vexatious litigator under declare relator a … eighth district court of appeals, ... case no. 05 ca...

IN THE SUPREME COURT OF OHIO

ROBERT GRUNDSTEIN

vs.

Relator,

EIGHTH DISTRICT COURT OFAPPEALS,

Respondent.

Case No. 2009-0565

Original Action in Mandamus Arising FromCuyahoga County Court of AppealsCase No. 05 CA 86872

RESPONDENT'S MOTION TO DECLARE RELATOR A"VEXATIOUS LITIGATOR" UNDER S. CT. PRAC. R. XIV, SECTION 5(B)

WILLIAM D. MASON, ProsecutingAttorney of Cuyahoga County, Ohio

CHARLES E. HANNAN * (0037153)Assistant Prosecuting Attorney

* Counsel ofRecordThe Justice Center, Courts Tower, 8`h Floor1200 Ontario StreetCleveland, Ohio 44113Tel: (216) 443-7758/Fax: (216) 443-7602E-mail: [email protected]

Counsel for Respondent

IN THE SiJPREME COURT OF OHIO

ROBERT GRUNDSTEIN

vs.

Relator,

EIGHTH DISTRICT COURT OFAPPEALS,

Respondent.

Case No. 2009-0565


RESPONDENT'S MOTION TODECLARE RELATOR A"VEXATIOUS LITIGATOR" UNDERS. CT. PRAC. R. XIV, SECTION 5(B)

Respondent Eighth District Court of Appeals ("respondent") respectfully moves this

Court to declare relator Robert Grundstein to be a "vexatious litigator" under S. Ct. Prac. R.

XIV, Section 5(B). The grounds in support of this motion are that respondent has habitually,

persistently, and without reasonable cause engaged in frivolous conduct before the Supreme

Court of Ohio.

A memorandum in support of this motion is attached hereto and incorporated herein.

Respectfully submitted,

WILLIAM D. MASON, Prosecuting Attorneyof Cuyahoga County, Ohio

By:CHARLES E. HANNAN * (0037153)Assistant Prosecuting Attomey

* Counsel of RecordThe Justice Center, Courts Tower, 8`h Floor1200 Ontario StreetCleveland, Ohio 44113Tel: (216) 443-7758/Fax: (216) 443-7602E-mail: channan@cuyaho ag county.us

Counselfor Respondent

IN THE SUPREME COURT OF OHIO

ROBERT GRUNDSTF,IN

vs.

Relator,

EIGHTH DISTRICT COUR"I' OFAPPEALS,

Respondent.

Case No. 2009-0565


MEMORANDUM IN SUPPORT OFRESPONDENT'S MOTION TODECLARE RELATOR A"VEXATIOUS LITIGATOR" UNDERS. CT. PRAC. R. XIV, SECTION 5(B)

STATEMENT OF FACTS AND PROCEEDINGS

This case marks thefifih original action that relator Robert Grundstein ("relator") has

filed in the Supreme Court of Ohio stemming from the October 12, 2005 declaration by the

Cuyahoga County Common Pleas Court that relator was a "vexatious litigator" under R.C.

2323.52. The Supreme Court of Ohio has dismissed each of relator's previous original actions

on initial determination pursuant to S. Ct. Prac. R. X, Section 5. For the reasons stated in

Respondent's Motion to Dismiss that is being filed separately and contemporaneously, the

instant action in mandamus should likewise be dismissed pursuant to S. Ct. Prac. R. X, Section 5.

But relator's persistent pursuit of frivolous actions in this Court now warrants further relief. For

the reasons that follow, respondent Eighth District Court of Appeals respectfully moves this

Court to declare relator a "vexatious litigator" under S. Ct. Prac. R. XIV, Section 5(B).

Before reviewing relator's history of filings in this Court, it is necessary to review briefly

the underlying litigation from which each of these original actions have arisen.

