State ex rel. Porterfield v. McKay

2014 Ohio 4989

• Court: Ohio Court of Appeals
• Decided: November 10, 2014
• Docket: 2014-T-0016
• Status: Published

Opinion

[Cite as State ex rel. Porterfield v. McKay, 2014-Ohio-4989.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO ex rel. : PER CURIAM OPINION ERIC LEE PORTERFIELD, : Relator, : CASE NO. 2014-T-0016 - vs - : JUDGE W. WYATT MCKAY, et al., : Respondents.

Original Action for Writ of Mandamus

Judgment: Petition dismissed.

Eric Lee Porterfield, pro se, PID: A420502, Mansfield Correctional Institutional, P.O. Box 788, Mansfield, OH 44901 (For Relator).

Dennis Watkins, Trumbull County Prosecutor, LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Respondents).

PER CURIAM.

{¶1} Relator, Eric Lee Porterfield, filed a petition for a writ of mandamus. In his

petition, relator states that respondent, Judge W. Wyatt McKay of the Trumbull County

Court of Common Pleas, has failed to issue a ruling on a motion that has been pending

in an underlying criminal case since March 2013. Relator seeks a writ compelling

respondent to rule upon the motion.

{¶2} Respondent moves to dismiss this action on the grounds that, despite the fact that relator was found to be a vexatious litigator in July 2013, he failed to move this

court for leave to proceed when he filed his mandamus petition. In his response to the

motion to dismiss, relator does not dispute that he was declared a vexatious litigator in a

separate proceeding before the common pleas court. Instead, he essentially contends

that he should not be required to obtain leave to proceed because the pending motion

at the trial level pertains to an issue which has been the subject of continuing litigation

since at least 2010.

{¶3} In a prior appeal brought by relator, this court expressly noted that he was

declared a vexatious litigator by the common pleas court. See State v. Porterfield, 11th

Dist. Trumbull No 2013-T-0032, 2013-Ohio-4315 ¶2. As a result, relator cannot bring a

new action without complying with R.C. 2323.52(F)(2):

{¶4} “(2) A person who is subject to an order entered pursuant to division (D)(1)

of this section and 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. The court of appeals shall not grant a person found

to be a vexatious litigator leave for the institution or continuance of, or the making of an

application in, legal proceedings in the court of appeals unless the court of appeals is

satisfied that the proceedings or application are not an abuse of process of the court

and that there are reasonable grounds for the proceedings or application.”

{¶5} Under the unambiguous language of R.C. 2323.52(F)(2), once a person

has been designated a vexatious litigator, the requirement of applying/moving for leave

2 to proceed is applicable to the institution of any new proceedings and the continuation

of any pending proceedings. Furthermore, pursuant to R.C 2323.52(F)(1), the need to

request leave to proceed, regardless of whether the proceeding is already pending or

new, is also applicable to any matter before all state trial courts. Therefore, the fact that

an issue was the subject of prior proceedings will not alter the requirement of obtaining

leave to proceed if additional proceedings on the issue are necessary after the person

has been declared a vexatious litigator. The governing statute does not provide for any

exception to the “leave” requirement.

{¶6} Relator has failed to move for leave to institute a mandamus action before

this court. Moreover, in responding to the motion to dismiss, he has not expressly

discussed whether there are reasonable grounds for the proposed action and whether

allowing the action to proceed would result in an abuse of process. Thus, as a declared

vexatious litigator, relator has not satisfied the mandatory requirement under R.C.

2323.52(F)(2) for bringing a new proceeding.

{¶7} Respondent’s motion to dismiss is hereby granted. It is the judgment and

order of this court that relator’s mandamus petition is dismissed in its entirety.

DIANE V. GRENDELL, J., THOMAS R. WRIGHT, J., COLLEEN MARY O’TOOLE, J., concur.