IN THE SUPREME COURT OF OHIO

JAMES HELFRICH, ) CASE NO.:

Plaintiff / Appellant

V.

TIMO"CHY G. MADISON, et al.,

Defendants / Appellees.

12-08^9On Appeal from the Licking CountyCourt of Appeals, Fifth Appellate District

Court of Appeals, Case No. 2011 CA 26

MEMORANDUM IN SUPPORT OF JURISDICTION

On appeal from the decision of the Fifth District Court of Appeals affirming the, declaration ofAppellant as vexatious litigator.

Christopher M. Corrigan (0070694)19041 Lake RoadRocky River, Ohio 44116Phone: (440) 356-5462Fax: (440) 210-6515cmcorrigan73@q)sbcgIobaI.netAttomeyfor Appellant, James Helfrich

Timothy Madison (0063260)Kristin E. Rosan (0070507)Madison & Rosan, LLP39 East Whittier StreetColumbus, Ohio 43206Phone (614) 228-5600Fax: (614) 228-5601tmadison@madisonrosan.comkrosan amadisonrosan.comAttorneys for Appellees

MAY 2 4 Z012

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICAND GREAT GENERAL INTEREST ..........................................................................................I

S"I'ATEMENT OF THE CASE .................................................................................................................2

STATEMENT OF THE FACTS ........:............................................................................................5

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW ....................................:................7

Pronosition of Law No. 1: In an action to have an individual named a vexatiouslitigator pursuant to O.R.C. § 2323.52 a defendant is entitled to have issues of factdetermined by a jury .. .....................................................................................................................7

Proaosition of Law No. 2: If a party seeks to rely upon parts of a case to have anindividual named a vexatious litigator the entire record of the case must be placed intothe record ..: .................. ....................................................::............ .........10

Pronosition of Law No. 3: When a court takes judicial notice of documents placed inthe record, the court must give the parties notice of the specific documents it intends toplace at issue in its determination ......................................................................................12

Proposition of Law No. 4: Where an individual's conduct in litigation is at issue, ajudge presiding over the case can be called as a witness to testify about the individual'sconduct ........ ...................................................................................................................... ....13

CONCLUS I ON ... ...... ............ . ............................. ............................. . ... ... ........14

CERTIFICATE OF SERVICE .............................................................................15

APPENDIX

I...... Final Judgment of the Licking County Court of Common Pleas(March 4, 2011)

2...... Findings and Conclusions of the Licking County Court of Common Pleas(March 4, 2011)

3......Opinion of Fifth District Court of Appeals(February 13, 2012)

4...... Judgment Entry of Fifth District Court of Appeals(February 13, 2012)

5...... Judgment Entry of Court of Appeals denying Motion for Reconsideration(Apri19, 2012)

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC AND GREAT GENERALINTEREST AND RAISES SUBSTANTIAL CONSTITUTIONAL OUESTIONS

Appellant James Helfrich is well-known in Licking County for being an outspoken critic

of the judiciary. He has had many letters published in the local newspaper that have been

unflattering to the members of the Licking County judiciary as well as the Fifth District Court of

Appeals. In the public forum, he has made has exercised his rights to Free Speech and been

openly critical of many Judges.

Now the Licking County community is aware that he has been declared a vexatious

litigator. To the community, he has been denied his right to file suits because of criticism of

judges in newspapers and other forums. Never once during his time of handling his own cases

was Helfrich ever warned or sanctioned for improper conduct. There is no evidence that he

made personal criticisms of any judges in court documents.

The effect of the ruling has been to stifle free speech in the public whose content

concerns a sitting judicial officer. The average citizen could discern an abuse of judicial power.

It would appear to those in Licking County that Helfrich was punished for being concerned and

being vocal.

This Court has never had occasion to determine whether a person defending himself from

an action to be declared a vexatious litigator is entitled to a jury as its trier of fact. Since 1997,

over 100 citizens of the State of Ohio have been declared vexatious litigators by the Courts of

Ohio. Pursuant to the statute, the Attorney General, a county prosecutor and other agents of the

State, along with individuals who defended against habitual and persistent vexatious conduct

may seek a declaration naming an individual a "vexatious litigator." Considering the deprivation

of rights that occurs from such a declaration, as well as the stigma imposed, this Court should

take this opportunity to review whether appropriate safeguards are involved in the process.

1

STATEMENT OF THE CASE

This action was initiated personally by James Helfrich (hereinafter "Helfrich")

against Timothy Madison (hereinafter "Madison"), Madison & Rosan LLP (hereinafter

"Madison & Rosan"), Carolyn Stickland (hereinafter "Strickland"), David Gamer (hereinafter

"Garner") and N.R.T. Columbus d/b/a Coldwell Banker King Thompson Realty (hereinafter

"Coldwell Banker") (Collectively referred to as "Appellees"). The suit raised claims of tortious

interference with a business relationship, abuse of process and fraud upon the court in a legal

proceedings. Helfrich claimed that Appellees had withheld evidence in a previous case and had

intentionally harassed a tenant of his to drive her from the property and force Helfrich to concede

his claim. The case was assigned to Judge Thomas Marcelain in the Licking Court of Common

Pleas.

Appellees filed a counterclaim against Helfrich seeking to have him declared a

vexatious litigator pursuant to O.R.C. § 2323.52 as well as attorney fees and other damages that

the court would permit and moved for summary judgment on their counterclaim. Helfrich filed a

motion to dismiss the counterclaim and in the alternative sought a motion for more defmite

statement of the allegations against him. As well, Helfrich sought a motion to strike the motion

for summary judgment as being in violation of Civil Rule 56(A). Eventually the Appellees

withdrew their motion for summary judgment and filed an answer denying the claims.

Helfrich sought discovery on his claims against Appellees yet no responses were ever

produced despite Helfrich filing a motion to compel. No discovery was ever been provided on

the claims of Helfrich. Furthermore, as the allegations of vexatious conduct were based upon

tactics that Helfrich utilized in prior suits, Helfrich sought to compel the testimony of Judges that

presided over those proceedings, including Judge Marcelain, to establish his defense. Every

2

attempt to have Judge Marcelain testify about conversations between Appellant and the Judge as

well as tactics untilized in other cases, were denied,

Eventually, Appellees refiled their motion for summary judgment on their claim to have

Helfrich declared a vexatious litigator. Helfrich countered with his own motion for summary

judgment on the Appellees' counterclaim. Judge Marcelain denied Helfrich's motion for

summary judgment and granted the Appellees' motion. The grant of summary judgment was

appealed and overturned. See Helfrich v. Madison, Case No. 08-CA-1 50, 2009-Ohio-5140 (5`h

Dist. 2009). Upon remand Judge Marcelain recused himself from the case.

Thereafter, Retired Judge Richard Markus was assigned to the case as a visiting judge.

