IN THE SUPREME COURT OF OHIO. vs. Direct Appeal from Washington County Court of Appeals, Fourth Appellate District WASHINGTON COUNTY COMMON

Transcription

1 {^ IR " IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. Dorothy Verhovec, Relator/Appellant CASE NO vs. Direct Appeal from Washington County Court of Appeals, Fourth Appellate District WASHINGTON COUNTY COMMON Case No. 12-CA-44 PLEAS COURT - GENERAL DIVISION, etal. Respondents/Appellees. APPELLANT'S BRIEF WILLIAM E. WALKER, JR. ( ) ALISON L. CAUTHORN ( ) Counsel of Record Assistant Prosecutor P.O. Box 192 Washington County Prosecutor's Office Massillon, OH Putnam Street Marietta, Ohio [Fax] Counsel for RelatoN/Appellant Counsel for Respondents/Appellees L L ^t'ay^ 2 ^`?01^ f,;^-t^^ ^^ COURT ^ouff I GF flhoo i

2 TABLE OF CONTENTS 1. OVERVIEW :: A. SUMMARY OF THE ARGUMENT... ' """"""' 1 II. PROPOSITION OF LAW : :... 1 III. STATEMENT OF THE ISSUE PRESENTED FOR REVIEW IV. STATEMENT OF THE CASE V. STATEMENT OF FACTS VI. ARGUMENT VII. CONCLUSION INDEX TO APPENDIX DESCRIPTION APPX. # Notice of Appeal 001 Underlying Order and Opinion 003 R.C R.C R.C ii

3 TABLE OF AUTHORITIES Cases 32 Ohio St.236, 237 (1877)... 7 Chinn v. Trustees, Etc., 60 Ohio App. 307 (5th Dist. 1938)... 8 In re Watts' Guardianship, 170 N.E.2d 520, 13 O.02d 251 (Ohio C.P. Ct. May 10, 1960).. 8 Lima M & M Inc. v. Davis, 171 Ohio St. 369 (1960)....::... 5 Patterson v. Ayers, Statutes R.C R.C :.:....: R.C (A)(2)....:......::.:...:.:::...:...: R.C R.C :.:...5 Other Authorities Blacks Law Dictionary 7th Ed :......:... 6 Treatises Oh. Jur. 401, P.719. iii

4 I. OVERVIEW A. SUMMARY OF THE ARGUMENT For the reasons that follow, Verhovec is requesting this Court to reverse the Appellate Court's order that granted the Respondents' Civ. R. 12(B)(6) motion to dismiss Verhovec's petition for a writ of prohibition. Verhovec argues that Respondents (the Trial Court) lacked subject matter jurisdiction to consider a R.C motion for sanctions and impose a $300,000 penalty because the underlying action was a special proceeding for a writ of mandamus [R.C (C)(1)] and therefore was not an ordinary proceeding as defined by R.C Since R.C is a jurisdictional it must be strictly construed to avoid usurpation of legislative authority. This means, the Appellate Court erred by making an inference not from that which was expressed by the General Assembly, but from that which was left unsaid. By doing so, the Appellate Court inappropriately inserted terms into R.C that expanded the trial court's jurisdiction beyond that conveyed by the Legislature. II. PROPOSITION OF LAW Appellant asserts the following proposition of law. PROPOSITION OF LAW The General Assembly limited a court's subject matter jurisdiction to consider R.C motions to ordinary proceedings as defined by R.C and not special proceedings defined by R.C (A)(2). 1

