Haubeil & Sons Asphalt & Materials, Inc. v. Brewer & Brewer Sons, Inc. , 57 Ohio App. 3d 22 ( 1989 )

I respectfully dissent.

The majority opinion relies on "willfulness," and "to his best knowledge, information, and belief," as standards. These are, I believe, the standards for the common-law abuse of process action.

Civ. R. 11 contemplates more, and implies a duty on counsel to check before filing. The Civil Rules did away with the demurrer, which was a simple, inexpensive, yet effective response to a spurious claim in the code pleading days. Under the Civil Rules, however, the defendant must answer, respond to discovery, etc. and generally incur legal expenses before he is entitled to a Rule 12 motion to dismiss or a Rule 56 motion for summary judgment. If a defendant is put to this expense over a frivolous or mistaken claim, it is entirely reasonable for the Civil Rules to recognize this and to grant compensation.

There are not many cases on Rule 11; Stevens v. Kiraly (1985),24 Ohio App.3d 211, 24 OBR 388, 494 N.E.2d 1160; Rinehart v.Stauffer (C.A. 9, 1979), 638 F.2d 1169; and the Staff Notes are not much help in deciding what interest is to be protected, what abuse Civ. R. 11 was adopted to prevent.

To construe Civ. R. 11 that the attorney's certificate means only that he has to believe his pleading is true puts a premium on ignorance. I believe Civ. R. 11 implies that any attorney cannot certify unless and until he has made an investigation into the facts.

It was the total failure to investigate by counsel in this case that led to the sanction. This is appropriate under Civ. R. 11, and I would affirm on that ground.

I would add parenthetically that although a motion to certify is not in order here, it would be particularly helpful to the bench and bar if the Ohio Supreme Court would make a definitive holding about the purpose and use of Civ. R. 11.

Thus, I dissent.