R-ECTIVED Richland Correctional Institution APR B 5 2007 1001 Olivesburg Rd

ORIGINAL IN THE SUPREME COURT OF OHIO ON COMPUTER-ALM

IN RE STEVEN A. BOZSIK Case No. 07-0358

Appellant

C.A. No. 06-CA-0026-M

THE STATE OF OHIO ex rel. Case No. 07-0359 STEVEN A. BOZSIK

Appellant

-vs- C.A. No. 03-CA-0096-M

MEDINA CTY COMMISSIONERS

Appellees

APPELLANT BOZSIK'S ORIGINAL BRIEF

For the Appellant

Steven A. Bozsik 389-250 R-ECTIVED Richland Correctional Institution APR b 5 2007 1001 Olivesburg Rd. P.O. Box 8107 MARCIA J MENGEL, CLERK Mansfield, Ohio 44901-8107 SUPREME COURT OF OMIO"

For the Appellee

WILIAM THORNE Assistant Prosecuting Attorney 72 Public Square Medina, Ohio 44256 APR 0 5 2007

MARCIA J. MENGEL, CLERK SUPRERT OF OHIO T

TABLE OF AUTHORITIES

Page

Table of Authorities ...... v

Constitutional, Statutory, Rule Provisions ...... vii

Statement of the Case ...... I

Statement of the Facts ...... 1

Law and Argument ...... 3

PROPOSITION OF LAW NO. I:

The court of appeals erred when the court ordered appellant to seek leave pursuant to RC § 2323.52(F)(2) outside the language of the trial court's order ...... 3

A) ISSUE PRESENTED FOR REVIEW No. 1:

Whether the court of appeals is permitted to apply the restriction according to RC § 2323.52(F)(2) when it is not in the Medina County Court of Common Pleas complaint, motion for summary judgment and journal entry? ...... 5

(B) ISSUE PRESENTED FOR REVIEW NO. 2:

Whether the court of appeals has the authority to apply the restriction according to RC § 2323.52(F)(2) when the statute does not articulate it applies against the Appellant? ...... 8

Whether RC § 2323.52 restrictions apply to all legal litigation or just original civil actions? ...... 14

PROPOSITION OF LAW NO. H

The added language from Senate Bill 168 is unconstitutional violating Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution ...... 16

i ISSUE PRESENTED FOR REVIEW:

Whether RC § 2323.52 is unconstitutional after adding the language from Senate Bill 168 and does the new language abrogate this Court's authority in Mayer v. Bristow? ...... 16

PROPOSITION OF LAW NO. lII

The court of appeals erred and abused its discretion when the court charged Appellant court cost as a pleading when Appellant filed a motion to seek leave ...... 25

ISSUE PRESF.NI'ED roR REyIEw:

Whether the Appellant can be Taxed Cost as a New pleading when a motion seeking leave has been denied and not a New Pleading? ...... 25

PROPOSITION OF LAW IV

The court of appeals erred and abused its discretion when the court issued a judgment to strike Appellant's Motion to Expand the Record pursuant to App.R. 9(c) beyond the time allowed for Appellee to file a response of ten days ...... 29

ISSUE PRESENTED FOR R$VIEW:

Whether the court of appeals error and abuse its discretion when it permitted Appellee to object to the motion to expand the record pursuant to App.R. 9(c)? ...... 29

CONCLUSION ...... 30

CERTIFICATE OF SERVICE ...... 31

APPENDIX

Notice of Appeal (07-0358) Medina County Court of Appeals, Ninth Appellate District of Ohio ...... A-1

Ninth District Court of Appeals Journal Entry (January 24, 2007) ...... A-3 (Case No. 06-CA-0026-M)

ii Notice of Appeal; Case No. 07-0359 Medina County Court of Appeals, Ninth Appellate District of Ohio ...... A-7

Niiith District Court of Appeals Journal Entry (January 24, 2007) ...... A-9 (Case No. 03-CA-0096-M)

Original Complaint filed with the Medina County Court of Common Pleas ...... B-1

Motion for Summary Judenient filed in the Couit of Common Pleas ...... B-3

Final Vexatious Litigator Order (March 17, 2005) Medina County Court of Common Pleas ...... B-7

Ninth District Court of Appeals Journal Entry (May 2, 2005) ...... B-13

Ninth District Court of Appeals Journal Entry (May 19, 2005) ...... B-14

Ohio Supreme Court Clerk's Report of Vexatious Litigators (February 7, 2007) (Ohio Revised Code § 2323.52(H) ...... C-I

Mulligan v. Baumgartner (Apr. 4, 2004), Court of Common Pleas No. 02-CVH-025 (Ottawa County Court of Common Pleas) ...... D-1

Castrataro v. Urban (DelawareCtofCom. Pl.), Case No. 02CV-A-1I-677 ...... D-5

Blacks Law Dictionary, Eight Edition ...... E-I

Fourteenth Amendment to the Upited States Constitution ...... E-2

Ohio Constitution, Article I Section 16 ...... E-3

Ohio Constitution, Article IV, Section 3 ...... E-4

Ohio Revised Code § 2303.08 ...... E-5

Ohio Revised Code § 2323.51 ...... E-6

Ohio Revised Code § 2323.52 ...... E-7

Ohio Rule of Appellate Procedure 9 ...... E-10

Ohio Rule of Appellate Procedure 23 ...... E-11

Ohio Rule of Appellate Procedure 26 ...... E-12

Ohio Rule of Civil Procedure 3 ...... E-13 iii Ohio Rule of Civil Procedure 7 ...... E-14

Ohio Rule of Civil Procedure 11 ...... E-15

Ohio Rule of Civil Procedure 58 ...... E-16

Ohio Rule of Criminal Procedure 32 ...... E-17

Senate Bill 168 ...... E-18

iv CASE AUTHORITY

Case Name PagelsJ

Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80 523 N.E.2d 851 ...... 23

Bauer v. Grinstead, (1943) 142 Ohio St. 56, 26 Ohio Op. 252, 50 N.E.2d 334 ...... 23

Bell v. Thompson, 125 S.Ct. 2825 (2005) ...... :...... 23

Bozsik v. Burkhart (9°i Dist), Wayne Co. App. No. 05-CA-0072 ...... 8

Bozsik v. Hudson (2006), 110 Ohio St.3d 245, 852 N.E.2d 1200 ...... 11

Bozsik v. Hudson, (03-15-06), Richland App. No. 06-CA-20 ...... 10, 11

Brennaman v. R.M.L, Co. (1994), 70 Ohio St.3d 460, 639 N.E.2d 425 ...... 21

Burgess v. Eli Lilly & Co. (1993) 66 Ohio St.3d 59, 609 N.E.2d 140 ...... 22

Castrano v. Urban (Delaware Ct of Com. Pl.), Case No. 02CV-A-11-677 ...... 12

Castrano v. Urhan (2003), 155 Ohio App.3d 597, 802 N.E.2d 689 ...... 12

Central Ohio Transit Auth. v. Timson (1998) 132 Ohio App.3d 41 724 N.E.2d 458 ...... 20,21

Cruzado v. Zaleski (2006), 111 Ohio St.3d 353, 856 N.E.2d 263 ...... 7

Direct Plumbing Supply Co. V. Dayton ( 1941), 138 Ohio St. 540 39 N. E. 3 d 70 ...... 21

Disciplinary Counsel v. Baumgartner (2003), 100 Ohio St.3d 41 796 N.E.2d 495 ...... 11

Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54 514 N.2d 709 ...... 22

Gaskins v. Shiplevy ( 1996), 76 Ohio St.3d 380, 667 N.E.2d 1194 ...... 6

Goldman v. C.I.R. 388 F.2d 476, 478 (6" Cir. 1967) ...... 6

Griffin v. Illinois ( 1956), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 ...... 23

Hernandez v. Kelly (2006), 108 Ohio St.3d 395, 844 N.E.2d 301 ...... 6, 7, 8 v Case Name Page[s

Huntington Natl. Bank v. Lomaz (1 I`h Dist.), Portage App. No. 2005-P-0075 ...... 10

Joyce v. Godale (Feb, 5, 2007), Geauga App. No. 2006-G-2692, 2007-Ohio-473 ...... 13

Kaine v. Marion Prison Warden (2000), 88 Ohio St.3d 454 727 N. E.2 d 907 ...... 6

Mayer v. Bristow (2000), 91 Ohio St.3d 3, 740 N.E.2d 656 ...... : passim

McKane v. Durston (1894), 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 ...... 23

Moldovan v. Cuyahoga Cty. Welfare Dept. (1986), 25 Ohio St.3d 293 496 N.E.2d 466 ...... 24

Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 503 N.E.2d 717 ...... 21,22

Mulligan v. Baumgartner (Apr. 4, 2004) Court of Common Pleas No. 02-CVH-025 ...... 11, 14

San Filipo v. San Filipo ( 1991), 81 Ohio App.3d 111, 610 N.E.2d 493 ...... 8

Schenley v. Kauth ( 1953), 160 Ohio St. 109, 113 N.E.2d 625 ...... :...... 6

Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504 ...... 21

State ex rel Howard v. Member QfBench ( 1os' Dist) Franklin App. No. 05AP-808, 2006-Ohio-3265 ...... 10

State ex rel. Edison Co. Y. Oehler (Oct. 4, 1995), 9°i Dist. No, 17167 ...... 27

State ex rel. Hanson v. Guernsey Cnty Commrs (1992) 65 Ohio St.3d 545, 606 N.E.2d 378 ...... 27

State ex rel White v. Junkin (1997), 80 Ohio St.3d 335, 686 N.E.2d 267 ...... 6, 7

State ex rel. Worcester v. Donnellon (1990) 49 Ohio St.3d 117, 551 N.E.2d 183 ...... 8

State v. Baumgartner (6^' Dist), Erie App. No. E-06-045, 2006-Ohio-3792 ...... 10, 11, 14

State v. Jordan (2004), 104 Ohio St.3d 21, 817 N.E.2d 864 ...... 7

State v. Wilkins (1998), 127 Ohio App.3d 306, 712 N.E.2d 1255 ...... 27

vi Stugard v. Pittsburgh, C.C. & St. L. Ry. Co. (1915) 92 Ohio St. 318, 110 N.E. 956 ...... 8

U.S. v. Eisner, 329 F.2d 410 (6'i' Cir, 1964) ...... 6

Constitutional, Statutory and Rule Provisions Page[s]

Blacks Law Dictionary, Eight Edition ...... 26

Fourteenth Amendment to the United States Constitution ...... passim

Ohio Constitution, Article I Section 16 ...... passim

Ohio Constitution, Article IV, Section 3 ...... 11

Ohio Revised Code § 2303.08 ...... 28

Ohio Revised Code § 2323.51 ...... 4, 9

Ohio Revised Code § 2323.52 ...... passim

Ohio Rule of Appellate Procedure 9 ...... 28, 29

Ohio Rule of Appellate Procedure 23 ...... 24

Ohio Rule of Appellate Procedure 26 ...... 22

Ohio Rule of Civil Procedure 3 ...... 27

Ohio Rule of Civil Procedure 7 ...... 27

Ohio Rule of Civil Procedure 11 ...... 5

Ohio Rule of Civil Procedure 58 ...... 7

Ohio Rule of Criminal Procedure 32 ...... 7

Senate Bill 168 ...... passim

vu STATEMENT OF THE CASE

Steven A. Bozsik, Appellant received two judgment entries by the Medina County Court

of Appeals, for the Ninth Appellate District of Ohio ("court of appeals").' The court of appeals

denied Appellant his motion seeking leave pursuant to Ohio Revised Code § 2323.52(F)(2),

through an Order by the court of appeals. The Appellant was declared a vexatious litigator on

March 17, 2005 by the Honorable James L. Kimbler, (Hereinafter "Judge Kimbler"), Judge of

the Medina County Court of Common Pleas in the State of Ohio.

The court of appeals inter alia ordered Appellant to seek leave pursuant to RC §

2323.52(F)(2); even though, the journal entry issued by Judge Kimbler is completely silent to

this restriction. Also, the court of appeals has decided this Court's authority in Mayer v. Bristow

(2000), 91 Ohio St3d 3, 740 N.E.2d 656 no longer applies in Ohio jurisprudence after Senate

Bill 168 became effective on June 28, 2002.

STATEMENT OF THE FACTS

On March 3, 2004 Mr. bean Holman, (Hereinafter "Mr. Holman")the Medina County

Prosecuting Attorney commenced a complaint seeking the Appellant, an inmate, declared a

vexatious litigator as defined in RC § 2323.52(A)(3). (Appendix B-1). The requested relief in

the complaint, addressed the Appellant be restricted from initiating and/or continuing current

civil actions with the courts of common pleas, municipal courts, county courts and court of

claims unless leave is sought with the court, (Appendix B-1 and 2).

Mr. Holman moved the Medina County Court of Common Pleas for summary judgment

declaring Appellant a vexatious litigator pursuant to R.C. § 2323.52(A)(3). (Appendix B-3).

Each judgment was filed separately and given a separate case number by the Supreme Court Clerk's Office but are briefed together for the benefit of this Court 1 RiC? IL.iLIran After a non-oral hearing was scheduled and held, Judge Kimbler issued a final order on March

17, 2005 labeling Appellant a vexatious litigator pursuant to RC § 2323.52(A)(3). (Appendix B-

7). The judgment entry ordered Appellant, he must seek leave before continuing or commencing any civil action with the courts of common pleas, municipal courts, court of claims and county courts in the State of Ohio. Id

On April 18, 2005, Appellant filed a timely Notice of Appeal with the court of appeals to address errors during the adjudication of his vexatious litigator civil action. The court of appeals, sua sponte dismissed the appeal on May 2, 2005, inter alia, Appellant failed to seek leave pursuant to RC § 2323.52(F)(2). (Appendix B-13). Appellant thereafter, timely filed a motion for reconsideration pursuant to Ohio Rule of Appellate Procedure 26(A). On May 19,

2005, the court of appeals denied the motion; furthermore, the court of appeals ordered the Clerk of the Court not to accept any additional motions without first seeking leave of the court pursuant to RC § 2323.52(F)(2). (Appendix B-14).

On August 11, 2005, Appellant moved the court of appeals for leave pursuant to RC §

2323.52 (F)(2) to file a motion to vacate a previous joutnal entry, alleging the court of appeals lacked jurisdiction to entertain a previous mandamus action. The court of appeals issued a journal entry on January 18, 20072, stemming from a Writ of Procedendo filed in this Court' the court denied Appellant leave to proceed with the motion for relief from judgment pursuant to RC

§ 2323,52(F)(2). (Appendix A-9).

Appellant thereafter moved the court of appeals for leave to commence an original action in mandamus from orders denying Appellant leave pursuant to RC § 2323,52(F)(1) issued by

2 Case No. 07-0359 State ex rel Bozsik v. Judge Slaby, et al. - Case No. 07-0019 (Filed January 5, 2007) 2 RiCT I.:m i_iP,7-ar^ Judge Kimbler. On January 24, 20074, the court of appeals issued another journal entry that

denied Appellant's request for leave. Appellant incorporated this Court's decision in Mayer,

mandamus will lie when a trial court denies leave to challenge the journal entry by the trial court,

Id. (Appendix A-3).

A conflict exists between the journal entry issued by the trial court and the court of

appeals order to Appellant to seek leave pursuant to RC § 2323.52(F)(2), which also includes

other journal entries in the State of Ohio. The crux of the instant case addresses what Senate Bill

168 has done with the decision in Mayer and if Appellant must seek leave with the court of

appeals outside the common pleas court jurisdiction and journal entry with the trial court.

LAW AND ARGUIVIENT

PROPOSI'1'ION OF LAW No. I

The court of appeals erred when the court ordered appellant to seek leave pursuant to RC § 2323.52(F)(2) outside the language of the trial court's order.

(A) ISSUE PRESENTED FOR REVIEW No. 1:

WHETHER THE COURT OF APPEALS IS PERMITTED TO APPLY THE RESTRICTION ACCORDING TO RC § 2323.52(F)(2) WHEN IT IS NOT IN TIHS MEDINA COUNTY COURT OF COMMON PLEAS COMPLAIlVT, MOTION FOR SUMMARY JUDGMENT AND JOURNAL ENTRY?

(B) ISSUE PRESENTED FOR REVIEW No. 2:

WHETHER TIIE COURT OF APPEALS HAS THE AUTHORITY TO APPLY THE RESTRICTION ACCORDING TO RC § 2323.52(F)(2) WHEN THE STATUTE DOES NOT APPLY AGAINST APPELLANT?

WHETIIER RC § 2323.52 RESTRICTIONS APPLY TO ALL LEGAL LITIGA'fION OR JUST ORIGINAL CIVIL ACTIONS?

° Case No, 07-0358 - The Ohio Supreme Court 3 RiC'I I_:.Zw I.ihr,ary STANDARD OF REVIEW

Ohio Revised Code § 2323.52 states the following in pertinent part:

(A)(3) "Vexatious litigator" means any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court whether the person or another person instituted the civil action or actions, and whether the person or another person instituted the civil action or actions. "Vexatious litigator" does not include a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the Bar of Ohio unless that person is representing or has represented self pro se in the civil action or actions. (Emphasis added).

(a) Instituting legal proceedings in the court of claims or in the court of common pleas, municipal court, or county court. (b) Continuing any legal proceedings that the vexatious litigator had instituted in any of the courts specified in division (D)(1)(a) of this section prior to the entry of the order. (c) Making any application, other than an application for leave to proceed under division (F)(1) of this section, in any legal proceedings instituted by the vexatious litigator or another person in any of the courts specified in division (D)(1)(a) of this section.

(D)(2) If the court of common pleas finds a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the Bar of Ohio to be a vexatious litigator and enters an order described in division (D)(1) of this section in connection with that finding, the order shall apply to the person only insofar as the person would seek to institute proceedings described in division (D)(1)(a) of this section on a pro se basis, or make an application described in division (D)(1)(b) of this section on a pro se basis, or make an

4 RicT I_:^,,v Lanrstrc application described in division (D)(1)(c) of this section on a pro se basis. The order shall not apply to the person insofar as the person represents one or more other persons in the person's capacity as a licensed and registered attorney in a civil or criminal action or proceeding or other matter in a court of common pleas, municipal court, or county court or in the court of claims. Division (D)(2) of this section does not affect any remedy that is available to a court or an adversely affected party under section2323.51 or another section of the Revised Code, under Civil Rule 11 or another provision of the Ohio Rules of Civil procedure, or under the common law of this state as a result of frivolous conduct or other inappropriate conduct by an attorney who represents one or more clients in connection with a civil or criminal action or proceeding or other matter in a court of common pleas, municipal court, or county court or in the court of claims.

ISSUES PRESENTED FOR REVIEW

(A) ISSUE PRESENTED FOR REVIEW NO 1:

WI-IETHtiR THE COURT OF APPEALS IS PERMITTED TO APPLY TIIE RESTRICTION ACCORDING TO RC § 2323.52(F)(2) WHEN IT IS NOT IN THE MEDINA COUNTY COURT OF COMMON PLEAS COMPLAINT, MOTION FOR SUMMARY JUDCMENT AND JOURNAL ENTRY?

On May 2, 2005 the court of appeals issued an order against Appellant, he must follow

Ohio Revise Code § 2323.52(F)(2). (Appendix B-13). The judgment by the court of appeals is contrary to the complaint filed by the Medina County Prosecuting Attorney and the March 17,

2005 journal entry issued by Judge Kimbler. This Court is asked to direct its attention to the

March 17, 2005 final judgment issued by Judge Kimbler and the order by the court of appeals.

(Appendix B-11).

The March 17, 2005 judgment order states the following in pertinent part:

4. Unless [Appellant] first obtains leave of this court, [Appellant] is prohibited from: (Emphasis added). a) Instituting any legal proceedings in the court of claims, or in a court of common pleas, municipal court, or county court;

5 xECi i.s,%T.ihlarv b) Continuing any legal proceedings that he has instituted in any of the aforesaid courts prior to the entry of this Order; and[,]

c) Making any application, other than an application for leave to proceed under R.C.2323.52 (F)(1), in any legal proceeding instituted by the [Appellant] or another person in the court of claims, or in a court of common pleas, municipal court, or county court[.]

The March 17, 2005 judgment order is unambiguous, Appellant is only required to seek leave pursuant to the above listed requirements before commencing or continuing civil action's in Ohio's trial courts. Under the unambiguous language of the March 17, 2005 entry and the language in sub-section (F)(1), Appellant only needs to seek leave before Ohio's courts of conunon pleas, municipal courts, county courts or court of claims. (Hereinafter "trial courts").

The added restriction in RC § 2323.52(F)(2) by the court of appeals violates the central maxim of law, a court of record always and only speaks through its journal entry. Bell v.

Thompson, 125 S.Ct. 2825, 2832 (2005) (Emphasis added) (`Basic to the operation of the judicial system is the principle that a court speaks through its judgment and orders." (Citations omitted.)) U.S. v. Eisner, 329 F.2d 410, 412 (6°' Cir. 1964) ("A court of record speaks only through its records."), Goldman v. C.I.R. 388 F.2d 476, 478 (6' Cir. 1967)("... a court speaks only through its orders."); Gaskins v. Shiplevy (1996), 76 Ohio St.3d 380, 382, 667 N.E.2d 1194,

1196; Hernandez v. Kelly (2006), 108 Ohio St.3d 395, 844 NE.2d 301, 306 2006-Ohio-126 ("It is axiomatic that a court of record speaks only through its journal entries." [Internal quotation marks omitted]); Kaine v. Marion Prison Warden (2000), 88 Ohio St.3d 454, 455, 727 N,E.2d

907, 908; State ex rel White v. Junkin (1997), 80 Ohio St.3d 335, 337, 686 N.E.2d 267, 269; and

Schenley v. Kauth (1953), 160 Ohio St. 109, 113 N.E.2d 625, 12 of the syllabus..