1

T[IE UNDERLYING LITIGATION

On Novembcr 3, 2003, relator filed the action styled, Robert Grundstein vs. RwolPs

Corp., et al., Crryahoga County Comtnon Pleas Court Case No. 03 CV 513849. Atler the trial

court dismissed that case with prejudice, relator appealed to the Cuyahoga County Court of

Appeals, which reversed the judgment dismissing relator's claims against the non-moving

defendants. See Grundstein v. eWolf's Corporation, Cuyahoga App. No. 84149, 2004-Ohio-

4761, at ¶ 4. The matter was remanded for further proceedings consistent with the appcllate

court's opinion. Id. at ¶ 5. Notably, the Court of Appeals did not disturb the trial court j udgment

that granted defendant Bielert's motion to dismiss. Indeed, the docket of proceedings for

Cuyahoga County Court of Appeals Case No. 84149 reflects that the Couit of Appeals issued an

order on October 28, 2004 partially granting a motion for reconsideration that said:

The decision of this Court does not disturb the judgment of the trial court as to thedismissal of Grundstein's claims against George Bielert individually. Thedecision reversed the judgment of the trial court only as to the dismissal ofGrundstein's claims against eWolf's and Wolf's Galleries. See nune pro tunejoiunal entry of same date.

Upon remand, the trial court entered an order on April 19, 2005 warning relator that

because he had not yet obtained service on the non-moving defendants that were the subject of

the appellate court's remand order, Case No. 513849 would be dismissed within thirty (30) days

unless relator could show good cause to the contrary. Despite this warning, relator instead

continued to litigate claims against defendant Bielert, notwithstanding that those claims had

already been dismissed by the trial court and affirmed by the Court of Appeals.

On July 22, 2005, the trial court entered an order that, among other things, confirmed that

relator had not obtained service on the defendants that were the subject of the appellate court's

remand order and accordingly dismissed Case No. 513849. The trial court expressly retained

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jurisdiction to rule on defendant Bielert's motions to sanction relator and declare relator a

"vexatious litigator" under R.C. 2323.52.

On August 15, 2005, relator filed a notice of appeal from the July 22, 2005 order that

dismissed his case. 1 See Request at unnumbered p. 1. Relator's August 15, 2005 appeal was

docketed in the Court of Appeals as Case No. 05 CA 86872.

While that appeal was pending, the trial court issued its October 12, 2005 order that

declared relator to be a "vexatious litigator" under R.C. 2323.52.

On November 17, 2005, relator filed a notice of appeal from the October 12, 2005 order

that declared him to be a "vexatious litigator" under R.C. 2323.52. That appeal was docketed in

the Cuyahoga County Court of Appeals as Case No. 05 CA 87313.

On December 12, 2005, the Court of Appeals dismissed Court of Appeals Case No.

87313 as untimely inasmuch as the order fi'om which that appeal was taken was joumalized on

October 12, 2005 and relator's notice of appeal was filed on November 17, 2005. Relator did not

appeal that dismissal.

On March 30, 2006, the Court of Appeals issued its decision in Court of Appeals Case

No. 86872. See Grundstein vs. Ewolf's Corp., Cuyahoga App. No. 86872, 2006-Ohio-1600.

Noting that relator had been declared a "vexatious litigator" under R.C. 2323.52 after his appeal

was filed and that the Court of Appeals had previously denied relator leave to continue the

appeal pursuant to R.C. 2323.52(F), the Court of Appeals dismissed Case No. 86872 pursuant to

R.C. 2323.52(D)(3) and R.C. 2323.52(I). Id. at ¶¶ 9-17.

1 Relator's Request for Writ of Mandamus mistakenly says that his August 15, 2005 notice ofappeal challenged "the lower's Court order of July 25, 2005, in which I was declared `vexatious'under ORC 2323.52." Relator's assertion is not correct. As the public docket of proceedingsagain reflects, the trial court's July 22, 2005 order dismissed relator's case but made nodetermination as to whether relator was a "vexatious litigator" under R.C. 2323.52.