Judge Markus stayed the claims of Helfrich and proceeded with discovery upon the

counterclaim. Again, Appellees filed their motion for summary judgment on the counterclaim

and Judge Markus denied the motion and set the matter for a bench trial.

Helfrich sought a jury trial which Judge Markus denied, claiming that it was an equitable

action that did not provide for a jury. There was over six days of hearings on the counterclaim.

At the end of the proceedings, the Court requested both sides submit proposed findings of facts

and conclusions of law.

On March 4, 2011, Judge Markus filed the "Final Judgment on the Defendants'

Counterclaim, Declaring that the Plaintiff is a Vexatious Litigator" (Exhibit 1) as well as

"Findings and Conclusions for Contemporaneous Judgment on Defendants' Counterclaims."

(Exhibit 2). The ruling relied upon two matters that the current parties were involved in to

establish the declaration of Helfrich as a vexatious litigator. Judge Markus claimed that there

were instances of vexatious conduct in other suits but the findings do not detail a history of such

actions.

3

The evidence presented did not show a pattern of habitual and persistent conduct that

Helfrich was a vexatious litigator. Instead, the evidence presented at trial by those who have

dealt with Helfrich indicated that he has acted professionally in the cases that he handled and that

there are reasonable grounds for his claims. In paragraph 4 and footnote 2 of the Findings the Court

appears to take issue with the fact that Helfrich has recorded conversations with other parties. The Court

does not provide an explanation as to how this can be evidence of vexatious conduct. In paragraph 7 of

the Findings, the court deems a number of statements that were within the filings of the

Strickland case to be vexatious conduct, when none of those statements fall within the definition.

The Court lists statements that were within documents filed in the Strickland case that the court

deems "unacceptably demeaned the adverse parties, their counsel, the legal profession, the judge

and the judiciary." Not one comment in the list refers to any of the adverse parties in the

Strickland case. The comments do relay the displeasure of Helfrich with the Court and opposing.

counsel, but such issues are not the purview of the vexatious litigator statute.

The Fifth District Court of Appeals affinned the decision of the Common Pleas Court.

(Exhibits 3 and 4). Within that decision, the Court noted, at paragraph 13, that Helfrich had

attached a copy of a certified check along with a letter critical of a United States District Court

Judge to a response to a motion during the underlying proceedings. As the check and the letter

had been asserted in the record and been made an issue in the case by the Appellees, Helfrich

filed a motion for reconsideration to point out that such documents had been brought into the

case by opposing counsel. Further, since the Appellees had made the documents an issue in the

case, the motion for reconsideration explained the reason such documents were of importance in

the response referred to in paragraph 13. The Court of Appeals denied the motion for

reconsideration on April 9, 2012. (Exhibit 5).

4

Appellant now moves this Honorable Court to accept jurisdiction of the case on

Constitutional grounds and as a case of public and great general interest.

STATEMENT OF THE FACTS

The trial took over six days, where Appellees called a single witness to the stand, James

Helfrich. In contrast, James Helfrich called many witnesses, including several attorneys who had

opposed him, that established the professionalism he showed during cases. The Appellees' sole

witness at the trial of this matter was Helfrich. No witness was called to testify that any conduct

caused injury or undue damage to any party in any of Helfrich's prior suits. Carol Strickland,

real estate broker, and a representative of Coldwell Banker had no knowledge of any information

that would support a declaration that Helfrich is a vexatious litigator.

It is uncontroverted that Helfrich has been involved in many suits. But there was not

proper evidence placed into the record concerning the history of those cases or their outcomes.

No evidence was placed in the record that Helfrich's conduct was vexatious or improper in any

of those cases. No evidence was brought forth that Helfrich was ever warned or sanctioned for

his conduct in any litigation to which he was a party.

At the hearing, Helfrich called Paul Lafayette (hereinafter "Lafayette"), an attorney and a

partner with the Reminger Firm. Lafayette was an attorney that defended an action brought by

Helfrich against David Branstool, Jenna Smith, the City of Newark and Licking County.

Throughout the proceedings, Lafayette found that Helfrich was courteous and acted like any

professional counsel. Helfrich did not take any maneuver to delay proceedings. Lafayette

testified that none of the defendants in that suit believed that Helfrich was seeking to harass their

clients.

5

Helrich also called William Scott Hayes (hereinafter "Hayes") to testify. Hayes was the

assistant law director for the City of Pataskala and had opposed Helfrich on numerous matters.

Besides the inadvertent mispronunciation of a witnesses' name, Hayes was unable to identify any

conduct of Helfrich in those numerous matters that he deemed inappropriate. Hayes felt that

Helfrich's conduct during those matters was as professional as any other attorney.

Dennis Dove (hereinafter "Dove"), an assistant county prosecutor for Licking County

also testified as to the conduct of James Helfrich. He has been involved in at least four lawsuits

with Helfrich. Dove testified that Helfrich's conduct was fine. Helfrich was not rude or abrupt

and he never harassed Dove.

Joyce Steel, Chief Deputy Clerk of the Licking County Court of Common Pleas was

called to testify as to documents that had been placed into the record. Her testimony established

that there were documents in the record that were not filed by Helfrich, or any party to the

matter. Instead, she testified that extraneous documents had been filed in the record by order of

Judge Thomas Marcelain. Her testimony also evinced that said documents were placed into the

case files of every matter that Helfrich was a party to by Judge Thomas Marcelain. The

documents placed in the court file were not pleadings, motions or other documents that should

have been a part of the record, but instead materials that had nothing to do with the case. Judge

Markus quashed a subpoena to have Judge Thomas Marcelain testify in this matter.

At the center of the current matter are the claims that Helfrich brought against

Strickland for fraud and statutory violations in the sale of a house. When counsel for the

Defendants in that action harassed the tenant of Helfrich and certain documents were withheld,

another suit was filed for tortuous interference of a contractual relationship as well as

misrepresentations of the opposing counsel. Judge Markus stated in the record that the pursuit

6

of the Strickland case was reasonable on the part of Helfrich. Strickland admitted that there

was damage to the property that precipitated the Strickland litigation.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1: In an action to have an individual named a vexatious litigatorpursuant to O.R.C. § 2323.52 a defendant is entitled to have issues of fact determined by a

Jury

An action to have a person deemed a vexatious litigator is, in essence, a

declaratory judgment action. In particular, the vexatious litigation makes an action under that

statute a declaratory judgment action. However, the result of the action allows a prosecutor's

office or other civil party to place the Defendant on a list maintained by the Supreme Court of

Ohio restricting their ability to access the Courts of this State for redress. The ultimate

declaration also imposes a stigma upon the individual citizen as a person who has engaged in

inappropriate behavior. Once on the list of vexatious litigators, there is no method provided to

be removed from list after the appeals of the declaration have been exhausted.

