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Roger
Roger, Attorney
Category: Family Law
Satisfied Customers: 26577
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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in filing a suit does one have to exhaust all procedural remedies

Resolved Question:

in filing a suit does one have to exhaust all procedural remedies first or is the suit based on an actionable cause no matter when it occured
Submitted: 1 year ago.
Category: Family Law
Expert:  Roger replied 1 year ago.

Hi - thanks for your question.

USUALLY, one must exhaust any administrative remedies or go through the procedural hoops before filing suit. If there are prerequisites to filing suit, they must be followed or the case would be dismissed and you'd have to start over.

Customer: replied 1 year ago.

does the suit take place only if you have won in a particular case, example if it is a case were you had to appeal and it was found that it was an abuse of discretion which resulted in a denial of due process can one after the appellant court decision then file the suit

Expert:  Roger replied 1 year ago.

USUALLY, if the appellate court found an abuse of discretion or some other grounds to overturn the decision, the case would be REMANDED back to the trial court for further proceedings.

Once the case was remanded, then the party could raise the issue of being denied due process to the trial court and a decision on that would be handed down there.

Customer: replied 1 year ago.

the decision would be handed down in the lower court or by the appellate court? and what happens for example your are a victim of fraud once the party discovers there was fraud, does he first bring it to the same court by way of one of the rules permitting these types of occurrences, or does he just file a suit for fraud and perjury?

Expert:  Roger replied 1 year ago.

The appellate court would send the case back to the trial court and the trial court would hear any claims on violations of due process and the trial court would render a decision on that matter.

If a person learns he/she is a victim of fraud, and there is already a case ongoing with the party that perpetuated the fraud, then a counter-claim can be filed by the victim against the perpetrator in the same case.

Customer: replied 1 year ago.

but if it is a suit for x amount a dollars it could only be heard in the court that can hear claims for that amount correct, also if the court had ruled on a matter later one party finds that there was foul play and petitions the court ,however; nothing came of it no hearings at this point can a suit be taken to an outside court like a district court for damages

Expert:  Roger replied 1 year ago.
The court's jurisdictional limits would apply, so if the damages were more than the jurisdictional limit, you would probably have to file a motion to transfer the case to the higher trial court and then proceed from there.
Customer: replied 1 year ago.

but would that issue be raised in that court that i am suing for x amount of dollars due to the fraud and then motion it to be transferred to a higher court or does the issue of fraud have to be heard in the court that it happened in first

Expert:  Roger replied 1 year ago.

You would file a motion for leave to file a counterclaim for fraud and also a motion to transfer the case to the higher state trial court due to the damages involved.

-OR-

You could file your suit in the higher court and then file a motion with the lower court to transfer and consolidate that case with your case.

Customer: replied 1 year ago.

OK but were there are issues that the lower court has not acknowledged the complaints and affidavits and not rebutted them would this be a method used to have the issue threw out because it can be construed that the party didn't use all remedy's

Expert:  Roger replied 1 year ago.
It may be possible to claim that since the party didn't respond to the allegations, that summary judgment be granted on these issues - - but that would take a separate motion addressing that the party didn't respond, and therefore admits the allegations, etc.
Customer: replied 1 year ago.

so just to some the law suit issue up! one can not sue until he has exhausted all his procedural remedy's and if that is correct, this controls even when the person has suffered injury due to malfeasance or fraud he can only sue for punitive damages for what they have done after he has tried every possible procedure

Expert:  Roger replied 1 year ago.
Yes - - If there's an administrative procedure in place or if there's a law that says you must pursue administrative remedies before filing suit.

Customer: replied 1 year ago.

in cases were there was fraud can you just file a prema facia complaint alleging the causes or is there some other procedure that needed first

Expert:  Roger replied 1 year ago.
Generally, there's not any prerequisite to filing a lawsuit of any kind. The exceptions are if you're suing the government, or if it's an employment dispute or some other administrative-type issue that requires an administrative procedure before you can be cleared to sue.

Usually, one can just file his/her lawsuit in civil court and proceed with it.
Customer: replied 1 year ago.

so if it is a instrumentality of the government like a agency or an officer of the court then administrative procedure apply is that correct


 

Expert:  Roger replied 1 year ago.
That's right - - there should be an administrative grievance procedure that must be followed before suit can be filed.
Customer: replied 1 year ago.

ok like rule 60 b 5 or rule 59, now if you took these procedures and the tribunal has not rebutted your affidavit at this point you can not sue you would file an appeal? if the appeal finds that it was reversible error or abuse of discretion only at this point can the party sue? this leads me to this what if the party didn't word it right example the party claims that the action was abuse of procedure meaning that the party colluded and failed to perform their duty and has evidence to show perjury, however the appeal court states yes this is perjury but not abuse of procedure, would this remove the chance of the moving party to sue

Expert:  Roger replied 1 year ago.
The rules of civil procedure only apply to civil litigation - not administrative procedure. Administrative procedures have separate rules.