3

On April 24, 2006, relator filed his notice of appeal in the Supreme Court of Ohio from

the Court of Appeals' decision in Case No. 86872. Relator's discretionary appeal was docketed

lie-e as Case No. 2006-0793.

On August 2, 2006, the Supreme Court of Ohio declined to liear relator's discretionary

appeal docketed as Case No. 2006-0793. See Grundstein v. Ewolf's Corp., 110 Ohio St.3d 1440,

2006-Ohio-3862, 852 N.E.2d 188 (table).

While the Ohio Supreme Court's decision not to hear relator's appeal ought to have

concluded the matter, it did not. histead, relator has filed a series of original actions in the

Supreme Court of Ohio intended to collaterally attack the lower courts' judgments as well as the

final judgment of the Supreme Court of Ohio. The following is a brief overview of relator's

original actions in the Supreme Court of Ohio relating to the underlying litigation.z

OHIO SUPREME COURT CASE No. 2006-0795

On April 24, 2006 (the same date on which relator filed his discretionary appeal docketed

here as Case No. 2006-0793), relator filed an original action in mandamus and prohibition

against respondent Judge Lillian Greene, Cuyahoga County Court of Common Pleas. In that

case, relator sought a writ of prohibition to set aside the October 12, 2005 "vexatious litigator"

declaration in Common Pleas Case No. 513849; a writ of mandamus to set aside the December 8,

2005 order dismissing Common Pleas Case No. 572848 for relator's failure to seek leave; and a

2 Relator has also filed at least two (2) original actions in the Cuyahoga County Court of Appealsrelating to the underlying litigation. See Grundstein v. Greene, Cuyahoga App. No. 87623,2006-Ohio-2205; Grundstein v. Greene, Cuyahoga App. No. 87925, 2006-Ohio-2078. Andaccording to the public docket of proceedings for the Supreme Court of Ohio, relator has filedother original actions in this court but it does not appear that they are related to the underlyinglitigation. At any rate, the discussion here will be limited to original actions filed by relator inthe Supreme Court of Ohio that do relate to the underlying litigation.

4

writ of mandamus to set aside the July 22, 2005 order dismissing Common Pleas Case No.

513849 for lack of service.

On June 11, 2006, the Supreme Court of Oliio dismissed relator's case. See State ex rel.

Grundstein v. Greene, 109 Ohio St.3d 1504, 2006-Ohio-2998, 849 N.E.2d 1026 (table). On

August 23, 2006, the court denied i-elator's motion for reconsideration and motion to resubmit.

See State ex rel. Grundstein v. Greene, 110 Ohio St.3d 1468, 2006-Ohio-4288, 852 N.E.2d 1216

(table).

OHIO SUPREME COURT CASE No. 2006=1042- - - - - - - -

On May 26, 2006, relator filed an original action in procedendo against respondent Judge

Greene. In that case, relator complained that Judge Greene did not rule promptly enough on

relator's motion for leave to proceed in a closed Common Pleas Court case to which relator was

not even a party.

On August 2, 2006, the Supreme Court of Ohio dismissed relator's case. See Grundstein

v. Greene, 110 Ohio St.3d 1434, 2006-Ohio-3862, 852 N.E.2d 184 ( table).


On May 21, 2007, relator filed an original action in mandamus against Judge Fraiilc

Celebrezze, Jr., and Judge Ann Dyke. In that case, relator sought extraordinary relief against two

appellate courtjudges who had denied relator leave to appeal pursuant to R.C. 2323.52(F) based

on his "vexatious litigator" status.

On July 25, 2007, the Supreme Court of Ohio dismissed relator's case. See State ex rel.

Grundstein v. Celebrezze, 114 Ohio St.3d 1474, 2007-Ohio-3699, 870 N.E.2d 728 ( table).