5 III. STATEMENT OF THE ISSUE PRESENTED FOR REVIEW STATEMENT OF ISSUE R.C created subject matter jurisdiction for courts to consider R.C motions in civil actions. R.C defines an action as an "ordinary proceeding". R.C (A)(2) defines a"special proceeding" as an action specially created by statute and note one denoted as an action at law or a suit in equity. Mandamus was never so denoted, and the Legislature specially created the underlying public records mandamus action to enforce disclosure. Is a R.C (C)(1) mandamus proceeding special or an ordinary proceeding? IV. STATEMENT OF THE CASE On August 21, 2010 Appellant made a written public records request to the City of Marietta ("the City") seeking access to certain records of city council; including, original handwritten council meeting minutes, the final typed meeting minutes, and audio/visual recordings of council meetings from January (Verified Complaint for a Writ of Prohibition at 8) The City provided access to some of the records but did not provide access to all that was requested. For instance, no original handwritten meeting minutes from the council meetings were provided and just a few audio recordings were provided. (Verified Complaint for a Writ of Prohibition at 9) The City did not give an explanation for not providing access to these records. (Verified Complaint for a Writ of Prohibition at 10) On June 27, some 433 days after the request - Verhovec filed a R.C (C)(1) public records mandamus action concerning the requested records. Pursuant to Civ. R. 8 Verhovec alleged two alternative causes of action. First, Verhovec petitioned, _ a^,,...,,^ C the trial court for a R.C (C)(1) pubiic recoras writ o^r rr^anua^^iu^. ^^^^^_ o...,,a^, Verhwec 2

6 alleged a R.C statutory forfeiture claim because from her perspective she did not know why the City had not provided access nor explained that denial. The doctrine of res judicata requires a petitioner to allege all her causes of action that arise from the same common nucleus of operative fact or risk being left without a remedy. State ex rel. Hartman v. Tetrault, 2012-Ohio-4646, 25, 33, 34 & 36 (12th Dist. 2012). In March of 2012 the City finally provided Verhovec with access to some of the records she requested. But, the City did not provide access to all the requested records not did it offer an explanation for their non-production. Later, the City moved for summary judgment which the trial court granted on July 17, That grant of summary judgment is currently under appeal. On August 16, 2012, the City moved for sanctions pursuant to R.C The trial court granted that motion for sanctions and ordered Verhovec to pay $274, as a penalty for pursuing her right to gain access to records that were never provided. During the pendency of the proceedings in the trial court, Verhovec filed a complaint for a writ of prohibition with the Fourth District Court of Appeals on or about October 14, 2012, wherein Verhovec argued that the trial court lacked jurisdiction to adjudicate the sanction proceedings because mandamus was not one of the class of cases that Legislature gave court's jurisdiction for purposes of R.C On December 17, 2012 the Fourth District Court of Appeals dismissed Verhovec's complaint based upon a Civ. R. 12(B)(6) motion to dismiss. (Appx. 003) This appeal was then timely filed on January 28, (Appx. 001) 3

7 V. STATEMENT OF FACTS On August 21, 2010 Appellant made a written public records request to the City of Marietta ("the City") seeking access to certain records of city council; including, original handwritten council meeting minutes, the final typed meeting minutes, and audio/visual recordings of council meetings from January (Verified Complaint for a Writ of Prohibition at 8) The City provided some of the records but did not provide all of them. Verhovec commenced a public records mandamus action in the trial court pursuant to R.C (C)(1). The trial court dismissed that action on a motion for summary judgment. That judgment is currently on appeal in the Fourth District Court of Appeals. After the trial court dismissed Verhovec's public records action, it later imposed a $274, sanction upon Verhovec pursuant to R.C Verhovec petitioned the Fourth District Court of Appeals for a writ of prohibition arguing that the trial court did not have subject matter jurisdiction to consider a R.C motion for sanctions because that statute limited jurisdiction to civil actions and not petitions for the extraordinary writ of mandamus. The trial court dismissed Verhovec's petition for a writ of prohibition on a Cir. R. 12(B)(6) motion. Verhovec commenced the instant appeal from that dismissal. 4

8 VI. ARGUMENT The General Assembly limited a court's, subject matter jurisdiction to consider R.C motions to ordinary proceedings as defined by R.C and not special proceedings defined by R.C (A)(2). This presumption of limitation is supported by the fact that jurisdictional statutes are strictly construed to avoid usurpation of legislative authority. Thus, the trial court lacked subject matter jurisdiction to adjudicate the City's R.C motion for sanctions for frivolous conduct because that statute applies to ordinary and not special proceedings. Mandamus actions available only when there is not a plain and adequate remedy in the ordinary course of law? (R.C ) It has long been accepted that in Ohio the records belong to the people, and that the Public Records Act's purpose is to protect democracy by giving the people the right to access government records. As a matter of fact, this Court has observed: The rule in Ohio is that public records are the people's records, and that the officials in whose custody they happen to be are merely trustees for the people; therefore anyone may inspect such records at any time, subject only to the limitation that such inspection does not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer having custody of the same. Patterson v. Ayers, 171 Ohio St. 369 (1960). So, to ascertain the General Assembly's intent in using the term "civil action" within R.C , we must explore what that term means. The term civil action is not statutorily defined. R.C provides guidance by directing us to read in context and construe the term according to the rules of grammar and common usage. 5