The determination that an individual is a "vexatious litigator" restricts the citizen's ability

to access courts for redress of grievances. A "vexatious litigator" is restricted to seeking

approval of the judge who has declared them a vexatious litigator or find a licensed attorney who

will take their case. Since the determination will give the Judge a great deal of power over the

individual's ability to exercise his Constitutionally protected rights, it is improper, as a matter of

law, to make the judge the ultimate trier of fact in determining whether the person is a vexatious

litigator.

The statute to have an individual declared a vexatious litigator requires that the

proceeding be held as other civil matters.

7

A civil action to have a person declared a vexatious litigator shall proceed

as any other civil action, and the Ohio Rules of Civil Procedure apply to

the action.

O.R.C. § 2323.52(C). The declaratory judgment statute mandates the handling of declaratory

judgment actions in a manner consistent with other civil actions, as does the vexatious litigator

statute.

When an action or proceeding in which declaratory relief is sought under

this chapter involves the determination of an issue of fact, that issue maybe tried and determined in the same manner as issues of fact are tried and

determined in other civil actions in the court in which the action orproceeding is pending.

O.R.C, § 2721.10. Issues of fact, such as matters that would require the determination of a

party's state of mind and motives, would be a decision for a jury to determine. Leber v. Smith,

70 Ohio St.3d 548, 553, 639 N.E.2d 1159 (1994). Juries provide a much needed check on

judicial power. Zenith Radio Corp. v. Matsushita Electric Industrial Corp. Ltd., 478 F.Supp.

889, 943 (E.D. Pa. 1979). The right to ajury is substantive. Kneisley v. Lattimer-Stevens Co.,

40 Ohio St.3d 354, 356, 533 N.E.2d 743, 746 (1988).

A party seeking a declaration to have a party named a vexatious litigator must establish

by clear and convincing evidence that the defendant habitually and persistently engaged in

conduct that served merely to harass or injure other parties or was not warranted under existing

law or a good faith argument of an extension of the law or was solely for the purpose of delay.

In Leber, the jury found by clear and convincing evidence that the insurance company had acted

fraudulently and with a dishonest purpose, 70 Ohio St.3d at 551 and 553. In this action for

declaratory judgment, there is no reason that issues based upon an individual's motives should

not be placed to a jury, especially when the potential outcome is a substantial limitation of the

individual's right to represent himself and to his right to an open court.

8

Through this litigation, it became well known that Heifrich owns numerous pieces of real

property and that his main source of income is the leasing of those properties. Rights in private

property are inviolate. OH Const. Art, 1. § 19. Pursuant to the 14th Amendment of the United

State Constitution, as well as sections 5 and 19 of Article I of the Ohio Constitution, Helfrich has

a constitutionally protected right to operate and protect his business investments. Asher

Investments, Inc. v. Cincinnati, 122 Ohio App.3d 126, 136, 701 N.E.2d 400, 406 (Ct. App. I

Dist. 1997).

Where a tenant violates their material obligations within a lease or maintain a violation of

their obligations as tenant under O.R.C. § 5321.05, a landlord is entitled to seek restitution of the

leasehold from the tenant. O.R.C. § 5321.03. The landlord may initiate a forcible entry and

detainer action which provides for a summary method to obtain restitution of the leased

premises. The purpose of such actions is to decide immediate possession of the leasehold.

Seventh Urban, Inc. v. University Circle Development Inc., 67 Ohio St.2d 19, 25, 423

N.E.2d 1070, 1075 (1981)(Fn. 2); Showe M mg t. Corp. v. Moore, No. 08 CA 10, 2009-Ohio-

2312 at ¶ 36 (Ct. App. 5 Dist. 2009). Upon notice to the tenant of the pending forcible entry and

detainer action, the court is to set a hearing date within thirty days. O.R.C. § 1923.051(A)(2). If

the landlord is granted restitution by the court, the bailiff is to execute on the writ of restitution

within ten day of its issuance restoring the landlord to the premises. O.R.C. § 1923.14(A).

The application of the vexatious litigator statute to Helfrich impairs his ability to protect

his interests in those properties. As such it violates his rights to equal protection of the laws and

due process under the 14`" Amendment of the United States Constitution. Unlike other

landlords, Helfrich must now wait for approval from a Judge to initiate an eviction action or suit

for damages stemming from that landlord-tenant relationship. Otherwise, in order to proceed

9

immediately, he must obtain and pay for an attorney to proceed with that action. The effect of

the statute is to burden his rights to operate and protect his vested rights in the properties that he

owns.

Since the statute has such impact on his constitutional rights, due process requires that

any issues of fact be determined by ajury. In the present matter, ajury would have to determine

whether Helfrich's conduct was malicious, habitual, interposed solely for delay or whether there

was a good faith grounds for his actions. When a party is being stigmatized with the label that he

is a "vexatious litigator" and having his rights to a court altered and his business rights impaired,

it is imperative that he be entitled to jury of his peers to determine whether there the facts support

a case against him. It makes no sense that juries be permitted in other civil and criminal matters,

but that he be denied that right where a statute will restrict his free access to. the courts.

Proposition of Law No. 2: If a party seeks to rely upon parts of a case to have an individual

named a vexatious litigator the entire record of the case must be placed into the record.

Judge Markus relied upon language from other proceedings that were not properly before

the court. Since Appellees only filed portions of proceedings into evidence it was impossible for

Judge Markus to glean the true place of any statement within the proceeding and determine that

they constitute vexatious conduct.

Evidentiary Rule 1008(c) provides that the trier of fact is to determine whether

other evidence of contents correctly reflects the conterits. However, without the entire record of

a case in evidence, it is impossible for the trier of fact to determine the meaning and context of

material without placing it in the appropriate context. Throughout his opinion, Judge Markus

referred to numerous other cases which Helfrich was a party to and cites to actions of Helfrich in

those proceedings to support his ruling. Where certified copies of the case files are not in the

10

record the trier-of-fact could not determine that the conduct fell within the statutorily created

definition.

It is well established that a court may take judicial notice of prior proceedings in the

immediate case, but it is not permitted to notice other proceedings outside of the immediate case.

Sinclair v. Sinclair, 182 Ohio App.3d 691, 695, 914 N.E.2d 1084, 1086 (Ct. App. 4 Dist. 2009).

Without the full record into evidence a trier-of-fact as well as appellate courts are left to

speculate under what context the alleged statements are made and whether such statements truly

had a deleterious effect on the previous judicial proceedings or the parties in that proceeding.

Simply referring to statements in various documents that are not related to the greater context of

each case is not sufficient to establish that any particular conduct is vexatious.

During examination on the stand, Madison admitted that he did not know the outcome of

the Sherry Mellon case, one of the seminal cases he uses as support of his claims against

Helfrich. Madison could not state whether there was reasonable grounds to file the Mellon suit

or what the final outcome was. Madison admitted that a full record is necessary before you can

determine if someone violated a court order or acted inappropriately.