6 F'.it i I lt ;.ii)1-^3rv This Court recently addressed a similar application through this maxim of law and language in the journal entry concerning any mandatory requirements in statute. Hernandez v

Kelly, supra. See, Also Cruzado v. Zaleski (2006), 111 Ohio St.3d 353, 856 N.E.2d 263, 2006-

Ohio-5795 (citing Herriandez).

The Hernandez Court held the following in pertinent part:

"[I]n order to properly impose sentence in a felony case, a trial court must consider and analyze numerous sections of the Revised Code to determine applicability and must provide notice to offenders at the sentencing hearing and incorporate that notice into its journal entry."(Citing State v. Jordan (2004), 104 Ohio St.3d 21, 817 N.E.2d 864, ¶ 9, 2004-Ohio-6085)5 (Emphasis added).

More pertinently, "[wjhen sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about postrelease control and is further required to incorporate that notice into its journal entry imposing sentence. Id. 844 N.E.2d at 303, ¶ 15, and paragraph one of the syllabus

The deciding factor of law in the instant case has the similar application with the maxim of law, as it was applied in Hernandez and Cruzado. The court of appeals erred when Appellant was not put on notice in the complaint, litigation or the March 17, 2005 journal/judgment entry the restrictions in RC § 2323.52(F)(2) would apply.

In Hernadez, the Warden (Respondent) tried to justify his defense claiming the parole board has the authority to impose postrelease control because it is statutory mandated. This

Court however disagreed. Id. at 844 N.E.2d 303-304. Even though Hernandez addressed a criminal case and the instant case is civil, the application of law has, and does not change. See,

State ex ret White v. Junkin, 686 N.E.2d at 269. The Ohio Constitution does not distinguish the difference with a court's jurisdiction and application of law. See, Crim.R. 32 and Civ.R. 58(A)

5 Id. 844 N.E.2d at 303, ¶ 14. 7 RiCT Ltm T_:ihr,3i Bottom line, either criminal or civil, a court must always speak through its journal entry. State ex rel. Worcester v. Donnellon ( 1990), 49 Ohio St.3d 117, 551 N.E.2d 183, 185 (citing Stugard v. Pittsburgh, C.C. & St. L. Ry. Co. (1915), 92 Ohio St. 318, 110 N.E. 956). See, also San Filipo v. San Filipo (9th Dist. 1991), 81 Ohio App.3d 111, 610 N.E,2d 493.

Assuming arguendo this Court agrees with the court of appeals, the trial court's journal entry then fails to comply with the mandatory statutory language of RC § 2323.52. The trial court's journal entry, therefore, is a nullity and void. See, e.g. Hernandez, supra. The court of appeals was required to vacate and reverse the trial court's journal entry issued on March 17,

2005 addressing the nullity and void journal entry by the trial court. This however must be addressed during the appeal of the final judgment and not a summary dismissal. If the trial court's journal entry is declared a nullity and void, the court of appeals lacked jurisdiction to entertain the appeal. See, e.g. Bozsik v. Burkhart (9's Dist), Wayne Co. App. No. 05-CA-0072.

Upon the foregoing, this Court is required to vacate both journal entries that denied leave since

Appellant is not required to seek leave pursuant to RC § 2323.52(F)(2).

(B) Issue Presented for Review No. 2:

WHETHER THE COURT OF APPEALS HAS TfIE AUTHORITY TO APPLY THE REsTRiCTIONs ACCORDING To RC § 2323.52(F)(2) WIIEN THE SUB-SECTION DOES NOT APPLY TO THE APPELLANT?

The language in RC § 2323.52(D)(1) states the following:

(a) Instituting legal proceedings in the court of claims or in the court of common pleas, municipal court, or county court. 8 (b) Continuing any legal proceedings that the vexatious litigator had instituted in any of the courts specified in division (D)(1)(a) of this section prior to the entry of the order. (c) Making any application, other than an application for leave to proceed under division (F)(1) of this section, in any legal proceedings instituted by the vexatious litigator or another person in any of the courts specified in division (D)(1)(a) of this section.

The language in RC § 2323. 52(D)(2) states the following:

D)(2) If the court of common pleas finds a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the Bar of Ohio to be a vexatious litigator and enters an order described in division (D)(1) of this section in connection with that finding, the order shall apply to the person only insofar as the person would seek to institute proceedings described in division (D)(1)(a) of this section on a pro se basis, or make an application described in division (D)(1)(b) of this section on a pro se basis, or make an application described in division (D)(1)(c) of this section on a pro se basis. The order shall not apply to the person insofar as the person represents one or more other persons in the person's capacity as a licensed and registered attorney in a civil or criminal action or proceeding or other matter in a court of common pleas, municipal court, or county court or in the court of claims. Division (D)(2) of this section does not affect any remedy that is available to a court or an adversely affected party under section2323.51 or another section of the Revised Code, under Civil Rule 11 or another provision of the Ohio Rules of Civil procedure, or under the common law of this state as a result of frivolous conduct or other inappropriate conduct by an attorney who represents one or more clients in connection with a civil or criminal action or proceeding or other matter in a court of common pleas, municipal court, or county court or in the court of claims.

Hence, the language in RC § 2323.52(D)(1) and (2) only apply to a vexatious litigator licensed as counsel in the State of Ohio. The reading of sub-section (D)(2) addresses a licensed attorney. Assuming arguendo, Appellant is incorrect with the reading of statute, this Court

9 RiCi La,aLkran should find the court of appeals still erred and failed to apply the March 17, 2005 judgment and not the language in RC §2323.52(D)(1). The languages between the two are not identical; therefore, Judge Kimbler did not restrict appellant under sub-section (D)(1) as claimed by the court of appeals.

The complaint, motion for summary judgement and final Order with the trial court dehors any mention Appellant is licensed counsel; therefore, the application of sub-section (D)(1) and

(D)(2) do not apply.

Assuming arguendo, this Court does not agree with Appellant and agrees with the.court of appeals that Appellant must seek leave under RC § 2323.52(F)(2), the lower courts in the

State of Ohio have been inconsistent when restricting a vexatious litigators.

The Clerk of this Court is required under RC § 2323.52 (H) to provide notice to all Clerk of Courts in Ohio the names of vexatious litigators in Ohio under RC § 2323.52(A)(3). Directing this Court's attention to the Clerk's Office notification document, the courts of common pleas in

Ohio are restricting vexatious litigators after Senate Bill 168 with different reviewing processes.

Some vexatious litigators have been restricted in only certain counties or courts and not a carte- blanch decision in the State of Ohio trial courts and court of appeals. (Appendix C-1).

The court of appeals supported its decision by using other district courts authority applying the same requirement, RC § 2323.52(F)(2) is mandatory regardless what the journal entry articulates. See, e.g. State ex rel Howard v. Member qf Bench (1& Dist), Franklin App.

No. 05AP-808, 2006-Ohio-3265; State v. Baumgartner (6th Dist), Erie App. No. E-06-045, 2006-

Ohio-3792; Grunstein v. Carroll (8'" Dist,), Cuyahoga App. No. 86604, 2006-Ohio-2215; and,

Huntington Natl. Bank v. Lomaz (11't' Dist.), Portage App. No. 2005-P-0075, 2006-Ohio-3880.

10 i

In Baumgartner, the Sixth District Court of Appeal issued a journal/judgment entry Ms.

Baumgartner is restricted from initiating or continuing all litigation's with Ohio courts unless leave is granted by the reviewing court. Id. First of all, Appellant directs the Court attention to the original journal/judgment entry issued by the Ottawa County Court of Common Pleas.

(Appendix D-1). The final journal/judgment entry by the Ottawa County Court of Common

Pleas in Mulligan v. Baumgartner (Apr. 4, 2004), Court of Common Pleas No. 02-CVH-025 is very explicit, Ms. Baumgartner is not permitted to commence and continue civil litigation in all trial courts and courts of appeal.

The next issue needing addressed before this Court concerns Ms. Baumgartner's profession as an Attorney in the State of Ohio and why sub-section (D)(1) and (D)(2) are required to lie. This Court is aware of Ms. Baumgartner's behavior as licensed counsel in the

State of Ohio, especially after this Court permanently disbarred Ms. Baumgartner for her actions as licensed counsel. See, Disciplinary Counsel v. Baumgartner (2003), 100 Ohio St.3d 41, 796

N.E.2d 495, 2003-Ohio-4756. Thus, the language in subsection (D)(1) and (D)(2) lies with Ms.

Baumgartner and she is required to be restricted in the court of appeals and subsection (F)(2) must lie as Ordered by the Ottawa County Court of Common Pleas and Sixth District Court of

Appeals.

In Bozsik v. Hudson, (03-15-06), Richland App. No. 06-CA-20, Appellant commenced an original action with the Fifth District Court of Appeals pursuant to Article IV, Section 3 of the

Ohio Constitution. The Hudson Court took notice in its final order Judge Kimbler declared

Appellant a vexatious litigator on March 17, 2005. The Fifth District Court of Appeals and

11 RiC::i i,a^a Librt3rp Warden [Stuart] Hudson of the Mansfield Correctional Institution did not require leave from

Bozsik, a vexatious litigator, with the original action since the trial court's order never directed

Bozsik to seek leave under RC § 2323.52(F)(2).

After the Fifth District Court in Hudson denied the civil action on other grounds

Appellant filed a direct appeal with this Court. See, Bozsik v. Hudson (2006), 110 Ohio St.3d

245, 852 N.E.2d 1200, 2006-Ohio-4356. Neither this Court nor the Ohio Attorney General representing Warden Hudson addressed leave pursuant to RC § 2323.52(F)(2). In fact, this

Court's journal entry is completely silent concerning Appellant's vexatious litigator status.

Thus, according to a previous civil litigation by Appellant with the Fifth District Court of

Appeals, leave is not required under RC § 2323.52(F)(2).

In Castrataro v. Urban (2003), 155 Ohio App.3d 597, 802 N.E.2d 689, 2003-Ohio-6953 the Fifth District Court of Appeals entertained an appeal by the Delaware County Court of

Common Pleas declaring Ms. Castrataro a vexatious litigator. The Castrataro Court did not mention in its authority Ms. Castrataro was required to seek leave pursuant to RC §

2323,52(F)(2) as demonstrated by the court of appeals in the instant case.

It can be surmised the Fifth District Court did not require leave because Ms. Castrataro

was not required to seek leave outside of the Delaware County court of common pleas through

the trial court's journal entry. The Clerk of this Court's vexatious litigator log, purports Ms.

Castrataro is only restricted as a vexatious litigator in the Delaware County Court of Common

Pleas. The next document Appellant wishes to direct the Court's attention is the actual

journaVjudgment entry declaring Ms. Castrataro a vexatious litigator. See, Castrataro v. Urban

(Delaware Ct of Com. Pl.), Case No. 02CV-A-11-677. (Appendix D-5). The journal entry

12 RiC, I atl I_:ibs;^r'p articulates, Ms Castrataro only needs to seek leave pursuant to RC § 2323.52(F) with the

Delaware County Court of Common Pleas.

This brings Appellant to the trial court's March 17, 2005 order, which can be surmised as similar language with RC § 2323.52(D)(1). The language in the judgment entry against

Appellant as a vexatious litigator is not verbatim to the language in RC § 2323.52(D)(1); therefore, Appellant can not be held to the complete requirements of sub-section (D)(1). In a nutshell the court of appeals has surmised the journal entry laslguage against the Appellant has the exact same language in RC § 2323.52(D)(1). A review of the joumal entry language to the language in RC § 232.52(D)(1) can be construed the same, however, it is not and Appellant was not ordered by Judge Kimbler under subsection (D)(1).

This Court is required to conclude Appellant is not required to seek leave with the court of appeals pursuant to RC 2323.52(F)(2); otherwise, the application of this law after Senate Bill

168 has been fatally applied in Ohio's courts of common pleas.

In Joyce v. Godale (Feb, 5, 2007), Geauga App. No. 2006-G-2692, 2007-Ohio-473, the

Eleventh District Court of Appeals recently issued a judgment from an appeal by William

Godale who was declared a vexatious litigator on January 31, 2006. The Eleventh District Court

summarized the journal entry issued by the Geauga County Court of Common Pleas docketed under (05-M-000504) and purported the judgment by the common pleas court only restricts Mr.

Godale to seek leave in "the Court of Claims, in the Court of Connnon pleas, [any] Municipal

Court [of the county] or County Court without first obtaining leave to proceed from the Geauga

Court of Common Pleas." Id at Pg. 3. Supported by the Eleventh District Court, the court of

appeal is not permitted to simply add restrictions against Appellant without any mention in the

13 Ris`-'l L:amL9t3raiv trial court's journal entry. No due process notification exists providing Appellant an opportunity to address the injury caused by the court of appeals.

WHETHER RC § 2323.52 RESTRICTIONS APPLY TO ALL LEGAL LITIGATION OR JUST ORIGINAL CIVIL ACTIONS?

According to the pertinent language in RC § 2323.52 a conflict exist into the interpretation of the vexatious litigator law. Throughout the language in statute, the General

Assembly has articulated all legal proceedings fall under the definition of statute, which can surmise criminal matters. This language by the General Assembly is ambiguous, inter alia, all

Ohio litigation's must pass through the screening process of RC § 2323,52. Common logic when reading the statute applies to a screening mechanism with civil actions. The Sixth District

Court however, disagrees with this reading in statute. See, State v. Baumgartner (6th Dist.), Erie

App. No. E-06-045, 2006-Ohio-3792.

According to the vexatious litigator order issued against Ms. Baumgartner in Mulligan v.

Baumgartner, the Ottawa County Court of Common Pleas journal entry reads in pertinent part all new or filed legal proceedings currently in the State of Ohio must have leave granted before proceeding in the Ohio courts. Id The Sixth District Court refused to entertain Ms.

Baumgartner's criminal case since the common pleas courts order reads all litigations. Id at

Erie App. No. E-06-045, 2006-Ohio-3792

In State v. Baumgartner the Sixth District Court denied Ms. Baumgartner the opportunity

to present a non-civil action with the Sixth District Court of Appeals. Appellant understands the

intentions by the General Assembly when RC § 2323.52 was written, applies to only civil

14 RiCT 1 _aw Libr'an actions; otherwise, why would this Court and the reading in RC § 2323.52(A)(3) state the following:

"Vexatious litigator" means any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in a court of claims or in a court of appeals, court of common pleas, municipal court, or county court whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions. "Vexatious litigator" does not include a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the bar of Ohio unless that person is representing or has represented self pro se in the civil action or actions. (Emphasis added).

This Court articulated in Mayer, the purpose of the vexatious litigator statute is to curb unnecessary lawsuits and the statute is completely silent or gives any indication the statute applies to criminal litigation or non-civil action proceedings. If the General Assembly wished to restrict Appellant in criminal litigation, the statute would have been enumerated in Chapter 29, or the Rules of Criminal Procedure. Otherwise, when this Court entertained the Mayer authority, this Court would have decided the statute unconstitutional, creating a roadblock with a criminal defendant from exercising his rights to his life or liberty.

The Sixth District Court erred when Ms. Baumgartner tried to appeal her criminal case and the Sixth District Court held the statute to include all litigation, which was never the

intention of the General Assembly. Id. This Court needs to settle the intent of the General

Assembly; otherwise, Appellant will be in the same position as he is today if this Court affirms the court of appeals January 18, 2007 and January 24, 2007 judgment entry.

15 2iC'TLa:^ Li! i<3n, PROPOSITION OF LAW No. II

The added language from Senate Bill 168 is unconstitutional violating Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution.

IssuE PRESENTED FOR REVIEW:

WHETFiER RC § 2323.52 IS UNCONSTiTUTIONAL AFTER ADDING THE LANGUAGE FROM SENATE BILL 168 AND DOES THE NEW LANGUAGE ABROGATE THIS COURT'S AUTHORITY INMAYER V. BRIST00

Effective March 18, 1997, R.C. 2323.52 was enacted, as Ohio's vexatious litigator statute, which this Court previously declared as constitutional. See, Mayer, 740 N.E.2d 656.

The Mayer Court also held if the vexatious litigator is denied leave pursuant to sub-section (F), the moving party can seek a mandamus action with the court of appeals since sub-section (G) does not allow an appeal of right. Id

(1)

The language in Revised Code § 2323.52 as written after Senate Bill 168 states the following:

(A) As used in this section;

(1) "Conduct" has the same meaning as in section 2323.51 of the Revised Code,

(2) "Vexatious conduct" means conduct of a party in a civil action that satisfies any of the following:

(a) The conduct obviously serves mere to harass or maliciously injure another party to the civil action,

(b) The conduct is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law.

16 MCT Laev L-ibra7'y (3) "Vexatious litigator" means any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in a court of claims or in a court of appeals, court of common pleas, municipal court, or county court whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions. "Vexatious litigator" does not include a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the bar of Ohio unless that person is representing or has represented selfpro se in the civil action or actions. (Emphasis added).

(B) A person, the office of the attorney general, or a prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation who has defended against habitual and persistent vexatious conduct in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court may commence a civil action in a court of common pleas with jurisdiction over the person who allegedly engaged in the habitual and persistent vexatious conduct to have that person declared a vexatious litigator. The person, office of the attorney general, prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation may commence this civil action while the civil action or actions in which the habitual and persistent vexatious conduct occurred are still pending or within one year after the termination of the civil action or actions in which the habitual and persistent vexatious conduct occurred.

(C) A civil action to have a person declared a vexatious litigator shall proceed as any other civil action, and the Ohio Procedure apply to the action.

17 R10 :.a"a 1.,ibrar, division (D)(1)(a) of this section prior to the entry of the order. (c) Making any application, other than an application for leave to proceed under division (F)(1) of this section, in any legal proceedings instituted by the vexatious litigator or another person in any of the courts specified in division (D)(1)(a) of this section. (2) If the court of common pleas finds a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the Bar of Ohio to be a vexatious litigator and enters, an order described in division (D)(1) of this section in connection with that finding, the order shall apply to the person only insofar as the person would seek to institute proceedings described in division (D)(1)(a) of this section on a pro se basis, or make an application described in division (D)(1)(b) of this section on a pro se basis, or make an application described in division (D)(1)(c) of this section on a pro se basis. The order shall not apply to the person insofar as the person represents one or more other persons in the person's capacity as a licensed and registered attorney in a civil or criminal action or proceeding or other matter in a court of common pleas, municipal court, or county court or in the court of claims. Division (D)(2) of this section does not affect any remedy that is available to a court or an adversely affected party under section2323.51 or another section of the Revised Code, under Civil Rule 11 or another provision of the Ohio Rules of Civil procedure, or under the common law of this state as a result of frivolous conduct or other inappropriate conduct by an attorney who represents one or more clients in connection with a civil or criminal action or proceeding or other matter in a court of common pleas, municipal court, or county court or in the court of claims. (3) A person who is subject to an order entered pursuant to division (D)(1) of this section may not institute legal proceedings in a court of appeals, continue any legal proceedings that the vexatious litigator had instituted in a court of appeals prior to entry of the order, or make any application, other than the application for leave to proceed allowed by division (F)(2) of this section, in any legal proceedings instituted by the vexatious litigator or another person in a court of appeals without first obtaining leave of the court of appeals to proceed pursuant to division (F)(2) of this section.

18 RiC'I Law iinraiy (E) An order that is entered under division (D)(1) of this section shall remain in force indefinitely unless the order provides for its expiration after a specified period of time.

(F)(1) A court of common pleas that entered an order under division (D)(1) of this section shall not grant a person found to be a vexatious litigator leave for the institution or continuance of, or the making of an application in, legal proceedings in the court of claims or in a court of common pleas, municipal court, or county court unless the court of common pleas that entered that order is satisfied that the proceedings or application are not an abuse of process of the court in qqestion and that there are reasonable grounds for the proceedings or application. If a person who has been found to be a vexatious litigator under this section requests the court of common pleas that entered an order under division (D)(1) of this section to grant the person leave to proceed as described in division (F)(1) of this section, the period of time commencing with the filing with that court of an application for the issuance of an order granting leave to proceed and ending with the issuance of an order of that nature shall not be computed as a part of an applicable period of limitations within which the legal proceedings or application involved generally must be instituted or made.

(2) A person who is subject to an order entered pursuant to division (D)(l) of this section and who seeks to institute or continue any legal proceedings in a court of appeals or to make an application, other than an application for leave to proceed under division (F)(2) of this section, in any legal proceedings in a court of appeals shall file an application for leave to proceed in the court of appeals in which the legal proceedings would be instituted or are pending. The court of appeals shall not grant a person found to be a vexatious litigator leave to proceed as described in division (F)(2) of this section, the period of time commencing with the filing with the court of an application for the issuance of an order granting leave to proceed and ending with the issuance of an order of the nature shall not be computed as a part of an applicable period of limitations within which the legal proceedings or application involved generally must be instituted or made.

(G)During the period of time that the order entered under division (D)(1) of this section is in force, no appeal by the person who is the subject of that order shall lie from a decision of the court of common pleas or court of appeals under division (F) of this section that denies that person leave for the institution or continuance of, or the making of an application in, legal 19 RIC'i i.a;o' I.,1,-,ra3: proceedings in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court.

(H)The clerk of the court of common pleas that enters an order under division (D)(1) of this section shall send a certified copy of the order to the supreme court for publication in a manner that the supreme court determines is appropriate and that will facilitate the clerk of the court of claims and a clerk of a court of appeals, court of common pleas, municipal court, or county court in refusing to accept pleadings or other papers submitted for filing by persons who have been found to be a vexatious litigator under this section and who have failed to obtain leave to proceed under this section.

