Smith v. Conley, Unpublished Decision (12-20-2004)

2004 Ohio 7059

Opinion

OPINION {¶ 1} On September 5, 2003, appellee, Clayton Smith, filed a legal malpractice complaint against appellant, Craig Conley. Appellant had represented appellee in a criminal matter in which a jury on August 21, 2002 convicted appellee of passing a bad check in violation of R.C. 2913.11 (Case No. 2002CR0215).

{¶ 2} On November 4, 2003, appellant filed a motion for leave to plead. On November 10, 2003, appellee filed a motion for default judgment. By judgment entry filed November 12, 2003, the trial court denied appellee's motion for default judgment and granted appellant's motion for leave to plead.

{¶ 3} Appellant filed an answer and counterclaim on November 25, 2003 and a motion for summary judgment on December 19, 2003. By judgment entry filed February 4, 2004, the trial court granted appellant's motion for summary judgment, finding appellee's claim was barred by the applicable statute of limitations.

{¶ 4} On February 25, 2004, appellant filed a motion for sanctions pursuant to Civ.R. 11 and frivolous conduct in violation of R.C. 2323.51.

{¶ 5} On March 12, 2004, the trial court dismissed the entire case. The trial court denied appellant's request for sanctions on April 5, 2004.

{¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I {¶ 7} "The trial court erred in denying appellant's motion for sanctions for willful violation of Civil Rule 11 and for frivolous conduct in violation of R.C. 2323.51 and request for hearing, and denial of the motion is not supported by the record."

I {¶ 8} Appellant claims the trial court erred in denying his Civ.R. 11 motion for sanctions. Consistent with our reversal of the dismissal of the legal malpractice claim in Case No. 2004CA00068, we reverse and remand the issue of sanctions to the trial court for disposition at the conclusion of the underlying action.

{¶ 9} The sole assignment of error is granted.

{¶ 10} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby reversed and remanded.

Farmer, J., Gwin, P.J. and Reader, V.J. concur.

JUDGMENT ENTRY

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio is reversed and the matter is remanded to said court for further proceedings consistent with this opinion.