In determining whether a party has acted habitually and persistently in a vexatious

manner, it is imperative that the trier of fact be able to review the conduct at issue in the light of

actual proceedings. Singular excerpts from a case cannot be honestly construed as vexatious or

proper without a review of how such excerpts pertain to the entire proceedings.

A court should not permit singular statements as evidence of vexatious litigation when

the files of the cases from which they came were not in the record before the court to provide a

proper evaluation of those statements.

11

Proposition of Law No. 3: When a court takes judicial notice of documents placed in therecord, the court must give the parties notice of the specific documents it intends to place atissue in its determination.

In order to prepare a defense, a litigant must know what documents the court plans to

take notice of in order that it can address those documents in its presentation or a written

submission to the Court. A court declaring that it will take judicial notice of all documents in

case that has been in active litigation for over three years does not allow a person who is

threatened with being declared a vexatious litigator proper notice of what documents the court

intends to focus on for its determination.

In an entry filed on November 30, 2010 the Court notified parties that it was taking

judicial notice of all the documents in the record. The notice was filed pursuant to Ohio Rule of

Evidence 201. By the time the notice was issued by the court, the case had been in litigation for

approximately three and a half years and there had been three days of hearing on the

counterclaim for vexatious litigation.

The Court did not notify the parties as to what documents were being reviewed. As such,

the parties were not provided proper notice of what documents the court felt were important.

Evidentiary Rule 201(E) states:

Opportunity to be heard. A party is entitled to be heard upon timely

request to an opportunity to be heard as to the propriety of taking judicial

notice and the tenor of the matter being noticed. In the absence of priornotification, the request may be made after judicial notice has been taken.

Even though the court provided notice of its intent to take notice of the previous record, the

notice failed to give reasonable notice of what documents were at issue in the court's decision.

Without any idea what documents the court was going to review in its determination, it was

impossible for Helfrich to appropriately address and defend himself.

12

A party is usually entitled to present evidence that may contradict ajudicially noticed fact

when appropriate. State v: Burns, No. 95465, 2011 -Ohio-4230 at ¶ 16 (Ct. App. 8 Dist. 2011).

Judicially noticed facts must not be subject to reasonable dispute and must be capable of accurate

and ready determination. Evid.R. 201(B). As indicated above, a deputy clerk testified that

certain documents were placed in the record by Judge Thomas Marcelain that were not a part of

the case. Accordingly, the record had issues as to what was appropriate for review as these

documents could not be determined to be accurate. Further, it is questionable as to the purpose

of those documents in the record.

Though a court may take judicial notice of adjudicative facts in the record, there is no

authority for the court to take judicial notice of documents in the file. Almost anyone can file a

document in any case. The clerk of courts readily accepted documents to be placed in a case's

record. Under Evidentiary Rule 201(B), a court may only take judicial notice of a fact that

cannot reasonably be disputed. Comtech Systems, Inc. v. Limbach, 59 Ohio St.3d 96, 101, 570

N.E.2d 1089, 1094-1095 (1991). The Court never provided any guidance as to the purpose of

takingjudicial notice. Whether documents were to be reviewed for their accuracy or for another

purpose was not made clear and caused a problem as there is no evidence placed in the record as

to who filed certain documents and their reasons for doing same.

Proposition of Law No. 4: Where an individual's conduct in litigation is at issue, a judgepresiding over the case can be called as a witness to testify about the individual's conduct.

Helfrich subpoenaed Judge Thomas Marcelain as a fact witness during the hearing as

well as at trial. Marcelain would have testified as to private conversations Helfrich had with him

about how the legal system works and the problems inherent in the system. Helfrich was entitled

to have people testify about the reasons of how he proceeded in various cases.

13

Further, Marcelain, as a Judge of the Licking County Court of Common Pleas had

presided over cases where Helfrich had represented himself. Some of the cases Appellees used

to claim that Helfrich was vexatious litigator. A judge can be called as a witness and is not

shielded from providing relevant testimony when he has personal knowledge of the facts of a

pertinent case.

Where an individual is defending himself from a declaration of vexatious litigation, he

should be entitled to seek testimony of judges who have presided over their cases. In order to

determine whether an individual's conduct fits within the definition of "vexatious" the best

witness is the non-partisan individual who has presided over said litigation.

CONCLUSION

For these reasons, this Court should accept jurisdiction, reverse the decision of the court

of appeals, adopt appellant's propositions of law, and remand the case for further proceedings.

Respectfully submitted,

Q^fAAAnChristopher M. Corrigan (007069Attorney for Appellant, James Hetfrich19041 Lake RoadRocky River, Ohio 44116Phone (440) 356-5462Fax (440) 210-6515cmcorrigan73@sbcglobal.net

14

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Memorandum in Support of Jurisdiction

was sent via regular U.S. Mail, postage prepaid, upon the following this 24th day of May, 2012

to Timothy G. Madison, Kristin E. Rosan, Attorney for Appellees, Madison & Rosan, LLP., 39

East Whittier Street, Columbus, Ohio 43206.

A JChristophee M. CorriganAttorney for Appellant, James Helfrich

15

LLERK OF CUt1MOtt Pl.E4S i.i.LfC".ltiC: COUFI7Y.OHlC

{:t^; k_?ii,LTERS.CLERH

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C1^ OCUO

IN THE COURT OF COMMON PLEASFOR LICKING COUNTY

JAMES HELFRICH

Plaintiff and Counterclaim Defendant

vs.

TIMOTHY G. Mt1DISON, et al. ))

Defendants and Counterclaim Plaintiffs )

CASE NO. 07-CV- 394

2011 FIaR -U p W. 02

FILED

JUDGE RICHARD M. MARKUS(Serving by Assignment)

FINAL JUDGMENT ON THEDEFENDANTS'COUNTERCLAIM,DECLARiNG THAT THE PLAINTIFFIS A VEXATIOUS LITIGATOR

This matter came before the court in a separate trial for the defendants' counterclaim

which asserts that the plaintiff is a "vexatious litigator" as defined by R.C 2323.52(A)(3). From

all the evidence and with contemporaneous Findings and Conclusions, this court finds for the

Counterclaim Plaintiffs and against the Counterclaim Defendant.

This court declares that James Helfrich, who currently resides in Pataskala, Ohio, is is a

vexatious litigator. He must comply with the provisions of R.C. 2323.52(F) if he proposes to file

or continue to assert any civil case without duly authorized legal counsel in the Ohio Court of

Claims, or any Ohio County Court, Municipal Court, or Common Pleas Court. He shall not

make any application other than an application to proceed for any case he has filed without duly

authorized legal counsel in the Ohio Court of Claims, or any Ohio County Court, Munieipal

Court, or Common Pleas CourG

Pursuant to R.C. 2323.52(F), this court shall not grant him leave to fiie or continue any

civil case without duly authorized legal counsel unless he satisfies this court that the proceedings

or application are not an abuse of process of the aourt in question and that there are reasonable

grounds for that proceeding or application.