9 Black's Law Dictionary, defines a civil action as "[a]n action brought to enforce, redress, or protect a private or civil right (Blacks Law Dictionary 7th Ed. Page 30.) As discussed above, the right to access government records is a public right that has codified the right of the people to access their records. Black's defines "public right" as a "right belonging to all citizens and usually vested in and exercised by a public office or political entity." (Blacks at 1324.) On the other hand, the term is defined as "[a] personal right, as opposed to a right of the public or the state. (U at 1323.) R.C commands that writs of mandamus must be issued in the name of the state to command the performance of a duty resulting from an office, trust or station. It follows that the real party in public records mandamus proceedings (R.C (C)(1)) the people or the state of Ohio is the real party in interest because the action is required to be brought in the name of the state. Thus mandamus is an "ex rel." proceeding. A suit ex rel. is defined as "[Latin ex relatione `by or on the relation of ] typically brought by the government upon the application of a private party (called a relator) who is interested in the matter." (Blacks at 603.) It follows, that is the purpose of the Public Records Act is to protect the people's interest at large, then Verhovec - as the relator - is not the real party in interest, the people of Ohio are; because government records belong to them and the City's officials owed a duty to the people to provide them with access to public records. Turning to the term "action" that is used in R.C , that term is statutorily defined. R.C defines frivolous conduct as conduct of a party to a civil action. [R.C (A)(2)(a)] R.C defines "action" as "an ordinary proceeding in a 6

10 court of justice..." While R.C (A)(2) defines a special proceeding as "an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity." Hence, these definitions support Verhovec's argument that the General Assembly did not intend to bring mandamus actions within the scope of R.C sanctions. Granted, this Court has stated on other occasions that mandamus is a civil action. But, those occasions concerned various procedural issues, and the issue of a grant of jurisdiction by the General Assembly was not involved. Here, the questions are: (1) what did the General Assembly mean when it used the words "civil action" in R.C ; and (2) if the Legislature thought mandamus and civil actions are one and the same why did they separate them by definition? R.C (A)(2) defines a special proceeding as "an action that is specially created by statute and that prior to 1853 was not denoted as action at law or a suit in equity. Below, a public records mandamus action was brought pursuant to R.C (C)(1). The General Assembly enacted that provision to guarantee the right of the people to access government records. Therefore, a public records mandamus action was specially created by statute. And, this Court has already ruled that mandamus was never an action at law or a suit in equity. In Chinn v. Trustees, Etc., 32 Ohio St.236, 237 (1877) the Supreme Court stated that "[p]roceedings in mandamus were never regarded either as an action at law, or a suit in equity...." The Chinn Court noted that mandamus is an extraordinary or supplementary remedy, which cannot be resorted to if the party has any other adequate, specific remedy. 7

11 Id. It follows, that mandamus action are "special proceedings" and as such are outside the scope of R.C It follows, that a public records mandamus action is a special proceeding as defined by the General Assembly and therefore not the civil action mentioned in R.C In further support of the foregoing analysis, it has been held that jurisdictional statutes must be strictly construed to avoid usurpation of authority. In re Watts' Guardianship, 60 Ohio App. 307 (5th Dist. 1938). Moreover, inferences can only be drawn from that which is expressed and not from that which is left unsaid. If the legislative intent was a purposeful omission, then the maxim 'expressio unius est exclusio alterius' has direct application. Id at 312. Other courts have held that under the rules of strict construction each word must be given meaning. 37 Oh. Jur. 401, P.719; Lima M & Mlnc. v. Davis, 170 N.E.2d 520, 13 O:02d 251 (Ohio C.P. Ct. May 10, 1960). Therefore, the Appellate Court below was constrained to each word contained in R.C and could not insert terms that were not there. Accordingly, the Appellate Coiurt erred to Verhovec's prejudice and committed reversible error when it dismissed Verhovec's petition for a writ of prohibition because the trial court lacked subject matter jurisdiction to adjudicate the R.C motion for sanctions and the trial court therefore lacks jurisdiction to enforce the orders it has issued concerning that motion. 8