(I) Whenever it appears by suggestion of the parties or otherwise that a person found to be a vexatious litigator under this section has instituted, continued, or made an application in legal proceedings without obtaining leave to proceed from the appropriate court of common pleas or court of appeals to do so under division (F) of this section, the court in which the legal proceedings are pending shall dismiss the proceedings or application o€the vexatious litigator.

The sole purpose of the vexatious litigator statute is clear. The statute by the General

Assembly seeks to prevent abuse of the system by those persons who persistently and

habitually file lawsuits without reasonable grounds and/or otherwise in frivolous conduct in the trial courts of Ohio. Id. 740 N.E.2d at 665. See, Also, Central Ohio Transit Auth. v. Timson (10'"

Dist. 1998), 132 Ohio App.3d 41, 724 N.E.2d 458. (emphasis added). Such conduct clog the

court dockets, results in increased costs, and often times is a waste of judicial resources that are

supported by the taxpayers of Ohio. Id. The unreasonable burden placed upon courts by such baseless litigation prevents the speedy consideration of a proper litigation.

The Mayer Court addressing Timson, appropriately identified the untoward effects of

vexatious litigation in depleting judicial resources and unnecessary encroaching upon the judicial

machinery needed by others for the vindication of legitimate rights. Id 740 N.E.2d at 665. The

Mayer Court also set the relationship between a proper screening method that serves to protect 20 Rir,,'t I,aia Library the courts and other would-be victims against frivolous and ill-conceived lawsuits. Id.

(Emphasis addeci). Also, it provides authority to the court of common pleas to require, as a

condition precedent to taking further legal action in certain enumerated Ohio trial courts, that the vexatious litigator make a satisfactory demonstration that the proposed legal action is neither

groundless nor abusive. Id. Thus "[t]he vexatious litigator statute bears a real and substantial

relation to the general public welfare because its provisions allow for the preclusion of

groundless suits filed by those who have a history of vexatious conduct." Id (Citing Timson,

supra, 132 Ohio App.3d at 50, 724 N.E.2d at 464).

In Mayer, this Court held the complete statute constitutional prior to Senate Bill 168;

furthermore, the Mayer Court held if a vexatious litigator is denied leave, the "appeal process"

for the vexatious litigator is through an original action in mandamus with the court of appeals, Id.

at 666, 667.

The court of appeals informed Appellant on January 24, 2007 the authority in Mayer no

longer applies since the General Assemble amended RC § 2323.52 with Senate Bill 168 effective

on June 29, 2002. (Appendix A-5). This appeal addresses the constitutional language of statute

applying to the courts of appeals and the added restriction in subsection (F)(2) since Senate Bill

168 added restrictions concerning a vexatious litigator which effect the decision held in Mayer.

(A) Due Process

Article I Section 16 of the Ohio Constitution provides the following: "All courts shall be

open, and every person, for an injury done him in his land, goods, person, or reputation, shall

have remedy by due course of law, and shall have justice administered without denial or delay"

See, e.g. Brennaman v. R.M.I., Co. (1994), 70 Ohio St.3d 460, 466, 639 N.E.2d 425, 430.

So-called "access-to-the-courts" provisions are found in many state constitutions and have their

21 RiCi Lir,NI:ibrar} roots in the Magna Carta. See, Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 290, 503

N.E.2d 717, 732-33 (Douglas, J. concurring). A right or action existing at common law when the

Constitution was adopted is constitutionally protected by the access-to-courts provision from

subsequent legislative action that abrogates a reasonable substitute. Id. at 291-92, 503 N.E.2d at

733-34 (Douglas, J. Concurring).

In determining the constitutionality of a legislative enactment, this Court is required to

adhere to the principles that all such enactment enjoys a presumption of constitutional validity.

Id. at 274, 503 N.E.2d at 720-21. The "due course of law" provision in Section 16, Article I is

the equivalent of the "due process of law" provision in the Fourteenth Amendment to the United

States Constitution. Sorrell v. Thevenir ( 1994), 69 Ohio St.3d 415, 422-423, 633 N.E.2d 504,

510-11, citing Direct Plumbing Supply Co. V. Dayton ( 1941), 138 Ohio St. 540, 544, 39 N.E.3d

70,72. A legislative enactment will be deemed valid on due process grounds if it bears a real and

substantial relation to the public health, safety, morals, or general welfare and if it is not

unreasonable or arbitrary. Mominee at 274, 503 N.E.2d at 720-2 1.

This Court has previously held "there are two separate inquiries under this section: first,

whether the law is constitutional under the dues course of law provision; second whether the law

is constitutional under the access-to-courts provision." Mayer, supra. This Court further held

"[t]he analysis under the due-course-of-law and access-to-courts provisions of Section 16,

Article I [become] so intertwined in application as to render any uncompromising insistence on

separate inquiries unjustified." Id. Thus for the purpose of this case, Appellant will consider the

constitutionality of the statute using both concepts.

As for the specific constitutional provisions at issue, Article I, Section 16, has stated

when the Ohio Constitution speaks of remedy and injury to person, property, or reputation, it

22 Rit:.7 I,:i1n Lihran requires an opportunity granted at a meaningful time and meaningful manner. Burgess v. Eli

Lilly & Co. (1993) 66 Ohio St.3d 59, 62, 609 N.E.2d 140, 142-43, citing Gaines v. Preterm-

Cleveland, Inc. (1987), 33 Ohio t3d 54, 60, 514 N.,2d 709, 715-16. As previously indicated, legislation that abolishes or severely impairs cornmon-law remedies is invalid unless a reasonable substitute is provided. Mominee at 292, 503 N.E.2d at 734 (Douglas, J. Concurring).

Senate Bill 168 made effective on June 28, 2002 addressed and changed the language in sub- section (D)(1) and the Bill split sub-section (F) into two parts. As previously decided by this

Court in Mayer, sub-section (F) provides a vexatious litigator an opportunity in a meaningful time and a meaningful manner access to an Ohio court without delay. The vexatious litigator is not precluded from bringing suit in the Ohio trial courts without first obtaining leave by the common pleas court issuing the judgment.

The troublesome aspect falls with the added language from Senate Bill 168, adding the court of appeals to the statute. The Ninth District Court of Appeals has informed Appellant, regardless if the judgment entry by the trial court does not specify the court of appeals, the vexatious litigator and the courts of appeals must still honor statute, (Appendix A-5). In a nutshell, Appellant must seek leave before commencing a civil action appeal from the inferior courts or original civil action in the Ohio court of appeals.

As previously discussed, the statute prior to Senate Bill 168 was found entirely constitutional. Mayer, supra. According to the court of appeals, Senate Bill 168 has completely shut the court-house doors to any appellate court; even after, the Ohio trial court granted

Appellant leave to continue or commence a civil action under sub-section (F)(1). Furthermore, if

Appellant is a defending party to a civil action, he must seek leave with the court of appeals before timely filing his direct appeal. The Ninth District Court of Appeals has also abolished

23 Pi+".T i_s,:, I:i'r,rarj Article IV, Section 3 of the Ohio Constitution, violating the separation of power doctrine embedded in the Ohio Constitution. According to the Ninth District Court, Senate Bill 168 has

eliminated the court of appeals from exercising its jurisdiction with an original action. It would behoove anyone, trying to justify a statute trumping the Ohio Constitution, the extreme law of the land. The proper remedy should be, the court of appeals or this Court in an original action sua sponte dismiss the original action and refuse to entertain the merits of the case. That way the

moving party can appeal the case to the superior court. See, e.g. Bauer v. Grinstead, (1943) 142

Ohio St. 56, 26 Ohio Op. 252, 50 N.E.2d 334 (1943) ("The general assembly has no power to

enlarge or limit the jurisdiction of courts of appeals except as such power is granted by the

constitution, but may, determine and prescribe the method of exercising that jurisdiction:

(decided under former analogous section)).

In Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80, 84, 523 N.E.2d 851, 855-

56, this Court stated that while the United States Supreme Court has long held that a right to

appeal is not found in the Constitution, where a state provides a process of appellate review, the procedures used must comply with constitutional dictates of due process and equal protection.

Id., citing McKane v. Durston (1894), 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867; Griffin v.

Illinois ( 1956), 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891, 898-99. The State of Ohio

has adopted appellate rules that make every litigant entitled to an appeal as of right by filing a

Notice of Appeal within the time allowed. Atkinson at 84-85, 523 N.E.2d at 855-56, citing

App.R. 3(A); See, also Moldovan v. Cuyahoga Cty. Welfare Dept. ( 1986), 25 Ohio St.3d 293,

294, 496 N.E.2d 466.

In Moldovan this Court cited Article I, Section 16 of the Ohio Constitution and stated, it

was well established that every injured party shall have remedy by due course of law and shall

24 'ii.;TL:r„ ; JhWa have justice administered without denial or delay. Thus the rights protected in Article I, Section

16 must extend to the right of an appeal. The Moldovan Court held, the opportunity to file a timely appeal is rendered meaningless when reasonable notice of an appealable order is not given. Id. (Emphasis added). Under the scope from the court of appeals, Appellant has no recourse to an appeal except to seek leave, even after, leave was granted in the trial court or

Appellant was a defending party in a losing effort. Then if leave is denied, Appellant cannot appeal that decision under the language in RC § 2323.52(G). This is not what the General

Assembly intended when Senate Bill 168 was added to statute. Adopting the Ninth District

Court's reasoning that all of Appellant's litigation must be processed under sub-section (F)(2),

Appellant's rights to an appeal have been completely abolished. Appellate Rule 23 allows the courts of appeal authority to penalize a party if the appeal is determined frivolous; therefore, this is the proper application of law awarded to the court of appeals if Appellant commences a frivolous appeal and not the review process in RC § 2323.52(F)(2).

In Moldovan, the failure to give reasonable notice of a final, appealable order was found to be a denial of the right to legal redress of injuries created by Section 16, Article I of the Ohio

Constitution. The prohibition of a right to appeal found in R.C. 2323.52(G) denies that right created in Article I, Section 16.

Being as it may, a carte blanche blanket that all trial court final orders must pass through the gates of RC § 2323.52(F)(2) when the trial court allowed the case to proceed prevents Appellant from appealing his proper lawsuit or defending a civil action. Any other process violates the Constitution. This requirements in RC § 2323.52(F)(2) enforcing the court of appeals to determine the accepted civil action must pass through another test completely defeats the reviewing process in RC § 2323.52(F)(1) by the court of common pleas.

25 N,t(.J iu.I i.ai„n"3;^ Accordingly, RC § 2323.52(F)(2) and (G) completely denies Appellant from appealing a final judgment in the court of appeals that has passed through the initial gates of RC §

2323.52(F)(1). This restrictions in sub-section (F)(2) also prevents this Court from invoking its original jurisdiction by the Ohio Constitution, giving a statute the authority to trump the

Constitution This practice is completely unacceptable and this Court is asked to end this unconstitutional process. This Court therefore needs to decide the language in Senate Bill 168 is unconstitutional and it must be severed or stricken from statute.

PROPOSITION OF LAW No. III

The court of appeals erred and abused its discretion when the court charged Appellant court cost as a pleading when Appellant filed a motion to seek leave.

ISSUE PRESENTED FOR RF,VIEW:

WHETHER THE APPELLANT CAN BE TAXED COS'I' AS A NEW PLEADING WHEN A MOTION SEEKING LEAVE HAS BEEN DENIED AND NOT A NEW PLEADING?

The pertinent language "written in RC § 2323.52 by the General Assembly states the following:

(F)(1) A court of common pleas that entered an order under division (D)(1) of this section shall not grant a person found to be a vexatious litigator leave for the institution or continuance of, or the making of an application in, legal proceedings in the court of claims or in a court of common pleas, municipal court, or county court unless the court of common pleas that entered that order is satisfied that the proceedings or application are not an abuse of process of the court in question and that there are reasonable grounds for the proceedings or application. If a person who has been found to be a vexatious litigator under this section requests the court of common pleas that entered an order under division (D)(1) of this section to grant the person leave to proceed as described in division (F)(1) of this section, the period of time commencing with the filing with that court 26 Ttit') L;Sm=L-if of an application for the issuance of an order granting leave to proceed and ending with the issuance of an order of that nature shall not be computed as a part of an applicable period of limitations within which the legal proceedings or application involved generally must be instituted or made.

(3) A person who is subject to an order entered pursuant to division (D)(1) of this section and who Seeks to institute or continue any legal proceedings in a court of appeals or to make an application, other than an application for leave to proceed under division (F)(2) of this section, in any legal proceedings in a court of appeals. shall file an application for leave to proceed in the court of appeals in which the legal proceedings would be instituted or are pending. The court of appeals shall not grant a person found to be a vexatious litigator leave to proceed as described in division (F)(2) of this section, the period of time commencing with the filing with the court of an application for the issuance of an order granting leave to proceed and ending with the issuance of an order of the nature shall not be computed as a part of an applicable period of limitations within which the legal proceedings or application involved generally must be instituted or made.

According to RC § 2323.52, Appellant is required to file an application with the trial court before continuing or commencing a civil action. Throughout this appeal, Appellant has referenced application as a motion, which in it self is the same definition.

According to Blacks Law Dictionary, Eight Edition,6 the following is defined:

Application - 1. A request or petition, 2. Motion

According to the Ohio Rules of Civil Procedure, a pleading and motion are defined accordingly:

For the purpose of Civ.R. 3(A), the filing of a motion cannot substitute for the filing of a complaint. The Second Appellate District Court has explained that "Civ.R. 7 distinguish a pleading from a motion. `Under Civ.R. 7(A), only complaints,, answers and replies constitute

27 `: C:1 i_,rnv 1:,;'-. pleadings."' (Emphasis original). State v. Wilkins (1998), 127 Ohio App.3d 306, 310, 712

N.E.2d 1255, dismissed (1999), 85 Ohio St.3d 1213, 709 N.E.2d 169, quoting State ex rel.

Hanson v. Guernsey Cnty Commrs. (1992), 65 Ohio St.3d 545, 549, 606 N.E.2d 378. A complaint is a pleading that need only contain a short and plain statement of the claim showing that the party is entitled to relief. Civ.R 8(A)(1). Where a motion is defined as an application to the court for an order. Civ.R. 7(B)(1). A motion or brief is not a pleading. State ex rel. Edison

Co. V. Oehler (Oct. 4, 1995), 9' Dist. No. 17167, at 9, appeal not allowed (1996), 75 Ohio St.3d

1405. Thus, in the context of this case, a party cannot initiate an action by filing a motion or extensive brief. See Civ.R, 7(A)(stating that the only pleadings allowed to be filed with the court is a complaint; an answer, a reply to a counterclaim, an answer to a cross-claim, a court ordered reply to an answer or third party answer).

The instant case is very clear, Appellant sought leave of court with the court of appeals from the restrictions imposed after Judge Kimbler labeled Appellant a vexatious litigator. Prior to the January 18, 2007 and January 24, 2007 judgment issued by the court of appeals Appellant moved the court of appeals seeking leave to commence a civil action and continue a civil action before the court of appeals under the court's direction.

The statutory requirement of the Clerk's Office does not mandate how the Clerk's Office keeps its files and documents.

Pursuant to Revised Code § 2303.08 the Clerk's duties are:

The clerk of the court of common pleas' shall indorse on each pleading or papers in a cause filed in the clerk's office the time of filing, enter all orders, decrees, judgments, and proceedings of the courts of which such individual is the clerk, make a complete record when ordered on the journal to do so... b Page 108 Clerk of Common Pleas is the Clerk for the Court of Appeals under RC § 2303.03 28 RiCi L_:z',c Libr The Appellant is not required by statute to pay cost of a new pleading since he is not permitted to file of continue a civil case without leave of the court. The court of appeals has prejudiced Appellant issuing an Order to pay cost when he was not permitted to file his pleading with the court. According to the jurisdictional requirements set by the General Assembly, the trial court, or court of appeals in an original action never had a proper pleading to entertain the merits of the case.

Therefore, based on common logic principles, this Court is required to reverse or vacate the court cost as an original pleading since the court of appeals did not permit, Appellant to commence or continue his case. Just because the court of appeals clerk chooses to assign a brand new case number, identified as a new action, Appellant is being completely prejudiced, as he is charged cost as a new pleading.

Proposition of Law IV

IssuE PRESENTED FOR REVIEw

WHETHER THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION WIlEN IT PERMITlED APPFLLEE TO OBJECT TO THE MOTION TO EXPAND TITE RECORD PURSUANT TO APP. R. 9(C)?

App.R. 9(C) states in pertinent part the following:

The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to App.R. 10, who may serve objections or proposed amendments to the statement within ten days after service. (Emphasis added).

29 i:i ='I I.zh+T.1i1r;3ry The Appellee has conceded in both motions to strike Appellant's App.R. 9(C) motion was served on February 15, 2007; therefore, Appellee's objection, or, in the alternative motion to

strike should have been filed on or before February 26, 2007.8 Furthermore, Appellee was not a

party to the instant case with the court of appeals and the motion should have been stricken

and/or denied.

Assuming arguendo the Appellee was permitted to object to the App.R. 9(c) motions, all

objections should have been presented to the court of appeals within the ten days according to

App.R. 9(C).

The court of appeals erred when the court denied the motion, that purports Appellant

failed to seek leave of the court before filing the motions pursuant to RC § 2323.52(F)(2). This

Court is required to surmise the court of appeals issued the judgment entry to have the motion to

expand stricken from the untimely motion by the Appellee.

The expanded record is the crux of Appellant's case before this Court; intertwined with

the requirements against Appellant by the court of appeals pursuant to RC § 2323.52(F)(2). A

manifest of justice is apparent if this Court allows the stricken record to stand, preventing

Appellant from presenting this Court will a proper record for review.

CONCLUSION

Upon the foregoing, the court of appeals restriction issued against the Appellant pursuant

to RC § 2323.52(F)(2) contrary to Ohio law and the Ohio Constitution. This Court is therefore

required to reverse, and/or vacate the Ninth District Court of Appeals restriction applied against

Appellant, which is contrary to the adjudication by the Medina County Court of Common Pleas.

$ February 25, 2007 falls on a Sunday.

30 Ftit.-'T T_at:% L Respectfully submitted,

Steven A. Bozsik 389-250 Richland Correctional Institution 1001 Olivesburg Rd. P.O. Box 8107 Mansfield, Ohio 44901-8107

CERTIFICATE OF SERVICE

The foregoing brief to the Supreme Court of Ohio has been served by Ordinary U.S. Mail to

William Thorne, Assistant Prosecuting Attorney; 72 Public Square, Medina, Ohio 44256 on this

27th of March, 2007.

Steven A. Bozsik

31 ki(a L,a,+ T..iCrax} APPENDIX IN THE SUPREME COURT OF OHIO

In Re STEVEN A. BOZSIK * Case No, * Movant-Appellrn:t * * * Appeal from an Original Action with the * Medina County Court of Appeals for the * Ninth Appellate District of Ohio. * * C.A. No. 06-CA-0026-M *

NOTICE OF APPEAL OF APPELLANT STEVEN A. BOZSIK

For the Appellant.•

STEVEN A. BOZSIK 389-250 Richland Correctional Institution 1001 Olivesburg Rd. P.O. Box 8107 Mansfield, Ohio 44901-8107

Pro se

For the Appellee:

DEAN HOLMAN Medina County Prosecuting Attorney

WILLLAM THORNE FES 2 G LOUt' Assistant Prosecuting Attorney 72 Public Square MARCIA .J. Iv]Ei1^G^L. CLt'RK Medina, Ohio 44256 SUPREME COURfuFOHIO Co:msel ofRecord NOTICE OF APPEAL OF APPELLANT STEVEN A. BOzsIK

Appellant Steven A. Bozsik hereby gives notice of appeal as of right to the Supreme

Court of Ohio from the judgment of the Medina County Court of Appeals, Ninth Appellate 2y District in Court of Appeals Case No. 06-CA-0026-M filed on January26, 2007

This case raises substantial questions of law from an original action in mandamus filed

with the court of appeals.

Respectfully submitted,

^..._ ^.. ^^

Steven A. Bozsik 389-250 Richland Correctional Institution 1001 Olivesburg Rd. P.O. Box 8107 Mansfield, Ohio 44901

CERTIFICATE OF SERVICE

I certify that a copy of this Notice of Appeal was sent by ordinary U.S. Mail to counsel for Appellees, William Thorne, Assistant Prosecuting Attorney, 72 Public Square, Medina, Ohio

44256 on this 13 day of February, 2007.

C: 51-

Steven A. Bozsik

aaL i!;l, i L'1u. T.Ffv?h. COURT ISTATE OF OHIO OF APPFMHE COURT OF APPEALS 07 JAN 24 AN II tWWTH JUDICIAL DISTRICT OUNTY OF MEDINA FILED KATH'f FUFtTNEY N RE: STEVEN A. BOZSIK .CHER^f I OF CUQUR^.A. No. 06CA0026-M

JOURNAL ENTRY

Steven A. Bozsik ("Applicant") has filed with this Court an application for leave

to proceed pursuant to R.C. 2323.52(F)(2). Bozsik seeks permission to file a petition

for writ of mandamus to order Judge James Kimbler to vacate three orders filed

ursuant to R.C. 2323.52(F)(1).

Before considering the merits of the application, we first address three

reliminary issues Bozsik raises. First, Bozsik asserts that he should not need to seek leave from this Court because Judge Kimbler's order did not require that Bozsik seek leave froin a court of appeals prior to filing in the court of appeals. The plain language of R.C. 2323.52(F)(2) requires Bozsik to seek leave to proceed in this Court: "A person

ho is subject to an order entered pursuant to division (D)(1) of this section [Bozsik concedes he is such a person] and who seeks to institute or continue any legal proceedings in a court of appeals [Bozsik concedes this is his goal] * * * in any legal proceedings in a court of appeals shall file an application for leave to proceed in the court of appeals in tivhich the legal proceedings would be instituted ***." R.C.