SCANNED

Pursuant to R.C. 2323.52(H), the Clerk of this Court shall send a certified copy of this

order and judgment to the Clerk of the Ohio Supreme Court for publication in a manner that the

Supreme Court has determined is appropriate to facilitatc the refusal by appHca.ble court clerks to

accept pleadings or other papers submitted by or on behalf of James Helfiich without duly

authorized legal counsel and without first obtaining leave from this court to file that pleading or

other paper.

This court retains jurisdietion over the plaintifE's separate claim and any determination

whether the defendants in this case may recover any attorn.ey fees or expenses as Defendants

pursuant to R.C .2323.51 are as Counterclaim Plaintiffs pursuant to R.C. 2323.52.

TH1S IS A FAVAI. JUDGMENT ON THE SEPARATE COUNTERCLAIMAND A FINAI. APPEALABLE ORDER PURSUANT TO

HELFRICH V. MADISON, 2009-OH1O-5140 (SEPT. 28, 2009)

Judge Richard M. Markus, $.etired?udge Recalled toService pursuant to Ohio Constitution, Art. IV, §6(C)and R.C. 141.16 and assigned to the Licking CountyCommon Pleas Court for this matter

THE CLERK SHALL MAI[., T1Iv1E STAMPED COPIES OF THIS JUDGMENT AND ORDERTO THE PLAINTIFF, DEFENDANTS' COUNSEL, TIiE ASSIGNED VISITING JUDGE,

AND TIiE CLERK OF THE OHIO SUPREME COURT1N LOM'PL#ANCF WiTH C1VIL RiJLE 5$,IT IS VER IFIEF3 THAT COPIES HAVE BEENSENTTO THE PARTIES ANDtt?R THEIR ATTORNEYOF RECORD I.N A, MANNER PRESCRI# ,E, DS "̂t:IVILRULE 5(B) ON TH7S ^ DAY

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COURT OF COMMON PLEASFOR LICKING COUNTY

Plaintiff and Counterclaim Defendant

vs.

TIMOTHY G. MADISON, et al.,

Defendants and Counterclaim Plaintiffs

1[:? C DF i^NY^.'n' ^LEAS C:1_iCK'!iG CQUNi'L Giti

r"=.?:YR. V,'^.^TERS. CtEkR

2011 MAR -U P 4- C3

CASE NO. 07-CV- 394

JUDGE RICHARD M. MARKUS(Serving by Assignment)

FINDINGS AND CONCLUSIONSFOR CONTEMPORANEOUSJUDGEMENT ON DEFENDANTS'COUNTERCLAIM

PROCEDURALHISTORY

On March 16, 2007, Mr. Helfrich filed this case against Timothy Madison, Madison &

Rosan, LLP, Carol Strickland, David Garner, and N.R.T. Columbus Inc. d.b.a. Coldwell Banker

King Thompson Realty. His Complaint asserts claims for "tortious interference with a business

relationship, and abuse of process and fraud." On April 13, 2007, the defendants filed a motion

to dismiss the complaint or for summary judgement, together with a counterclaim to declare that

Mr. Hel&ich is a vexatious litigator pursuant to R.C. 2323.52. On Apri120, 2007, the defendauts

filed a summary judgment motion for their counterclaim, which they supported with multiple

documents.

On November 25, 2008, the originally assigned judge granted the defendants' summary

judgment motion and ruled that Mr. Helfrich is a vexatious litigator. On appeal from that ruling,

the Fifth District Court of Appeals vacated that summary judgment and remanded the case for

further proceedings because the defendants failed to authenticate their supporting documents

sufficiently to satisfy Civ. R. 56(E). Helfrich v. Madison, 2009-Ohio-5140 (Sept. 28, 2009).

On remand, on October 20, 2009, the defendants refiled their summary judgment motion

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for their vexatious litigator counterclaim, which they again supported with numerous documents.

Effective December 24, 2009, after the original judge recused himself, the Chief7ustice assigned

this visiting judge to conduct all further proceedings. On Apri16, 2010, this judge filed an Order

for Pending Motions which stayed proceedings for Mr. Helfrich's claims while the court

proceeded to consider and decide the defendants' counterclaim. After perniitting reasonable

discovery for the defendants' vexatious litigator counterclaim, this judge denied cross motions

for summay judgment on that claim. After responding to multiple pretrial motions for that

separate claim, this judge conducted a bench trial hearing for that counterclaim.

From November 18, 2010, through November 23, 2010, this court conducted but did not

conclude the bench trial for the defendants' counterclaim. The unavailability of court facilities,

Mr. Helfrich's scheduled surgeries, and other circumstances required the court to recess the trial.

On January 5, 2011, the court resumed that trial. The parties completed their presentation of

evidence and oral arguments for the counterclaim on January 7, 2011.

The court then directed the parties to file proposed findings of facts and conclusions of

law no later than February 21, 2011. Both sides filed proposed fmdings and conclusions on

February 18, 2011. Having reviewed their proposals, the record of this case,' a short excerpt

from trial testimony transcribed at W. Helfrich's request, this judge's trial notes, and the trial

exhibits, this judge provides the following findings and conclusions for his contemporaneous

final judgment on the vexatious litigator counterclaim.

' In a written order he filed on November 30, 2010, this judge complied with Evid.R. 201 by notifying the parties that he would take judicial notice of the entire record in this case.He further explained on the trial record that he would not consider inadmissible hearsayallegations in any documents as proof of facts they allege.

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THE VEXATIOUS LITIGATOR CLAIMS

R.C. 2323.52(A)(3) defines,a "vexatious litigator:"

"Vexatious litigator" means any person who has habitually, persistently, andwithout reasonable grounds engaged in vexatious conduct in a civil action oractions, whether in the court of claims or in a court of appeals, court ofconunonpleas, municipal court, or county court, whether the person or another personinstituted the civil action or actions, and whether the vexatious conduct wasagainst the same party or against different parties in the civil action or actions."Vexatious litigator" does not include a person who is authorized to practice lawin the courts of this state under the Ohio Supreme Court Rules for theGovemment of the Bar of Ohio unless that person is representing or hasrepresented self pro se in the civil action or actions.

R.C. 2323.52 (A)(2) defines "vexatious conduct:"

(2) "Vexatious conduct" means conduct of a party in a civil action that satisfiesany of the following:

(a) The conduct obviously serves merely to harass or maliciously injure anotherparty to the civil action.

(b) The conduct is not warranted under existing law and cannot be supported by agood faith argument for an extension, modification, or reversal of existing law.

(c) The conduct is imposed solely for delay.

R.C. 2323.52(A)(l) provides that "Conduct" for this purpose has the same meaning as R.C.