12 VII. CONCLUSION For these reasons Verhovec requests the Court to vacate the judgment of the Appellate Court and remand these proceedings with a direction to enter judgment in Verhovec's favor. 9

13 Respectfully submitted, By: Willi F. alker, Jr. (00387 P.O. Box 192 Massillon, Ohio [Fax] Counsel for Appellant PROOF OF SERVICE A copy of the foregoing Brief was served, by regular U.S. Mail this 26th day of March, 2013, upon the following: ALISON L. CAUTHORN ( ) Assistant Prosecutor Washington County Prosecutor's Office 205 Putnam Street Marietta, Ohio Counsel for Respondents/Appellees Wi 'am alker, Jr^^ ^ Counsel for Appellant. 10

14 APPENDIX 11

15 QRI^^^^L IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. 4 Dorothy Verhovec, Relator/Appellant vs. WASHINGTON COUNTY, COM.IVION PLEAS COURT On Appeal from the Washington GENERAL DIVISION CountY.Courtof Appeals,. Fourth Appellate District ^..,,. :. e.. NOTICE OF APPEAL ;.._, William E. Walker, Jr ( ) Aiisori L. Cauthorri ( ) (Counsel of Record) Assistant Washington County Prosecutor V EL_ JAN? CLERK OF CtIURT..and Court of Appeals HONORABLE SUSAN E. l3oyer, Case No. 12 CA 44 Respondents/Appellees: _ 124 North Avenue; NE 205 Putnam Street Massillon, Ohio Vfarietta^ Ohio " [Fax] williamwalker@gmx com : Counsel for Appellees Counsel for Appellant -- Washington; County Common Pleas Court State of Ohio ex rel: And Dor. othy' verhovec.. Hon. Susan E. Boyer, Judge R L 0 ^^^RK D^ ^Qd^^T ne rrrorsrrat nnrrv4ar'rar nr ^:.. AF'IPX: #- 001=

16 11 Notice of Appeal of Appellant State of Ohio, ex rel. Dorothy Verhovec Appellant, State of Ohio, ex Yel. Dorothy Verhovec hereby gives notice of appeal to the Supreme Court of Ohio fiom the judgment of the Washington County Court of Appeals, Fourth Appellate District, entered in Court of Appeals case No. 12 CA 44 on December 17, 2012.: This case involves an appeal of right as it originated in the court of appeals. Respectfully submitted, Wil am E. alker, Jr COUNSEL FOR APPELLANT STATE OF OHIO ex rel. DOROTHY VERHOVEC CERTIFICATE OF SERVICE I certify that a copy. of this Notice of Appeal was sent by ordinary U.S. mail to counsel for appellees Alison L. Cauthorn, Assistant Washington County Prosecutor 205 Putnam Street, Marietta, Ohio on January 25, ViFilli ker, Jr COUNSEL FOR APPELLANT STATE OF OHIO ex rel. DOROTHY VERHOVEC APPX.# 002

17 ... FOURTH DISTRICT COURT OF.APPEALS...., ^ ;^...,,.....^ y ' GLt^c^i^ Ġ r State of Ohio, ex rel. Dorothy Verhovec, :...., _. _,,? r^^.. 17 in.the COURPPELLATE pl SOF OHIO FOURTH A STRICT WASH#IVGTON COUNTIf Relator, Case No. 12CA44 v. Washington County Common Pleas Court, et al., Respondents: DECiSION ANQ JUDGMENT ENTRY APPF.ARANCES: William E. Walker, Jr.. Massillon, Ohio, for Relator: James E. Schneider, Washington County Prosecutor, and Alison L. Cauthom, Washington County Assistant Prosecutor, Marietta, Ohio, for Respondents. ABELE. P.J., Relator Dorothy Verhovec filed a complaint for a writ of prohibition seeking an order preventing the Respondents Washington County Common Pleas Court and Judge Susan E. Boyer from n9ling on a motion for sanctions for friv+^lous conduct under R.C Respondents filed a motion to dismiss the complaint under Civ. R. 12(B). Verhovec filed her response to the motion to dismiss. A rnotion to dismiss for failun: to state a ciaim upon which relief can be granted is procedural and tests the sufflciency of the complaint. State ex rel. Hanson v. Geremsey Cfy. Bd of Commrs., 65 Ohio St.3d 545,605 N.E.2d 373 (1992). When a party files a motion to dismiss for falure to state a claim, all the factual allegations of the compiaint APPX. # 003

