Feagan v. Bethesda N. Hosp.

2024 Ohio 166

• Court: Ohio Court of Appeals
• Decided: January 19, 2024
• Docket: C-230135, C-230136, C-230137
• Status: Published

Opinion

[Cite as Feagan v. Bethesda N. Hosp., 2024-Ohio-166.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

GLENN D. FEAGAN, ESQ., : APPEAL NO. C-230135 TRIAL NO. A-2202163 Appellant, :

and :

KAREN LINGO, et al., :

Plaintiffs, :

vs. :

BETHESDA NORTH HOSPITAL, :

Defendant-Appellee, :

ANNA L. HOMSEY, M.D., et al., :

Defendants. :

__________________________________________________________ GLENN D. FEAGAN, ESQ., : APPEAL NO. C-230136 TRIAL NO. A-2203523 Appellant, :

SARAH COOK, :

Plaintiff, :

YASUDARA MIRA HITCH, R.N., :

Defendants-Appellees, :

and : OHIO FIRST DISTRICT COURT OF APPEALS

MELISSA ANN HOUSE, M.D., et al., :

Defendants. : __________________________________________________________ GLENN D. FEAGAN, ESQ., : APPEAL NO. C-230137 TRIAL NO. A-2203758 Appellant, :

and : O P I N I O N. CARMELA BYUS, ADMINISTRATRIX : OF THE ESTATE OF TORI BYUS, : Plaintiff, : vs. : MERCY HEALTH-ANDERSON HOSPITAL, :

JUNAID MALIK, M.D., :

MACIE ROETTING, APRN-CNP, et al., :

Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Reversed

Date of Judgment Entry on Appeal: January 19, 2024

Robert A. Winter Jr., James F. Maus, Benjamin M. Maraan II and Alan J. Statman for Appellant,

Rendigs, Fry, Kiely & Dennis, LLP, Thomas M. Evans, Brian D. Goldwasser and James J. Englert for Defendants-Appellees Bethesda North Hospital and Yasudara Mira Hitch, R.N.,

Rendigs, Fry, Kiely & Dennis, LLP, Michael P. Foley and James J. Englert, for Defendants-Appellees Mercy Health-Anderson Hospital and Junaid Malik, M.D.

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ZAYAS, Presiding Judge.

{¶1} Appellant, Glenn D. Feagan, Esq., appeals the judgments of the

Hamilton County Court of Common Pleas awarding sanctions against him under R.C.

2323.51 and Civ.R. 11 for failing to file a requisite affidavit of merit or a motion for

extension with three respective medical-malpractice complaints. In a single

assignment of error, he argues that the trial court committed reversible error by

imposing sanctions against him. For the following reasons, we sustain the assignment

of error and reverse the judgments of the trial court.

I. Factual and Procedural History

{¶2} In each of these consolidated appeals, the plaintiff(s) initiated the

underlying actions by filing a medical-malpractice complaint. No affidavit of merit or

motion to extend was filed with any complaint. Subsequently, defendants-appellees

Bethesda North Hospital (“Bethesda”), Yasudara Mira Hitch, R.N., Mercy Health-

Anderson Hospital, and Junaid Malik, M.D., (collectively “defendants”), each,

respectively, filed a motion to dismiss the underlying complaint in each action and a

request for sanctions against Feagan—plaintiffs’ counsel in each action—under R.C.

2323.51 and Civ.R. 11 for the failure to include an affidavit of merit or motion to extend

as required by Civ.R. 10(D)(2).1 The request for sanctions alleged that Feagan had

filed multiple medical-malpractice actions in the last 12 months, most of which did not

include an affidavit of merit, and, in each case, Feagan voluntarily dismissed the action

once a motion to dismiss was filed based on the failure to include an affidavit of merit.

Defendants specifically listed seven previous cases in which Feagan had allegedly

1 We note that, in the case numbered A-2202163, Bethesda moved to dismiss the complaint on the grounds that the claim was barred by the statute of repose. However, after the plaintiffs subsequently dismissed the complaint, Bethesda agreed that the motion to dismiss was a legal nullity. Thus, Bethesda never advanced the statue-of-repose argument. Additionally, Bethesda did not assert the statute-of-repose argument as a basis for sanctions.

