In Re Estate of Cain , 94 Ohio App. 3d 86 ( 1994 )

ON MOTION FOR RECONSIDERATION This cause is before the court as a result of the filing of an application for reconsideration on behalf of appellee, the estate of Donna Jean Cain. Appellee asserts that our opinion is inconsistent with our previous reported opinion of Kemp,Schaeffer Rowe Co., L.P.A. v. Frecker (1990), 70 Ohio App.3d 493, 591 N.E.2d 402.

The issue in Kemp is set forth at 496, 591 N.E.2d at 403-404, as follows:

"In his assignment of error, appellant asserts that the trial court erred in overruling his post-judgment motion for attorney fees. Appellant asserts that he is entitled to an award of attorney fees because KS R instituted the suit against him without probable cause and prosecuted a complaint against him which stated no valid claim for relief. * * *"

To the extent that the opinion in Kemp refers to motions, the reference is dictum. Upon close analysis, as occurred in our opinion in the present case, Civ.R. 11 does not apply to activity which only involves the filing of motions. In re Estateof Cain (1994), 92 Ohio App.3d 835, 839-840, 637 N.E.2d 362,365-366.

We understand the public policy arguments made by appellee as to why the filing of motions should be subject to Civ.R. 11 sanctions. However, good public policy does not permit us to re-write the actual words of the Ohio Rules of Civil Procedure. We also note that modifications to the rules to make Civ.R. 11 sanctions apply to motions are currently under consideration, with a contemplated effective date of July 1, 1994.

As a result of the foregoing, the application for reconsideration is denied.

Motion denied.

BOWMAN, J., concurs.

WHITESIDE, P.J., dissents.