18 O Washington App. No. 12CA44 2 must be taken as true and all reasonable inferences must be drawn in favor of the non- ;.:: However, while the factua! allegahons of the complaint are taken as true, moving party. #he same cannot be said about unsupported conciusions: Unsupported conclusions of a complaint are not considered admitted, and are not sufficient to withstand a motion to dismiss. State ex nel Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989): _: :.. In order for a court to grant a mtion to dismiss for faiiure to state a claim, it must appear "beyond doubt that the plaintiff can prove no set of fac#s in support of his claim,... vuhich would entitie him to reiief." O'Brien v. Univ. Community Tenants Union, Inc., 42. Ohio St.2d 242, 245, 327: N.E.2d 753, 755 (9975) Here, Verhovec filed a complaint for a writ of prohibftion in which she alleges that she made a public records request upon the City of Manetta and Marieita failed to respond. Verhovec then filed a mandamus action against the Marietta under R.C (C)(1) and R.C Shortly thereafter, Marietta provided Verhovec access to the public records and the trial court dismissed, Verhovec's mandamus action. Verhovec appealed and this court, in an eae9ier proceeding, remanded the case so the ft3 court could rule on Veri:oted's w:otion for coi w enc' attorr,ey f,s assoosated the public records mandamus aidon, _.. After the case was remanded, Marietta filed a motion seeking sanctions against Verhovec for frivofous conduct pursuant to R.C The trial court held a hearing on the question of attorney fees and sanctions. HoaVever, before the trial court could issue a ruling, Verhovec filed this compiaint for writ of prohibition She seeks to prevent the triab court and Judge Boyer from issuing a ruling one IUiarietta's motion for sanctions. APPX. # 004

19 .,. Washington App. No. 12CA44 3 To warnant a writ of prohibition, the retator must establish three eiements: (1) the --: court or ofiicer against whom the writ is sought is about to exercise judiciai or quasa judiciai power, (2) the exercise of that power is clearly unauthorized by iaw, and (3) deniai of the writ witi cause injury for which there is no adequate remedy in the ordinary course of law. McAuley v. Smith, 82 Ohio St3d 393, 395, 896 N.E.2d 572 (1998); Stafe ex re! Rogers v. Marshall, 4 ' Dist. No. 05CA3004, hi0=6341. Both sides agree that the first element has been estabrished. Washington County Common Pleas Court and Judge Boyer are about to exercise judicial or quasi Judiciai power. Judge Boyer has held a hearing on the City of iiaarietta's motion for sanctions and would have issued a ruling. However, the parties dispute whether Verhovec has stated a claim under the remaining two elements: s to the second eiernent, Verhovec alleges that the trial court and Judge Boyer do not have jurisdiction to address the merits of Marietta's sanction motion under R.C , because that statutory provision appties only to "civii actions" and a mandamus action is not a"civil action.^ VePhovec is wrong for two reasons. First, a ;,o,darnua acttos^ is a c:^.^il ac+aen. SEwte e^: rv+l SM3rtto t^ ^ourt ofapaeals, 27 Ohio St...., _.. 3d 13, 501 N.E.2d 625 (1986)("A proceeding for a writ of rnandamus is a civil action"); State ex rel. Wilson v. Preston, 173 Ohio St. 203, 208,181 N.E.2d 31 (1962)("an action for a writ of mandamus is a civii action"); S'tate ex rsl. Karmasu V. Tate, 83 Ohio App.3d 199, 206 (41h Dist. 1992)( IUlandamus is a civil action'). The frivoious conduct statute, R.C , states that it is applicable to certain conduct, Including the conduct of "filing of a civii action... or the taking of any other action in connection with a civil APPX. # 005