First, you would go through any administrative procedures required. If you can't resolve the matter at that level, a civil suit would be filed. Rules 59 and 60 deal with judgments and relief from judgments.

If a judgment has already been rendered against you, then an appeal is the next course of action.

If there's a cause of action that arises after the judgment, you could file a separate suit. I think I'm thoroughly confused with the procedure of your case or what you're trying to achieve, however.
Customer: replied 1 year ago.

so would you seek administrative remedy from the same court, yes if a judgment was procured due to fraud and you tried to rectify by rule 60 b 5 but this approach was not successful so at this point does one appeal or does he have a right to sue do to the loss he has suffered due to the fraud

Expert:  Roger replied 1 year ago.
Administrative remedies aren't available through court - they're available through administrative procedures - usually like within the government agency.

If a new cause of action has occurred, the person should be able to file suit for the fraud committed.
Customer: replied 1 year ago.

how does one find the administrative remedy's and the main thing i want to be certain about is the procedure, example if on the journal entry the recourse is to appeal within thirty days does this prevent one from suing if he appeals or can he sue regardless if he appeals or not if he has a valid cause of action

Expert:  Roger replied 1 year ago.
You would have to contact the agency and ask what it's grievance procedures are and follow them.

Every agency has different rules and procedures.
Customer: replied 1 year ago.

even for a court

Expert:  Roger replied 1 year ago.
Courts are not administrative agencies and follow rules of procedure.

Administrative agencies (like a government agency) have their own rules and procedures.

If you want to go through an agency's administrative procedures, you would have to consult the agency for the rules.

Customer: replied 1 year ago.

got you i mean if the courts officer was found to committed perjury and enter false information at any when this is found to be true can a suit be filed or there is still procedure that must be followed

Expert:  Roger replied 1 year ago.
Suit can be filed against the officer individually and you could also sue the county. There is usually a notice provision and some minor procedure before filing suit against a government agency.

You can likely look up the tort claims act for your state to see what those notice requirements are.
Customer: replied 1 year ago.

how would i look it up as notice provision

Expert:  Roger replied 1 year ago.
The act is Ohio Code Sec. 2743.01 et. seq. There is a court of claims that has exclusive jurisdiction to hear any cases against a state agency (2743.03).

I looked through that act, and I actually don't see any notice provisions in the act, BUT I am not extremely familiar with the Ohio Tort Claims Act, so it may be buried in there somewhere. I would certainly ask a local attorney before filing. But, any claim must be filed against the court of claims.
Customer: replied 1 year ago.

is this court of claims a specific court by itself that hears only cases of this nature. also; is the title for that court (court of claims) and would the suit be filed against this court itself or the officer in his individual and official capacity would this court be for money damages or just to render a declaratory judgment? and if one receives a declaratory judgment does this bar him for monetary damages?


 


 


 


 

Expert:  Roger replied 1 year ago.

Yes, it appears from the statute that this court of claims is a separate court that only hears claims against state entities and employees for civil wrongs.

The case would be against the person individually and as an officer of the court; you could also sue the county where the court is located (but not the actual court itself).

The court would be for money damages.

A declaratory judgment doesn't bar a claim for money damages. A declaratory judgment just asks a court to determine the legal rights of a party - usually the plaintiff. There's no actual action taken or judgment rendered.

Customer: replied 1 year ago.

so there is no procedure that will prevent the complaint (suit) as long as it is filed in the right venue and that it is a valid cause of action and appealing a matter is only when there has been an era in law I.E. an abuse of discretion, however; it foul play has been discovered that procured a judgment rule 60 b 5 would apply, if it is overruled without finding of fact and conclusion of law you may appeal? but this would only be to correct the matter of procedure and not to deal with damages, this would be were the suit comes into play is that correct . now say if the person filed the appeal and filed a complaint would that be incorrect and result in the complaint being dismissed

Expert:  Roger replied 1 year ago.
Yes, I believe that's correct.

It would likely be best to file an appeal and if it is successful, then the complaint could be filed.
Roger, Attorney
Category: Family Law
Satisfied Customers: 26577
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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