State ex rel. Sapp v. Court of Appeals
| Decision Date | 23 May 2008 |
| Docket Number | No. 2008-0573.,2008-0573. |
| Citation | 889 N.E.2d 500,118 Ohio St.3d 368,2008 Ohio 2637 |
| Parties | STATE ex rel. SAPP at al. v. FRANKLIN COUNTY COURT OF APPEALS et al. |
| Court | Ohio Supreme Court |
Larry Berman, pro se.
{¶ 1} This is an original action for a writ of prohibition to prevent a court of appeals from proceeding in an appeal and a writ of mandamus to compel the court of appeals to dismiss the appeal. Because the court of appeals patently and unambiguously lacks jurisdiction to proceed in the appeal pursuant to R.C. 2323.52(F)(2) and (I), we grant the requested extraordinary relief.
{¶ 2} Relators, F. William Sapp and Paul Liu, are two of several defendants in Berman v. Liu, Franklin C.P. case No. 06CVH12-16617, a case filed by respondent Larry Berman in the Franklin County Court of Common Pleas. On November 27, 2007, the common pleas court entered a final order granting summary judgment in favor of Sapp, Liu, and another defendant and declaring Berman to be a vexatious litigator.
{¶ 3} In its judgment entry, the common pleas court prohibited Berman from:
{¶ 4} "(a) instituting legal proceedings in the court of claims or in a court of common pleas, municipal court, county court, or court of appeals; and
{¶ 5} "* * *
{¶ 6} "(c) making any application, other than an application for leave to proceed under Revised Code 2323.52(F), in any legal proceedings instituted by Plaintiff or another person in the court of claims or in a court of common pleas, municipal court, county court, or court of appeals."
{¶ 7} On November 30, 2007, without first seeking permission from the court of appeals to institute an appeal, Berman filed a notice of appeal from the common pleas court's judgment. Sapp filed a motion to dismiss the appeal, and Berman then filed a motion for leave to proceed on January 18, 2008, more than 30 days after the November 27 judgment he sought to appeal. Four days later, Berman filed another motion for leave to proceed. Liu subsequently filed a motion to dismiss the appeal.
{¶ 8} The court of appeals denied the motions to dismiss. The court of appeals reasoned as follows:
{¶ 9} "Sapp seeks to prohibit Berman from appealing the determination that he is a vexatious litigator by pointing to the fact that he has been declared a vexatious litigator, the very issue Berman is attempting to appeal. His reliance on Farley v. Farley, Franklin App. No. 99AP-1103, 2005-Ohio-3994, 2005 WL 1840204, to support this position is misplaced. In that case, the appellant had previously been declared a vexatious litigator. He subsequently attempted to file a contempt motion in this court without first obtaining leave to proceed. We dismissed the motion due to the appellant's failure to obtain leave to proceed before filing the motion. Farley did not involve an appeal from a trial court's initial determination of an individual as a vexatious litigator, as Berman attempts to do in this appeal.
{¶ 10}
{¶ 11} On March 21, 2008, Sapp and Liu filed this action for a writ of prohibition to prevent the court of appeals from exercising further jurisdiction over Berman's appeal and a writ of mandamus to compel the court of appeals to dismiss the appeal. Sapp and Liu also named Berman as a respondent. The court of appeals filed an answer, and Berman made a special appearance to challenge jurisdiction. Relators then filed a motion for judgment on the pleadings, and the court of appeals filed a memorandum in opposition.
{¶ 12} This cause is now before the court for our S.Ct.Prac.R. X(5) determination.
{¶ 13} We must now determine whether dismissal, an alternative writ, or a peremptory writ is appropriate. Dismissal, which respondents request, is required if it appears beyond doubt, after presuming the truth of all material factual allegations of relators' complaint and making all reasonable inferences in their favor, that they are not entitled to the requested extraordinary relief in prohibition and mandamus. State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 8.
{¶ 14} If, however, the pertinent facts are uncontroverted and it appears beyond doubt that relators are entitled to the requested extraordinary writs, peremptory writs will be granted. State ex rel. Morenz v. Kerr, 104 Ohio St.3d 148, 2004-Ohio-6208, 818 N.E.2d 1162, ¶ 13. This is what relators request in their motion for judgment on the pleadings.
