State ex rel. Striker v. Cline , 2011 Ohio 983 ( 2011 )

[Cite as State ex rel. Striker v. Cline, 2011-Ohio-983.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE EX REL., : JUDGES:
RALEIGH M. STRIKER : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Relator : Hon. Patricia A. Delaney, J.
:
-vs- :
:
CLERK OF COURT, : Case No. 09CA107
ALYCE F. CLINE :
:
Respondent : OPINION
CHARACTER OF PROCEEDING: Motion for Sanctions - Attorney Fees
JUDGMENT: Granted
DATE OF JUDGMENT ENTRY: March 4, 2011
APPEARANCES:
For Relator For Respondent
LORI ANN MCGINNIS JOHN T. MCLANDRICH
1209 East Main Street JAMES A. CLIMER
Ashland, OH 44805 FRANK H. SCIALDONE
TAMI Z. HANNON
CARA M. WRIGHT
100 Franklin's Row
34305 Solon Road
Cleveland, OH 44139
Richland County, Case No. 09CA107 2
Farmer, J.
{¶1} This matter came before this court upon respondent's July 12, 2010
motion for sanctions pursuant to R.C. 2323.51 and Civ.R. 11.
{¶2} An oral hearing as well as an evidentiary hearing was set for January 4,
2011. Both parties presented affidavits in lieu of evidence and oral arguments were
heard. This court granted the parties additional time to brief relator's newly identified
issue relative to the impact of the payment of attorney fees to an insurance defense
firm.
{¶3} Respondent's request for attorney fees is limited to the numerous motions
filed by relator concerning respondent's attorneys. It is relator's position that
respondent, as an elected municipal court clerk, should only be represented by the law
director for the city, and it is error to permit respondent to chose her own attorneys.
The attorneys representing respondent in this action are defense attorneys provided by
respondent’s insurance carrier.
{¶4} On September 3, 2009, appellant filed a writ of mandamus against
respondent regarding the Public Records Law. On October 15, 2009, respondent filed
an answer.
{¶5} On October 30, 2009, relator filed a motion to strike, claiming the law firm
was unknown and unrecognized, had no justification for appearing in the case, and any
and all motions and pleadings filed by the law firm constituted vexatious litigation. On
November 23, 2009, relator again filed a motion to strike, claiming the law firm was a
vexatious litigator and not retained by respondent. This court denied both motions by
judgment entry filed December 4, 2009.
Richland County, Case No. 09CA107 3
{¶6} On December 9, 2009, relator filed a motion to reconsider, again
challenging the law firm as respondent's proper representation. This court denied this
motion by judgment entry filed January 8, 2010.
{¶7} On January 21, 2010, relator filed a motion for more definite statement
and motion for permissive joinder, again challenging the issue of the law firm's
representation of respondent, and requesting to join the law firm as a party. This dual
motion once again argued the same issues previously rejected by this court. This court
denied these motions by judgment entry filed February 18, 2010.
{¶8} On February 24, 2010, relator filed a "Memorandum in Support of Definite
Statement" and "Memorandum in Opposition to Summary Judgment," again accusing
the law firm of vexatious and frivolous litigation, and requesting respondent to explain
her rationale in retaining the law firm. For some eight pages in his memorandum in
support of definite statement, relator regurgitated the same arguments, and ended by
citing to the law firm as "contemptuous in cause and interposed solely for delay." In his
memorandum in opposition to summary judgment, appellant argued the law firm "was
not acting under color of state law" and "has not produced any such contract or other
verifiable evidence to support the existence of said private contract." This court denied
the motion for definite statement by judgment entry filed March 19, 2010.
{¶9} On April 13, 2010, relator filed a "Reply to Respondent Brief," again
arguing the issue of respondent's representation, despite the fact that the reply's
purpose was to address the underlying writ of mandamus under the Public Records
Law. This court denied the writ of mandamus by opinion and judgment entry filed June
Richland County, Case No. 09CA107 4
21, 2010, wherein we addressed relator's continued objections to the law firm as
follows:
{¶10} "The remaining three 'Propositions of law' relate to Relator's contention
the Law Director of the City of Shelby was required to represent Respondent rather
than private counsel. This Court has already overruled Relator's motion regarding this
issue. Further, the Law Director of the City of Shelby has not been named as a party in
this action. Relator cites no authority for the proposition that Respondent has a duty to
use the law director as counsel. For this reason, the requested writ of mandamus is
denied." State ex rel. Striker v. Clerk of Court, Richland App. No. 09CA107, 2010-
Ohio-3592, ¶40.
{¶11} The opinion filed by this court on June 21, 2010 listed incorrect counsel for
respondent. We issued a "Nunc Pro Tunc" on August 3, 2010 to correct the
typographical error on the cover page.