2323.51(A)(1)(a) defines that term:

(1) "Conduct" means any of the following:

(a) The filing of a civil action, the assertion of a claim, defense, or other positionin connection with a civil action, the filing of a pleading, motion, or other paper ina civil action, including, but not limited to, a motion or paper filed for discoverypurposes, or the taking of any other action in connection with a civil action;

The defendants assert that Mr. Helfrich "habitually, persistently, and without reasonable

grounds engaged in vexatious conduct in connection with the following civil litigation:

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Helfrich v. Stiickland, Garner, and N.R.T. Columbus, Inc., d.b.a. Coldwell BankerKing Thompson, Licking County Municipal Court Case No. 04-CVF-00225(hereafter "Strickland Municipal Court Case");

B. Helfrich v. Strickland, Garner, and N.R.T. Columbus, Inc., d.b.a. Coldwell BankerKing Thompson, Licking County Common Pleas Case No. 05-CV-0120 (hereafter"Strickland Common Pleas Case");

C. Helfrich v. Madison, Madison & Rosan, Strickland, Crarner, and N.R.T.Columbus, Inc., d.b.a. Coldwell Banker King Thompson, Licking CountyCommon Pleas Case No. 07-CV-0394.[hereafter "the present case"];

D. Helfrieh v. Mellon, Licking County Municipal Court Case No. 03-CVG-01721(hereafter "Mellon Municipal Court Case");

E. Helfrich v. Mellon, Licking County Common Pleas Court Case No. 03-CV-1102(hereafter "Mellon Common Pleas Court Case")

F. Helfrich v. Cheplowitz, Licking County Common Pleas Case No. 05-CV-0891;

G. Helfrich v. Allstate Insurance Company, Licking County Common Pleas CaseNo. 08-CV-187;

H. Helfrich Y. Allstate Insurance Company, Lane, Alton & Horst, and Rick Marsh,Licking County Connnon Pleas Case No. 09=CV-1379;

I.. Helfrich v. W. David Branstool, Gina Smith, City of Newark, and LickingCounty, Licking County Common Pleas Case No. 08-CV-0050;

J. Helfrich v. Marcelain, Licking County Conunon Pleas Case No., 08-MD-10;

K.. Helfrich v. Sheila Fanner, John Wise, and Julie Edwards, Licking CountyCommon Pleas Case No. 09-MD-17

Thirty-eight other civil cases that Mr. Helfrich filed in the preceding ten years inthe Licking County Municipal Court, the Licking County Common Pleas Court,the Franklin County Municipal Court, the Franldin County Common Pleas Court,the Fifth District Court of Appeals, and the United States District Court for theSouthern District of Ohio, which the defendants list as Exhibit J to theirCounterclaim or submit in their exhibits, including the following eighteen:

1. Helfrich v. City of Pataskala Planning and Zoning, Licking CountyCommon Pleas Case No. 98-CV-00375;

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2. Helfrich v. City of Pataskala Plannig and Zoning, Licking CountyCommon Pleas Case No. 99-CV-00082;

3. Helfrich v. City of Pataskala Planning and Zoning Connnission Membersand City of Pataskala, Licking County Common Pleas Case No. 99-CV-

00083;

4. Helfrich v. City ofPataskala Planning and Zoning Licking CountyCommon Pleas Case No. 00-CV-0843;

5. Helfrich v. City of Pataskala Board of Zoning Appeals, Licking CountyCommon Pleas Case No. 05-CV-0018;

6. Helfrich v. Direct TV, Licking County Municipal Court Case No. 06-CVI-2905;

7. Helfrich v. D & J Master Clean, Inc., Licking County Common PleasCourt Case No. 98-CV-00683;

8. Helfrich v. D & I Master Clean, Inc., Licking County Connnon Pleas CaseNo. 99-CV-00666;

9. Helfrich v. Ohio Unemployment Compensation Board of Review, LickingCounty Conunon Pleas Case No. 97-CV-00048;

10. Helfrich v. Sears Roebuck Company, Licking County Municipal CourtCase No. 03-CVI-3353;

11. Helfrich v. Metal Container Corporation, Franklin County Common PleasCase No. 95-CV-08292;

12. Helfrich v. Metal Container Corporation, Franklin County Common PleasCaseNo.98-CV-03539; -

13. Helfrich v. Metal Container Corporation, Franklin County Common PleasCase No. 00-CV-009433;

14. Helfrich v. Metal Container Corporation, Franklin County Common PleasCase No. 01-CV-012273;

15. Helfrich v. Motal Container Corporation, Licking County Common PleasCase No. 96-CV-00478;

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16. Helfrich v. Metal Container Corporation, Licking County Common PleasCase No. 97-CV-00048;

17. Helfrich v. Metal Container Corporation, Fifth District Court of Appeals

Case No. 1997 CA 00049;

18. Helfrich v. Metal Container Corporation, Fifth District Court of AppealsCase No. 2000 CA 00591.

VEXATIOUS CONDUCT F1NDiNGS FOR THE STRICKLAND CASES

1. Mr. Helfrich was apro se plaintiff and the counterclaim plaintiffs were defendants

andlor defendants' counsel in the Strickland Municipal Court case, the Strickland Common Pleas

Court Case, and the present case.

2. On February 9,2004, Mr. Helfrich filed the Mellon Municipal Court Case, in which

he claimed $5,000 compensatory damages from two real estate agents who allegedly

misrepresented the condition of residence property he purchased for investment purposes.

3. One month later, on March 10, 2004, Mr. Helfrich added the agents' broker as a

defendant in that case and increased his compensatory damage claim from $5,000 to $7,000.

4. On July 7, 2004, the magistrate in that case ordered Mr. Helfrich to produce copies

of recordings he covertly made for his telephone conversations with adverse parties? Two days

later on July 9, 2004, W. Helfrich voluntarily dismissed that case without complying with that

order.

5. Approximately seven months later on January 27,2005, he refiled the same. claims

against the same defendants in the Strickland Common Pleas Court case, where he increased his

2 At the vexatious litigator trial, Mr. Helfrich stated that he frequently recordedtelephone conversations and retained those recordings without advising the other party.

6

compensatory damage claim to $27,000. Though he now asserts that he had a basis for those

claims, he consistently failed to produce any records, receipts, or other docunientary evidence to

support any of those monetary claims in either court. This judge finds that he lacked any

evidence then to support those monetary claims.

6. The trial court ultimately granted the defendants' summary judgment motion and

dismissed the Strickland Cornmon Pleas Court Case because Mr. Helfrich failed to provide any

evidence to support his damage claim. The court of appeals affirmed that disniissal. Mr.

