Haubeil & Sons Asphalt & Materials, Inc. v. Brewer & Brewer Sons, Inc.

565 N.E.2d 1278, 57 Ohio App. 3d 22, 1989 Ohio App. LEXIS 523

• Court: Ohio Court of Appeals
• Decided: February 10, 1989
• Docket: 1443
• Status: Published

Opinions

Abele, J.

This is an appeal from a Ross County Court of Common Pleas judgment granting appellee’s motion to impose a sanction against plaintiffs attorneys Adams and Rosenberg for violating Civ. R. 11 by filing a frivolous complaint. The court ordered Adams and Rosenberg to pay appellee $2,000 for attorney fees spent defending the complaint. Adams and Rosenberg appeal.

We reverse.

Assignment of Error I

“The trial court committed prejudicial error when it imposed Civil Rule 11 sanctions against appellants.

“A. Attorney fees may not be awarded for a violation of Civil Rule 11.

“B. The facts supported a reasonable investigation of the facts and law.

“C. The filing of the complaint was not done knowingly without support in fact and law; [and] was not done for an improper purpose [or] in bad faith.

“D. The proceedings were not terminated in favor of the moving party in all respects.”

While we do not necessarily agree with appellants that attorney fees may never be awarded for a violation of Civ. R. 11, we do agree with appellants that the court below should not have awarded attorney fees in the case at bar. Civ. R. 11 provides in pertinent part:

“* * * The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his 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 may be subjected to appropriate action. * * *” (Emphasis added.)

Before a court may subject an attorney to “appropriate action” under Civ. R. 11, the attorney must have willfully violated the rule — in particular, the attorney must have willfully signed a pleading which, to the best of his knowledge, information, and belief was not supported by good ground.

While the record below reveals appellants, for whatever reason and to whatever degree, were mistaken in their belief that the complaint they filed was supported by good ground, we do not believe the record contains sufficient evidence to prove appellants signed a pleading which they knew to be false or which they interposed for delay. Further, as appellants contend, the action was not terminated in ap-pellee’s favor in all respects. The court approved a judgment entry which forced defendant city of Chillicothe to strictly enforce the contract at issue and to make periodic inspections to ensure defendant Three Locks Construction Company is complying with the contract.

Appellants’ assignment of error is sustained.

Judgment reversed.

Stephenson, J., concurs. Grey, P.J., dissents.