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Ohio Court of Appeals Upholds Sanctions for Attorney’s Frivolous Conduct

On August 28, 2017, the Ohio Court of Appeals for the Eleventh District upheld a trial court’s order imposing frivolous conduct sanctions in the amount of $22,926.72 on a plaintiff’s attorney and his law firm in the case of Keith-Harper v. Lake Hosp. Sys., Inc., --- N.E.3d ----, 2017-Ohio-7361 (11th Dist. Lake).

The plaintiff, Linda Keith-Harper, filed a complaint asserting seven causes of action against Defendants, alleging that they had engaged in unlawful age discrimination, wrongful termination based on age discrimination, disability discrimination based on Keith-Harper's knee replacement, wrongful termination based on disability discrimination, unlawful FMLA retaliation, workers’ compensation retaliation, and intentional infliction of emotional distress.

After the Court of Common Pleas for Lake County granted summary judgment on all of Keith-Harper’s claims, Defendants moved for an order imposing sanctions under Ohio’s frivolous conduct statute, R.C. 2323.51. Unlike a typical motion for sanctions, which may argue that a party’s allegations were frivolous from the onset, Defendants argued that Keith-Harper’s claims were rendered frivolous by the evidence adduced during the discovery process. Despite this evidence, Defendants had to incur additional fees and costs to litigate the case even after it was clear that Keith-Harper’s claims lacked any objective merit.

Granting Defendants’ motion for sanctions, the trial court agreed that by the time discovery had closed, “it was clear that there was no evidence that the plaintiff had requested or taken FMLA […] that she was disabled or perceived as disabled, […] that she was terminated for claiming workers’ compensation benefits that ended ten months earlier,” or that “she was directly targeted because of her age,” as “[t]he evidence showing she was terminated for just cause [was] overwhelming.” Because Keith-Harper’s attorneys failed to withdraw these claims after it became clear that they were not viable, the trial court awarded Defendants $22,926.72 for legal fees and costs incurred following the close of discovery. This sanction was imposed on Keith-Harper’s individual attorney and his law firm.

On appeal, Keith-Harper’s attorneys argued, among other things, that their conduct was not “frivolous” as a matter of law and that even if it was, the trial court erred by imposing joint and several liability against their law firm.

Affirming the trial court’s decision in a divided opinion, the Eleventh District adopted a deferential standard of review and drew several important distinctions between R.C. 2323.51 and its more well-known counterpart, Civ. R. 11. As an initial matter, the Court of Appeals recognized that unlike Civ. R. 11, which requires a finding of subjective bad faith before sanctions can be imposed, R.C. 2323.51 judges frivolous conduct under an objective standard “without inquiry as to what the individual knew or believed.” Recognizing that the statute provides several grounds for determining the frivolity of a claim or defense, the Court of Appeals also held that where a trial court finds that claims or defenses are factually frivolous (as opposed to legally frivolous) its determination that frivolous conduct took place will be affirmed so long as that decision is supported by competent, credible evidence. A decision that a claim is legally frivolous, on the other hand, is reviewed de novo. If the trial court makes a finding of frivolous conduct and proceeds to order an award of monetary sanctions, that decision is reviewed for abuse of discretion. Because it found that the trial court’s detailed decision outlining the factual frivolity of Keith-Harper’s claims was supported by competent, credible evidence, the Court of Appeals affirmed the lower court’s finding of frivolous conduct. 

The Court of Appeals likewise rejected the argument that it was error to award sanctions under R.C. 2323.51 against a law firm. Citing to the statutory language that permits an award of sanctions against “a party, the party’s counsel of record, or both” the Court reasoned that unlike Civ. R. 11, which was drafted to impose responsibilities and sanctions on individual attorneys who have signed a pleading, R.C. 2323.51 was drafted more broadly to “afford an avenue of relief to a party adversely affected by frivolous conduct.” Acknowledging that several Ohio appellate courts have construed “counsel of record” to include an attorney’s firm as well as an individual lawyer, the Eleventh District affirmed the trial court’s decision to impose joint and several liability on Keith-Harper’s attorneys’ law firm.

The Eleventh District’s decision in Keith-Harper highlights an attorney’s obligation to reevaluate the merits of an asserted claim at each and every stage of litigation, and to pursue only those claims that have objective factual and legal merit. A party’s or her attorney’s failure to do so may result in a violation of R.C. 2323.51 and significant exposure to compensate an opponent for legal fees and costs.

Brennan, Manna & Diamond, LLC represented the Defendants in the trial and appellate courts, with BMD attorneys Christopher Congeni and Daniel Rudary briefing the case at the court of appeals and BMD attorney Daniel Rudary presenting oral argument in defense of the trial court’s sanctions award.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.