5


On September 18, 2008, relator filed an original action in mandamus and prohibition

against respondents Judge Lance Mason, Judge Michael Corrigan, and Clerk of Court Gerald E.

Fuerst. Filed shortly after Judge Greene left the Common Pleas Court bench, relator again

sought to set aside the October 12, 2005 "vexatious litigator" declaration by seeking writs of

mandamus against Judge Corrigan, who was assigned to handle Judge Greene's case docket for

the time between her departure and the appointment of her replacement; Judge Mason, who was

appointed to replace Judge Greene; and Fuerst, presumably because he maintains the Conunon

Pleas Courtjouinal in which relator was declared to be a "vexatious litigator." Relator also

sought writs of prohibition to prevent the respondents "from exercising any restraint on

[relator's] right to file cases in Ohio."

On December 3, 2008, the Supreme Court of Ohio dismissed relator's case. See State er

rel. Grundstein v. Mason, 120 Ohio St.3d 1412, 2008-Ohio-6166, 897 N.E.2d 649 (table).


Most recently, on March 25, 2009, relator filed the instant original action in mandamus

against respondent Eighth District Court of Appeals. In this case, relator seeks a writ of

mandamus to order the Court of Appeals to hear an appeal that the Court of Appeals dismissed in

March of 2006, utterly disregarding the fact that the Supreme Court of Ohio declined to accept

relator's discretionary appeal of that dismissal in August of 2006. See Grundstein v. Ewolf's

Corp., 110 Ohio St.3d 1440, 2006-Ohio-3862, 852 N.E.2d 188 (table). Relator nevertheless

argues here that his appeal to the Court of Appeals was timely (which was never disputed) when

in truth the appeal was actually dismissed because relator did not have leave of court to continue

the appeal pursuant to R.C. 2323.52(F) (which also is not disputed).

6

As noted previously, respondent's motion to dismiss Case No. 2009-0565 has been liled

separately and contemporaneously with this motion.

For the reasons that follow, relator should be declared a "vexatious litigator" under S. Ct.

Prac. R. XIV, Section 5(B).

ARGUMENT AND LAW

That relator has been declared a "vexatious litigator" under R.C. 2323.52 plainly has not

deterred him from filing successive original actions in the Supreme Court of Ohio seeking to set

aside that "vexatious litigator" declaration. While relator's initial pursuit of extraordinary writs

may have been understandable as an attempt to exhaust all potential avenues of relief, his

continued pursuit of such relief is now without any plausible legitimacy. The instant case is

argualily the most egregious misuse of legal process: relator wants this Court to order the Court

of Appeals to hear an appeal that was dismissed in March 2006 notwithstanding that this Court

tumed down relator's appeal of that dismissal in August 2006.

Relator's refusal to accept conclusive court judgments does not entitle him to find new

ways to relitigate his case. Enough is enough. Because relator has habitually, persistently, and

without reasonable cause engaged in frivolous conduct under the Rules of Practice for the

Supreme Court of Ohio, he should be declared a "vexatious litigator" under S. Ct. Prac. R. XIV,

Section 5(B).

S. Ct. Prac. R. XIV, Section 5(B) states:

If a party habitually, persistently, and without reasonable cause engages infrivolous conduct under section 5(A) of this rule, the Supreme Court may, suasponte or upon motion by a party, find the party to be a vexatious litigator. If theSupreme Court determines that a party is a vexatious litigator under this rule, theCourt may impose filing restrictions on the party. The restrictions may includeprohibiting the party from continuing or instituting legal proceedings in theSupreme Court without first obtaining leave, prohibiting the filing of actions in

7

the Supreme Court without the filing fee or security for costs required by S. Ct.Prac. R. XV, or any other restriction the Supreme Court considers just.

S. Ct. Prac. R. XIV, Section 5(A) states the following in relevant part:

An appeal or other action shall be considered frivolous if it is not reasonably

well-grounded in fact oi- warranted by existing law or a good faith argument for

the extension, modification, or reversal of existing law.