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engaged in this behavior and requested sanctions (attorney fees and costs) against

Feagan based on his “habitual failure” to provide an affidavit of merit and to fully

investigate the merits of the actions.

{¶3} Shortly after the motions to dismiss were filed, the plaintiff(s)

voluntarily dismissed each underlying action, without prejudice, pursuant to Civ.R.

41(A). Additionally, each plaintiff responded to the request for sanctions, arguing that

he or she had an “absolute right” under Civ.R. 41(A) to voluntarily dismiss the

complaint, without being held liable for defendants’ attorney fees, and asserting that

no evidence was put forth to show that the underlying actions lacked merit.

{¶4} At the hearing on the request for sanctions, the trial court heard oral

arguments from the parties. Defendants argued that Feagan was blatantly

disregarding well-settled law as the requirements of Civ.R. 10(D)(2) had been in place

for several years and Feagan routinely practiced in this area. They claimed that

research revealed 15 cases in which Feagan had failed to file an affidavit of merit or a

motion to extend with a medical-malpractice complaint. They further claimed that

this behavior caused defendants unnecessary expense in having to research the case

and file a motion to dismiss, and impacted the physicians at issue as the physicians

now must disclose the actions in the future.

{¶5} On the other hand, Feagan argued that the failure to file an affidavit of

merit did not lead to any inference that the underlying claims were frivolous or lacking

in merit. He claimed that his law firm had four registered nurses on staff who reviewed

the medical records and made initial recommendations, and the claims were good-

faith claims. He asserted that a violation of Civ.R. 10 did not lead to an adjudication

on the merits of the claims or any inference that the claims were frivolous. He further

asserted that the conduct of filing the complaints and then subsequently dismissing

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the actions under Civ.R. 41(A) to obtain another year to file the affidavits of merit was

allowable under the Ohio Rules of Civil Procedure and “strategic” use of such rules did

not constitute bad faith.

{¶6} The trial court expressed at the hearing that it was focusing solely on the

cases before it and whether Feagan’s conduct in filing the complaints without an

accompanying affidavit of merit, or motion to extend, was frivolous and willful. The

court ultimately found that this conduct was frivolous and willful as Feagan made

“various assumptions” in the complaints without a supporting affidavit as required by

Civ.R. 10(D)(2)(d). Notably, the trial court also found that it did not need to find that

the underlying merits of the causes of action were frivolous to determine that the

conduct of not following Civ.R. 10 was frivolous. Specifically, the trial court stated:

The court finds, specifically, that the attorney’s conduct here was

willful, and you can look at [Stevenson v. Bernard, 11th Dist. Lake No.

2006-L-096, 2007-Ohio-3192].

The court finds that this conduct is frivolous. The attorney

makes various assumptions in the complaint without [a] supporting

affidavit, a very specific violation of Civil Rule 10(D)(2)(d). The rule

says the complaint shall have an affidavit of merit.

[Counsel for Mr. Feagan] has argued – and it appears that Mr.

Feagan is familiar with this rule having filed numerous cases. [Counsel

for Mr. Feagan] has asked me to decide that using Rule 41(A) is not

frivolous, and I agree with him that using 41(A) is not frivolous;

however, not using Rule 10(D)(2) in these three cases is frivolous

conduct. I do not have to find the merits of the case are frivolous in

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order to determine that the conduct [of] not following Rule 10(D)(2)(d)

is frivolous.

{¶7} The trial court ultimately entered a decision consistent with its findings

at the hearing and awarded attorney fees and costs to defendants pursuant to R.C.

2323.51 and Civ.R. 11.

{¶8} Feagan now appeals. In a single assignment of error, he argues that the

trial court committed reversible error by granting the motions for sanctions against

him for alleged frivolous conduct.

II. Law and Analysis

A. Sanctioning Frivolous Conduct Under Ohio Law

{¶9} Ohio law provides an aggrieved party with two separate mechanisms to

recover attorney fees for frivolous conduct: R.C. 2323.51 and Civ.R. 11. Marconi v.