20 e _..... WashingtonApp. No. 12CA44 4 action... Thus, that statutory provision can be employed to request sanctions for frivokws conduct occurring within the context of a civil action seeking a writ of mandamus. State ex r+el. Stnker v. Cl1ne, 130 Ohio St 3d 214, 2011-Ohio-5350, 957 N.E.2d 214 (upholding the lower court's award of sanctions for frivolous conduct under R.C in a mandamus action brought to compet public records under R.C ). Second, even if the mandamus action were not a civil action, the trial court and Judge Boyer have subject-matter jurisdiction over the mandamus action and the corresponding authority to determine whether R.C is applicable to it or not. Making determinations about the applicability of statutes and the appropriateness of sanctions are precisely the types of legal pawers within the purview of the trial court and Judge Boyer. If the trial court makes an incorrect legal conclusion about the applicability of R.C to the mandamus action, either side has the remedy of appeal. Page 690 ("absent a patent and v. Rt7ey, 85 Ohio St.3d 621, hio-290, 710 N.E.2d unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can deterr.zine Bis o.:n jurisdiction, and W party challcnging the cou;t`s jur=sdict=on has an adequate remedy at law by appeal"). Aithough we take all of Verhovec's factual altegatioris of her complaint as true, we do not have to assume the same conceming her unsupported conclusions. Here, iferhovec's complaint fails to state a claim for a writ of prohibition as to the second element concerning the unauthorized power of the trial court. Her conclusion that the Washington County Common Pleas Court and Judge Boyer lack jurisdiction is wholly APPX. # 006

21 . 1.., ,_, Nashington App.No. 12CA44 5 unsupported by all applicable law. Finally, Verhovec has aiso failed to adequateiy state a claim as to the third element, that the denial of a writ vvin cause injury for which no other adequate remedy in the ordinary course of law exdst She again makes unsupported conciusions that she has no adequate remedy and willsuffeorreparabie injury. However, if after the trial court issues an order, Verhovec believes that the trial court faiied to correctty apply the law to the facts conceming the appiicability of R.C to mandamus actions brought under R.C , she may appeal. State ex rel Strrker v. Clr`ne, 130 Ohio St.3d 214, 2011=Ohio-5350, 957 N.E.2d 19 (an appeilate court reviews the lower court's decision to award sanctions under an abuse of discretion standard). Verhovec cannot seek a writ of prohibit on to prevent a court having general authority over the case from reachir>g a legaily incorrect result or enforcing an erroneous tudgment. State ex ret. 14ogers v. Marshall, 4'' Dist. No. 05CA3004, 2003 Ohio-G341. Assuming all the factual allegations as true, this court finds that Verhovec's complaint for a writ of prohibition fails to state a ciaim for vvhieh relief may be -granted., ^aenị.c to 'a..^u ^'{^^lh r raae /wwl^s'w I^n+w in tywt t /'^w.wh vai ty Common has ::R. dv ri:^ly u^.r. uppo^ ii "'n ^i:.vu3 e1' rv u ^a ut tn7maii t Pleas Court and Judge Boyer's authority under the law and to the inadequacy of her legal remedies. We find both of her unsupported conclusions to be wholly unsupported by the law and legally incorrect. We find that the Respondents motion to dismiss should be granted. Relator's complaint for writ of prohibition is hereby DISMISSED. The clerk shall serve a copy of this order on all counsel of record and APPX. # 007

22 ... 1Nashington App. No.12CA44 6 unrepresented parties at their last known addresses by ordinary mail. _.,_....,_ 0ETITl0N bismissed. COSTS TO RELATOR. SO RDERED, Kline. J. S McFarland, Concuro FO T COURT '... ^. er, Abete. Presi ing Judge APX. # 008.

