific reservation to award attorney fees against appellant at another time.”
In his second assignment of error, appellant questions the trial court procedure used when it originally considered the requests for attorney fees. A hearing on the matter of attorney fees was scheduled after the complaint had been dismissed and Bank One and Kiraly had renewed their motions for attorney fees. Appellant claims the trial court should either have included the award of attorney fees in the judgment entry
Once again, the doctrine of the law of the case would operate to bar this assignment of error. This court’s decision in affirming the trial court’s award of attorney fees is binding. Nonetheless, in the interests of clarification and as guidance in future
The purpose of the rule then is to deter pleading and motion abuses; it is to assure the court that the pleading or motion was filed in good faith with sufficient grounds to support it. If a court determines that a pleading or motion was filed to defeat this purpose, it may strike the document. But it may also punish the attorney who signed it and thereby certified it as true. (The Ohio Rule does not provide for imposing a similar sanction against a party who signed a pleading.)
Anglo-American courts historically have asserted an inherent power to discipline members of the legal profession. Risinger, Honesty in Pleading and Its Enforcement: Some “Striking” Problems with
“* * * if a pleading, motion, or other paper is signed in violation of this rule, the court * * * shall impose * * * an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.”
Clearly, then, the award of attorney fees is a proper sanction. See, also, Leinweber v. Cox (App. 1983), 5 OBR 172. But it is not the only available sanction. The Advisory Committee Note to the federal rule, as amended, gives the court broad discretion in imposing sanctions for violations of the rule.
“* * * The court * * * retains the necessary flexibility to deal appropriately with violations of the rule. It has discretion to tailor sanctions to the particular facts of the case, with which it should be well acquainted.” 2A Moore, Federal Practice (1985) 11-6, Paragraph 11.01[4],
Risinger suggests that other available sanctions include such things as a fine or imprisonment invoked pursuant to the court’s contempt power, formal reprimand, or even disbarment.
As to the extent of the sanction, the trial court has wide latitude in protecting the administration of justice. A sanction may be found to be improper only where it is imposed in the exercise of an abuse of the trial court’s discretion.
“* * js within the court’s discretion to decide the procedure, timing and appropriateness of imposing a particular sanction. * * *” Moore, supra, at 11-20, paragraph 11.02[2].
Logically, a claim for attorney fees under
The renewed motions for attorney fees here are merely post-judgment motions which do not disturb the original judgment. They may be likened to a motion in aid of execution of judgment, upon which independent and separate proceedings may be held to enable a creditor to collect on the judgment he has received. See R.C. Chapter 2333. These proceedings cannot change the original judgment; they are ancillary and incidental to the judgment. See 40 Ohio Jurisprudence 3d (1982) 620, Enforcement of Judgments, Section 484.
This is not to say that the court here could not have consolidated the two issues into one hearing. This is the method suggested by Browne, supra, at 477, fn. 250, wherein he proposes that the motion to dismiss should include the request for fees and be accompanied by itemized lists of legal services rendered and expenses incurred, with supporting affidavits or receipts. The trial court did not err, however, in its exercise of discretion in ordering a supplemental hearing after the complaint had been dismissed. Assignment of error two is overruled.
Assignment of Error III
“The trial judge abused his discretion when imposing a $750 financial sanction against appellant because the facts and circumstances of the instant case do not warrant the same.”
Lastly, appellant argues the total amount of fees awarded was not substantiated by the facts and circumstances of the case. Here again, the amount of the award had already been affirmed by this court and was not at issue upon remand. Under the doctrine of the law of the case, the trial court did not have any authority to alter the amounts. Nolan, supra. Furthermore, where the trial court awarded $750 in attorney fees when the evidence offered indicated that $2,250 was reasonable, an abuse of discretion has not been shown. Thus, this assignment of error is overruled and the judgment of the trial court is affirmed.
“If a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and costs.”
Appellee Kiraly requests $840 and and appellee Bank One requests $1,075. Each request was accompanied by an affidavit and a schedule of dates, times and charges.
Appellees’ motions for attorney fees are both denied. Appellant had a reasonable basis for filing this appeal since there is little case law on
Judgment affirmed.