Savage, 8th Dist. Cuyahoga No. 102619, 2016-Ohio-289, ¶ 22, citing Bikkani v. Lee,

8th Dist. Cuyahoga No. 89312, 2008-Ohio-3130, ¶ 18. “ ‘Although both authorize the

award of attorney fees as a sanction for frivolous conduct, they have separate

standards of proof and differ in application.’ ” Id., quoting Bikkani at ¶ 12.

{¶10} First, R.C. 2323.51(B)(1) authorizes a court to award court costs and

reasonable attorney fees to a party adversely affected by “frivolous conduct” in a civil

action or appeal. Relevant to our purposes here, “frivolous conduct” includes, but is

not limited to, the filing of a civil action—or the filing of a pleading, motion, or other

paper in a civil action—by a party’s counsel of record where the filing: (1) obviously

serves merely to harass or maliciously injure another party to the civil action or is for

another improper purpose, including, but not limited to, causing unnecessary delay or

a needless increase in the cost of litigation; (2) is not warranted under existing law,

cannot be supported by a good-faith argument for an extension, modification, or

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reversal of existing law, or cannot be supported by a good-faith argument for the

establishment of new law; (3) 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; or (4) 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. R.C. 2323.51(A)(1)(a) and(A)(2)(a).

{¶11} “The standard for determining frivolous conduct under R.C. 2323.51 is

objective.” Marconi, 8th Dist. Cuyahoga No. 102619, 2016-Ohio-289, at ¶ 24. “It ‘is

determined without reference to what the individual knew or believed.’ ” Id., citing

Hardin v. Naughton, 8th Dist. Cuyahoga No. 99182, 2013-Ohio-2913, ¶ 14. A finding

of frivolous conduct, as contemplated by R.C. 2323.51(A)(2)(a), must involve

egregious conduct. State ex rel. DiFranco v. City of S. Euclid, 144 Ohio St.3d 571,

2015-Ohio-4915, 45 N.E.3d 987, ¶ 15. “Frivolous conduct is not proved merely by

winning a legal battle or by proving that a party’s factual assertions were incorrect.”

Id., citing Ohio Power Co. v. Ogle, 4th Dist. Hocking No. 12CA14, 2013-Ohio-1745, ¶

29-30. “The statute was designed to chill egregious, overzealous, unjustifiable, and

frivolous action.” Evans v. Quest Diagnostics, Inc., 1st Dist. Hamilton No. C-140479,

2015-Ohio-3320, ¶ 18, citing Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308,

777 N.E.2d 857, ¶ 35 (1st Dist.).

{¶12} Conversely, the analysis under Civ.R. 11 is subjective and is dependent

on what the individual knew or believed. Marconi at ¶ 39. In relevant part, Civ.R. 11

provides:

Every pleading, motion, or other document of a party

represented by an attorney shall be signed, by electronic signature or by

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hand, by at least one attorney of record in the attorney’s individual

name, whose address, attorney registration number, telephone number,

facsimile number, if any, and business e-mail address, if any, shall be

stated. * * * The signature of an attorney * * * constitutes a certificate

by the attorney * * * that the attorney * * * has read the document; that

to the best of the attorney’s * * * knowledge, information, and belief

there is good ground to support it; and that it is not interposed for delay.

* * * For a willful violation of this rule, an attorney * * *, 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.

{¶13} The rule “employs a subjective bad-faith standard to invoke sanctions

by requiring that any violation of [Civ.R. 11] must be willful.” Evans at ¶ 18. “In ruling

on a motion for sanctions made pursuant to Civ.R. 11, a court ‘must consider whether

the attorney signing the document (1) has read the pleading, (2) harbors good grounds

to support it to the best of his or her knowledge, information, and belief and (3) did

not file it for purposes of delay.’ ” Sigmon v. Southwest Gen. Health Ctr., 8th Dist.

Cuyahoga No. 88276, 2007-Ohio-2117, ¶ 18, citing Ceol v. Zion Industries, Inc., 81

Ohio App.3d 286, 610 N.E.2d 1076 (9th Dist.1992). If the court determines that any

of these requirements has not been met, and that the violation was willful, the court

may impose the appropriate sanctions. (Citations omitted.) Id.