{¶ 15} "If a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition and mandamus will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions." State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12; State ex rel. Powell v. Markus, 115 Ohio St.3d 219, 2007-Ohio-4793, 874 N.E.2d 775, ¶ 7. Where jurisdiction is patently and unambiguously lacking, relators need not establish the lack of an adequate remedy at law because the availability of alternate remedies like appeal would be immaterial. State ex rel. Columbus S. Power Co. v. Fais, 117 Ohio St.3d 340, 2008-Ohio-849, 884 N.E.2d 1, ¶ 16.
{¶ 16} The court of appeals is exercising jurisdiction over Berman's appeal. The dispositive issue is whether it patently and unambiguously lacks jurisdiction to do so under the vexatious-litigator provisions of R.C. 2323.52.
{¶ 17} "Vexatious conduct" is the conduct of a party in a civil action that "obviously serves merely to harass or maliciously injure another party to the civil action," "is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law," or "is imposed solely for delay." R.C. 2323.52(A)(2)(a) through (c). A "vexatious litigator" is "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 vexatious conduct was against the same party or against different parties in the civil action or actions." R.C. 2323.52(A)(3).
{¶ 18} The common pleas court found Berman to be a vexatious litigator and entered an order pursuant to R.C. 2323.52(D)(1) prohibiting him from instituting or continuing legal proceedings in certain courts without first obtaining leave of court to proceed. As a vexatious litigator subject to an R.C. 2323.52(D)(1) order, Berman could "not institute legal proceedings in a court of appeals, continue any legal proceedings that [he] 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)." R.C. 2323.52(D)(3).
{¶ 19} Under R.C. 2323.52(F)(2), a person subject to an R.C. 2323.52(D)(1) vexatious-litigator order "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."
{¶ 20} Moreover, "[w]henever 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 of the vexatious litigator." R.C. 2323.52(I).
{¶ 21} Relators assert that the provisions of R.C. 2323.52 patently and unambiguously divest the court of appeals of jurisdiction over Berman's appeal. In construing these statutory provisions, we must read the words and phrases in context and construe them in accordance with rules of grammar and common usage. State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 35.
{¶ 22} After so construing R.C. 2323.52, it is obvious that relators are correct for the following reasons.
{¶ 23} First, Berman, who had been declared a vexatious litigator and was subject to an R.C. 2323.52(D)(1) order, instituted his appeal without first obtaining leave of the court of appeals to so proceed. R.C. 2323.52(D)(3) and (F)(2).
{¶ 24} Second, when relators alerted the court of appeals to Berman's failure to comply with these provisions, the...
To continue reading
Request your trial
-
State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Sch.
......No. 2019-1433 Supreme Court of Ohio. Submitted June 3, 2020 Decided November 5, 2020 Faruki, P.L.L., ...The Second District Court of Appeals found that R.C. 3319.321(B), a provision of the Ohio Student Privacy Act ...Sapp v. Franklin Cty. Court of Appeals , 118 Ohio St.3d 368, 2008-Ohio-2637, ......
-
Johnson v. Sloan
......SLOAN, Appellee. The State ex rel. Johnson, Appellant, v. Cuyahoga County ...Nos. 2016–1284 2017–0272 Supreme Court of Ohio. Submitted November 21, 2017 Decided June ...154 Ohio St.3d 476 {¶ 1} These two appeals, which we consolidate for decision, arise out of ...Sapp v. Franklin Cty. Court of Appeals , 118 Ohio ......
-
State ex rel. Ogle v. Hocking Cnty. Common Pleas Court
......Stark, for appellees. Per Curiam. 167 Ohio St.3d 182 {¶ 1} Appellant, Melanie A. Ogle, appeals the judgment of the Fourth District Court of Appeals dismissing her complaint for writs of mandamus ... State ex rel. Sapp v. Franklin Cty. Court of Appeals , 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15. We ......
-
State ex rel. Shumaker v. Nichols
...because the availability of alternate remedies like appeal would be immaterial.” State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15. {¶ 10} However, “[i]n the absence of a patent and unambiguous lack of jurisdiction, a court having......