2323.52 does not require the trial court to include in its order finding a person to be a A-3 Journal Entry, C.A, No. 06CA0026-M Page 2 of 4 exatious litigator a limitation oii the vexatious litigator's ability to file in the court of

ppeals. The statute, bv its plain language, requires a person found to be a vexatious

litigator to seek pertnission from a court of appeals before filing in the court of appeals.

Second, Bozsik asserts that this Court's requirement that he seek leave frotn this

Court prior to filing conflicts with the decision of the Fifth District Court of Appeals in

Castrataro v. Urban (2003), 155 Ohio App.3d 597. After reviewing Castrataro, we

cannot find that the Fifth District Court of Appeals ever mentioned or considered the

equirernent that the vexatious litigator seek leave in order to file anything in the court

of appeals. We cannot conclude that the absence of this discussion leads logically to the

conclusion that the Fifth District Court of Appeals, does not require an applicant to

omply with R.C. 2323.52(F)(2).

A number of recent decisions further support this Court's conclusion that an

applicant must seek leave from this Court. For example, in State ez rel. Howar-d v.

ember ofBench, 10th bist. No. 05AP-808, 2006-Ohio-3265, the Tenth District Court

f Appeals held that the applicant must seek leave in the Court of Appeals before filing

a petition for writ of mandamus because a trial court declared he was a vexatious

litigator. See, also, State v. Baimlgartner, 6th Dist.No. E-06-045, 2006-Ohio-3792;

Grundstein v. Carr•oll, 8th Dist.No. 86604, 2006-Ohio-2215; Huntington Natl. Bank v.

omaz, I lth Dist.No. 2005-P-0075, 2006-Ohio-3880.

Third, Bozsik asserts that the Supreme Court of Ohio "virtually authorized the

rovant to commence this mandamus action", in Mayer v. Bristow (2000), 91 Ohio St.3d

3. The Mayer Court found that R.C. 2323.52, the vexatious litigator statute, was constitutional. Id., paragraph one of the syllabus. When considerina R.C. 2323.52(G), A-4 ]ouma! Entry, C.A. No. 06CA0026-M Page 3 of 4 he provision limiting the ability of a vexatious litigator to appeal the trial court's denial

f leave, the Supreme Court held that "in this specific situation, under this particular

statute, an original action in mandamus is an appropriate tneans by which the vexatious

litigator could effectively challenge arbitrary denials of leave." Maver, 91 Ohio St.3d at

15. However, the statute the Mayer Court reviewed changed after the Supreme Court's

decision. The new version of the statute, specifically R.C. 2323.52(F)(2), requires a

exatious litigator to seek leave from the Court of Appeals. Thus, the version of the

tatute the Supreme Court considered is not the statute this Court must apply. Under the

current version of the statute, Bozsik must seek leave to proceed from this Court, just as

he applicants in Baun2gartner, Grundstein, and Lortiaz; supra, were required to seek leave to proceed in the courts of appeal.

With those preliminary matters resolved, we turn to Bozsik's application. R.C.

2323.52(F)(2) provides:

"The court of appeals shall not grant a person found to be a vexatious litigator leave for the institution or continuance of, or the making of an application in, legal proceedings in the court of appeals unless the court of appeals is satisfied that the proceedings or application are not an abuse of process of the court and that there are reasonable grounds for the proceedings or application."

ITo grant Bozsik's application for leave to proceed, this Court must find both that the

roceeding is not an abuse of process and that reasonable grounds for the proceeding exist.

Upon consideration of Bozsik's application, this Court concludes that reasonable grounds do not exist for the underlying action. Bozsik seeks to file a petition for writ of mandamus to order Judee Kimbler to vacate three orders denying Bozsik's applications he filed seeking pertnission to file three motions. Because R.C. 2323.52(G) prohibits an A-.5 Journal Entry, C.A. No. 06CA0026-M Page 4 of 4 ppeal frotn these decisions, Bozsik asserts that he must be permitted to petition for a

rit of niandamus to challenge Judge Kimbler's decisions.

Bozsik did not meet his burden under R.C. 2323.52(F)(2). He failed to

ernonstrate that there are reasonable grounds for this action. Bozsik argued that he

hould not have to comply with the vexatious litigator statute, as discussed above. But

ozsik did not articulate reasonable grounds to pursue this action. Bozsik failed to tneet

is obligation to demonstrate reasonable grounds to file a petition and, therefore, this rourt denies his application.

There are no reasonable grounds for this proceeding. Accordingly, the

pplication for leave to proceed is denied and the matter is dismissed. Costs taxed to kpplicant.

A-6 IN THE SUPREME COURT OF OHIO

THE STATE OF OHIO ea rel. * Case No. STEVEN A. BOZSIK * * Relator-Appellant * -vs- * Appeal from an Original Action with the * Medina County Court of Appeals for the * Ninth Appellate District of Ohio. MEDINA CTY CONIlVIISSIONERS, et al. * C.A. No. 03-CA-0096-M Respondent Appellee * * *

NOTICE OF APPEAL OF APPELLANT STEVEN A. BOZSIK

For the Appellant:

STEVEN A. BOZSIK 389-250 Richland Correctional Institution 1001 Olivesburg Rd. P.O. Box 8107 Mansfield, Ohio 44901-8107

Pro se

For the Appellee: ^ ^n DEAN HOLMAN hC^^_,; Medina County Prosecuting Attorney FEB 26 ^0U7 WII..LIAM THORNE MARCIA U. tdi+.=i^l1FL^ CLERK I Assistant Prosecuting Attorney SUPREME COURT OF OHIO 72 Public Square Medina, Oliio 44256

Connsel of Record

A=7 NOTICE OF APPEAL OF APPELLANT STEVEN A. BOZSIK

Appellant Steven A. Bozsik hereby gives notice of appeal as of right to the Supreme

Court of Ohio from the judgment of the Medina County Court of Appeals, Ninth Appellate

District in Court of Appeals Case No. 03-CA-0096-M on January 18, 2007.

This case raises substantial questions of law from an original action in mandamus filed

with the court of appeals.

Respectfully submitted,

Steven A. Bozsik 389-250 Richland Correctional Institution 1001 Olivesburg Rd. P.O. Box 8107 Mansfield, Ohio 44901

CERTIFICATE OF SERVICE

I certify that a copy of this Notice of Appeal was sent by ordinary U.S. Mail to counsel for Appellees, William Thorne, Assistant Prosecuting Attomey, 72 Public Square, Medina, Ohio

44256 on this 13 day of February, 2007.

Steven A. Bozsik

L^^ RiCT TATE OF OHIO ) COURT OF APPEAINTHE COURT OF APPEALS I I: INTH JUDICIAL DISTRICT :OUNTY OF MEDINA ))ss: 07 JAH I 6 AM FILED KATHY FORTNEY TATE OF OHIO ex rel. STEVEN ^EO^JA COUNT`(r OZSIK ER oF r.:aUR IS A. No. 03CA0096-M ®

Relator

[EDINA COUNTY OMMISSIONERS, et al.

Respondents JOURNAL ENTRY

This matter comes before the Court on the application of Steven A. Bozsik, a

exatious litigator, who seeks this Court's permission to file a motion to vacate judgment pursuant to R.C. 2323.52(F)(2).

R.C. 2323.52(F)(2) provides:

Ne cannot grant the application for leave to proceed unless we detennine both that the

roceeding is not an abuse of process and that reasonable grounds for the proceeding

xist.

Upon consideration of Bozsik's proposed pleading and the relief requested, this

ourt concludes that reasonable grounds do not exist for the filing of the motion to

A-9 Joumal Entry, C.A. No. 03CA0096-M Page 2 of 3

acate. Bozsik seeks to vacate this Court's final judginent because, when he filed the

riginal action in this Court, he failed to file all of the statutory documents required

nder R.C. 2969.25. Thus, he would assert in his motion to vacate that this Court

hould have dismissed his action rather than rule on the merits.

Bozsik's purpose in filing this motion to vacate would not appear to be to ask his Court to vacate a judgment in a matter that it should not have considered. Instead,

e seems to be pursuing the broad principle that this Court erred by considering his ction when the statutory requirements were not met. But, in the words of Civ.R. 60(B), ie does not put forth any reason that he should be relieved from a final judgment.

Assuming this Court did not require Bozsik to meet the mandatory requirements

f R.C. 2969.25 in pursuing his original action, that "error" did not prejudice Bozsik. f, as may be likely, Bozsik's purpose is an effort to avoid paying the costs of the action ecause, according to his argument, this Court should have dismissed it immediately, he ould have appealed that issue to the Supreme Court. It is well settled that a motion for elief from judginent under Civ.R. 60(B) is not a substitute for appeal. Doe v. 2'i•unzbull

ty. Children Services Bd. (1986), 28 Ohio St.3d 128, 131. Errors that could have been on•ected by a timely appeal cannot be the predicate for a motion for relief froin udginent. YYard v. Hengle (1999), 134 Ohio App.3d 347, 350.

a-'!e Journal Entry, C.A. No. 03CA0096-M Pa.-e3of3

Upon review of the application, we cannot find both that the proceeding is not an buse of process and that reasonable grounds for the proceeding exist. Accordingly, the pplication for leave to proceed is denied and the matter is dismissed. Costs taxed to pplicant.

Judge

A_+ 1 IN THE COURT OF COMNION PLEAS MEDINA COUN'fY, 01110

DEAN HOLMAN Prosecuting Attot-ney of Medina County, Ohio 04P'IV®N b 72 Public Square JUDGE Medina, Ohin 44256 COMPLAINTTOIIAVE ) DEFENDAN'f DECLARED A I'laititiff, VEXATIOUS LITAGATOR

STEVEN A. BOZSIK 1150 N. Main Street P.O. Box 788 Mansfield, Ohio 44901

Defendant.

1. The Plaintiff is the duly elected anci acting Medina County, Ohio, Proseculing illtorncy.

2. The Plaintiff has defended or atrangecl for the defense of hahitual uml pcrsistcnt vcxatious

conduct in courts of common pleas, and tlte Ninlh District (.}ourl ul' Ahlic;ik hy Ihc

Defendant whom has engaged in llie habilual and persislent vcsatious cou luct.

3. The Defendant is a vexatious litigator as delined in Ohio Rc^isc^l Code § Z 3?3.52(r1)(3).

4. WHEREFORE, Plaintiffprays that lhis Court find !he Defcndanl to bc a vcxulious litigator

as definetl in Ohio Revised Cocle § 2323.52(A)(3) nnd lin-ther that this ('ourl cntcr.ut order

pursuant to Ohio Revised Code § 2323.5?(I))( I) prohihitiug thc ilrl'endnnt lium duint' une or

more of the following without first obtaining a leave of cowt to proceed:

a) Instituting legal proceeclings in the court ol'claims or ill a court of common Illeas,

municipal court, or county court;

I B-1 b) Continuing any legal proceedings tliat the vexatious litigtdor had instituted in.ihe

court of claims or in a court ofconnnon pleas, municipal court, or county court

prior to the entry of the or(ler; and

c) Making any application, other than an application for leave to proceed under

Ohio Revised Code § 2323.52(F), in any legal proceedings inslituted by the

defendant or another person in the colut of claims in a court of conunon pleas,

niunicipal court, or county court.

Respectftllly Subniilted,

DEAN I-[OLMAN Medina Cottnty Prosectltor's Of(ice

WILLIAM L. TIIOIiNE (M002iI194) 72 Public Square, Third Floor Medina, Ohio 44256 (330)723-9536

F:Weta1CIVIL©illtnozsik LitigationSComplaimslvexatiousiid

B-2 IN THE COURT OF COMMON PLEAS MEDINA COUNTY, OHIO

DEAN HOLMAN CASE NO. 04 CIV 0286 Plaintiff, V. JUDGE JAMES L. KIMBLER

MOTION FOR SUMMARY STEVEN A. BOZSIK JUDGMENT

Defendant.

Now comes Plaintiff, Dean Holman, and moves this Court for summary judgment in his favor on the grounds that there is no genuine issue as to mater'fal fact, and Plaintiff is entitled to judgment as a matter of law. This Motion is supported by the following memorandum, the pleadings and all responses thereto, and the exhibits filed herein.

Respectfully submitted,

DEAN HOLMAN Medina County Prosecutor

By: WILLIAM L. THORNE (#0024194) Assistant County Prosecutor 72 Public Square Medina, Ohio 44256 (330) 723-9536 (330) 764-8400 / Facsimile

Attorney for Plaintiff MEMORANDUM IN SUPPORT I LAW

Under Civ. R. 56, summary judgment is proper when "(1) [n]o genuine issue as to any

material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law;

and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50

Ohio St.2d 317,327. Additionally, the nonmoving party must go beyond the allegations or denials

contained in the pleadings and affirmatively demonstrate the existence of a genuine issue ofmaterial

fact in order to prevent the granting of a motion for summary judgment. Mitseff v. Wheeler (1988),

38 Ohio St. 3d 112. Moreover, the entry of sununary judgment against a party is mandated when the

nonmoving party:

[F] ails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial... [by designating] specific facts ...

Celotex Corp: v. Catrett, 477 U. S. 317(1986).

The Supreme Court of Ohio has adopted and approved the Celotex burden on the nonmoving party, provided that the moving party meets its initial burden of infomiing the court of the basis for the motion and identifying portions of the record demonstrating the absence of any genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St. 3d 280.

5-4 Additionally, Civ. R. 56(E) provides, in part, that:

[W]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is genuine issue for trial. If he does not so respond, summary judgment, is appropriate, shall be entered against him.

Ohio's vexatious litigator statute is codified as R. C. §2323.52 and became effective

March 18, 1997. R. C. §2323.52 provides as follows:

(A) As used in this section:

(1) Conduct has the same meaning as in Section 2323.52 of the Revised Code.

(2) "Vexatious conduct" means conduct of a party in a civil ac6onthat satisfies any of the following:

(a) The conduct obviously serves merely to harass or maliciously injure another party to the civil action. (tz) The conduct is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law. (c) The conduct is imposed solely for delay.

(3) "Vexatious litigator" means any person who has habitually, persistently and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in the court of claims or in a court of appeals or court common pleas, municipal court, or county court, whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions. "Vexatious litigator" does not include a person who is authorized to

B-5 practice law in the courts of this state under the Ohio Supreme Court Rules for the Govennnent of the Bar of Ohio unless that person is representing or has represented self pro se in the civil action or actions.

A person, the office of the attorney general, or a prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation who has defended against habitual and persistent vexatious conduct in the court of claims or in a court of common pleas, municipal court, or county court may commence a civil action in a court of common pleas with jurisdiction over the person who allegedly engaged in the habitual and persistent vexatious conduct to have that person declared a vexatious litigator. The person, office of the attorney general, prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation may commence this civil action while the civil action or actions in which the habitual and persistent vexatious conduct occurred are still pending or within one year after the tennination of the civil action or actions in which the habitual and persistent vexatious conduct occurred.

Pursuant to Civil Rule 56(C) of the Ohio Rules of Civil Procedure, Plaintiff is entitled to summaryjudgment as to Defendant, determining and adjudicating hini to be a vexatious litigator.

B-6 .^^,^^?•ir , pLF,4S COURr 05MAR17 PM136 _; 4n FJi TNEY COUfjTY CCERM1: OF CoUR.rs

IN THE COURT OF COMMON PLEAS MEDINA COUNTY, OHIO

Dean Holman CASE NO. 04 CIV 0286

Plaintiff

V. Judge James L. K.imbler

Steven A. Bozsik Judgment Entry with Instructions Defendant to the Clerk

This case is before the Court on the parties' cross motions for, sununary judgment. Based upon the evidence allowable pursuant to Civ. R. 56(C), the Court finds there are no genuine issues of material fact upon which reasonable minds could differ. Plaintiff is entitted to judgment as a matter of law. Accordingly, Plaintiff s Motion for Summary Judgment is hereby granted and Defendant's Motion for

Summary Judgment is denied. Statement of the Case On March 3, 2004, Plaintiff, who is the Medina County Prosecutor, filed a complaint seeking to have Defendant, Steven A. Bozsik, an inmate, declared a vexatious litigator as defined in R.C. §2323.52(A)(3). Cross Motions for Summary Judgment were filed. Plaintiff's motion set forth

CDUN?K S.S. MEDINA CDNNfY CDUPT DFCOMA1oN PLEAS -STATE DF DH14 MEDINA Ihere6y ssrUty that Nls Ii s.^is•eopy ot Ihs orlplnH:an Ns In W ourl WDnass my hand md ths efl of wld. ourr edln0. Dhlo thla ^^[ r.Witol Ceuru dsy ot rm Sy ^^nC t7. _-Dspuq VL 1364 PG 489 four cases from the Medina County Common Pleas Court outlining Defendant's involvement, one from the Wayne County Common Pleas Court and a Mandamus action filed directly in the Ninth District Court of Appeals. Exhibits in the form of judgment entries and docket sheets were attached, supporting Plaintiffs position. In his brief in opposition to Plaintiff's Motion for Summary Judgment, Defendant contends that Plaintiff was required to have filed the vexatious litigator claim as a compulsory counterclaim in Defendant's action in the Wayne County Common Pleas Court proceeding titled Bozsik v. Ross et.al. The Court finds that Defendant's argument is not well taken. Turning f rst to Defendant's motion, the Court finds that Plaintiff's claim in this case was not a compulsory counterclaim in the Wayne County case wherein Mr. Boszik sued Kevin Ross, Warren Walter, James Elam, David Burkhart, and Darrell Burkhart. Plaintiff was never named a party in the Wayne County lawsuit. Civil Rule 13 requires a party to bring as a counterclaim any claim the pleader has against an opposing party. Therefore Civil Rule 13 is inapplicable under the facts of this case. Moreover, even assuming Holman had been a party, the cause of action in this case does not arise out of the facts complained of by Defendant in the Wayne County case, but rather the repeated filing of alleged frivolous'actions, which is distinctly different. In addition, the Court finds that the clear language of R.C. §2323.52(B) authorizes independent actions for a declaration of vexatious litigator, separate from the causes allegedly giving rise to the vexatious conduct. Ttirning to Plaintiff s motion for summary judgment, it is necessary to analyze whether Plaintiff sufficiently established the criteria to declare Defendant a vexatious 2 8-$

VL 1364 PG 490 litigator. The Court has reviewed the pleadings of the civil cases incorporated as evidence in Plaintiffs Motion for Summary Judgment to determine whether Defendant's conduct satisfies either of the following: a) The conduct obviously serves merely to harass or maliciously injure another party to the civil action or b) The conduct is not wan-arited under existing law, and cannot be supported by a good faith argument for an extension, inodification, or reversal of existing law. The court begins with Defendant's petition to vacate, or set aside sentence in Case No. 99 CR 0446, a post conviction proceeding. This seventy-three (73) page petition raised numerous contentions, all of which were overruled. The Court found "The legal claims set forth in the complaint were not warranted under existing law, could not 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 a new law." A review of Medina "County Court case number 03 CIV 0509, which was initiated on April 15, 2003, reflects that Defendant raised the same issues he had previously.raised without effect in. his post conviction motion to vacate or set aside sentence in Case No. 99 CR 0446, without any additional facts or new legal basis. To find that said claims are now warranted under existing law, or could be supported by a good faith argument for the establishment of new law would directly controvert this court's prior ruling. Furthermore, that case was declared frivolous or malicious under R.C. §2969.24. After the case had been dismissed, Defendant persisted and filed a motion for reconsideration pursuant to Civil Rule 60. This motion was denied for failure to detnonstrate any justification for relief. 3

I st wn^ A P'f^ /AA On June 12, 2003, Defendant filed a complaint for Permanent Injunction of Harassment against the entire Medina County Prosecutor's office which was dismissed as frivolous or malicious pursuant to R.C.2969.24. On July 29, 2003 Defendant filed a Declaratory Judgment action against County Coroner Dr. Neil Grabenstetter in Medina County Court Case No. 03 CIV 0983. In that case Defendant sought to change the time of death on the death certificate of Carol Bozsik, for whom the Defendant was convicted ofAggravated Murder. This case was likewise dismissed as frivolous or malicious. The Ninth District Court of Appeals denied Defendant's request for writ of mandamus against the Medina County Commissioners and Sheriff's Office. In that case Mr. Bozsik sought to force the appointment of substitute counsel to handle his complaints of wrongdoing against the witnesses for the state at his criminal trial. The Court of Appeals denied the writ, and found it was based on the same allegations Mr. Bozsik had repeatedly raised in the past. The Defendant's Declaratory Judgment action filed in Wayne County sought a determination of criminal wrong doing taking place in Medina County, against the state witnesses in his crizninal trial. Again, this Court found that Mr. Bozsik's case was based on claims already repeatedly denied, without any legal basis for the reconsideration. This case clearly showed Defendant's vexatious conduct. Based on the foregoing, the Court finds that Defendant has engaged in a pattern of habitual and persistent vexatious conduct.

D'9 0 4

VL 1364 PG 492 IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT: 1. Defendant's Motion for Sununary Judgment is denied. 2. Plaintiff's Motion for Summary Judgment is granted. 3. Defendant is a vexatious litigator as defined in R.C. §2323.52(A)(3). • 4. Unless Defendant first obtains leave of court,. Defendant is prohibited from: a) Instituting any legal proceedings in the court of claims, or in a court of conunon pleas, municipal court, or county court; b) Continuing any legal proceedings that he has instituted in any of the aforesaid courts prior to the entry. of this Order; and . c) Making any application, other than an application for leave to proceed under R.C.2323.52(F)(1), in any legal proceeding instituted by the Defendant or. another person in the court of claims, dr in a court of common pleas, municipal court, or county court Costs to Defendant.