{¶14} Despite the differing standards, R.C. 2323.51 and Civ.R. 11 are not in

conflict. Marconi, 8th Dist. Cuyahoga No. 102619, 2016-Ohio-289, at ¶ 38. Rather,

“[a] plain reading of R.C. 2323.51 and Civ.R. 11 reveals that although different

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language is used, both the statute and the rule impose the same requirement on an

attorney: to prosecute only claims having merit under existing law.” Id. at ¶ 38.

{¶15} “The standard of review to be applied to a trial court’s decision on a

request for sanctions under R.C. 2323.51 depends on whether there are questions of

law or of fact or mixed questions of law and fact.” Fannie Mae v. Hirschhaut, 1st Dist.

Hamilton No. C-180473, 2019-Ohio-3636, ¶ 26, citing Gearheart v. Cooper, 1st Dist.

Hamilton Nos. C-050532 and C-060170, 2007-Ohio-25, ¶ 25. “We review purely legal

questions de novo.” Id., citing Riston, 149 Ohio App.3d 390, 2002-Ohio-2308, 777

N.E.2d 857, at ¶ 22. “On factual issues, we give deference to the trial court’s factual

determinations, which will not be disturbed if they are supported by competent,

credible evidence.” Id., citing Pitcher v. Waldman, 1st Dist. Hamilton No. C-160245,

2016-Ohio-5491, ¶ 16. “The ultimate decision as to whether to grant sanctions under

R.C. 2323.51 rests within the sound discretion of the trial court.” Id. at ¶ 27, citing 217

Williams, LLC v. Worthen, 1st Dist. Hamilton No. C-180101, 2019-Ohio-2559, ¶ 17.

“An abuse of discretion occurs if the trial court’s decision is ‘unreasonable, arbitrary,

or unconscionable.’ ” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

{¶16} The standard of review to be applied to a trial court’s decision on a

request for sanctions under Civ.R. 11 is an abuse of discretion. Id. at ¶ 43, citing

DiBenedetto v. Miller, 180 Ohio App.3d 69, 2008-Ohio-6506, 904 N.E.2d 554, ¶ 20

(1st Dist.). However, purely legal questions, such as whether good legal grounds exist

to support a complaint, are reviewed de novo. E.g., Lane v. Griffith, 11th Dist.

Ashtabula No. 2019-A-0041, 2019-Ohio-3442, ¶ 23, citing Fast Property Solutions,

Inc. v. Jurczenko, 11th Dist. Lake Nos. 2012-L-015 and 2012-L-016, 2013-Ohio-60, ¶

57; 131 Miles, L.L.C., v. 3M&B, L.L.C., 8th Dist. Cuyahoga No. 109558, 2021-Ohio-

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3198, ¶ 8, citing ABN AMRO Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No.

98777, 2013-Ohio-1557, ¶ 14; Henderson v. Haverfield, 7th Dist. Harrison No. 21 HA

0005, 2022-Ohio-2194, ¶ 33, citing N.A.T. Transp., Inc. v. McClain, 165 Ohio St.3d

250, 2021-Ohio-1374, 178 N.E.3d 454, ¶ 12.

B. The Record Does Not Support an Award of Sanctions in this Case

{¶17} We begin by noting that the record in this case lacks any evidence

beyond the complaints. The underlying actions were dismissed shortly after the filing

of the complaints, and the trial court merely heard oral argument in response to the

motions for sanctions. Accordingly, the only factual basis in this case for the award of

sanctions is the filing of the three medical-claim complaints without an accompanying

affidavit of merit or motion to extend, a fact which is undisputed.2 Therefore, the

limited question now before this court is whether the filing of those three complaints,

in violation of Civ.R. 10(D)(2), is sufficient to support an award of sanctions under

either mechanism. For the following reasons, we hold that such conduct—in and of

itself—is not sufficient to support an award of sanctions under either mechanism.

{¶18} Civ.R. 10(D)(2)(a) requires that a medical-claim complaint be

accompanied by one or more affidavits of merit. The specific requirements for an

affidavit of merit are expressly laid out in the rule. See Civ.R. 10(D)(2)(a). In essence,

the affidavit must establish an expert opinion that the standard of care was breached

by one or more defendants to the action and that such breach caused injury to the

plaintiff. See id. Alternatively, the rule allows a plaintiff to instead file a motion to

2 The dissent references additional cases mentioned by the defendants and discusses the experience of Mr. Feagan and his law firm. However, these assertions derive merely from argument. No evidence was offered to support such assertions.