23 Lawriter - ORC Frivolous conduct in filing civil claims. Page 1 of Frivolous conduct in filing civil claims. (A) As used in this section: (1) "Conduct" means any of the following: (a) The filing of a civil action, the assertion of a claim, defense, or other position in connection with a civil action, the filing of a pleading, motion, or other paper in a civil action, including, but not limited to, a motion or paper filed for discovery purposes, or the taking of any other action in connection with a civil action; (b) The filing by an inmate of a civil action or appeal against a government entity or empioyee, the assertion of a claim, defense or other position in connection with a civil action of that nature or the assertion of issues of law in an appeal of that nature, or the taking of any other action in connection with a civil action or appeal of that nature. (2) "Frivolous conduct" means either of the following: (a) Conduct of an inmate or other party to a civil action, of an inmate who has filed an appeal of the type described in division (A)(1)(b) of this section, or of the inmate's or other party's counsel of record that satisfies any of the following: (i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation. (i'i) It is not warranted under existing law, cannot 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 new law. (iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if spe,cifically so identified, are not likelyto haveevidentiary support after a reasonable opportunity for further investigation or discovery. (iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief. (b) An inmate's commencement of a civil action or appeal against a government entity or employee when any of the following applies: (i) The claim that is the basis of the civil action fails to state a claim or the issues of law that are the basis of the appeal fail to state any issues of law. (ii) It is clear that the inmate cannot prove material facts in support of the claim that is the basis of the civil action or in support of the issues of law that are the basis of the appeal. (iii) The claim that is the basis of the civil action is substantially similar to a claim in a previous civil action commenced by the inmate or the issues of law that are the basis of the appeal are substantially similar to issues of law raised in a previous appeal commenced by the inmate, in that the claim that is the basis of the current civil action or the issues of law that are the basis of the current appeal involve qppx. # 009 3/26/2013

24 Lawriter - ORC Frivolous conduct in filing civil claims. Page 2 of 4 the same parties or arise from the same operative facts as the claim or issues of law in the previous civil action or appeal. (3) "Civil action or appeal against a government entity or employee," "inmate," "political subdivision," and "employee" have the same meanings as in section of the Revised Code. (4) "Reasonable attorney's fees" or "attorney's fees," when used in relation to a civil action or appeal against a government entity or employee, includes both of the following, as applicable: (a) The approximate amount of the compensation, and the fringe benefits, if any, of the attorney general, an assistant attorney general, or special counsel appointed by the attorney general that has been or will be paid by the state in connection with the legal services that were rendered by the attorney general, assistant attorney general, or special counsel in the civil action or appeal against the government entity or employee, including, but not limited to, a civil action or appeal commenced pro se by an inmate, and that were necessitated by frivolous conduct of an inmate represented by counsel of record, the counsel of record of an inmate, or a pro se inmate. (b) The approximate amount of the compensation, and the fringe benefits, if any, of a prosecuting attorney or other chief legal officer of a political subdivision, or an assistant to a chief legal officer of those natures, who has been or will be paid by a political subdivision in connection with the legal services that were rendered by the chief legal officer or assistant in the civil action or appeal against the government entity or employee, including, but not limited to, a civil action or appeal commenced pro se by an inmate, and that were necessitated by frivolous conduct of an inmate represented by counsel of record, the counsel of record of an inmate, or a pro se inmate. (5) "State" has the same meaning as in section 2743:01 of the Revised Code. (6) "State correctional institution" has the same meaning as in section of the Revised Code. (B) (1) Subject to divisions (B)(2) and (3), (C), and (D) of this section and except as otherwise provided in division (E)(2)(b) of section or division (I)(2)(b) of section of the Revised Code, at any time not more than thirty days after the entry of finai judgment in a civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an award of court costs, reasonable attorney's fees, and other reasonable expenses incurred in connection with the civil action or appeal. The court may assess and make an award to any party to the civil action or appeal who was adversely affected by frivolous conduct, as provided in division (B)(4) of this section. (2) An award may be made pursuant to division (B)(1) of this section upon the motion of a party to a civil action or an appeal of the type described in that division or on the court's own initiative, but only after the court does all of the following: (a) Sets a date for a hearing to be conducted in accordance with division (B)(2)(c) of this section, to determine whether particular conduct was frivolous, to determine, if the conduct was frivolous, whether any party was adversely affected by it, and to determine, if an award is to be made, the amount of that award; (b) Gives notice of the date of the hearing described in division ( B)(2)(a) of this section to each party or counsel of record who allegedly engaged in frivolous conduct and to each party who allegedly was adversely affected by frivolous conduct; Appx. # /26/2013