Pursuant to Civil Rule 58, the Clerk is hereby directed to serve upon the

VL 1364 PG 493 following parties notice of this order and its date of entry upon the joumal:

William Thorne Medina County Prosecutor's Office 72 Public Square, Third Floor Medina, Ohio 44256

Steven A. Bozsik 389-250 Mansfield Correctional Institution 1150 N. Main Street P. 0. Box 788 Mansfield, Ohio 44901

Copies were mailed by the Clerk of Court on

6 B-? 2

Vl 1AAd P[' d9d STATE OF OHIO [PRT OF APPE.4LS IN THE COURT OFAPPEAI,S d3Y1AY - 2 AM 1I:22 NINTH JUDICIAL DISTRICT COUNTY OF MEDINA ) FILED KATHY FORTNEY F1ESINA COUNTY DEAN HOLMAN CLERK OF C01}Rh C.A. No. 05CA0034-M

Appellee

STEVEN A. BOZSIK

Appellant 7OURNAL ENTRY

Appellant filed a notice of appeal on April 18, 2005 from the trial court's

decision adjudicating him a vexatious litigator undqr R.C. 2323.52(D)(1). Pursuant to

R.C. 2323,52(F)(2), appellant's appeal is dismissed. Costs taxed to appellant.

The clerk of courts is ordered to mail a notice of entry of this judgment to the

parties and make a notation of the mailing in the docket, pursuant to App.R. 30.

Judge

A copy of this }oumal entry is being mailed to the following:

William Thorne, Attomey at Law, 72 Public Square, Medina, OH 44256.

Steven A. Bozsik, #389-250, 1150 N. Main St., P.O. Box 788, Mansfield, OH,

COUNTY IMURT OF COMMON PLFAS-5EAZE OF ON14 MEOINA COUNIK 5 MEDINA Is a lLue copy ot tha odg nal on flle in said cou I harehy certiiy that this VBtnass my d and Ne sael oI said court at ^thy Forfiey GeA af Cou day d'- Uepu Hy E B_'13 STATE OF OHIO ) IN THE COURT OF APPEALS jNjjPT FF NINTH JUDICIAL DISTRICT COUNTY OF MEDINA 05 MAY 19 Ali 11 : 10 FfLi-i^ DEAN HOLMAN C.A. No. 05CA0034-M co ^ttTY C: 7inT5 Appellee CLER'( OF

STEVEN A. BOZSIK

Appellant JOURNAL ENTRY

Appellant has moved this Court to reconsider its order, journalized on May 2,

2005, which dismissed his appeal for failure to comply with R.C. 2323.52(F)(2).

Pursuant to R.C. 2323.52(F)(2), appellant is required to apply for leave to proceed before submitting any filings for consideration by this Court. The motion for reconsideration is stricken.

Pursuant to R.C. 2323.52(H), the clerk of the appellate court is ordered to refuse any further papers submitted by appellant for filing if leave to proceed has not been granted.

Judge

A copy of this journal entry is being mailed to the following:

William Thorne, Attorney at Law, 72 Public Square, Medina, OH 44256.

Steven A. Bozsik, #389-250, 1150 N. Main St., P.O. Box 788, Mansfield, OH.

IB-14 T THE SUPREME CC?URT Of OHI+D

Vexatious Litigators Under R.C. 2323.52

Section 2323.52 of the Ohio Revised Code establishes a procedure for having courts of appeals and common pleas courts declare certain persons to be vexatious litigators. The statute requires the clerk of court that enters a vexatious litigator order to send a copy of the order to the Supreme Court for publication. Pursuant to the statute, the Supreme Court has been sent court orders determining the individuals listed below to be vexatious litigators.

How to use these files This list includes the name of the person determined to be a vexatious litigator, the court issuing the order, the date the order was entered, and relevant comments. The list is available sorted in alphabetical order by last name of litigator, and sorted chronologically by date of order. Select the name of the individual to view, download, or print the order. You will need the free plug-in Acrobat Reader to access the order.

Disclaimer The following list contains only those orders the Supreme Court has received from the clerks of the courts of appeals and courts of common pleas.

For more information Contact the clerk of the issuing court to determine whether orders have been amended or modified, or for additional information.

View list sorted by last name I View list sorted by order date

Name Court that issued Date of order Comments the order

Baumgartner, Elsebetlt M. Ottawa County 04/05/04 Common Pleas

Bennett, Leland, Mahoning Co. C.P. 01/24/03 a.k.a Abengo, Daniel 6ilder, Rudolph Summit Co. C.P. 11/15/04 Actions limited to certain individuals. See Order Borger, ldtitta HamiltomCo. C.P. 03/19/01 Borkowski, A. J. Fulton Co. C.P. 04/29/04 Limited to legal actions in the Fulton County Court of Common Pleas Bozsik, Steven A. Medina Co. C.P. 03/17/05 Bratton. Judith Summit Co. C.P. 05/10/99 Briggs. Joel Hamilton Co. C.P. 11/05/97 Order modifed on 02/05/99

Bristow, Lonny Crawford Co. C.P. 06/01/98 See also Mayer v. Bristow (2000) 91 Ohio St. 3d 3

Ci 7 7/'Jnn7 Buoscio. Samuel L. Franklin Co. C.P. 12/01/05 Limited to legal actions against named defendant

3 Buschard. Preston Hamilton Co. C.P. 9/21/06 Limited to legal actions involving the state of Ohio or Hamilton County

Castrataro, Linda Delaware Co. C.P. 5/09/03 Limited to legal actions in the / Delaware County Court of Common Pleas Ealy, Larrv E. Montgomery Co. 12/05/06 C.P.

Fergus, Carc l A. Cuyahoga Co. C.P. 04/29/04 Some prohibitions limited to Pro se filings only Fontanella, Dominic Mahoning Co. C.P. 06/29/06 Limited to legal actions in the Mahoning County Court of Common Pleas Georgeadis, Maria Franklin Co. C.P. 01/21/99 Decision rendered 01/21/99; judgment entry filed 02/05/99 Grundstein. Robert Cuyahoga Co. C.P. 10/12/05 I3armon, Donald A. Mahoning Co. C.P. 04/09/01

Howard, Gregor,v T. Lucas Co. C.P. 08/22/00 Additional judgement entry entered 06/11/01 Howarcl, Gregory T. Franklin Co. C.P. 01/11/06 Hurley, James Clark Co. C.P. 04/22/99

Kluge, Kurt Wood Co. C.P. 09/16/98 Amended judgment entry and order filed 10/07/98 Koleno, George Lorain Co. C.P. 08/31/99

Kosanovich. Jean Ottawa Co. C.P. 05/08/97 Lasson, Gerald A. Montgomery Co. 12/07/06 C.P.

Lewis, Sidney Franklin Co. C.P. 05/04/06 May. Morris Hamilton Co. C.P. 07/24/98 iYletzenbaum, Terry Shane Cuyahoga Co. C.P. 07/13/04 Miller, Selina Franklin Co. C.P. 05/17/01 3 Newsome, Frank Montgomery Co. 08/14/06 C.P.

Pavarini, Philip and Cuyahoga Co. C.P. 07/29/99 Kathrvn Krinek

Payne, Thoinas E. Montgomery Co. 03/12/99 C.P.

C-2 http://www.sconet.state.oh.us/Clerk of Court/'. _.__ is/ 2/7/20n7 Pearce. Richard Ottawa Co. C.P. 05/21/98 Rickels, Romane Paulding Co. C.P. 03/31/05 Rickels, Roinane Paulding Co. C.P. 02/02/06 Rolland, Robin Neil Butler Co. C.P. 03/14/00

Sawchyn, Ivan Cuyahoga Co. C.P. 10/18/01 Smith, Barbara Summit Co. C.P. 10/18/01 Additional order entered 6/19/03. Spencer, Scott W. Franklin Co. C.P. 10/25/04 Spencer, Maria L. Franklin Co. C.P. 10/25/04 Thrower, Albert Summit Co. C.P. 09/22/03 Limited to legal actions in the Summit County Court of Common Pleas

Thrower, Raymond Summit Co. C.P. 10/31/03 Timson, John W. Franklin Co. C.P. 04/03/98 Franklin Co. Court of Appeals reversed and remanded trial court's judgment on 12/24/98 (132 Ohio App3d 41)

Tracy, Edward Miami Co. C.P. 01/12/04

Traver, Frances Hamilton Co. C.P. 02/04/03 Limited to litigation regarding certain real property in Hamilton County (see entry).

J Triplett, James Franklin Co. C.P. 12/03/04

Wallace, Linda Cuyahoga Co. C.P. 08/02/01 Decision rendered 08/02/01; journal entry received for filing 08/03/01.

Whitt, Patsy Sue Greene Co. C.P. 06/06/05 3 Williams, Regina Franklin Co. C.P. 11/04/04 U Wilson, Thomas Lorain Co. C.P. 11/27/06

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• 65 South Front Street Columbus, Ohio 43215-3431 •

L'3 http://wvnv.sconet.state.oh.us/Clerk_of Court/vexatious/ 2/7/2007 IN THE COURT OF COMMON PLEAS OTTAWA COUNTY, OHIO

Case No. 02-CVH-025 ^.: --, ' Mark E. Mulligan as ^ ..^ Ottawa County Prosecutor,

n _^. _ ( l Plaintiff, JUDGE RICHARiI 1HP.16IARtIcUS

Elsebeth M. Baumgartner,

Defendant.

This case came for trial before the Honorable Richard M. Markus, Retired Judge recalled to

service pursuant to Ohio Constitution Art. IV Section 6(C) and Ohio R.C. 141.16, and assigned by the Chief Justice to the Ottawa County Common Pleas Court for this matter. Present in Court were

Plaintiff Mark Mulligan, Ottawa County Prosecuting Attomey, and Plaintiff's attorney Teresa

Grigsby.

Though she received adequate notice of the duly scheduled trial, Defendant Elsebeth

Baumgartner did not appear for trial. Inunediately before the trial commenced the Court contacted the Defendant by teiephone, and the Defendar^t expressly advised the Court that slie would not participate in the proceedings. The case proceeded to trial, and the Court received documentary and testimonial evidence from the Plaintiff.

Based upon clear and convincing evidence, the Court finds that Defendant Elsebeth

Baumgartner is, and is declared to be, a vexatious litigator as that term is defined in R.C.

§2323.52(A)(3).

t3-9 It is therefore ORDERED that Elsebeth Baumgartner is prohibited, without first obtaining leave of this Court, from:

1) instituting new legal proceedings in the court of claims, in a court of common pleas, a municipal court or a county court;

2) continuing any legal proceedings which she has instituted in any ofthe courts specified in item (1) above; and

3) making any application [other than an application for leave to proceed under R.C.

§2323.52(F)(1)] in any legal proceeding instituted by Defendant or another person in any of the courts specified in item (1) above.

Within 30 days after the filing of this Judgment Entry, Defendant shall file her request, if any, for leave to continue the assertion of any pending claim she has in an Ohio court of common pleas, municipal court, or county court in which she is a party, which cases include (but are not liniited to):

a) Baumgar-tnerv. SirrithCaseNo. 01-CVC-136 (OttawaCounty Commori Pleas Court);

b) Baumgartner v. Druckenmiller Case No. 01-CV-223 (Ottawa County Common Pleas Court)

c) National Bank of Oak Harbor v. Baarmga rtner Case No. 01-CVE-003 (Ottawa County Common Pleas Court)

d) Natiorra; Bank of Oak Harbor v. Baun:gariner Case No.. CJ26-016 (Ottrn,va County Common Pleas Court)

e) National Bank of OakHarbor v. Baunigarnter Case No. 01-EX-010 (Ottawa County Contmon Pleas Court)

, fl Baumgartner v. Snrith Case No. 02-CVC-048 (Ottawa County Comman Pleas Court)

;C^ , D-2 S 1`1 The request for leave shall be filed with the Clerk of the Ottawa County Common Pleas Court

which shall forward it to the undersigned Judge assigned to this matter for ruling. Any application

to continue the assertion of any claim in any Ohio common pleas, municipal, or county court must

demonstrate that the proceedings or application are not an abuse of process and that there are

reasonable grounds for the proceeding or application. If the Defendant fails to file such an

application for any claim in any of the previously designated trial court cases within 30 days after the

filing of this Judgment Entry, or if the application fails to satisfy this court that the proceedings or

application are not an abuse of process and that there are reasonable grounds for the proceeding or application, this Court will dismiss any or all of the Defendant's pending claims in those cases with prejudice.

If the Defendant seeks to institute or continue any legal proceeding in a court of appeals or to make an application in any court of appeals, other than an application for leave to proceed under

R C. 2323. 52(F)(2), she shall file an application for leave to proceed in the court of appeals in which the legal proceedings would be instituted or are pending, which cases include (but are not limited to):

a) Baurrrzartner v. Smith Case No. OT-03-050 (Sixth District Court of Appeals)

b) InReIncarcerationofBaumgartnerv. SheriffEmahiserCaseNo. OT-03-023 (Ottawa Cozinty Cozirt ofAppeals, Sixth Appellate District)

c) State ex. rel. Bauni.ECrtner v. JudV Adkins. et. .^.l. Case No. OT-03-033 (Ottawa County Court of Appeals, Sixth Appellate District);

d) Albrechta and Coble v. Baumgartner Case No. S-03-006 (Sandusky County Court of Appeals, Sixth Appellate District)

Pursuant to R.C. 2323.52(F)(2), the court of appeals shall not grant that application unless it is satisfied that it complies with R.C. 2323.52(F)(2).

3 It is further ORDERED that the clerk of the Ottawa County Common Pleas Court shall send

a certified copy ofthis Judgment Entry to the Supreme Court of Ohio for publication in a manner that the Supreine Court detemiines to be appropriate and that will facilitate the clerk of the court of

claims, and a clerk of a court of appeals, common pleas court, municipal court or county court in

refusing to accept pleadings or other papers submitted by Defendant for filing without having

obtained leave to proceed.

The clerk of the Ottawa County Common Pleas Court shall also send a certified copy of this

Judgement Entry to the Ohio Court of Appeals for the Sixth Appellate District for its consideration

in relation to the cases pending there in which the Defendant asserts any claim.

.2aT_ Date Judge Richard M. Markus Retired Judge recalled to service pursuant to Ohio Constitution Art. IV Section 6(C) and Ohio R.C. 141.16, and assigned by the Chief Justice to the Ottawa County Common Pleas Court for this matter

TIIE CLERK SHALL MAIL TIME STAMPED COPIES OF THIS ORDER TO PLAINTIFF'S COUNSEL AND THE PRO SE DEFENDANT AND TO THE VISITING JUDGE

D-a alv:,lnG.t:vVa^a vr.t:yara;ravlr ra^a,nJ.vr ajL'n

LINDA CASTRATARO

Plaintiff; Case No. o2CV-A 11-6L7 ry..

KENNE'P1Y'LTRBAN C_7> - d;: Defendant - ^. !'^1 77^ fT)an

JUDGIV[ENT ENTltY o o c o ^ This case is pr"esently pending before this Court on the Motion Of Defendant Dr.

Kenneth Urban For Summary Judgmerit, Defendant Dr Kenneth Urban having fi led said

Motion, on January 27, 296; Plaintiffs Memorandum Contra Motion For Summary ,

Judgment; Oral Hearing Requested; Motion Contra Counterclaiin Of '. Vexatious

Litigator%Motion For Oral Hearing On Civil Rule 60 Motion, Plaintiff having filed said

Motions and Memorandum Contra on February 21, 2003; the Reply of Defendant Dr.

Kenneth Urban To Plaintiff Linda Castrataro's Memorandum Contra To Motion Filed On

January 27,' 2003, Defendant, having filed "said Reply, on February 27, 2003, and the - ,. Memorandum Contca Of Defendant Dr. Kenneth UrbanToPlaintiff Linda:Castrata'ros

Rule 6o(B) Motion . Filed . On February 21, 2003, Defendant having: filed said

Memorandum Contra:on March 6, 2003..

This Court must,inake disposition of the instant Motion for Summarv Judgment , .. ,. withinthe comfi nes ofRule 66(C) of the Ohio Rules of Civil Procedure; as well as the ; , . ,. interpretation of that rule by the Supreme Court:of Ohio. Civ.R: 56; See State ext•el.

Znnmerman.v. Tompns (t996ygOhio 5t3d 44,7, 663 N.E.2d 639; Dresher v. Burt

`188'

. ,^T... .'.^L (1995); 75 .Ohio St.3d 280, 662 N.E.2d 264 Putsuanf to,Civil Rule 56(C), the moving party bears the: initial burden of informing the tnal court of the basis for the mohon and tdentifyifig those portions of the record that demonstrate the absence of dispute as to a material fact. r her at 293. However; the moving party eannotcharge:its burden witli a conclusory assertion, thatthe• nonmoving party has, no evidence , to prove its case,, the maving party must be able to point to evidence of a type listed in Civil Rple 56(C), affirlnathvely demonstrating that the nonmoving'party hasno evidence to support the claims: Ld., Vahila v. Hall (1997): 774hia St.3d".421, 674 N.E.2d ii64. Moreover,..

Summary Judgment is appropriate if the'nonmoving party does not respond with, oi fails to set:forth, by affidavit or as othes,yvise provided in Civil Rule 56, specific facts showing that there is a genuine issue for tiial. Dresher. at 293; Civ.R 56(E).

inevitably, a Motion for Summary Judgment may not be granted unless the court determines that (i) no genuine issue as to any material fact remains to be litigated, (2) tfie moving party is entitled to judgment as . a matter of law, and (3) it appears from the evidence that reasonable minds can oonie to.but one conclusfon, and viewing such evidence most stronglyin favor of the nonmoving party, thatconclusion is ad'verse to the party against whom the Motion. for Summary Judgment is made. Toqjpkins, at448.

The instant case arose as result of a Complaint Plaintifffiled on November.`

2o02. Plaintiffs Complaint alleges a single caase of action„nominally for breach. of contract, against Defendant Dr. Kenneth Urban. Piaintiff alleges that.she "was a patient of Doctor Urban in Franklin County about May thru [sic] September, 1995•" Piaintiff also. alleges "D'efendant orally agreed with Plaintiff to treat Plaintiff for medical :problenis in whicli he,wasqualified to prescribe inedication and tTeatment: Defendant was given reimbursement for his seivices and subsequently failed to fulfill his legal obligations as to 9.89 disclos.ing medical information, n►isleading his patient, 'and giving his patient false mformation," Plaintiff further alleges that Defendant "did; not in good faithfulfill his obhgations to Plaintiff asa patient or client." Plaintiff seeks damagesas compensation foi!

Defendant's alleged ivrongful conduct.

In response to Plaintiff's Complaint; Defendant filed an Answer in whichhe denied th e niaterial allegations contained in PlaintifPs Coniplaint.and raised various defenses to

Planitiffs cau5eof action. Additionally;Defendant brought a oounterclaimseeking a , ,...... :j. derlaration froin this: Cqurt stating that Plaintiff qualifies as a veiatious httgatoc iunder the provtsions of'Section 2323.52.6f the Revised Code. Defendant novY seeks summary _.. • , judgment againsY the Plaintiff not only on the claim raisei. in her Complaint but on his caunterclaim as well.

`fhe mstarit caseis not'the first case Plaintiff has fded against Defendant in this

Court,,;: 5ee C^atarq_v. Urbani Case No. oiCV-A-o5-243 Plaintiffs complaint in Case

No, 'oiCV A-o5-243 . contazned allegations materially identical and; indeed;. verbati m to those contained in. the instant Complaint: Defendant eventually filed a- inotion foi:, suminaiy judgment inthat case: Plaintiff failed to respond to the motion and, in fact, upon..filing her complaint made no farther appearance whatsoever.- This Court sustained

DefendanYs motion and dismissed the case. This Court subsequently found that

PlaintifFs fail•are, to, pursue her: case against Dr. Urban constituted "frivolous conduct" and, as a consequence, pursuant to the provisions of Section 2323•51 of the Revised Code, charged Defendant's attorneys' fees against her. On appeal, the Fifth District Court of

AppealsAaffirmed this Court's disposition of Case No. ,oiCV-A-o5-243• . , See Castrataro v.

Urbari (Ohio App. 5th Dist: June 27, 2002); Case No. oiCAEiz664; 2002 - Ohio - 3472.

In addition to the cases Plamtiff filed against Defendant in this Court, Plai:,tiff

190

• ...... •. . ^^. R^ _ _'?. prev►Qusiy niea. similar cases against uetenaant m tne rran,uur...,u.ILy ...... , 'leas. In April, 1997; Plaintiiff filed the first of her cases against 'Defendant. 'See .: . - , Castrataro y: Urban (Franklin Cty. C.C.P.), Case No. 9^CVAo4 4393:: Plaintiff alleged in hec complaint in Case No. 97CVA04-4393 that she sought: medicai care froiri Defendant on May 12, i995. Plaintiff alleged that, although Dr. Urban conducted a battery of tests andexaminations, he'failed to properly diagnose and treat Plaintiff for-hpstetn 13a5r virus on or ahout Jutie 9th, 1995:' Defendant moved for summaryjudgment on the basis that Plaintiffcould produce no evidence creating a genuine issue of material fact on the tssueof whether or. not Defendant deviated from the applicable standard of care ,.. s governing, liis treatment: of the Plaintiff. The trial court sustained Defendant's motion:

On appeal; the Tenth District.Court of Appeals reversed on the grounds that;Defendant fatled.to attacli an affidavit demonstrating that he .treated Plaintiff within the apphca';le standard of care and: that Plaintiff could produce no evidence to rebut. the same.

Casfrataro v:. Urban '(Ohio App. ioth Dist: 2000), 20oo WL 254315 *1• In reversing, however, th e Court noted the trial court's observation that Plaintiff s failure to disclose an expert witness who might testify on her behalf renderedher malpractice claim against Dr.

