State ex rel. Richard v. Cuyahoga Cty. Bd. of Commrs.

• Decision Date: 28 February 1995
• Docket Number: No. 66528,66528
• Citation: 100 Ohio App.3d 592,654 N.E.2d 443
• Parties: The STATE ex rel. RICHARD v. CUYAHOGA COUNTY COMMISSIONERS et al.
• Court: Ohio Court of Appeals

Page 592

100 Ohio App.3d 592

654 N.E.2d 443

The STATE ex rel. RICHARD v. CUYAHOGA COUNTY [Board of] COMMISSIONERS et al.

No. 66528.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Decided Feb. 28, 1995.

Donald L. Richard, Sr., Grafton, pro se.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., Bryan L. Adamson, Asst. Pros. Atty., Cleveland, for respondents.

PORTER, Judge.

Respondents Cuyahoga County Commissioners moved for attorney fees, costs and sanctions pursuant to R.C. 2323.51 against relator pro se, Donald L. Richard, Sr., for filing a frivolous mandamus action. We deny their motion for the reasons hereinafter disclosed. However, we recognize that the relator has consistently abused the process of this court by filing sixty-three original actions over a three- period. Accordingly, we exercise the inherent authority of this court to deny relator in forma pauperis status with respect to the future filing of original actions in this court. The Clerk of Court is instructed not to accept for filing any pro se original actions from Donald L. Richard, Sr., # A197-168, Lorain Correctional Institute, 2075 S. Avon Belden Road, Grafton, Ohio 44044, unless accompanied by the $100 cost deposit required by Loc.App.R. 8(A).

Relator is serving a fifteen-year-to-life term resulting from his conviction of murder in C.P. case No. CR-215283. This court affirmed that conviction in State v. Richard (Oct. 31, 1988), Cuyahoga App. No. 54228, unreported, 1988 WL 112872. At the same time, relator is serving twelve to fifteen years for felonious assault with a gun resulting from his conviction in C.P. case No. CR-214217, which this court affirmed in State v. Richard (June 27, 1988), Cuyahoga App. No. 54040, unreported, 1988 WL 86734.

The state claims that since relator's conviction he has initiated over two hundred fifty actions or appeals in various Ohio courts, naming nearly fifty individuals or entities as defendants/respondents, and many on more than one occasion. Each time relator institutes an action, the state is obliged to respond. Relator does not dispute the extent of his litigiousness, but argues that his multiple filings were not frivolous or malicious.

In his most recent activity, relator filed a mandamus action against Acme Detective Agency, Inc., the Cuyahoga County Commissioners, and his court-appointed attorneys, Stephen McGowan and Thomas Moroney. The commissioners moved to dismiss the petition as to them for failure to state a claim. Within the same motion, the commissioners requested attorney fees as sanctions against relator for filing a frivolous civil action under R.C. 2323.51, and requested an order enjoining the acceptance of further filings by relator unless first reviewed by a licensed attorney or approved by a judge. On January 13, 1994, this court granted in part the motion to dismiss. We dismissed relator's petition as to the commissioners, but reserved ruling on the commissioners' request for sanctions pending further briefing.

On February 24, 1994, relator filed a "Motion to Dismiss Without Prejudice Pursuant to Civ.R. 41(A)," which this court construed as a voluntary notice of dismissal.

On March 1, 1994, pursuant to the briefing schedule issued January 13, the commissioners filed a motion for costs, attorney fees, and sanctions with supporting documentation. The commissioners sought fees and costs pursuant to R.C. 2323.51 and requested this court to "enjoin any further pro se filings by Relator in forma pauperis in the Cuyahoga County Court of Common Pleas and Court of Appeals, unless:

"1. The filing contains the signature of an officer of the court, which signature is in compliance with Civil Rule 11, or;

"2. The filing is first submitted to a judge of the Court of Common Pleas or Court of Appeals, who determines that the filing is not duplicative of the same or similar issues previously raised."

The remaining respondents filed a Civ.R. 12(B)(6) motion to dismiss on April 22, 1994.

On June 6, 1994, this court denied as moot the commissioners' motion for sanctions and the other respondents' motion to dismiss because it was divested of jurisdiction on February 24, 1994, when relator voluntarily dismissed this case. The commissioners moved for reconsideration and, upon review, we granted the motion for reconsideration and reinstated the motion for costs, attorney fees and sanctions filed by the commissioners. We also ordered supplemental briefing on the issue of whether R.C. 2323.51 is applicable to mandamus actions, which are governed by a different set of statutes in R.C. Chapter 2731. The commissioners and relator filed supplemental briefs as ordered, but relator continued to press the issue of whether this court has jurisdiction in light of his voluntary dismissal in February 1994.

Unlike other issues in a case, the issue of whether a court has jurisdiction over a subject matter is never waived and may be raised at any time during litigation. Civ.R. 12(H)(3); Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 2 O.O.3d 408, 358 N.E.2d 536, overruled on other grounds, Manning v. Ohio State Library Bd. (1991), 62 Ohio St.3d 24, 577 N.E.2d 650; State ex rel. Lawrence Dev. Co. v. Weir (1983), 11 Ohio App.3d 96, 11 OBR 148, 463 N.E.2d 398. Relator's challenge to our jurisdiction has prompted us to reexamine this issue.