25 Lawriter - ORC Frivolous conduct in filing civil claims. Page 3 of 4 (c) Conducts the hearing described in division ( B)(2)(a) of this section in accordance with,.this division, allows the parties and counsel of record involved to present any relevant evidence at the hearing, including evidence of the type described in division ( B)(5) of this section, determines that the conduct involved was frivolous and that a party was adversely affected by it, and then determines the amount of the award to be made. If any party or counsel of record who allegedly engaged in or allegedly was adversely affected by frivolous conduct is confined in a state correctional institution or in a county, multicounty, municipal, municipal-county, or multicounty-municipal jail or workhouse, the court, if practicable, may hold the hearing by telephone or, in the alternative, at the institution, jail, or workhouse in which the party or counsel is confined. (3) The amount of an award made pursuant to division (B)(1) of this section that represents reasonable attorney's fees shall not exceed, and may be equal to or less than, whichever of the following is applicable: (a) If the party is being represented on a contingent fee basis, an amount that corresponds to reasonable fees that would have been charged for legal services had the party been represented on an hourly fee basis or another basis other than a contingent fee basis; (b) In all situations other than that described in division ( B)(3)(a) of this section, the attorney's fees that were reasonably i ncurred by a party. (4) An award made pursuant to division ( B)(1) of this section may be made against a party, the party's counsel of record, or both. ( 5) (a) In connection with the hearing described in division ( B)(2)(a) of this section, each party who may be awarded reasonable attorney's fees and the party's counsel of record may submit to the court or be ordered by the court to submit to it, for consideration in determining the amount of the reasonable attorney's fees, an itemized list or other evidence of the legal services rendered, the time expended in rendering the services, and whichever of the following is applicable: (i) If the party is being represented by that counsel on a contingent fee basis, the reasonable attorney's fees that would have been associated with those services had the party been represented by that counsel on an hourly fee basis or another basis other than a contingent fee basis; (ii) In all situations other than those described in division fees associated with those services. ( B)(5)(a)(i) of this section, the attorney's (b) In connection with the hearing described in division ( B)(2)(a) of this section, each party who may be awarded court costs and other reasonable expenses incurred in connection with the civil action or appeal may submit to the court or be ordered by the court to submit to it, for consideration in determining the amount of the costs and expenses, an itemized list or other evidence of the costs and expenses that were incurred in connection with that action or appeal and that were necessitated by the frivolous conduct, including, but not limited to, expert witness fees and expenses associated with discovery. (C) An award of reasonable attorney's fees under this section does not affect or determine the amount of or the manner of computation of attorney's fees as between an attorney and the attorney's client. Appx. # 011 3/26/2013

26 Lawriter - ORC Frivolous conduct in filing civil claims. Page 4 of 4 (D) This section does not affect or limit the application of any provision of the Rules of Civil Procedure, the Rules of Appellate Procedure, or another court rule or section of the Revised Code to the extent that the provision prohibits an award of court costs, attorney's fees, or other expenses incurred in connection with a particular civil action or appeal or authorizes an award of court costs, attorney's fees, or other expenses incurred in connection with a particular civil action or appeal in a specified manner, generally, or subject to limitations. Effective Date: ; Appx. # 012 3/26/2013

27 Lawriter - ORC Action defined. Page 1 of Action defined. An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment ofapublic offense. Effective Date: hq://codes.ohio.gov/orc/ Appx. # 013 3/26/2013

28 Lawriter - ORC Final orders. Page 1 of Final orders. (A) As used in this section: (1) "Substantial right" means a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect. (2) "Special proceeding" means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity. (3) "Provisional remedy" means a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to section or of the Revised Code, a primafacie showing pursuant to section of the Revised Code, or a finding made pursuant to division (A)(3) of section of the Revised Code. (B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: (1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; (2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; (3) An order that vacates or sets aside a judgment or grants a new trial; (4) An,or,der that grants or denies a provisional remedy and to which both of the following apply: (a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. (b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the ac"tion. (5) An order that determines that an action may or may not be maintained as a class action; (6) An order determining the constitutionality of any changes to the Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly, including the amendment of sections , , , , , 2317:02, , 2323:56, , , , , , , , , , , and , and the enactment of sections , , , and of the Revised Code or any changes made by Sub. S.B. 80 of the 125th general assembly, including the amendment of sections , , , , , and of the Revised Code; (7) An order in an appropriation proceeding that may be appealed pursuant to division (B)(3) of section of the Revised Code. (C) When a court issues an order that vacates or sets aside a judgment or grants a new trial, the court, upon the request of either party, shall state in the order the grounds upon which the new trial is granted or the judgment vacated or set aside. At'11'1)(. # 0 1LI. 3/26/2013