Urban:essentially.unsupported.' U Following remand, Plaintiff voluntarily dismissed,

Case No. 97Mo4-4393,

On March 13, 206i, Plaintiff re-filed her case against Defendant in Franl^lin

County, See Castrataro v: Urban (Franklin Ctiy: C.C.P.),Case No: 01CVA03-2391• 4ain

Defendant moved_ for summary judgment. In support, Defendant relied upon affidavii and `deposition testiinony establishing that he examined and treated Plaintiff within the accepted standard of care. In reviewing Defendant's motion, the trial court foundthe :,: testimony of the expert Plaintiffpresented,in opposition to the motion providedlittle, if '

D I .R' issues Defeadant ra.ises "[are] not correct and;[are] nofi':duectly':relevant'at tliis this lawsWt ",It

csiuse of ectton as qneof firau(LGrantied, a party may ^ursy

mclepenclent of an acdon.based on alleged matpracttce . Se

Cleveland Ine (i987)0 S3 GWo St3d g4r gi4 N.E 2d ryog Hoi , • r fraud wlt)x particularlty. . Ciy Et 9(B): A party see;

ir onstrate a representation or, where tfiere is a duty to; d^s ► ° , . . " wtncli as niatenal to:the ttansachon at liand; made falsely; witli laiowledge;of Its falsity, or` with such utter disregard andeecklessness as to whether it is ttue or false tliat kno^yl edge may beinferted, wi'th the intent of ,misleadmg' another into relying upon it, ,lustifiable reliance upon the represeritation or concealment, and a resWting mjury proximately -I..N ...... :. r. .. . :. ." . caused bynth'e reliance Bu1i+ v Stark County Board of Commissioners (i986), 23 Ohio

St;Bd 69f 73. 491 N^E zd'iioi Here, Plaintifffailed to plead,,. .. the elements of fraud, let alone piead those eieme. nta with any semblance of particolanty. Thus, Plamthff cannot

_•. senously: expect th^s. Court to .enterhain,., the nohon.,that her_ claim against Defendant ;

Ad•dihonally;:Plaintiff claims tliat sutn{nary judgment is not appropnate at'this time m ltght of the fact that discoveryibmains ongoing. Whether Plainti ff realizes it or not, C^v^^ Rule 56(B) provides that a"party against whom a claim is asserErted ***'may at an e move w►th or without supporhng affidavits for summary ^udgmept in his favor o`all;or any part thereof" Ci"v.. 56(B)r;(emphasis added)' Consequentlj ,;- mtsfPs behef, the mstant case ts eminently ripe for a rt3o4on'for summary j I astly; I?lamtiff insists ou.this Court scli

Motion A court is not requireL to holdan oralbearmg on n mot

ludgt`nent, HuntingtonNationai Bankv Ross (io^ Dist.1998),13o OliioAPp 3d"^7^ 697^.;,` `' 7ao N E,2d iooo; and theldec^sionto do so lies in the dlscrehon of the trtal couit Doe v.' ;.;

Beach House Develo^tnent Co (8. Dist, `zooo), ig6;.Ohio App,3d 573; 583^, 737 N E 2d <^ ;

14iE !tis not entieely clear why Plaintiff beiteves an oral heanng o^t Defendant's 1Vlotton is ;'.,

necessary Plaintiffs ovez'all argument in opposition"to Defendant's Motion suggests that r"'

she,wishe^ to present, at the oral hearing, evidence'to support her allegations agamgt the

Defendant. A court, how^ver, in,: deciding' a motion for summary judgm"ent,` may not;;: '".

cons^der ev►dence adduceil at.oral heanngs ` See Carrabme Constrv'etion Ca. J. Chrysler;; .:? Beatty Cor^ (i986), 250 hio St.3d 222, 495 N E.2d 952. F^Yitheiniore, it has been this'.

>nence that parties tend'to set foith their acguments, either in opposition to or:

m support of such motions, clearly and more concisely in textual"•form, rather. than by :- S , .. ;::. 1 .;...'•.^•., . '.i: . . ".. orahon.:, As a•result, this Court believes that or4 hearuigs on motions for. summary:

^udgmerit are largely useless exeicises. Tlierefore, "this Courk finds an pral hearing on

Defendant's Motion unnecessary.

On the basis of the foregoing, this` Courf seesno reasan to not now proceed with;

summaryl^dgment aud, indeed, enter summary judgment u► Deiendant'•s favor. i Defendant also seeks summary Judgmerit on the issue of whetlier or not Plamhff

quahfies` as a"vexatious htigator"-:pursuant to th e provisions of Section 2g23.52 of

Revised Code Secdon 2p.3 52 provides, in relevant.part.

[a] person *** who has defended against habittial and persistentveiatious

194. conduet m the courtofclaims or m a couit of coriimon pleasi municapal oourt, or oounty court, may comraencea civil a&tion?in a court of cotrtmon pleas .inrrth sihodon over the person .rvho ,. allegedly eqgaged ^n.: the habitual and persistent. vexatious conduet to have that perkon declared a vexattous htigator " „ C: § O3a3 5?(B) Section 2323;52 defines "vexatious COndpct" as any of the followmg;:

"(a) The coriduct obviously serves merely to harass or malxetously u ►jure apother party to the civil actiote - "(b) Tli:e condiuet is nofi warranted under existing law and canndt be snpported by a. good faith argument for an extension, modification, or,• re^tefsal of existing law ° "(c) The conduct;is unposed solely for delay."

§:2323 52(A)(2) Furtherinpre; 8ectiori 232g:52 defines a vexatious.litigator" as

"any person who has, habitually;. persustently, and ^athout reaeonable grounds engaged:m vexatious conduct m a,civsl act^on or actions, whethes m. the couit of claim or in a court of wnunon,pieas, muriic►pai court, or county cQurt; vihether the person or another person instituted the cii+^l actioii or actioas;arid whether the vexatious conduct-;was against the same partyor against dtfferent'parhes in.ihe civilaction or actions."

ILC. 4;2323.52(A)(3)

In support of the:instant 1Glotion asit relates to his counterclaim, Defendant directs

attention to the actions against'which he has had`to defend'not only in this Court and: in

Frankhn County, but in federal court as well. Defendant submits the pertinent pleadings °

from.those cases as well as certified cop'ies of judicial decisions from the issuing couztts'

evidencing disposition of the substantive merits tberein and the cases in generai. Plaintiff

offers no evidence calling into quesbou th:ese pleadings and decisions:

In opposihon, Plainhff claitns the provisions of Secdon 2323.52 do not permit

Defendant to bring a vexatious litigator action as:a counterclaim. Plaintiff believes the

^rovisions of Sechon 2323 $2 require the Defendant to file: a civilaction separate and

apartfrom any litttgation existing between'the alIeged vexatious litigator and the person 11 subjected to.the aIIegedyexatiousconduct; PIaintiff, howeve% is mistaken in her reading 195; D-1?::

.. ^ ^- ^: _ . . . .. _ . ,, ._ . - .. . _ I , _. . of Section2323.5?: To reiterate, Sechon 23z3 52 per:rrts a person to. "co, a crvil'.'

achon ina court of common pleas *** ": R.C. § 2343;52(B). A counterclaim that seeks

affirmative relief; such as the counterclaim DefenBant pursues herem, essent

a pari y may pursue an action seeking to declare aperson a vexatious htigator as a lp. counterclalm,. broiight in.tlie course. of an existing, civil act►on See e.g. B^er v McErlane (^hio A^p. i^ D^st 2001); 2001 WL 159x338, iool - Ohio - qo30 I'herefore, tliis Court

finds that;: for purposes of Section 2323•52 of the Revised Code, Defendant cwmmenced a

civil action in a court 4 common pleaa.

'h^izung to: the merits of Defendant's counterclaim, this Court at the outset :i questions'whether or not itmay consider evidence of litigation;Pl'amtiff pursued in federal

court. There ,is authorityholding such evidence relevant in establishing vexattous ;

sonduct. .See BOPEQr• supra, However; this Court believes the er^press language of Section

2323 52 limits the determination strictly to conduct :occurrmg in state: court: As the

language of Sechon 2323.52 provides, in order.to declare a person a"vexatious litigator," i .. a court must findthat a person 'engaged in vexatiougeonduct ia a civil action or actions,

whether in the court of claims or in a court of common pleas mumcipal court orcountv

cout **" " R.C. § 2323•52(A)(3)(emphasis added); . 5imilacly, in order to bring a

vexatious litig$toraction, a:person had to have "defended against habitual and persastent

vexati0usconductin the court of claiinsorinacoiLrt^of Cominon leas: municip3lcourt.

or county°court ^"* " R:C, § 2323:52(B)(emphasis added) Obviously, no allowance

appears for conduct occurring in thefederal court systein '"Therefore, this Court declines

to consider any condt!ct on.the part;of the Plamtiff occurring in the federalcourts.

Inev1tably,..Defendant's counterclaunturns on whether'or not.Plaintiffs conduct

19'6 D-13 bothhere and in Franklin County qualifies her as a vexat ►ouslitigator. Plaintiffof course; mattated her state court actions.,against Defendant in Franklin County wlthCase No

97^M4-4393 ^mately, Plaintiff voluntarily dismissed that aase,`but not'pntil after . , . ,., bptli tlie trtal and appellate coucts recognized that Plaintiff identified' no witriess, othei .

than' lierself, who couid testify on her behalf. Nonetheless, give. n her. -voluntarily • , .• ,. ' _ : , ;:: dismissal, she was,weli within her rightsto re file an aetion againstDefendant. Aftei

learniug th e lesson. tauglit from her first actton, Plaintiff produced a witness totestify ori

her;behalf m her second action against Defendant in Franklin County: • Unfortunately for

thePlaintiff, the testiniony of her witnessactuallybolstered Defendant's defense more

than itestablished°her case. Not surprisingly, Plaintiffs action ended with thetrial courti

enteruig summary,)udgment in Defendant's favor. In other words, PlaintifPs claim ended

m muc$ the same manner as do hundreds, if not thousands, of cases every yeart

tenzunahon by summar^ judgment .

But the story is hardly atan ertd. For whatever reason, Plaintiff felt the need to

bnng sum action, Case No: oiCV-A o5-243agaiast: Defendant in this County, while she

had an action.pending against Defendant in Franldin County. In Case No. oiCV=A-o5-

243, Plamtff offered no legitimate reasonto this Court explaining why she; brought a

breach of contract aCtion against Defendant here iri Delaware . County while"

sunulân^-ûsl^ pursumg; a negligence action against Defenr3ant in Franldin: County. ^; ^^ .• ;, ' Simply st te^, Pîntiff offered no legal justificathon for such a tactic, despite the wealthof

7udicial: precederit mstruchng her to the eontrary. Instead, upon filing her complaint,

Pla^ntiff "altogether disappeared" from Case No. oiCV A og=a43 and her case suffered ,.r :.. . dismissal by means'of: De'fendant's unopposed mot^oh. for suirimary judgment: I L7ndeter•red by the,disposition of Case No, oiCV-A-o5-243, Plaintiff proceeded to brmg the inatant aetion against L?efendant. As he did in the prior case brought before this .

Court, Defendarit raised the "split-claims" and "^urisdichonal ptiorify" issues. And, once

agaxn, Plaitrtiff failed to present this Court with a Iostification for her pursuwt of the same "'.

caiYse of action in two.different courtg:

Inthe end, Plaintiff offered no credibte argument and cited no case law suggeshng-

she maysplit her present or previous malpractice claim into separate acYions and pursue

those separate.actions ineourts sharing concurrent junsdictioa Plaustiffs conduct in

pilz^suing her claims "before this Courtwas not.warranted under einstirig law and certainly

not,. supported _ .:. by a'good. ,.. faith argument for either a modification or a reversal of existing law. Moreover, Plaintiffs pursuit of her claiin before this Court while simultaneously

pursutitig the same claim before the court that first acquired jurisdiction to consider the

claim served to harass the Iiefendantand cause him considerable expense: Thus, Plaintiff

has habitually, persistently; and' without reasoneble' grourids engaged in vexatious

conduct in civIl actions before this Court against tbe Defendant: Therefdre, based on the rj. foregoing, th^s Courk hereby declares: Plaintiff Linda Cascrataro a vexatious litiga`tor. i As;a final matter,Plaintiffsubmitted a Motion For Oral I-Iearing.On Civi1 Rule 6o

Motion. Atter a review of the docket and the record:iin the: instant case; this Court is

unable.to"find any IViotionfiled pursuant to Civil Rule 6o. However, in her Sixtti Defenae

to Defendant's couttterclaitn;Plaintiff states_that "she would.like;this court to reconsider ,.•;: _ I its decision to.award attorney's fees:under ORC Sectio 2323•Si^ frnolous conduct under :

Ohio Civil Rtde 6o, Relief- from Judgment or Order:" Assuming that defense and . .: I Plamtiffs,instant Motion-soniehow:constitutes a Civil Rule 6o(B) motion, such a motion is procedurally improper. A,partyseeking zelief under.the provisions of Civil Rule 6o(B) should file. a motion in the case withinivhich the final judgment was entered. A paity inay not;file a G'wil Ru1e 6o(B) motion in a subsequent case, even if tbaf subsequent case

ig a re-filing of an earlier case Thu..Court entered final judgment in Case No otCV A o5-

243 That is the case numlier under which Plaintiff must atterript to seek relief from the final ltidgmen't entered therem Coi^sequently, this Courtdeclines to scliedule a hearing oti a procedurally improper motion..

In conclusion, this Court find5 no geuuine issue exists as to the'matercal facts. This :';;

Court further finds thatDefeiidant has estnhlished that he is enlntled sainmary judgment as a matter of law on not only the claun stated m Plaintiff's Complamt but on his .:` , .. countercl$im asAwell. Accotdingly; the Motion Of Defendant'Dr KennethUrlian For.

Summaiy Judgment is hereby SUSTAINED. In light of this Courtdeclaring Plaintiff

Lmda Castrataro a vexatious litigator, Plaintiff is herebp-pmhibited from institutmg, contmwrig„ or makmg ari application in any legal proceeding .in this Court without first lobtauung leave of tttis.CourF pursuairt to the provisions of Section 2323.52(F) of the :;

Revised Gode Furthermore, Plaintiffs Moho'u For Oral'Hearing'On Civil Rule 6o Motion. i's hereby': CSVERRUI.EI). The instant Judguient Entry terminates the instarit case.

Tl.erefore, this Court findsno justreason for delay and the instant Judgment Entry is. hereby,made a finai appealable.order: Coststaxed to Plaintiff. I

W. DUNCAN WHIT1IEY JUDGE

Linda Castrataro, PlaiAtiff, P.O. Box 24104, Mayfield Heights, Ohio 44124 Craig R. CaTlson, Motiuque Iainpke^ and Ryan P.' Sherman, Attorneys for Defendant, 41'Soutli High Streetz9^ Floqi,,Columbus, Ohio 43215 Jan Antonoplos, Clerk of the Delawate; County Court of Common Pleas, gi North Sandusky Sfreet, Delarvare, OH'43oi5

199, , _ appellate rules 108

appellate rules.A bodp of rtiles governing appeals taxes. See ernified estatr-nnd-gift-ta.r credit tinder T..Lx fi'onl lower courts. [Cases: Courts 0-30(4l.] CREDIT. appellaeio (ap-a-lay-shee-oh), u• (Latin] Roatan lau. An applicable exclusion credit. See iun'f+ed estatr-and-gift- appeal from a lower court. Pl. appellationes (ap-a- tar n•edit under Tt\cREDtT. lac-shee-oh-neez). applicando singula singulis (ap-li-kan-doli sing-gca-la appellation of origin. Trademarks. Rept-esentation of a sing-gta-lis). (Lats^ Latin] Hist. Bg applcing each to products geographic origin btuse of a mark - each; to applc each condicion to. • The phrase was such as a svmbol, word, piv'ase, or graphic element used in deed constructions. such as a ntap - uhose use is regulated to ensure applicant. that the product so marked reflects some tve11- 1, One who requests soniething; a petition- knotvn feature peculiar to the region. • This ternt er, such as a person who applies for letcers of administratioa 2..+ccocN'T P.I.Rn. ttsu. applies to a product whose quality or some characteristic feature has been gaz ned by natural application. 1. A request or petition. See copsatctiT.ap. means, such as bv the nature of the local climate or PLtCATIOn;PdTENT,WPLIC.^TSON;TRiDETL4RAAPPL3GATtO\. soil, or by the nature of the wav it is tnade, such as 2. MOTIOA'. by local customs of producdon. For exatnple, the ex parte application. See es porte miotion appellation burgto2dp under nto. can be ttsed only for wines TtoN ul. made from certain types of varietal grapes from particular regions of France. [Cases: Trade Regula- interlocutory application. A ntotion for equitable or tion h- 32.1. C•J.S. Trade-Marku, Trade-Names, and legal relief sought before a final decision. Unfair Covtpetition § 55,) 3. Bankruptcy. A request for an order not requiring appedlator (ap-a-lay-car), u. [Latin] Rontan & civil law. advance notice and an opportunity for a hearing An appellant. before the order is issued. [Cases: Bankruptcy a2156• C.J.S. Ba.nkritplCl' § 26.) appellee (ap-a-lee). A party against tvhont an appeal is taken and whose role is to respond to that appeal, Application Division. Patents. The part of the U.S. usu. seeking affirmance of the lower court's deciston. Patent and Trademark Office that is responsible for See RESrorvoErrr. Cf. APPELUNT. [Cases: Appeal and accepting patent applications, assigning them serial Error a326. C.J.S. Appeol and Error §§ 232-233, numbers, cliecking them for completeness and for- 238.) malities, placing them in file wrappers, and assigning them to appropriate art groups based on dass appello (a-pel-oh), vb. [Latin) Rornatt law. I appeal. • and subclass of technology. This was the form of making an appeal ajru.d acta (in the presence of the judge). application for a reissue patent. See P.4TENT APPLICA- T1ON. appellor (a-pel-or or ap-a-lor). Hist, Engdisb law, A person who formally accuses another of a ctime, application for leave to appeal. A motion requesting challenges a jury, or informs against an accomplice. an appellate court to hear a party's appeal fi-om a judgmenc when the party has no appeal by right or appallum defelonia. See nPPw. or FEl,oNr% wllen the party's time limit for an appeal by right appendant (a-pen-dant), adj. Attached or belonging to has expired. • The reviewing court has discretion property as an additional but subsidiary right. - whetlter to grant or reject such a ntotion. [Cases: appendant, n. Appeal and Error c;=361; Federal Courts a660. C.J.S. Appeal a.nrl Error §§ 300-302, 304.] appendant claim. See dependent claivn under PATENT CLAIM. application number. Patents & tradenmrks. The eight- digit sequential number assigned by the U.S. Patent appendant easement. See easentent appu.rtenant under and Trademark OfBce to a patent or trademark EASEMENT. application. 0 Applications are typically referred to appendant power. See PowEtt tei, by applicadon number, whiclt consists of a two-digic appenditia (ap-en-dish-ee-a), n. [Law Latin) Hist. The series code, a slash, and a six-digit serial number. appendages or appurtenances of an estate. References to patent applicarions also include the filing dace . - Also termed serial neeutber. to the end of a writing . • For the requirements of an A business tltat hosts appendix to a federal appellate brief, see Fed. R. software on its computers and gives subscribers ac- App. P. 30. 2, Englislt taw. A volume chat contains cess as needed. • The subscriber does not need to material documents and other evidence presented in purchase a license to use the software before che a lower courc. • The volume is used bv the House of provider sends it to the subscriber's compucer, usu. Lords or Privy Council when Eunctioning as an over the Internet or a private electronic network. - appellate tribttnal. Pl. appendixes, appendices. Abbr. ASP. ap appensura (ap-en-s[y)oor-a), vl. [fr. Latin appendere "to plied-azt doctrine. Cofirriglit. The rule that a pictori- weigh oui"] Hist. The papment of money br weight al, graphic, or sculptnral work that has an inherent rather than by count. use apart from its appearance, and is also an expres- siee ceork apart from its utility, may qualifty for applicable exclusion amount. Ta.c. The dotlar value of copyright procection. • Examples have included an estate that is exempt from federal estate and gift bookends, lamps, and sundials. In contrast to ap-

i°i A9??PiiE'm?6;g .

SECTION 1. All persons born or naturalized in the United States, and subjectto the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

!: 2006 Mattltets' Beder & Coanpany. Ine., a member of the LevsNexis Group. All rights reserved, Use of this product is subject to the restrictions attd tertns and conditious oftbe Malthem, Bender \laster agnunmt.

G 9^ f>, Ridress iik s.rsssa'is

All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.

[Suits against the state.] Suits may be brought against the state, in such courts and in such maimer, as may be provided by law.

-2006 Mattltew Batder & Companv. Inc.. a ntembzr of the LevisVetis Group. .all righLs rtsmed. Use ofihis product is subject to the rzVlnions s and tmns und conditions oftbe \fanhrv Batder \faster Agreenmcat.

E°,l 'C!Jtla''6 i3x N4A33t•_`k21s.

(A) The state shall be divided by law into compact appellate districts in each of which there shall be a court of appeals consisting of three judges. Laws may be passed increasing the number of judges in any district wherein the volume of business may require such additional judge or judges. In districts having additional judges, three judges shall participate in the hearing and disposition of each case. The court shall hold sessions in each county of the district as the necessity arises. The county conunissioners of each county shall provide a proper and convenient place for the court of appeals to hold court.

(B) (1) The courts of appeals shall have original jurisdiction in the following: (a) Quo warranto;

(b) Mandamus;

(d) Prohibition;

(e) Procedendo;

(f) In any cause on review as may be necessary to its complete determination.

(2) Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district, except that courts of appeals shall not have jurisdiction to review on direct appeal a judgment that imposes a sentence of death. Courts of appeals shall have such appellate jurisdiction as may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies.