The Ohio Rules of Civil Procedure, as supplemented by our local rules, are applicable to mandamus actions. Loc.App.R. 1(B) and 8(B)(1); see State ex rel. Millington v. Weir (1978), 60 Ohio App.2d 348, 14 O.O.3d 310, 397 N.E.2d 770; see, also, State ex rel. Russell v. Shaker Hts. Mun. Court (1993), 87 Ohio App.3d 511, 515, 622 N.E.2d 697, 700 (prohibition is a civil action subject to Rules of Civil Procedure). Civ.R. 41(A)(1), which governs the voluntary dismissal of an action by the plaintiff, provides in relevant part that "an action may be dismissed by the plaintiff without order of court * * * by filing a notice of dismissal at any time before the commencement of trial * * *. Unless otherwise stated in the notice * * *, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim."

The right of a plaintiff to dismiss once, regardless of motive, is absolute, even though that right may be subject to abuse. Sturm v. Sturm (1992), 63 Ohio St.3d 671, 675, 590 N.E.2d 1214, 1217; Goldstein v. Goldstein (1988), 50 Ohio App.3d 4, 5-6, 552 N.E.2d 228, 230. The Supreme Court of Ohio has advised that "[a]n obvious purpose for the rule is to encourage the plaintiff to bring a rapid and complete conclusion to an action, which, for whatever the reason, cannot or should not be tried. The rule does not require the trial court to investigate the plaintiff's motivation for dismissing the action." Sturm, 63 Ohio St.3d at 674, 590 N.E.2d at 1217.

A voluntary dismissal is effective upon filing, and no further entry by the court is necessary to trigger the end of the litigation. Civ.R. 41(A)(1); Goldstein, 50 Ohio App.3d at 7, 552 N.E.2d at 231; Clay Hyder Trucking Lines, Inc. v. Riley (1984), 16 Ohio App.3d 224, 16 OBR 240, 475 N.E.2d 183; Frysinger v. Leech (1983), 10 Ohio App.3d 150, 10 OBR 202, 460 N.E.2d 1161. The filing of a voluntary dismissal immediately divests the trial court of jurisdiction to go forward in the matter. Sturm, 63 Ohio St.3d at 676, 590 N.E.2d at 1217-1218; State ex rel. Hunt v. Thompson (1992), 63 Ohio St.3d 182, 586 N.E.2d 107; Goldstein, 50 Ohio App.3d at 5-7, 552 N.E.2d at 229-232.

Respondents argued earlier in their motion for reconsideration that relator's voluntary dismissal would not divest this court of jurisdiction to hear an R.C. 2323.51 motion for sanctions filed prior to the dismissal. It is true that a sanctions proceeding for filing a frivolous lawsuit may survive independently of a first voluntary dismissal, at least pursuant to Civ.R. 11. See, e.g., Cooter & Gell v. Hartmarx Corp. (1990), 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359. Even under R.C. 2323.51 there is authority which holds that a voluntary dismissal does not deprive the court of jurisdiction to award the statutory sanctions. See Schwartz v. Gen. Acc. Ins. of Am. (1993), 91 Ohio App.3d 603, 632 N.E.2d 1379; Grossman v. Mathless & Mathless, C.P.A. (1993), 85 Ohio App.3d 525, 620 N.E.2d 160. Two unreported decisions from this court have reached the same conclusion: Keeler v. Sohio Procare (Nov. 23, 1992), Cuyahoga App. No. 61346, unreported, 1992 WL 333152; Gammons v. O'Neill (Aug. 29, 1994), Cuyahoga App. No. 66232, unreported, 1994 WL 449379. In Keeler, however, which Gammons references in addition to Grossman, the court relied partially on the inherent authority of this court to impose sanctions, citing Slabinski v. Servisteel Holding Co. (1986), 33 Ohio App.3d 345, 515 N.E.2d 1021. For the reasons stated below, we find the use of our inherent authority preferred under the circumstances herein and we rely upon it now to withdraw in forma pauperis status from relator.

Frivolous conduct has no place in our judicial system, and relator's history of activity portrays a repetitious and perverse course of such conduct. An award of attorney fees and costs against relator, an incarcerated individual, whether pursuant to R.C. 2323.51 or Civ.R. 11, may be an exercise in futility and may not in fact, deter his long-standing pattern of aggressive filings. Moreover, the use of R.C. 2323.51 or Civ.R. 11 would necessitate an additional fact-finding hearing, further diverting the limited resources of the court, the state and the county for each instance of alleged abuse.

Nevertheless, the inherent authority of this court exists to provide some meaningful relief against an onslaught of frivolous filings. The Supreme Court of Ohio, in explaining the difference between the jurisdiction of a court and the inherent ...