{¶12} On July 6, 2010, relator filed an "Application for Reconsideration" and an
"Application for En Banc Consideration," arguing the following:
{¶13} "The Relator now moves this court for definite statement and
reconsideration as to who is representing Respondents and when those practitioners of
law first lawfully appeared in the above captioned matter. Additionally Relator, again,
moves the Court to issue a Default Judgment, in accordance with Civ R. 55, as the
Respondent or council for the Respondent never appeared in this action within the
statutory time limits of Civ. R.12."
Richland County, Case No. 09CA107 5
{¶14} This court denied these motions by judgment entry filed August 20, 2010.
On September 14, 2010, relator filed a notice of appeal of this court's opinion and
judgment entry filed August 3, 2010.
{¶15} Pursuant to R.C. 2323.51(B):
{¶16} "***any party adversely affected by frivolous conduct may file a motion for
an award of court costs, reasonable attorney's fees, and other reasonable expenses
incurred in connection with the civil action or appeal. The court may assess and make
an award to any party to the civil action or appeal who was adversely affected by
frivolous conduct, as provided in division (B)(4) of this section."
{¶17} R.C. 2323.51(A)(2)(a) defines "frivolous conduct" as follows:
{¶18} "(a) Conduct of an inmate or other party to a civil action, of an inmate who
has filed an appeal of the type described in division (A)(1)(b) of this section, or of the
inmate's or other party's counsel of record that satisfies any of the following:
{¶19} "(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.
{¶20} "(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.
{¶21} "(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 or discovery.
Richland County, Case No. 09CA107 6
{¶22} "(iv) The conduct consists of denials or factual contentions that are not
warranted by the evidence or, if specifically so identified, are not reasonably based on
a lack of information or belief."
{¶23} Civ.R. 11 governs the signing of pleadings, motions, or other documents
and states the following in pertinent part:
{¶24} "The signature of an attorney or pro se party constitutes a certificate by
the attorney or party that the attorney or party has read the document; that to the best
of the attorney's or party'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 or pro se party, 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."
{¶25} During the pendency of the motion for sanctions, relator filed a motion for
relief from judgment on November 5, 2010, again arguing the issue of respondent's
representation:
{¶26} "The continuous refusal of this tribunal to speak on such issues and due
course of law, no matter how discordantly on an individual basis, would create the
untenable situation in which individual respondents would be represented differently
pending this Court's exception to rule as to who is and who will be attorneys
Richland County, Case No. 09CA107 7
representing the Respondents in this action. The Relator believes this is an
unacceptable behavioral pattern practiced by this tribunal which must be avoided;
hence, to apply the law as written in this case and every case."
{¶27} We note relator appeared pro se until the setting of the hearing on
sanctions when he retained Lori McGinnis, Esq. Attorney McGinnis made a valiant
effort to excuse relator's persistence on the representation issue, claiming the
complexity of the issue and relator's basic need to have the issue explained to him.
We find despite these thirteenth-hour protestations, the above cited language from
relator's motions and memorandums demonstrate a total disregard for the appellate
process and procedures. Further, relator has demonstrated purposeful attempts to
thwart and slow down the judicial process.
{¶28} We find no fault with relator's first attempt to clarify in his own mind the
advent of the present law firm, despite the fact that the docket indicated a notice of
appearance by the law firm filed September 18, 2009 which was timely filed pursuant
to Civ.R. 12(A)(1), and same was served upon relator on September 11, 2009.
{¶29} The repeated filings after the initial denial on December 4, 2009 constitute
frivolous conduct pursuant to R.C. 2323.51. Attorney fees are a proper sanction.
{¶30} Relator objects to or raises the issue of the right of an insurance-defense
firm hired by respondent's insurance carrier to collect attorney fees. If attorney fee
sanctions were not permitted to be awarded to insurance-defense attorneys, there
would be no teeth to the statute or rule.
{¶31} Relator also argues that a third party will benefit by not having to pay for
the law firm work in defense of frivolous conduct. We do not see that to be the case.
Richland County, Case No. 09CA107 8
An insurance contract which provides a defense is a contract between the principal
(respondent in this case) and the carrier. Respondent paid for the insurance contract
and is entitled to their defense. Someone will pay the attorneys for their labor. In
general, the insurance carrier bears the burden and therefore is entitled to recoup the
rewards if sanctions are granted.
{¶32} Upon review, we find relator owes as sanctions the generated attorney
fees from December 4, 2009 forward. Attorney fees as sanctions are awarded in favor
of respondent as against relator in the amount of $3,503.00.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin __________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/sg 207
Richland County, Case No. 09CA107 9
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE EX REL.,
RALEIGH M. STRIKER :
:
Relator :
:
-vs- : JUDGMENT ENTRY
:
CLERK OF COURT, :
ALYCE F. CLINE :
:
Respondent : CASE NO. 09CA107
For the reasons stated in our accompanying Memorandum-Opinion, the
requested motion for sanctions is granted. Relator shall pay respondent attorney fees
in the amount of $3,503.00. Costs to relator.
s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin __________________
_s/ Patricia A. Delaney________________
JUDGES