Helfrich then filed repetitious and groundless motions in the appeals court for reconsideration

and to supplement that motion, which included the following scandalous language [solid

capitalization and bold face in original]:

THIS COURT'S OPINION OF SEPTEMBER 29, 2009, IN A CASECAPTIONED 08-CA-150, IS DIRECT EVIDENCE OF THIS COURT'SDOUBLE STANDARD, PREJUDICE, VIOLATION OFCONSTITUTIONAL RIGHTS, OR RAISED AN ISSUE FORCONSIDERATION THAT WAS NOT CONSIDERED AT ALL, OR WASNOT FULLY CONSIDERED BY THIS COURT WIIEN IT SHOULDHAVE BEEN.

7. In the Strickland Common Pleas Case, Mr. Helfrich filed documents which

contained the following scurrilous, scandalous, or defamatory comments which unacceptably

demeaned the adverse parties, their counsel, the legal profession, the judge, and the judiciary:

a. This court should be cautioned that if it orders the Plaintiff to conduct himself asthat of Defense Counsel, a member of the bar, they are giving him free reign tolie, niislead, and unethically twist facts.

b. This court has been sitting around with baited breath, allowing this conduct tocontinue.

c. This may be a hard pill to swallow, but the courts and attorneys lash out at selfrepresentation, and penalize it whenever they can for not following procedural

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matters.

d. Now we are waiting to see if this Court has a double standard.

e. This court has tumed a blind eye to plaintiffs discovery and allowed defensecounsel repeated delays in discovery hindering plaintiffs trial. Defense counselone of your legal compadras [sic] saw no fault in ordering the deposition to betaken in a nonparty's house.

f. hi reality Mr. Madison knows this court has cast a blind eye on justice and hasturned to sending the plaintiff through a gauntlet of legal maneuvers hoping tohave the case dismissed.

g• Likewise it is unconscionable to assume the cartel would sanction one of its own.

h. If Plaintiff was represented by the cartel, this court would simply grant Plaintiffswell-grounded Motion, and then only the supplemental complaint would moveforward.

i. Point being, that the Plaintiff pro se has insulted this system. He graduated highschool without knowing how to read and write. Now he performs the same tasksas the attorney who demands nothing less than $200 per hour. It is a slap in theface. If others are successful, your cartel will collapse.

j. I assume they come to this conclusion because they are members of the bar. Whyit may be a hard pill to swallow, our justice system has evolved into a self-servingsystem which is self-perpetuating - it demands $200 plus an hour. In tum, thejudges take care of the attorney's, and the attorney's take care of the judges, sothere is no need to change a thing.

k. As all Mr. Madison's Motions before this Court, they are not statements of fact,just false statements from a desperate person trying to justify his $200 per hourjob against a person with no legal training.

I. This Court has bent over backwards to cross examine and disbelieve the Plaintiffat every possible avenue.

m. What Magistrate Plunkett did was denied the Plaintiff his legal right toSupplement a complaint, and add Defendants to that actiorz. It gets so fivstratingto deal with your buddy system.

n. However, the Plaintiff realizes that our legal system is none other than a self-perpetuating system of Judges helping attorney's, and attorney's helping Judges to

8

perpetuate the system, he realizes he cannot prevent the Trial Judge from justpencil whipping an answer, but Civil Rule 53 at least forces that hand.

o. This is a prime example on how Defense counsel takes it upon himself to twist thefacts and misinform this Court of Plunkett's reasoning of state of mind. However,before you read any further, needs to get in the state of mind set that it must abideby Rules of Civil Procedures, and pull itself back from the mindset that it mustprotect officers of the Court at all costs.

p. It gets so frustrating to deal with your buddy system.

q. This Court has bent over backwards to cross examine and disbelieve the Plaintiff

at every possible avenue.

r. In spite of this Court's blind eye to discovery, their attempts to support the buddysystem, the Plaintiff has gained ground, and exhausted all of the Defendants'affirmative defenses.

s. From the start, Defense counsel has only played on this courts ignorance to thelaw, and its hope that your good ole boy system would throw this action out withthis gauntlet of legal maneuvers. This is just one more.

t. I fmd it to be nothing but a slap in the face for Magistrate P€unkett to alter hisJanuary 10th Order, without allowing Plaintiff to even collect his out-of-pocket ortravel costs. Plunkett further makes a mockery of the system when he only grantsPlaintiff the cost of the court reporter, which undisputedly was already waived.Let us not be naxve, the record supports that ex-partee [sic] communications havetaken place between the Defendant and the office of Magistrate Plunkett andMagistrate Hayes. Does anyone think that Plunkett did not grant the award of thecourt reporting fees knowing they were not already waived? Well, what a gift.

u. Again Defense counsel takes advantage of this Court's refusal to act in the bestregard for the judicial process. For this Court to repeatedly turn a blind eye tofraud and intentional deception, is an embarrassment to the system as a whole.

v. Mr. Madison is not too far off from reality, the reality here of the issue is that thePlaintiff has had to jump through as many hoops as this Court can possibly put up,and he is capitalizing on it. He is just employing the tactics this Court hasencouraged.

8. These conunents may well constitute indirect or direct contempt. They obstruct,

delay and distract proceedings. Mr. Helfrich mistakenly attempts to defend them as his exercise

9

of his right to free speechh They obviously serve "merely to harass or maliciously injure another

party to the civil action."

9. In the Strickland Common Pleas Case, Mr. Helfrich repeatedly and persistently filed

documents that inappropriately delayed proceedings, including objections or responses to the

court's rulings, surreply arguments without leave, motions for reconsideration or clarification, and

memoranda opposing requests that he did not oppose.

10. In a written message to adverse counsel in the Strickland Common Pleas Case, Mr.

Helfrich threatened to "file perjury charges" against one of the defendants if the defendants did

not agree within two days to accept his new, increased settlement dernand for more than his

alleged compensatory damages.

11. In an effort to obstruct the defendants' inspection of the allegedly defective or

damaged property in the Strickland Common Pleas Case, Mr. Helfrich assisted his tenant in

preparing a document to resist that inspection.

12. When the magistrate directed Mr. Helfrich's tenant to comply with a subpoena for a

deposition in the subject properly where she resided, Mr. Heifrich retaliated with a motion for

the magistrate to supply the keys to the magistrate's home for Mr. Helfrich to take depositions

there on twelve hours notice.

VEXATIOUS CONDUCT FINDINGS FOR THE PRESENT CASE

13. Mr. Helfrich filed the present case on March 16, 2007. His Complaint asserts

substantially the same claims against the same defendants that he sued in the Strickland Common

Pleas Case, while adding claims against them and their legal counsel for allegedly improper

conduct in that prior case.

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14. Mr. Helfrich did not dismiss the Strickland Common Pleas Case. Both cases

remained pending to assert substantially the same misrepresentation claims against the sales

agents and the broker for sixteen months, until the trial court dismissed the Strickland Common

Pleas Court Case on July 18, 2008.