(3) A majority of the judges hearing the cause shall be necessary to render a judgnient. Judgments of the courts of appeals are final except as provided in section 2(B) (2) of this article. No judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by the concurrence of aIl three judges hearing the cause.

(4) Whenever the judges of a court of appeals find that a judgment upon whi.ch they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.

2006 Matthr.r Btndzr & Componti. Ine., a membar of the I.svisNeus Group. A1 rights resmed. Use of this product is subject to tlu rzs[rieaions and tanss and conditions ofdte 1[atthr.v Bavder N:tastzr.-lgreanen.

E-4 2303.08

Library References ^,kaowledgment c-16. C.J.S. Courts§ 249. ^ ^^ffidsvits e- 5. C.J.S. Oaths and Affirmations §§ 5 to 6. ;:EjezBs of Courts 0-65. Olur 3d: 1, Acknowledgments, Affidavits, Oaths, -;^path !s-2. and Notaries § 9, 34; 36, Discovery and Deposi- pl!astlaw Topic Nos. 12, 21, 79, 280. tions § 21, 50 L'JiS„Acknowledgments §§ 33 to 36. Am Jur 2d: 15A, Clerks of Court § 41 C:T.S: AfBdavits §§ 14 to 23. Swisher, Ohio Forms and Transactions, F 22.02.

Notes of Decisions verification to a pleading filed in his office, or any other af8davit,or performs any other service authorized by a statute, he must charge therefor the 1 Fees fee provided by law and pay the same into the 'K'•'Vi+tien a clerk of the common pleas court, or his county treasury. 1927 OAG 32. ,dEQuty; admlmsters an oath on an afhdavtt or

03.0$ General duties ;T'he clerk of the court of common pieas shall indorse on each pleading or paper in a+ cause filed in the clerk's office the time of filing, enter all orders, decrees, udgments, and proceedings of the courts of which such individual is the clerk, make a complete record when ordered on the journal to do so, and pay over to the proper ^arties all moneys coming into the clerk's hands as clerk. The clerk may refuse to accept for filing any pleading or paper submitted for filing by a person.who has been und to be a vexatious litigator under section 2323.52 of the Revised Code and who failed to obtain leave to proceed under that section. 'Z996 H 570, eff. 3-18-97; 129 v 1203, eff. 8-4-61; 1953 H 1; GC 2874)

Uncodified Law 96H 570, § 3, eff. 3-18-97, reads: Sections this act, shall apply only to vexatious conduct, as '.1901.31, 1907.20, 2303.08, 2743.09', and 2743.10 of defined in section 2323.52 of the Revised Code, td¢:: Revised Code, as amended by this act, and that occurs on or after the effective date of this act. :ctton2323.52 of the Revised Code, as enacted by

Historical and Statutory Notes Pti-1953 H I Amendments: RS 1245 Amendment Note: 1996 H 570 added the second sentence; and made changes to reflect gender neutral language and other nonsubstantive changes.

Cross References

idminisiration of oaths for motor vehicle titles, Habeas corpus writs, issuance by clerk, failure to 4505:16 issue, recording of, 2725.07, 2725.21, 2725.26 metcement of clerk for not paying over money, 3707.04 Mistake, neglect, or omission of clerk as ground of error, 2701.17 Immon pleas clerk to notify ctections board modthly of convictions disenfranchising the con- viat, 3503.18

Library References ,(7erks of Courts a67. 70. OJur 3d: 22, Courts and Judges § 205. 210 `^^estlaw Topic No. 79. Am Jur 2d: 15A, Clerks of Court § 21 to 26 !C:7:S, Courts §§ 251. 253. 257. 103

E=3 Revised Code § 2323.52 after Senate Bill 168:

(A) As used in this section;

(1) "Conduct" has the same meaning as in section 2323.51 of the Revised Code,

(2) "Vexatious conduct" means conduct of a party in a civil action that satisfies any of the following:

(a) The conduct obviously serves mere to harass or maliciously injure another party to the civil action.

(b) The conduct is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law.

(3) "Vexatious litigator" means any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in a court of claims or in a court of appeals, court of common pleas, municipal court, or county court whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions. "Vexatious litigator" does not include a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the bar of Ohio unless that persoti is represerrting or has repres•erated sedf pro se in the civil actroti or actions. (Emphasis added).

(B) A person, the office of the attorney general, or a prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation who has defended against habitual and persistent vexatious conduct in the court of claims or in a court of appeals, court of conunon pleas, municipal court, or county court may conunence a civil action in a court of common pleas with jurisdiction over the person who allegedly engaged in the habitual and persistent vexatious conduct to have that person declared a vexatious litigator. The person, office of the attomey general, prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation niay commence this civil action while the civil action or actions in which the habitual and persistent vexatious conduct occurred

E-6 are still pending or within one year after the termination of the civil action or actions in which the habitual and persistent vexatious conduct occurred.

(C) A civil action to have a person declared a vexatious litigator shall proceed as any other civil action, and the Ohio Procedure apply to the action.

(D)(1)"If a person alleged to be a vexatious litigator is found to be a vexatious litigator subject to Division (D)(2) of this section, the court of common pleas may enter an order prohibiting the vexatious litigator from doing one or more of the following without first obtaining the leave of the court to proceed. (a) Instituting legal proceedings in the court of claims or in the court of common pleas, municipal court, or county court. (b) Continuing any legal proceedings that the vexatious litigator had instituted in any of the courts specified in division (D)(1)(a) of this section prior to the entry of the order. (c) Making any application, other than an application for leave to proceed under division (F)(1) of this section, in any legal proceedings instituted by the vexatious litigator or another person in any of the courts specified in division (D)(l)(a) of this section. (2) If the court of common pleas finds a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the Bar of Ohio to be a vexatious litigator and enters an order described in division (D)(1) of this section in connection with that finding, the order shall apply to the person only insofar as the person would seek to institute proceedings described in division (D)(1)(a) of this section on a pro se basis, or make an application described in division (D)(1)(b) of this section on a pro se basis, or make an application described in division (D)(1)(c) of this section on a pro se basis. The order shall not apply to the person insofar as the person represents one or more other persons in the person's capacity as a licensed and registered attorney in a civil or criminal action or proceeding or other matter in a court of common pleas, municipal court, or county court or in the court of claims. Division (D)(2) of this section does not affect any remedy that is available to a court or an adversely affected party under section2323.51 or another section of the Revised Code, under Civil Rule 11 or another provision of the Ohio Rules of Civil procedure, or under the common law of this state as a result of frivolous conduct or

`_^ other inappropriate conduct by an attomey who represents one or more clients in connection with a civil or criminal action or proceeding or other matter in a court of common pleas, municipal court, or county court or in the court of claims. (3) A person who is subject to an order entered pursuant to division (D)(l) of this section may not institute legal proceedings in a court of appeals, continue any legal proceedings that the vexatious litigator had instituted in a court of appeals prior to entry of the order, or make any application, other than the application for leave to proceed allowed by division (F)(2) of this section, in any legal proceedings instituted by the vexatious litigator or another person in a court of appeals without first obtaining leave of the court of appeals to proceed pursuant to division (F)(2) of this section.

(E) An order that is entered under division (D)(1) of this section shall remain in force indefinitely unless the order provides for its expiration after a specified period of time.

(F)(1) A court of common pleas that entered an order under division (D)(1) of this section shall not grant a person found to be a vexatious litigator leave for the institution or continuance of, or the making of an application in, legal proceedings in the court of claims or in a court of common pleas, municipal court, or county court unless the court of common pleas that entered that order is satisfied that the proceedings or application are not an abuse of process of the court in question and that there are reasonable grounds for the proceedings or application. If a person who has been found to be a vexatious litigator under this section requests the court of common pleas that entered an order under division (D)(1) of this section to grant the person leave to proceed as described in division (F)(1) of this section, the period of time commencing with the filing with that court of an application for the issuance of an order granting leave to proceed and ending with the issuance of an order of that nature shall not be computed as a part of an applicable period of limitations within which the legal proceedings or application involved generally must be instituted or made.

(2) A person who is subject to an order entered pursuant to division (D)(1) of this section and who seeks to institute or continue any legal proceedings in a court of appeals or to make an application, other than an application for leave to proceed under division (F)(2) of this section, in any legal proceedings in a court of appeals shall file an application for leave to proceed in the court of appeals in wliich the legal

E=8 proceedings would be instituted or are pending. The court of appeals shall not grant a person found to be a vexatious litigator leave to proceed as described in division (F)(2) of this section, the period of time commencing with the filing with the court of an application for the issuance of an order granting leave to proceed and ending with the issuance of an order of the nature shall not be computed as a part of an applicable period of limitations within which the legal proceedings or application involved generally inust be instituted or made.

(G)During the period of time that the order entered under division (D)(I) of this section is in force, no appeal by the person who is the subject of that order shall lie from a decision of the court of common pleas or court of appeals under division (F) of this section that denies that person leave for the institution or continuance of, or the making of an application in, legal proceedings in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court.

(H) The clerk of the court of common pleas that enters an order under division (D)(1) of this section shall send a certified copy of the order to the supreme court for publication in a manner that the supreme court determines is appropriate and that will facilitate the clerk of the court of claims and a clerk of a court of appeals, court of common pleas, municipal court, or county court in refusing to accept pleadings or other papers submitted for filing by persons who have been found to be'a vexatious litigator under this section and who have failed to obtain leave to proceed under this section.

(I) Whenever it appears by suggestion of the parties or otherwise that a person found to be a vexatious litigator under this section has instituted, continued, or made an application in legal proceedings without obtaining leave to proceed from the appropriate court of common pleas or court of appeals to do so under division (F) of this section, the court in which the legal proceedings are pending shall disniiss the proceedings or application of the vexatious litigator.

E-9 APPEALS FROM JUDGMENTS AND ORDERS OF COURT OF RECORD Rule 9

lized. If the appellant intends to urge on appeal that (7) Exhibits such as papers, maps, pbotographs, a finding or conclusion is unsupported by the evidence and similar items that were admitted shall be firinly or is contrary to the weight of the evidence, the attached, either directly or in an envelope to the inside appellant shall include in the record a transcript of all rear cover, except as to exhibits whose size or bulk evidence relevant to the fmdings or conclusion. makes attachment iinpractical; documentary exhibits Unless the entire transcript is to be included, the offered at trial whose admission was denied shall be appellant, with the notice of appeal, shall file with the included in. a separate envelope with a notation that elerk of the trial court and serve on the appellee a theywere not adndtted and also attached to the inside description of the parts of the transcript that the rear cover unless attachment is impractical; appellant intends to include in the record, a statement (8) No volume of a transcript shall exceed two that no transcript is necessary; or a statement that a hundred and fifty pages in length, except it may be statement pursuant to either App.R. 9(C) or 9(D) will enlarged to three hundred pages, if necessary, to be. submitted, and a statement of the assignments of complete a part of the voir dire, opening statements, error the appellant intends to present on the appeal. closing arguments, or jury instructions; when it is If the appellee considers a transcript of other parts of necessary to prepare more than one volume, each the proceedings necessary; the appellee, within ten volume shall contain the number and name of the case days after the service of the statement of the appel- and be sequentiall,y numbered, and the separate voI- lant, shall file and serve on the appellant a designation umes shall be approximately equal in length. of additional parts to be included. The clerk of the tiial court shaR forward a copy of this designation to The reporter shall certify the transcript as correct, the clerk of the court of appeals. whether in written or: videotape form, and state whether it is a complete or partial transcript, and, if If the appellant refuses or fails, within ten days partial, indicate the parts included and the parts after service on the appellant of appellee's desiQna- excluded. tion, to order the additional parts, the appe)Iee, within If the proceedings were recorded in part by video- ffve days thereafter, shall either order the parts in tape and in part by other media, the appeIlant shall writing from the reporter or apply to the court of order the respective parts from the proper reporter. appeals for an order requiring the appellant to do so. The record is complete for the purposes of appeal At the time of ordering, the party ordering the tran- when the last part of the record is filed with the clerk script shall arrange for the payment to the reporter of of the trial court. the cost of the transeript. (C) Statement of the evidence or proceedings when ' A transcript prepared by a reporter under this rule no report was made or when the transcript is shall be in the following form: unavailable (1) 17ie transeript shall include a front and back If no report of the evidence or proceedings at a cover; the front cover shail bear the title and number hearing or trial,was made, or if a transcript is unavail- of the case and the name of the court in which the able, the appellant may prepare a statement of the proceedings occurred; evidence or proceedings from the best available ...(2) The transeript shall be firmly bound on the left means, including the appellant's recollection. The side; statement shall be served on the appellee no later (8) The first page inside the front cover shall set than twenty days prior to the time for transmission of forth the nature of the proceedings, the date or dates the record pursuant to App.R. 10, who may serve of the proceedings, and the judge or judges who objections or propose amendments to the statement presided; within ten days after service. The statement and any objections or proposed amendments shall be forthwith (4) The transcript shall be prepared on white paper submitted to the trisl court for settlement and approv- eight and one-half inches by eleven inches in size with al.. The trial court shall act prior to the time for the lines of each page numbered and the pages se- transmission of the record pursuant to App.R. 10, and, quentially numbered; as settled and approved, the statement shall be includ- (5) An index of witnesses shaIl be included in the ed by the clerk of the trial court in the record on front of the transcript and. shall contain page and line appeal. references to direct, cross, re-direct, and re-cross (D) Agreed statement as the record on appeal examination; In lieu of the record: on appeal as defined in division i(6) An index to exhibits, whether admitted or re- (A) of this rule, the parties, no later than ten days jected, briefly identifying each exhibit, shall be includ- prior to the time for transmission of the record pursued fallowing the index to witnesses reflecting the page ant to App.R. 10, may prepare and sign a statement of and Iine references where the exhibit was identified the case showing how the issues presented by the and offered into evidence, was adnritted or rejected, appeal arose and were decided in the trial court and and if any objection was interposed; setting forth only so many of the facts averred and

E-10 Rule 20 RULES OF APPELLATE PROCEDURE

or judge shall make an order whieh recites the action argument, present in writing such authorities to the taken at the conference and the agreements made by court and to opposing counsel. the parties as to any of the matters considered and (Adopted eff. 7-1-71; amended eff. 7-1-72, 7-1-76) which limits the issues to those not disposed of by admissions or agreements of counsel, and such order when entered controls the subsequent course of the App R 22 Entry of judgment proceeding, unless modified to prevent man9fest injus- (A) Form tice. All judgments shaIl be in the form of a journal entry (Adopted eff. 7-1-71) signed by a judge of the court and filed with the clerk. (B) Notice App R 21 Oral argument When a decision is announced, the clerk shall give (A) Notice of argument.. notice thereof by mail to counsel of record in the case. The court shall advise all parties of the time and (C) Time place at which oral argument will be heard. Unless further time is allowed by the court or a (B) Time allowed for argument judge thereo>y counsel for the party in whose favor an order, decree or judgment is announced shall, within Unless otherwise ordered, each side will beallowed five days, prepare the proper journal entry and sub- thirty minutes for argument. A. party is not obliged mit the entry to counsel for the opposite party. Coun- to use ail of. the time aIlowed, and the court may sel for the opposite party shall within five days after terminate the argument whenever in its judgment receipt of the entry (1) approve or reject the entry further argument is unnecessary. and (2) forward the entry to counsel for the prevailing ;;;! (C) Order and content of argument party for itnmediate submission to the court. The appellant is eintitled to open and conclude the (D) Objections argument. The opening argument shall include a fair All objections to proposed journal entries shali be in statement of the case. Counsel will not be permitted writing, and may be answered in writing. Such entry to readat length from briefs, records or authorities. asthe court may deem proper shall be approved by (D) Cross andseparate.appeals the court, in writing, and f(led with the clerk of the court for journalization. The provisions of this rule Across-appe.al or separate appeal shall be argued shall not be deemed to preclude the court from sua with the initial appeal at a single argainent, unless the sponte preparing and filing with the clerk for journali- court otherwise directs. If separate appellants sup- zation its own entry. No oral arguments will be heard port the satne argument; they: shall share the thirty in the settlement of journal entries. minutes allowed to their side for argument unless (E) Filing pursuant to timely request the court grants additional time. The filing of a journal entry of judgment by the court with the clerk for journalization constitutes en- (E) Nonappearance of parties try of the judgment. If the appellee fails to appear to present argument, (Adopted eff. 7-1-71; amended eff. 7-1-72) the court will hear argument on behalf of the appellant, if present If the appellant fails to appear, the court may hear argument on behalf of the appellee, if App R 23 Damages for delay his counsel is present. If neither party appears, the If a court of appeals shall determine that an appeal case will be decided on the briefs unless the court is frivolous, it may require the appellant to pay rea- ahalLotherwise order. sonable expenses of the appellee including attorney (F) Submission on briefs fees and costs. (Adopted eH.7-1-71) f By agreement of the parties, a case may be submitted for decision on the briefs, but the court may direct that the case.be argued. App R 24 Costs (G) Motions (A) Except as otherwi.se provided by law or as the court may order, the party liable for costs is as Oral argument will not be heard upon motions follows: runless ordered by the court. (1) If an appeal is dismissed, the appellant or as M) Authorities in briefs agreed by the parties. If counsel on oral argument intends to present (2) If the judgment appealed is affirmed, the appel- ;euthorities not cited in his brief, he shall, prior to orai lant.

E_1 3 GENERAL PROVISIONS

(3) If the judgment appealed is reversed, the appel- (1) A defendant in a criminal case n lee. reopening of the anpeat from the judgm (4) If the judgment appealed is affimed or re- tion and sentence, based on a clafm versed in part or is vacated, as ordered by the court. assistance of appellate counsel. An a reopening shall be filed in the court of z (B) As used in this rule, "costs" means an expense the appeal was decided within ninety da incurred in preparation of the record including the nalization of the appellate judgment unl transcript of proceedings, fees allowed by law, and the cant shows good cause for ff)ing at fee for filing the appeal. It does not mean the expense of printing or copying a brief or an appendix. (2) An application for reopening sball (Adopted eff. 7-1-71; amended eff. 7-1-92) the following: (a) The appellate case number in wbi App R 25 Motion to certify a conflict ia sought and the trial court case numbe (A) A motion to certify a confllct undec Artiele IV, from whieh the appeal was taken;. Section 3(B)(4) of the Ohio Constitution shaIl be made (b) A showing of good cause for unti in writing before the judgment or order of the court the application is filed more than ninei )iaa been approved by the court and filed by the court journalization of the appellate judgment. vcith the clerk for jou;nalization or within ten days a$er the announcement of the court's decision, which- (c) One or more assignments of error, ever is the later. The filing of a motion to certify a in support of assignments of error th• uonflict does not extend the time for filing a notice of were not considered on the merits in the appeaL A motion under this rule shall specify the appellate court or that were considered iesue proposed for certification and shall cite the plete record because of appellate coun jwdgment or judgments alleged to be in conflict with representation; the judgment of the court in which the motion is filed. (d) A sworn statement of the basis I (B) Parties opposing the motion must answer in that appellate counsel's representation , writing within ten days after the filing of the motion. with respect to the assignments of error i Copies of the motion, brief and opposing briefs shall raised pursuant to division (B)(2)(c) of t be served as prescribed for the service and 61ing of the manner in which the deficiency pre briefs in the initial action. Oral argument of a motion fected the outcome of the appeal, which to certify a conflict.shall not be permitted except at citations to applicable authorities and 1 the request of the court. the record; (C) The court of appeals shall rule upon a motion to (e) Any parts of the record avaftable certify within sixty days of its filing. cant and all supplemental affidavits upc (Adopted eff.7-1-b4) applicant relies. (3) The appllcant shaR furnish an addit App R 26 Application for reconsideration; the application. to the clerk of.the court of application for reopening shall serve it on the attorney for the pros( attorney for the prosecution, within thirl (A) Application for reconsideration the filing of the application, may file and AppHcation for reconsideration of any cause or mo- vita, parts of the record, and a memorand tion submitted on appeal shall be made in writing opposition to the application. fiefore the judgment or order of the court has been (4) An application for reopening and "spproved by the court and fIled by the court with the memorandum shall not exceed ten pages, clerk for journalization or within ten days after the affidavits and parts of the record. Oral + azmouncement of the court's decision, whichever is the an application for reopening shall not t ;:later. The filing of an application for reconsideration except at the request of the court. s}iall not extend the time for filing a notice of appeal ig the Supreme Court. (5) An application for reopening shall t there is a genuine issue as to whether t --Parties opposing the application shaIl answer in was deprived of the effective assistance c writing within ten days after the fding of the appllca- appeal. tion. Copies of the application, brief, and opposing litdefs shall be served in the manner prescribed for the (6) If the court denies the application, service and filing of briefs in the initial action. Oral in the entry the reasons for denial. ; atgument of an application for reconsideration shall grants the application, it shall do both of t net be permitted except at the request of the court. ( a) appoint counsel to represent the ap; (E) Application for reopening applicant is indigent and not currentty 193

E-12 RULES OF CIVIL PROCEDURE

Title II COMMENCEMENT OF ACTION AND VENUE; SERVICE OF PROCESS; SERVICE AND FILING OF PLEADINGS AND OTIIER PAPERS SUBSEQUENT TO THE ORIGINAL COMPLAINT; TIME