Relator's filings in this Court demonstrate that lie qualifies as a "vexatious litigator" under S. Ct.

Prac. R. XIV, Section 5(B).

In particular, relator's original actions relating to the underlying litigation all contest in

varying ways the October 12, 2005 "vexatious litigator" declaration under R.C. 2323.52. But

that declaration, and its affect upon relator's pursuit of his underlying litigation, have already

been conclusively determined by the Ohio couits.

More specifically, relator's status as a "vexatious litigator" under R.C. 2323.52 was

conclusively detemrined by December 12, 2005. That is based on the following: the trial court

declared relator a "vexatious litigator" on October 12, 2005; relator appealed that declaration on

November 17, 2005 under the appeal docketed as Court of Appeals Case No. 05 CA 87313; the

Court of Appeals dismissed that appeal as being untimely on December 12, 2005; and relator

never appealed that dismissal. Thus relator's status as a "vexatious litigator" under R.C. 2323.52

became final as of December 12, 2005.

Moreover, relator's pursuit of the underlying litigation (in which he was found to be a

"vexatious litigator" under R.C. 2323.52) was conclusively determined by August 2, 2006. That

is based on the following: the trial court dismissed relator's underlying case on July 22, 2005; the

Court of Appeals dismissed relator's appeal of that judgment on March 30, 2006, see

Grundstein vs. Ewolf's Corp., Cuyahoga App. No. 86872, 2006-Ohio-1600; and the Supreme

Court of Ohio declined to hear relator's discretionary appeal on August 2, 2006, see Grundstein

8

v. Ewolf's Corp., 110 Ohio St.3d 1440, 2006-Ohio-3862, 852 N.E.2d 188 (table). Tlius relator's

underlying lawsuit was conclusively detennined by the Supreme Court of Ohio as of August 2,

2006.

Despite these conclusive judicial determinations, however, relator has filed a series of

original actions in the Supreme Couit of Ohio to collaterally attack his status as a declared

"vexatious litigator" under R.C. 2323.52. Indeed, all five (5) of relator's original actions relating

to the underlying litigation were filed after the December 12, 2005 final determination that he

was a "vexatious litigator" under R.C. 2323.52. What is more, three (3) of relator's original

actions relating to the underlying litigation were filed after the August 2, 2006 judgment by the

Supreme Couri of Ohio that conclusively determined relator's underlying litigation.

And in that time, relator unsuccessfully sought extraordinary writs against Judge Greene

two (2) times. See State ex rel. Grundstein v. Greene, 109 Ohio St.3d 1504, 2006-Ohio-2998,

849 N.E.2d 1026 (table) and State ex rel. Grundstein v. Greene, 110 Ohio St.3d 1468, 2006-

Ohio-4288, 852 N.E.2d 1216 (table); Grundstein v. Greene, 110 Ohio St.3d 1434, 2006-Ohio-

3862, 852 N.E.2d 184 (table). Relator then unsuccessfully sought extraordinary writs against

appellate court judges who denied him leave to proceed based on his "vexatious litigator" status.

See State ex rel. Gruridstein v. Celebrezze, 114 Ohio St.3d 1474, 2007-Ohio-3699, 870 N.E.2d

728 (table). Relator then unsuccessfully sought extraordinary writs against the Common Pleas

Court judges who succeeded Judge Greene and against the Clerk of Court who maintains the

Common Pleas Court's journal. See State ex rel. Grundstein v. Mason, 120 Ohio St.3d 1412,

2008-Ohio-6166, 897 N.E.2d 649 (table).

One might have thought that relator's pursuit of this matter would have at last been

finally exhausted, but one would have been wrong. Relator now asks this Court to order the

9

respondent Court of Appeals to hear Court of Appeals Case No. 86872, a case the Court of

Appeals dismissed on March 30, 2006, see Grundstein vs. F,wolf's Corp., Cuyahoga App. No.

