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White v. Soo12/28/1989
tion may proceed as though the pleading had not been served. For willful violation of this rule an attorney may be subjected to appropriate action. * * *"
The Supreme Court in State, ex rel. Kabatek, v. Stackhouse (1983), 6 Ohio St.3d 55, 55-56, 6 OBR 73, 74, 451 N.E.2d 248, 249, stated:
"'The general rule in Ohio is that, absent a statutory provision allowing attorney fees as costs, the prevailing party is not entitled to an award of attorney fees unless the party against whom the fees are taxed was found to have acted in bad faith. See Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177 (75 O.O.2d 224, 347 N.E.2d 5271; State, ex rel. Grosser, v. Boy (1976), 46 OhisSt.2d 184 [75 O.O. 2d 228, 347 N.E.2d 539].' State, ex rel. Crockett, v. Robinson (1981), 67 Ohio St.2d 363, 369 [2 O.O. 228, 232, 423 N.E.2d 1099, 1103]."
Defendant, Lima Memorial Hospital, contends that the complaint filed by the plaintiff presented no justifiable claim as to the defendant, and that the reassertion of previously litigated claims was meritless and, therefore, by definition, was "frivolous."
In State, ex rel. Fant, v. Sykes (1987), 29 Ohio St.3d 65, 29 OBR 446, 505 N.E.2d 966, the Supreme Court stated:
"* * * The decision to impose sanctions pursuant to Civ.R. 11 lies within the discretion of the trial court. Absent an abuse of discretion, such decision will not be reversed. * * *"
We do not find that the record supports the defendant's claim that plaintiff acted in bad faith. The inclusion of the defendant in a claim that is identical to a previously litigated claim wherein the defendant was dismissed with prejudice does not, in and of itself, and standing alone, demonstrate as a matter of law that the plaintiff acted in bad faith.
We, therefore, conclude that the trial court did not act arbitrarily or unconscionably and thus did not abuse its discretion in not awarding attorney fees to appellant.
Finding no error of the trial court prejudicial to the defendant as assigned and argued, we affirm the trial court's judgment.
Judgment affirmed.
SHAW and THOMAS F. BRYANT, JJ., concur.
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