Contested divorces, on rare occasions, can involve assertions of claims, the filing of pleadings, motions or a variety of other papers, appearing to merely serve to harass or injure the other party. When such activity can be shown to be grounded in an improper purpose, such as causing a needless delay, or needlessly driving up the cost of the litigation, the injured party can seek damages and sanctions.
Ohio has a statute setting out what constitutes “Frivolous Conduct In Filing Civil Claims”. Attorneys rarely invoke the statute, and with good reason. Normally, there are other remedies available from more traditional civil filings (motion to compel, motion to strike, etc.). A motion for damages and sanctions due to the frivolous conduct of a party may only be appropriate in a very narrow group of scenarios and may, ultimately, cost more in fees and emotional tolls than warranted by the offending activity.
The statute is presented below, in its entirety (with some underlining added). Domestic relations judges, magistrates and attorneys rarely, if ever, litigate frivolous conduct motions. Reliance on the statute should involve the exercise of a cautious balancing of costs and benefits associated with this litigation. When a party asserts frivolous conduct of the other party, the grounds for the assertion must be sufficiently detailed and have evidentiary support.
2323.51 Frivolous conduct in filing civil claims.
(A) As used in this section:
(1) “Conduct” means any of the following:
(a) The filing of a civil action, the assertion of a claim, defense, or other position in connection with a civil action, the filing of a pleading, motion, or other paper in a civil action, including, but not limited to, a motion or paper filed for discovery purposes, or the taking of any other action in connection with a civil action;
(b) The filing by an inmate of a civil action or appeal against a government entity or employee, the assertion of a claim, defense or other position in connection with a civil action of that nature or the assertion of issues of law in an appeal of that nature, or the taking of any other action in connection with a civil action or appeal of that nature.
(2) “Frivolous conduct” means either of the following:
(a) Conduct of an inmate or other party to a civil action, of an inmate who has filed an appeal of the type described in division (A)(1)(b) of this section, or of the inmate’s or other party’s counsel of record that satisfies any of the following:
(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.
(ii) It is not warranted under existing law, cannot be supported by a good faith 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.
(iii) The conduct 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.
(iv) The conduct 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.
(b) An inmate’s commencement of a civil action or appeal against a government entity or employee when any of the following applies:
(i) The claim that is the basis of the civil action fails to state a claim or the issues of law that are the basis of the appeal fail to state any issues of law.
(ii) It is clear that the inmate cannot prove material facts in support of the claim that is the basis of the civil action or in support of the issues of law that are the basis of the appeal.
(iii) The claim that is the basis of the civil action is substantially similar to a claim in a previous civil action commenced by the inmate or the issues of law that are the basis of the appeal are substantially similar to issues of law raised in a previous appeal commenced by the inmate, in that the claim that is the basis of the current civil action or the issues of law that are the basis of the current appeal involve the same parties or arise from the same operative facts as the claim or issues of law in the previous civil action or appeal.
(3) “Civil action or appeal against a government entity or employee,” “inmate,” “political subdivision,” and “employee” have the same meanings as in section 2969.21 of the Revised Code.
(4) “Reasonable attorney’s fees” or “attorney’s fees,” when used in relation to a civil action or appeal against a government entity or employee, includes both of the following, as applicable:
(a) The approximate amount of the compensation, and the fringe benefits, if any, of the attorney general, an assistant attorney general, or special counsel appointed by the attorney general that has been or will be paid by the state in connection with the legal services that were rendered by the attorney general, assistant attorney general, or special counsel in the civil action or appeal against the government entity or employee, including, but not limited to, a civil action or appeal commenced pro se by an inmate, and that were necessitated by frivolous conduct of an inmate represented by counsel of record, the counsel of record of an inmate, or a pro se inmate.
(b) The approximate amount of the compensation, and the fringe benefits, if any, of a prosecuting attorney or other chief legal officer of a political subdivision, or an assistant to a chief legal officer of those natures, who has been or will be paid by a political subdivision in connection with the legal services that were rendered by the chief legal officer or assistant in the civil action or appeal against the government entity or employee, including, but not limited to, a civil action or appeal commenced pro se by an inmate, and that were necessitated by frivolous conduct of an inmate represented by counsel of record, the counsel of record of an inmate, or a pro se inmate.
(5) “State” has the same meaning as in section 2743.01 of the Revised Code.
