State ex rel. Sapp v. Court of Appeals, 2008-0573.
| Court | United States State Supreme Court of Ohio |
| Writing for the Court | Per Curiam |
| 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. |
| Docket Number | No. 2008-0573.,2008-0573. |
| Decision Date | 23 May 2008 |
v.
FRANKLIN COUNTY COURT OF APPEALS et al.
[889 N.E.2d 501]
Jeffrey M. Lewis Co., L.P.A., and Jeffrey M. Lewis, for relators.
Ron O'Brien, Franklin County Prosecuting Attorney, and Patrick J. Piccininni, Assistant Prosecuting Attorney, for respondent Franklin County Court of Appeals.
Larry Berman, pro se.
PER CURIAM.
{¶ 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} "Although filed after his notice of appeal, Berman did file a request for leave to proceed with this appeal pursuant to R.C. 2323.52(F)(2). Because Berman is seeking to appeal, among other things, his initial declaration as a vexatious litigator, we are satisfied that this proceeding is not an abuse of process and that reasonable grounds exist for this appeal. Accordingly, we deny Sapp's motion to dismiss and grant Berman's request for leave to proceed pursuant to R.C. 2323.52(F)(2). The appeal shall proceed in accordance with local and appellate rules."
{¶ 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...
To continue reading
Request your trial
-
State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Sch., No. 2019-1433
...neither additions nor deletions from words chosen by the General Assembly"); State ex rel. Sapp v. Franklin Cty. Court of Appeals , 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 26 (declining to recognize an exception that the statutory language does not recognize).{¶ 25} Moreover, ......
-
Johnson v. Sloan, s. 2016–1284
...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. And "[i]f an inferior tribunal patently and unambiguously lacks jurisdiction, prohibition will li......
-
State ex rel. Shumaker v. Nichols, No. 2012–1905.
...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......
-
State ex rel. Ogle v. Hocking Cnty. Common Pleas Court, 2021-0234
...the third prong—the lack of an adequate remedy in the ordinary course of law. 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 review de novo a decision granting a motion to dismiss under Civ.R. 12(B)(6). Alford v. Collins-M......
-
State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Sch., No. 2019-1433
...neither additions nor deletions from words chosen by the General Assembly"); State ex rel. Sapp v. Franklin Cty. Court of Appeals , 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 26 (declining to recognize an exception that the statutory language does not recognize).{¶ 25} Moreover, ......
-
Johnson v. Sloan, Nos. 2016–1284
...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. And "[i]f an inferior tribunal patently and unambiguously lacks jurisdiction, prohibition will li......
-
State ex rel. Shumaker v. Nichols, No. 2012–1905.
...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......
-
State ex rel. Ogle v. Hocking Cnty. Common Pleas Court, 2021-0234
...the third prong—the lack of an adequate remedy in the ordinary course of law. 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 review de novo a decision granting a motion to dismiss under Civ.R. 12(B)(6). Alford v. Collins-M......