10 OHIO FIRST DISTRICT COURT OF APPEALS

extend with the complaint, seeking more time to file the affidavit of merit. See Civ.R.

10(D)(2)(b).

{¶19} The purpose of the affidavit of merit “is to winnow out utterly frivolous

claims; its purpose is not to test the sufficiency of the plaintiff’s evidence on the

ultimate issue of the defendant’s liability.” Tranter v. Mercy Franciscan Hosp.

Western Hills, 1st Dist. Hamilton No. C-061039, 2007-Ohio-5132, ¶ 12. In fact, Civ.R.

10(D)(2)(d) expressly provides that the affidavit is required to establish the adequacy

of the complaint. Civ.R. 10(D)(2)(d). Notably, adequacy of the complaint and

adequacy of the underlying claims are not synonymous. See Fletcher v. Univ. Hosp.

of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 18 (“In this

particular case, the dismissal was not on the merits of Fletcher’s claim. Instead, it

merely went towards the sufficiency of the complaint – namely, the complaint’s failure

to include an affidavit of merit.”). The rule further provides that any dismissal for the

failure to comply with the rule operates only as a failure otherwise than on the merits.

Id. Thus, it is clear that the failure to file an affidavit of merit does not ultimately speak

towards the merits of the underlying claims. Rather, it is merely a pleading

requirement.

{¶20} With that background in mind, we first address the trial court’s award

of sanctions under Civ.R. 11. To award sanctions under Civ.R. 11, the trial court was

required to find not only that Feagan’s conduct in filing the complaints was willful but

also that he lacked good grounds to support the claims asserted within.3 See, e.g.,

Sigmon, 8th Dist. Cuyahoga No. 88276, 2007-Ohio-2117, at ¶ 18, Fannie Mae, 1st Dist.

Hamilton No. C-180473, 2019-Ohio-3636, at ¶ 43. As the failure to file an affidavit of

3 We note that the trial court’s finding of willful conduct is not in dispute, nor do we disturb this finding.

11 OHIO FIRST DISTRICT COURT OF APPEALS

merit does not speak to the adequacy of the underlying claims, we fail to see any

support in the record for a finding that Feagan lacked good grounds to support the

asserted claims as there was no evidence presented on the merits of the causes of

action—let alone Feagan’s knowledge, information, and/or belief as to the merits of

the causes of action—and each case was dismissed shortly after the complaint was

filed, i.e., the causes did not proceed to judgment (or even discovery). Accordingly, we

hold that the trial court abused its discretion in awarding sanctions under Civ.R. 11 as

there is no evidence in the record to support such a finding.

{¶21} We next address the trial court’s award of sanctions under R.C. 2323.51.

The trial court did not specify under what provision of the statute it was finding

Feagan’s conduct to be frivolous. However, the trial court cited Stevenson, 11th Dist.

Lake No. 2006-L-096, 2007-Ohio-3192, when announcing its decision at the hearing.

{¶22} In Stevenson, attorney Frost filed a complaint alleging that two other

attorneys—Bernard and Adinolfi—committed slander and made certain statements

about her client. Id. at ¶ 2, 11. The accusations were based on assumptions made after

a conversation Frost had with attorney Cahill, which she ultimately failed to further

investigate or confirm. Id. at ¶ 3-4. Bernard and Adinolfi denied making the alleged

statements before the complaint was filed. Id. at ¶ 10. Further, Cahill called Frost

after the complaint was filed and told her that Bernard and Adinolfi were not the

individuals he was discussing during their conversation. Id. at ¶ 14. Even further, a

partner from Bernard and Adinolfi’s law firm told Frost that her allegations were

incorrect based on his conversation with Cahill, and that he would pursue remedies

under Civ.R. 11 and R.C. 2323.51 if she failed to dismiss her complaint. Id. at ¶ 13, 15.