(6) “State correctional institution” has the same meaning as in section 2967.01 of the Revised Code.
(B)(1) Subject to divisions (B)(2) and (3), (C), and (D) of this section and except as otherwise provided in division (E)(2)(b) of section 101.15 or division (I)(2)(b) of section 121.22 of the Revised Code, at any time not more than thirty days after the entry of final judgment in a civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an award of court costs, reasonable attorney’s fees, and other reasonable expenses incurred in connection with the civil action or appeal . The court may assess and make an award to any party to the civil action or appeal who was adversely affected by frivolous conduct, as provided in division (B)(4) of this section.
(2) An award may be made pursuant to division (B)(1) of this section upon the motion of a party to a civil action or an appeal of the type described in that division or on the court’s own initiative, but only after the court does all of the following:
(a) Sets a date for a hearing to be conducted in accordance with division (B)(2)(c) of this section, to determine whether particular conduct was frivolous, to determine, if the conduct was frivolous, whether any party was adversely affected by it, and to determine, if an award is to be made, the amount of that award;
(b) Gives notice of the date of the hearing described in division (B)(2)(a) of this section to each party or counsel of record who allegedly engaged in frivolous conduct and to each party who allegedly was adversely affected by frivolous conduct;
(c) Conducts the hearing described in division (B)(2)(a) of this section in accordance with this division, allows the parties and counsel of record involved to present any relevant evidence at the hearing, including evidence of the type described in division (B)(5) of this section, determines that the conduct involved was frivolous and that a party was adversely affected by it, and then determines the amount of the award to be made. If any party or counsel of record who allegedly engaged in or allegedly was adversely affected by frivolous conduct is confined in a state correctional institution or in a county, multicounty, municipal, municipal-county, or multicounty-municipal jail or workhouse, the court, if practicable, may hold the hearing by telephone or, in the alternative, at the institution, jail, or workhouse in which the party or counsel is confined.
(3) The amount of an award made pursuant to division (B)(1) of this section that represents reasonable attorney’s fees shall not exceed, and may be equal to or less than, whichever of the following is applicable:
(a) If the party is being represented on a contingent fee basis, an amount that corresponds to reasonable fees that would have been charged for legal services had the party been represented on an hourly fee basis or another basis other than a contingent fee basis;
(b) In all situations other than that described in division (B)(3)(a) of this section, the attorney’s fees that were reasonably incurred by a party.
(4) An award made pursuant to division (B)(1) of this section may be made against a party, the party’s counsel of record, or both.
(5)(a) In connection with the hearing described in division (B)(2)(a) of this section, each party who may be awarded reasonable attorney’s fees and the party’s counsel of record may submit to the court or be ordered by the court to submit to it, for consideration in determining the amount of the reasonable attorney’s fees, an itemized list or other evidence of the legal services rendered, the time expended in rendering the services, and whichever of the following is applicable:
(i) If the party is being represented by that counsel on a contingent fee basis, the reasonable attorney’s fees that would have been associated with those services had the party been represented by that counsel on an hourly fee basis or another basis other than a contingent fee basis;
(ii) In all situations other than those described in division (B)(5)(a)(i) of this section, the attorney’s fees associated with those services.
(b) In connection with the hearing described in division (B)(2)(a) of this section, each party who may be awarded court costs and other reasonable expenses incurred in connection with the civil action or appeal may submit to the court or be ordered by the court to submit to it, for consideration in determining the amount of the costs and expenses, an itemized list or other evidence of the costs and expenses that were incurred in connection with that action or appeal and that were necessitated by the frivolous conduct, including, but not limited to, expert witness fees and expenses associated with discovery.
(C) An award of reasonable attorney’s fees under this section does not affect or determine the amount of or the manner of computation of attorney’s fees as between an attorney and the attorney’s client.
(D) This section does not affect or limit the application of any provision of the Rules of Civil Procedure, the Rules of Appellate Procedure, or another court rule or section of the Revised Code to the extent that the provision prohibits an award of court costs, attorney’s fees, or other expenses incurred in connection with a particular civil action or appeal or authorizes an award of court costs, attorney’s fees, or other expenses incurred in connection with a particular civil action or appeal in a specified manner, generally, or subject to limitations.
Effective Date: 07-06-2001; 04-07-2005
This post is not offered as legal advice and presumes you are not represented by an attorney.