Civ R 3 Commencement of action; venue (A) Commencement A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant, or upon an incorrectly named defendant whose name is later corrected pursuant to Civ. R. 15(C), or upon a defendant identified by a fictitious name whose name is later corrected pursuant to Civ. R. 15(D). (B) Venue: where proper Any action may be venued, commenced, and decided in any court in any county. When applied to county and municipal courts, "county," as used in this rule, shalk be construed, where appropriate, as the territorial limits of those courts. Proper venue lies in any one or more of the following counties: (1) The county in which the defendant resides; (2) The county in which the defendant has his or her principal place of business; (3) A county in which the defendant conducted activity that gave rise to the claim for relief; (4) A county in which a public officer maintains his or her principal office if suit is brought against the officer in the officer's official capacity; (5) A county in which the property, or any part of the property, is situated if the subject of the action is real property or tangible personal property; (6) The county in which all or part of the claim for relief arose; or, if the claim for relief arose upon a river, other watercourse, or a road, that is the boundary of the state, or of two or more counties, in any county bordering on the river, watercourse, or road, and opposite to the place where the claim for relief arose•, (7) In actions described in Civ.R. 43, in the county where plaintiff resides; (8) In an action against an executor, administrator, guardian, or trustee, in the county in which the executor, administrator, guardian, or trustee was appointed; (9) In actions for divorce, annulment, or legal separation, in the county in which the plaintiff is and has been a resident for at least ninety days immediately preceding the filing of the complaint; (10) In actions for a civil protection order, in the county in which the petitioner currently or temporarily resides; (11) If there is no available forum in divisions (B)(1) to (B)(10) of this rule, in the county in which plaintiff resides, has his or her principal place of business, or regularly and systematicalty conducts business activity; (12) If there is no available forum in divisions (B)(1) to (B)(11) of this rule: (a) In a county in which defendant has property or debts owing to the defendant subject to attachment or gamishment; (b) In a county in which defendant has appointed an agent to receive service of process or in which an agent has been appointed by operation of law. (C) Change of venue (1) When an action has been commenced in a county other than stated to be proper in division (B) of this rule, upon timely assertion of the defense of improper venue as provided in 18

E-'i3 RULES OF CIVIL PROCEDURE Title III PLEADINGS AND MOTIONS

R 7 Pleadings and motions (A):Pleadings a reply to a counterclaim denom nated as such; There shall be a complaint and an answer; a third-party complaint, if a !aq;answer to a cross-claim, if the answer contains a cross-claim; ummoned under the provisions of Rule 14; and a ppts in who was not an original party is s ,,third.party answer, if a third-party complaint is serv ed. No other pleading shall be allowed answer or a third-party answer. ;Cacgpt that the court may order a reply to an (gr Motions , order shall be by motion which unless made during a (1) An application to the court for an A motion, whether written or oral, shall state with Ijearing or a trial, shall be made in writing. paeticularity the grounds therefor, and sball set forth the reFef or order sought. The d if the motion is stated in a written notice of the hearing of requirement, of writing is fulfille tfie motion. make provisionor byorder ruleefor th (2) To expedite its business, the court may Gmission and determination of motions without oral hearing upon brief written statements of reasoits in support and opposition. <-; (3) The rules applicable to captions, signing, and other matters of form of pleading apply to a1C;motions and other papers provided for by these rules. (4) All motions shall be signed in accordance with Rule 11. (EJ; Demurrers abolished Demurrers shall not be used. ('pted eff. 7-1-70; amended eff. 7-1-84) Commentary pleading to which no responsive pleading is re- StafLNotes a quired or pertnitted sha11 be taken as denied or Eldieangs and motions avoided:' Rule 7(A) doesa not "require" reply; Pleadings hence the combinadon of Rule 7(A) and Rule 8(D) otions dispenses with the reply, and the affirmative de- : fense of defendant is taken as denied or avoided. Demurrers abolished , In contrast, § 2309.27, R:C. has required a reply if 1970,Pleadings and motions an answer raises an affumative defense. But in . aOhio reply has ordinarily been nothing more than For more than a century § 2309.02, R.C., termi- a perfunetory denial of the affirmative defense, and ?nated the pleadings with the reply, in effect doing Iatvay with rebutters and surrebutters whichshort made af8rmative in practice defense a reply is has pleaded not been as a required conclusion if the of pteading at commonaw.,l so complicated In facts. See. hlcDonald r. ced the seven law without supporting tbe;Ohio procedural code had redu Ohio St. 2d 43 (1967). to three stages. Haught,10 ?figes of common law pleading ordinarv In certain special circumstances Rule 7(A) pro- '=lrule7(A);,y no bt requiring a reply in the files a coun- ffirm ative . vides for a replv., Thus, if defendant "aaee: in which the defendant raises an a (and denominates it as such), then Rule 3'defense, reduces the three stages of pleading found terclaim hat plaintiff must file a"reply' to initsthette procedural code to two sage- com- 7(A) provides t the counterclaim. And in rare instances, most plaint and answer. certainlv not the ordinary case. Rule 7(A) provides Z^^:;^Eleadings that in order to clarifv the status of the pleadings I970: n the court may in its discretion order a reply to an ,':Rule 7(A), which dispenses with the reply eve ,wlted defendant raises an affumative defense. may answer and a third-party aasver. are permit- with Rule 7(A) names the pleadings which !betfullv understood when read in conjunetion lrufe3(D). Rule 3(D) provides that'`Averments in ted under the rules. Rule 7(B), although it does 159

E-14 Rule 11

ibits appended to complaint did not require journal entry causing his detention. he did nor file ion of motion to dismiss into motion for affidavit regarding his history of civil actions and judgment; court did not look at exbibits appeals. and he did not file certified statement by ,tters outside pleading, but rather examined prison cashier setting forth the balance in his pri- ts solely for purposes of determining legal vate account. Griffin v. McFaul (Ohio App. 8 eitcy of claims, which were based on facts and Dist., Cuyahoga, 09-19-2002) No. 81658, flonsdocumented in the exhibits. Realtek 2002-Ohio-4929, 2002 WL 31087665, Unreported. es; Ina. v. Nomura Securities (N.D.Ohio, Dismissal of petition for writ of habeas corpus 6:1996) 939 F.Supp. 572. Federal Civil Proce- was warranted, where petitioner failed to comply ,e,1832; Federal Civfl Procedure eo- 2533.1 with local rute requiring affidavit specifying the Cimissal of petition for writ of habeas corpus details of the claim, he failed to include address of wsiianted, where petitioner did not satisfy the respondent sheriff, and he did not attach a copy of nile requiring supporting affidavit specifying the commitment papers. Perry v. McFaul (Ohio iletaifs of the claim, he failed to include address App. 8 Dist., Cuyahoga, 09-19-2002) No. 41527, espondent sheriff, he did not attach copy of 2002-Ohio-4928, 2002 WL 31087673, Unreported.

11 Signing of pleadings, motions, or other documents riiy pleading, motion, or other document of a party represented by an attorney shall be edsby at least one attomey of record in the attorney's individual name, whose address, ©meyregistration number, telephone number, telefax. number, if any, and business e-mail ss; tf any, shall be stated. A party who is not represented by an attorney shall sign the diiig; motion, or other document and state the party's address. Except when otherwise ically provided by these rules, pleadings need not be verified or accompanied by affidavit. signature of an attorney or pro se party constitutes a certificate by the attomey or party tlte attorney or party has read the document; that to the best of the attomey's or party's Iedge, information, and belief there is good ground to support it; and that it is not osed for delay. If a docttment is not signed or is stgned with intent to defeat the purpose tiliismte, it may be stricken as sham and false and the action may proceed as though the ment had not been served. For a willful violation of this rule, an attorttey or pro se party, 'inotion of a party or upon the court's own motion, may be subjected to appropriate aqhop,;including an award to the opposing party of expenses and reasonable attorney fees arted in bringing any motion under thts rule. Similar action may be taken tf scandalous or cent matter is inserted. upted eff. 7-1-70; amended eff. 7-1-94, 7-1-95, 7-1-01)

Historical and Statutory Notes Ameadment Note: The 7-1-01 ameedment sub- Amendment Nate: The 7-1-94 amendment add- ted"document" for "paper" throughout; and ed references to motions and other papers and istl'tuted "attomey registration number, tele- references to pro se parties; made changes to [vo number, telefax number, if any, and business reflect gender-neutral language; and inserted "and -iuidit^^address, if any" for "and attomey registra- attomey registration number, if any,", "upon mo- ^^^ iriumber, if any" in the first sentence of the tion of a party or upon the court's own motion," and ", including an award to the opposing party of Amendment Note: The 7-1-95 amendment add- expenses and reasonable attomey fees incurred in itie'fihal sentence. bringing any motion under this rute."

Commentary Notes "paper" in the title and in two places in the text, for L. consistency with other Rules of Civil Procedure. As part of this electronic filing and signature tr.11 Signing of Pleadings, Motions, or Other ents project. the following rules were amended effective July 1, 2001: Civil Rules S. 11, and 73; Criminal e` amendments to this mle were part of a Rule 12; Juvenile Rule 8: :atd Appellate Rules 13 tPofamendments that were submitted by the and 18. In addition, Rule 26 of the Rules of naCourts Digital Signatures Task Force to es- Superintendence for Courts of Ohio was amended >;^Sh;minimum standards for the use of informa- and Rule of Superintendence 27 was added to 4`4stems. electronic siettatures, and electronic complement the rules of procedure. Superinten- g•The substantive amendment to this rule was dence Rule 27 establishes a process by which mini- 'addition of the requirement that an attorney's mum standards for information technotow are pro- [axnumber and e-mail address, if any, be on all mulgated, and requires that courts submit any local ents. Also. "document" was substiruted for rule involving the use of information technology to 257

E-1 S sj[IDGMENT Rule 58

£iv R 58 Entryof judgment A) Preparation; entry; effect Subject to the provisions of Rule 54(B), upon a general verdict of a jury, upon a decision `announced, or upon the deternrination of a periodic payment plan, the court shall promptly cause the judgment to be prepared and, the court having signed it, the clerk shali thereupon enter it upon the joumal. A judgment is effective only when entered by the clerk upon the journal. (B) Notice of Piling When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the joutnal, the clerk shall serve the parties in a manner prescribed by Civ. R. 5(B) and note the service in the appearance docket. Upon ser"ving the notice and-notation of the service in the appearance ,docket, the service is complete. The failure of the clerk to serve notice does not affect the 'svalidity of the judgment or the running of the time for appeal except as provided in App. R. 4(A). (C) Costs Entry of the judgment shall not be delayed for the taxing of costs. (Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-89)

Cotnmentary Staff Notes peat time runs from the entry of a judgment or final 1971: order (Rule 54 defines a judgment as including a "decree" "or any order from which an appeal Rule 58 has been amended to provide that "A judgment is effective only when filed with the clerk lies"). for joumalization." It stiould be noted in passiag that selecting a day certain for the effective date of a judgment is In effect. Rule 58, before the amendment, pro- somewhat troublesome. The effective date could vided for the same time for the effective date of a be when the judge signs the judgment. Or when judgment, but in sliahtly different language. Ap- the signed judgment is fited with the clerk. Or parently the language caused some confusion. The when the clerk joumalizes the judgment. Or when amendment simptifies the language governing the the parties are notified of the judgment The least effective date of the judgment. troublesome effective date is the date selected by The effective date of judgment is extremely im- the rule. i.e., "A judgment is effective only when portant for one reason among others because ap- fded with the clerk for journalization." When the 499

E-16 without cost;

(c) That if the defendant is unable to pay the costs of documents necessary to an appeal, the documents will be provided without cost;

(d) That the defendant has a right to have a notice of appeal timely filed on his or her behalf.

Upon defendant's request, the court shall forthwith appoint counsel for appeal.

A judgment of conviction shall set forth the plea, the verdict or findings, and the sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk.

subjM to tbe re:trictiotis ^-1006 MatUtav Bendzr & Coanpam•, Inc., a niember of tbe Le

E-1 7 L-515 -124TH GENERAL ASSEMBLY S168§1

SECITON 2. That existing sections 2505.09 and 2505.16 of the Revised Code are hereby repealed.

. SENATE Bn.L No. 168

Act Effective Date: 6•28-02 Date Passed: 3-5-02 Date Approved by Govemor. 3-28-02 Date Filed: 3-29-02 File Number: 116 Chief Sponsor: Oelslager

Ceneral and Permanent Nature: Per the Director of the Ohio Legislative Service Commis- sion, this Act's section numbering of law of a general and permanent nature is complete and in conformity with the Revised Code.

To amend sections 2323.52, 2501.16, 2503.17, 2969.21, 2969.22, and 2969.25 of the Revised Code to extend the appGcation of the vexatious Htigator law to actions commenced in. a court of appeals and to exclude the Supreme Court from the laws pertaining to collection of fees from inmates filing civil actions against a governmep- tal entity or employee.

Be 'u enacted 6y the Genera7Assem4 of the State o(Ohto: SECTION 1. That sections 232352, 2501.16, 2503.17, 2969.21, 2969.22, and 2969.25 of the Revised Code be amended to read as follows: 2323.52 Vexatious litigatots [Eff., 6•28-02] (A) As used in this section: (1) "Conduct" has the same meaning as in section 2323.51 of the Revised Code., .(2) "Vexatious. conduct: means conduct of a party in a civil action that satisfies any of the following: (a) The conduct obviously serves merely tq harass or maliciously injure another party to the avd action. (b) The conduct is not warranted under existing law and cannot be supported by a good faith argument for an extensidn, modification, or reversal of existing law. (c) The conduct is imposed solely for delay. (3) "Vexatious litigator" means any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in the court of claims or in a court of a e^als court of common pleas, municipal court, or county court, whether the person or another person instituted the civd action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions. "Vexatious litigator" does not include a person who is authorized td practice law in the courts of this state itnder the Ohio Su preme Court.Rules for the Govemment of the Bar of Ohio unless that person is representing or has represented self pro se in the civil action or actions. (B) A person, the office of the attomey general, or a prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation who has defended against habitual and persistent vexatious conduct in the court of claims or in a court of agoeals, court of common pleas, municipal court, or county court may commence a civil action in a court of common pleas with jurisdiction over the person who allegedly engaged in the habitual and persistent vexatious conduct to have that person declared a vexatious litigator. The person, office of the attorney general, prosecuting attomey, city director of law, village solicitor, or sunilar chief legal officer of a municipal corporation may commence this civil action while the civil action or

C=1^ i L-516 S 168 § 1 2002 SESSION LAWS-FULL TEXT

actions in which the habitual and persistent vexatious conduct occurred are still pending or within one year after the tennination of the civil action or actions in which the habimal and persistent vexatious conduct occurred. (C) A civil action to have a person declared a vexatious litigator shall proceed as any other civil action, and the Ohio Rules of Civil Procedure apply to the action. (D)(1) If the person alleged to be a vexatious litigator is found to be a vexatious litigator, subject to division (D)(2) of this section, the court of common pleas may enter an order prohtbiting the vexatious litigator from doihg one or more of the following without first obtaining the leave of that court to proceed: (a) Instituting legal proceedings in the court of claims or in a court of common pleas, municipal court, or county court; (b) Continuing any legal proceedings that the vexatious litigator had instituted in anv of the courts snectfied in division (D)(1)(a) of this section prior to the entry of the order; (c) Making any application, other than an application for leave to proceed under division (F)u of this section, in any legal proceedings instituted by the vexatious litigator or another person in anv of the ee%A of elaimser•• eeet^t courts snecifi'ed in division (D)(1)(a) of this section. (2) If ahe court of common pleas finds a person who is authorized to practice law in the courts of this state undei the Ohio Supreme Court Rules for the Government of the Bar of Ohio to be a vexatious litigator and enters an order descn'bed in division (D)(1) of this section in connection with that finding, the order shall apply to the person only insofar as the person would seek'to institute proceedings described in division (D)(1)(a) of this section on a pro se basis, continue proceedings desen'bed in division (D)(1)(b) of this section on a pro se basis, or make an application described in division (D)(1)(c) of this section on a pro se basis. The order shall not apply to the. person insofar as the person represents one or more othet persons in the person's capacity as a licensed and registered attomey in a civil br criminal action or proceeding or other matter in a court of common pleas, municipal court, or county court or in the court of claims. Division (D (2) of this section does not affect any remedy that is available to a court or an adversely affected party under section 232331 or another section of the Revised Code, under Civil Rule 11 or another provision of the Ohio Rules of Civil Procedure, or under the common law of this state as a result of frivolous conduct or other inappropriate conduct by an attorney who represents one or more clients in connection with a civil or criminal action or proceeding or other matter in•a court of common pleas, municipal court, or county court or in the court of claims. (3) A nerson who is subject to an order entered pursuant to division (D)(1) of this section mav not institute leeal proceedings in a court of appeals, continue any legal proceedings that the vexatious litieator had instituted in a court of appeals prior to entry of the order, or make any aoolicatibn. other than the application for leave to oroceed allowed bv divisi'on (F)(2) of this section, in anv le¢al nroceedines instiruted bv the vexatious litieator or another nerson iti a court of atroeals without first obtainine leave of the court of apaeals to oroceed nursuant to division • (F)(2) of this section. . (E) An order that is entered under division (D)(1) of this section shall remain in force indefinitely unless the order provides for its expiration after a specified period of time. (F),(1) A cotutof common pleas that entered an order under division,(D)(1) of this section shall not grant a person found to be a vexatious litigator leave for the institution or continuance of, or the making of an application in, legal proceedings in the court of claims or in a court of common pleas, municipal court, or county court •unless the court of common pleas that entered that order is satisfied.that the proceedings or application are not an abuse of process of the cotirt in question and that there are reasonable grounds for the proceedings or application. If a person who has been found xo be a vexatious litigator under this section requests the court of common pleas that entered an order under division (D)(1) of this section to grant the person leave to proceed as described in this division (F)(1) of this section. the period of time commencing with the filing with that court of an application for the issuance of an order granting leave to proceed and ending with the issuance of an order of that nature shall not be computed as a part of an applicable period of limitations within which the legal proceedings or application involved generally must be instituted or made. (2) A nerson who is subject to an order entered nursuant to division (D)(1) of this section and who seeks to institute or continue any leeal nroceedines in a court of apoeals or to make an apnlication, other than an annlication for leave to proceed under division (F)t2) of this sectio^

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in any legal proceedines in a court of appeals shall file an application for leave to proceed in the _ court of appeals in wnthich a the leeal uroceedinss would be instituted or are nendin¢. The court of appeals shall not eta person found to be a vexatious liti¢ator leave for the institution or continuance of, or the makine of an application in, leeal proceedings in the court of anpeals unless the court of appeals is satisfied that the proceedines or application ai•e not an abuse of process of the court and that there are reasonable grounds for the proceedings or applicatioti. If a person who has been found to be a vexatious litieator under this section reauests the court of W s to grant the person leave to proceed as described in division (F)(2) of this section, the of time commencine with the filin¢ with the court of an application for the issuance of an order P-rantin¢ leave to proceed and ending with the issuance of an order of that nature shall not be computed as a nart of an applicable period of limitations within which the legal proceedines or application nvolved aenerally must be instituted or made. (G) During the period of time that the order entered under division (D)(1) of this section is in force, no appeal by the person who is the subject of that order shall lie from a decision of the court of common pleas or court of apoeals under division (F) of this section that.denies that person leave for the institution or continuance of, or' the making of an appGcation in, legal proceedings in the court of claims or in a court of aooeals, court of common pleas, municipal court, or county court: (H) The clerk of the court of common pleas that eaters an order under division (D)(1) of this section sha0 send a certified copy.of the order to the supreme court for publication in a manner that the supreme court determines is appropriate and that will facilitate the clerk of the court of claims and a clerk of a court of appeals, court of common pleas, municipal court, or county court in refusing to accept pleadings or other papers submitted for filing by persons who have been found to be a vexatious litigator under this section and who have failed to obtain leave to proceed under this section. (I).Whenever it appears by suggestion of the parties or otherwise that a person found to be a vexatious litigator under this section has instituted, continued, or made an application in legal proceadings without obtaining leave to proceed from the appropriate court of common pleas oi court of appeals to do so under division (F) of this. section, the court in which the legal proceedings are pending shall dismiss the proceedings or application of the vexatious.litigator.

2501.16 ,Off'icers and employees to be appointed; special projects [Eff. 6-28-02]

(A) Each court,of appeals may appoint one or more official shorthand reporters, law clerks, secretaries, and any other empieyees that the court considers necessary for its efficient operation. The clerk of the court of common pleas, acting as the clerk of the court of appeals for'the county, shallperform the•duties otherwise performed and cotlect the fees otherwise collected by the clerk of the court of common pleas, as set forth in section 2303.03 of the Revised Code, and shall maintain the files and records of the court. The clerk of the court of common pleas, actinQ as the clerk of the court of appeals for the couuty, may refuse to accept for filing any nleadine or paper submitted for filina by a person who has been found to be a vexatious litigator under section 2323.52 of the Revised Code and who has failed to obtain leave from the court of appeals toroceed under that section. The overheadexpenses pertaining to the office of the clerk of the court of common pleas that result from the clerk's acting as clerk of the court of appeals for the county, other than wages and salaries, shall be paid from the funds provided under sectious 2501.18 and 2501.181 of the Revised Code. Each officer and employee appointed pursuant to this section shall take an oath of office, serve at the pleasure of the court, and perform any duties that the court d'uects. Each shorthand reporter shall have the powers that are vested in official shorthand reporters of the court of common pleas under sections 2301.18 to 2301.26 of the Revised Code. Whenever an opinion, per curiam, or report of a case has been prepared in accordance with section 2503.20 of the Revised Code, the official shorthand reporter immediately shall forward one copy of the opinion, per curiam, or report to the reporter of the supreme court, without expense to the reporter. (B) The court of appeals may detertnine that, for the efficient operation of the court, additional funds are necessary to acquire and pay for special projects of the court, including, but not limited to, the acquisition of additional facdities or the rehabilimtion of existing facilities, the acquisition of equipment, the hiring and training of staff, the employment of magistrates, the training and education of judges, acting judges, and magistrates, community service programs, and other related services. Upon that determination, the court by rule may charge a fee, in

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