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Furness v. Pois
Citations: 669 N.E.2d 481; 107 Ohio App. 3d 719Docket: No. 94-P-0090.
Court: Ohio Court of Appeals; December 10, 1995; Ohio; State Appellate Court
An appeal and cross-appeal arise from a ruling by the Portage County Court of Common Pleas, which granted Dr. Alan Pois's motion to strike the complaint, converted to a motion for summary judgment, while denying his motion for sanctions. James and Judith Furness filed a medical negligence suit on November 12, 1993, alleging that Dr. Pois negligently damaged Mr. Furness's brachial plexus nerve during arterial bypass surgery, leading to loss of motor skills in his right arm and hand, as well as a constant tremor that ended his career as a professional carpenter. The case had been previously dismissed without prejudice on November 25, 1992. On March 1, 1994, attorney Michael DelMedico withdrew from representing the appellants, and Terrence Kane took over. On June 20, 1994, Dr. Pois filed motions to strike the complaint and for sanctions, claiming the suit was frivolous. After the response period elapsed, Kane also withdrew, with the withdrawal order signed by James Furness on July 19, 1994. A pretrial conference was held on July 25, 1994, attended by James Furness, but no transcript of the hearing is in the appellate record. The trial court ruled on July 26, 1994, converting the motion to strike into a motion for summary judgment and granting it, while denying the motion for sanctions. Appellants raised four errors on appeal, primarily arguing that the trial court improperly converted the motion to strike without providing adequate notice and time to respond, and that they were not given sufficient time to secure new counsel. On cross-appeal, Dr. Pois contended that the trial court erred by denying his motion for sanctions. The court plans to first address the appellants' concerns regarding notice related to the conversion of the motion to strike. The judgment indicated that the appellants did not respond to the motion, and the court found no genuine issue of material fact, ruling in favor of Dr. Pois. Civ. R. 11 allows for a document to be stricken if it is unsigned or signed with intent to evade the rule, and the case may proceed as if the document was never served. In this instance, the trial court improperly converted a Civ. R. 11 motion to strike into a Civ. R. 56 motion for summary judgment without notifying the parties, which could mislead them regarding the potential outcomes. The correct procedure requires converting the motion with proper notice to allow parties to respond adequately. Although the trial court's actions could yield similar results, failing to notify the appellants was unfair. The court may either rule on the motion to strike or provide notice of the conversion before proceeding with summary judgment. The appellants' concerns regarding the lack of notification were sustained, while the court chose not to address other assignments since they were rendered moot by this decision. The appellee's cross-appeal regarding the trial court's decision not to impose sanctions under Civ. R. 11 was found to lack merit. The court noted that the imposition of sanctions is at the trial court's discretion, and the mere belief of frivolous conduct by the appellee did not constitute an abuse of discretion. Consequently, the trial court's ruling against sanctions was upheld. The judgment affirmed in part and reversed in part, remanding for consistent proceedings.