The partner also followed up with a letter urging Frost to dismiss the complaint. Id.

at ¶ 16. However, Frost refused to do so. Id. The trial court ultimately awarded

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sanctions against Frost after finding that she failed to investigate the claims and knew

she lacked evidence to support the claims, yet still filed and maintained the action for

months. Id. at ¶ 20-24. The court of appeals affirmed, holding that Frost filed the

action based solely on assumptions and suspicions and without good grounds or any

investigation, knowing she had no evidence against Bernard and Adinolfi, and

maintained the action even after her sole witness had told her she had no evidence to

support the asserted allegations. Id. at ¶ 48.

{¶23} We fail to see how Stevenson provides support for the award of

sanctions in the instant case as there is no evidence that Feagan failed to investigate

the underlying claims or that the underlying claims were merely based on assumption

or suspicion. Rather, an inference would need to be made based on the lack of an

affidavit of merit in order to reach such a conclusion, and we hold that such an

inference is improper where—as mentioned above—the affidavit of merit speaks only

to the adequacy of the complaint and does not speak to the merits of the underlying

claims. See Tranter, 1st Dist. Hamilton No. C-061039, 2007-Ohio-5132, at ¶ 12; Civ.R.

10(D)(2)(d).

{¶24} Feagan argues, in essence, that the strategy of filing and then dismissing

a medical-claim complaint to garner more time, rather than filing a motion to extend,

is a procedural workaround under the civil rules—as plaintiffs have an unfettered and

unpunishable right to voluntarily dismiss an action under Civ.R. 41(A)—and,

therefore, utilizing such strategy was not sanctionable conduct. Defendants argue that

Feagan’s conduct is frivolous because it results in a needless increase in the cost of

litigation and is not warranted under existing law.

{¶25} R.C. 2323.51(A)(2)(a)(ii) allows an award of sanctions where the

conduct is not warranted under existing law, cannot be supported by a good-faith

13 OHIO FIRST DISTRICT COURT OF APPEALS

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. Legally

groundless claims are reviewed de novo. Shertock v. Wallace, 1st Dist. Hamilton Nos.

C-190457 and C-190464, 2020-Ohio-4369, ¶ 32, citing Riston, 149 Ohio App.3d 390,

2002-Ohio-2308, 777 N.E.2d 857, at ¶ 22. The test is whether no reasonable attorney

would have brought the action in light of existing law. Id., citing Pitcher v. Waldman,

1st Dist. Hamilton No. C-160245, 2016-Ohio-5491, ¶ 15.

{¶26} The question we are presented with here is whether the failure to follow

a procedural prerequisite to the filing of a cause of action amounts to a finding that the

complaint was not warranted under existing law.

{¶27} We first note that the instant case is distinguishable from a case where

the missing prerequisite to the filing of a cause of action ultimately affects the merits

of the cause of action and results in a claim that is not warranted under the law in the

absence of such prerequisite. See, e.g., Shertock (finding that a party engaged in

frivolous conduct where the party attempted to bring a cause of action for the

unauthorized practice of law under R.C. 4705.07(C)(2) without the prior necessary

finding by the Supreme Court that the unauthorized practice of law occurred).

{¶28} Rather, here, the procedural prerequisite in question—the filing of an

affidavit of merit or motion to extend under Civ.R. 10(D)(2)—does not go to the merits

of the underlying claim. Instead, it is simply a pleading requirement that results in a

dismissal without prejudice in the absence of such a prerequisite. See Fletcher, 120

Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, at ¶ 21 (“[A] dismissal for failure to

comply with Civ.R. 10(D)(2) is an adjudication otherwise than on the merits. The

dismissal, therefore, is without prejudice.”). Accordingly, a party is free to refile the

claim after dismissal.

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{¶29} While this court is certainly not condoning the purposeful avoidance of

procedural requirements under the Ohio Rules of Civil Procedure, we cannot say that

no reasonable attorney would have engaged in the strategy of filing a complaint in

violation of the rule intending to rely on the established outcome of dismissal in order

to garner more time for his or her client to bring the intended cause of action. The

statute is not designed to punish mere misjudgment or tactical error. E.g., Riston, 149

Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, at ¶ 35.