86872, 2006-Ohio-1600, which this Court declined to consider further in Grundstein v. Ewolf's

Corp., 110 Ohio St.3d 1440, 2006-Ohio-3862, 852 N.E.2d 188 (table). Apart from relator's utter

misuse of mandamus as a substitute for furthe- appeal, relator does not even state accurately the

reasons why the Court of Appeals dismissed Case No. 86872. Contrary to relator's suggestion

that the Court of Appeals dismissed Case No. 86872 as untimely, the Court of Appeals' opinion

there reflects that the appeal was dismissed not because it was untimely (it was timely) but rather

because relator did not have leave of court to continue the appeal pursuant to R.C. 2323.52(F).

See Grundstein vs. Ewolf's Corp., Cuyahoga App. No. 86872, 2006-Ohio-1600 at ¶ 8, fn. 1; id.

at ¶ 17. Consequently, his appeal was dismissed pursuant to R.C. 2323.52(I).

This case demonstrates beyond any doubt that relator is detennined to engage in frivolous

conduct in the Supreme Court of Ohio. This case, like his prior cases, "is not reasonably well-

grounded in fact or warranted by existing law or a good faith argument for the extension,

modification, or reversal of existing law." S. Ct. Prac. R. XIV, Section 5(A). Indeed, in Hughes

v. Calabrese, 95 Ohio St.3d 334, 2002-Ohio-2217, 767 N.E.2d 725, the Supreme Court of Ohio

held that res judicata barred a litigant from filing a successive extraordinary action when a prior

extraordinary action was dismissed without qualification by the Ohio Supreme Court pursuant to

S. Ct. Prac. R. X, Section 5. Id. at ¶¶ 12-13. Relator ought not be able to pursue successive

extraordinary actions just by varying the respondents he has already sued unsuccessfully.

As is relevant here, relator's pursuit of successive meritless extraordinary actions

collaterally attacking court judgments that were conclusively determined in 2006 demonstrates

that he has "habitually, persistently, and without reasonable cause engage[d] in frivolous

10

conduct" in the Supreme Court of Ohio. See S. Ct. Prac. R. XIV, Section 5(B). Prior conclusive

judgtnents have not deterred relator. Something more is warranted.

Relator's pursuit of this fifth original action in the Supreme Court of Ohio is an abuse of

the privilege of involcing this Court's authority. Respotident respectfully urges this Court to

declare relator a "vexatious litigator" under S. Ct. Prac. R. XIV, Section 5(B).

CONCLUSION

For the reasons stated, respondent Eighth District Court of Appeals respectfully requests

that this Court declare relator Robert Grundstein a "vexatious litigator" under S. Ct. Prac. R.

XIV, Section 5(B).

By:

Respectfully submitted,

WILLIA.M D. MASON, Prosecuting Attomeyof Cuyahoga County, Ohio

^^,oj^ h ^ itnCHARLES E. HANNAN * (0037153)Assistant Prosecuting Attorney

* Counsel of RecordThe Justice Center, Courts Tower, 81h Floor1200 Ontario StreetCleveland, Ohio 44113Tel: (216) 443-7758/Fax: (216) 443-7602E-mail: [email protected]

Counsel for Respondent

11

PROOF OF SERVICE

A true copy of the foregoing Rcspondents' Motion to Declare Relator A "Vexatious

Litigator" Under S. Ct. Prac. R. XIV, Section 5(B) was scrved this !S^ day of April 2009 by

regular U.S. Mail, postage prepaid, upon:

Robert GrundsteinP.O. Box 131Eden, Verrnont 05652

Relator Pro Se

Uii^CHARLES E. HANNAN *Assistant Prosecuting Attomey

* Counsel of Record

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vexatious litigator under declare relator a … eighth district court of appeals, ... case no. 05 ca...

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