May 21, 2006
If you've filed a complaint that doesn't pass the giggle test, and think that voluntarily dismissing it can avoid sanctions, think again. In Brown v. Hageman and Gitlin v. Plain Dealer Publishing Co., the court says that the trial judge retains jurisdiction to grant sanctions for frivolous conduct even after a Rule 41(A) notice of voluntary dismissal.
And an interesting case on sanctions is Orbit Elecs., Inc. v. Helm Instrument Co. The court holds that a trial judge's decision on sanctions can be reviewed only for abuse of discretion, but then divides the kind of conduct that can warrant consideration of sanctions into "factual" and "legal" determinations. A factual one is where the action is imposed when "a party engages in conduct to harass or maliciously injure another party," while a legal one is "whether the claim is warranted under existing law." Interestingly, the court determines that the legal determination can be reviewed de novo by the appellate court, because it's a question of law, while at the same time reaffirming that the decision whether to grant sanctions won't be reversed absent an abuse of discretion.
It's not clear what this means. Usually, de novo appellate review - which is the standard, for example, in reviews of summary judgment - means that there's no deference given to the trial court's decision. Here, let's say the trial judge determines that the action isn't warranted by Ohio law, but the appellate court disagrees. There's ample case law that mere disagreement with the trial court's ruling isn't sufficient to show abuse of discretion. But then what good is de novo review? Is the court going to sustain an award of sanctions against an attorney for bringing an action they find to be warranted under the law?
Finally, a little practice pointer about sanctions. A hearing is required before granting an award of attorneys fees in most cases - frivolous conduct, as an adjunct to punitive damage awards, and in cases authorized by statute, like violations of the consumer sales practices act - but it's not required for sanctions under Rule 37(D), says the court in Shikner v. S & P Solutions.