{¶30} Further, we are cautious not to stifle good-faith zealous

representation—even where such a strategy ultimately misses the mark—and the mere

filing of the complaints in violation of the rule has yet to reach the realm of abuse of

process. Notably, there is no evidence here that Feagan has previously been warned

against this behavior by the trial court or that such behavior has previously been

litigated and found to be improper.

{¶31} Accordingly, we hold that sanctions were not warranted under R.C.

2323.51 based solely on Feagan’s failure to follow Civ.R. 10(D)(2) when filing the three

medical-claim complaints. Therefore, we sustain the sole assignment of error.

III. Conclusion

{¶32} Having sustained the sole assignment of error, we reverse the

judgments of the trial court.

Judgments reversed.

KINSLEY, J., concurs. BERGERON, J., dissents.

Bergeron, J., dissenting.

{¶33} On appeal, Mr. Feagan argues only that his voluntary dismissal of the

complaints under Civ.R. 41(A) shielded him from any potential sanctions. Yet the

15 OHIO FIRST DISTRICT COURT OF APPEALS

majority looks beyond his sole argument to determine that his willful failure to comply

with the requirements of Civ.R. 10(D) did not warrant the sanctions issued. The trial

court provided a thorough analysis, finding Mr. Feagan’s conduct both frivolous and

willful. He did not contest these findings on appeal, and even if he did, competent and

credible evidence supports those conclusions. Consequently, I would not reverse the

trial court’s measured sanctions award, and therefore, I respectfully dissent.

{¶34} Mr. Feagan filed the three cases consolidated here—and according to

defendants, at least 11 additional cases—without an affidavit of merit or any type of

motion for extension. Because he repeatedly filed complaints without either of these

alternatively required documents, the trial court determined, and Mr. Feagan did not

contest, that he willfully engaged in a pattern of noncompliance with the mandatory

requirements of Civ.R. 10(D). Mr. Feagan and his law firm are sophisticated actors

within the medical malpractice space with an understanding of the requirements of

filing medical malpractice complaints. At trial, his counsel stated that the firm has

“medical staff in [its] office” and “a lot of experts, physicians that [they] use.” He

further stated, “We’re currently prosecuting hundreds of cases and spending millions

of dollars on med-mal cases.” As he acknowledges, his failure to attach an affidavit of

merit in these cases was not an oversight, but rather an intentional, strategic decision.

{¶35} In his reply brief, Mr. Feagan declares that filing a medical malpractice

complaint without an affidavit of merit or a motion for extension is a strategy plaintiff’s

counsel can employ in medical malpractice cases to circumvent the extension process

explicitly created by Civ.R. 10(D). Civ.R. 10(D)(2)(b) clearly delineates an

accommodation for parties who are unable to file an affidavit of merit at the time of

filing the complaint: parties can file a motion for extension along with the complaint

and receive—upon a showing of good cause—an extension for a reasonable period not

16 OHIO FIRST DISTRICT COURT OF APPEALS

to exceed 90 days. Rather than use the extension process contemplated by the drafters

of Civ.R. 10(D)(2)(b), Mr. Feagan repeatedly chose to employ a workaround whereby,

following a voluntary dismissal under Civ.R. 41(A)(1)(a), parties receive one year to

refile the suit under R.C. 2305.19(A).

{¶36} Mr. Feagan argues that Civ.R. 41(A) provides an escape hatch from the

requirements of Civ.R. 10(D). If he is correct, Civ.R. 10(D) is not worth the paper upon

which it is written. And while the majority asserts that they are “certainly not

condoning the purposeful avoidance of procedural requirements under the Rules of

Civil Procedure,” by accepting Mr. Feagan’s argument, that strikes me as exactly what

is happening here. After reading the majority opinion, I’m not sure any attorney would

feel compelled to comply with Civ.R. 10(D) when they file a complaint, because if we

are excusing even willful violations of that rule, what is the consequence?

{¶37} On this record, the trier of fact determined Mr. Feagan willfully violated

Civ.R. 10(D) and engaged in frivolous conduct. Mr. Feagan did not contest these

findings on appeal, and I cannot accept his sole argument that a voluntary dismissal

shields a party from sanctions for willful violations of the Ohio Rules of Civil

Procedure. I accordingly would affirm the trial court’s judgments.

Please note:

The court has recorded its own entry this date.