15. In substance, Mr. Helfrich's present case adds a claim that the present defendants,

including the sales agents and the broker in the prior case and their legal counsel, wrongfully

pursued investigation or discovery efforts to confirm or deny Mr. Helfrich's damage claims in that

prior case.

16. Mr. Helfrich characterizes his claims in the present case as tortious interference with

his business relationship with his tenant, abuse of process, and fraud. If Mr. Heldrich had any

right to recover from the sales agent or the broker for alleged misrepresentation, the pending and

subsequent disnzissal of the Strickland Common Pleas Case may bar those claims here. If Mr.

Helfrich had any legally cognizable rights to complain about or obtain redress for the adverse

parties' conduct in the Strickland Conunon Pleas Case, those rights arose from and were

enforceable in the Strickland Common Pleas Case and may not be a proper subject for a separate

action, Further, even if his present Complaint states a legally cognizable claim against the sales

agents and the broker, his present Complaint may fail to state a legally cognizable claim against

their lawyers for the lawyers' conduct on behalf of their clients.

17. Without deciding whether Mr. Helfrich's Complaint states a legally cognizable

cause of action against some or all the named defendants, this judge finds from the evidence now

available that Mr. Helfrich filed the present case (a) to retaliate against the present defendants for

their defense of the Strickland cases and (b) to discourage their continued defense of the

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Strickland Common Pleas Case by intimidation.

18. On the same day that Mr. Helfrich filed the present case and almost one month

before the defendants filed their counterclaim, W. Helfrich filed a discovery request that the

defendant lawyer and his law firm produce their federal tax returns for the preceding three years,

together with "related schedules and all receipts used to prepare said returns." Mr. Helfrich later

argued that the court should require the lawyer and his firms to comply with that request.

19. in an attempt to justify that extraordinary discovery request, Mr. Helfrich

disingenuously testified that he sought their tax returns to identify persons with whom they had

dealings. This judge fmds that Mr. Helfrich filed that discovery request and sought to enforce it

(a) as retaliation for the same lawyer's request in the Strickland Common Pleas Case and the

magistrate's resulting order that Mr. Helfrich disclose the liniited part of his tax returns that could

support or contradict his damage claim and (b) to discourage their continued defense of the

Strickland Common Pleas Case by intimidation.

20. On the same day that Mr. Helfrich filed the present case, he filed a motion for the

assigned judge to recuse himself for "personal conflicts between himself and the plaintiff." The

assigned judge for the present case was the same judge who had been presiding over the

Strickland Common Pleas Case for more than two years without any request that he withdraw.

Mr. Helfrich reasserted that request in filings six weeks later on April 20, 2007, and ten days

thereafter on May 3, 2007, and in a letter to that judge on August 7, 2007.

21. When Mr. Helfrich failed to persuade the assigned judge to withdraw in the present

case, he filed an Affidavit of Disqualification on August 24, 2007, which the Chief Justice denied

eleven days later on September 4, 2007. Approximately one year later on August 21, 2008, Mr.

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Helfrich filed a Renewed Affidavit of Disqualification, which the Chief Justice treated as a

motion to reconsider the prior ruling and denied on August 26,2008. On September 5, 2008, Mr.

Helfrich filed a response to the Chief Justice's ruling, which the Chief Justice treated as a second

motion for reconsideration and denied on September 8, 2008.

22. On October 21, 2008, Mr. Helfrich filed deposition subpoenas for the assigned

judge's bailiff and secretary to support his continuing efforts to remove that judge. Following a

hearing, the judge properly granted motions to quash those subpoenas. Despite that ruling, Mr.

Helfrich subpoenaed judges and court persormel for the counterclaim trial. This judge granted

motions to quash the subpoenas for two judges but permitted Mr. Helfrich to call one judge's

court reporter and the other judge's secretary. Both of them gave testimony adverse to Mr.

Helfrich's claims. This judge finds that Mr. Helfrich's attempts to subpoena the judges and court

staff were part of his efforts to intimidate those judges and other judges who may preside over his

cases, which these fmdings also discuss below.

23. On December 8, 2008 (thirteen days after the assigned judge declared that Mr.

Helfrich is a vexatious litigator), Mr. Helfrich filed another Affidavit of Disqualification. The

Chief Justice dismissed that disqualification request on December 13, 2008, because it failed to

allege that there was any proceeding then pending before that judge. On December 15, 2008, Mr.

Helfrich filed a Renewed Affidavit of Prejudice. On December 16, 2008, he filed a motion to

reconsider the Chief Judice's dismissal of his December 8 Affidavit. On December 18, 2008, the

Chief Justice denied both new requests in an extended entry that reviews the entire histoiy of Mr.

Helfrich's efforts to remove the assigned judge and concludes:

Finally, it is observed that Helfrich has filed six separate requests to disqualify

13

Judge Marcelain in the underlying action. The statutory right to seekdisqualification of a judge is an extraordinary remecly not to be used in a frivolousmanner. Helfrich is cautioned that the filing of any firrther frivolous,unsubstantiated, or repeated affidavits of disqualification may result in animposition of sanctions.

24. This judge finds that Mr. Helfrich's persistent efforts to remove the assigned judge

unnecessarily delayed, disrupted, and distracted proceedings in an attempt to intimidate that

judge. Apparently his unrelenting attacks on that judge ultimately caused the judge to withdraw

on December 15, 2009, with a resulting delay while the Chief Justice assigned this visiting judge

and while this judge expended significant time to review and understand the voluminous record.

25. On July 24, 2008. Mr. Helfrich filed his Answer to the defendants' vexatious

litigator counterclaim, in which he denied many allegations "for want of knowledge" when he

knew they were true and unequivocally denied many other allegations that he later testified were

true. His Answer asserted affirmative defenses that the counterclaim is bared by (a) waiver and

estoppel, (b) laches, (c) "unclean hands," (d) failure to comply wifh Civ. R. 9 and 10, (e) "the

defense of truth," (f) "the defense of privilege," (g) "the defense of freedom of speech," (h)

limitations, and (i) failure to join parties. He made no attempt to support most of those defenses

at the trial, and he evaded the court's questions during his summation at the end of the trial

whether he continued to assert some of them. He responded that he had yet decided whether he

could support them.

26. A review of the record in this case shows that Mr. Helfrich repeatedly filed

unnecessary, redundant, cumulative, inappropriate, and/or unauthorized documents - all of which

delayed and distracted proceedings and many of which imposed expense when adverse counsel

reasonably felt an obligation to respond. As he had done in the Strickland cases, he filed

14

surreplies without leave. In one document he compared adverse counsel's conduct with the

practices of Hitler and Sadam Hussein.

27. During the one month trial recess, Mr. Helfrich (a) filed unauthorized documents in

an attempt to submit evidence outside the trial record,3 (b) filed a motion that requested this judge

to act on his behalf by retrieving material from the Clerk's office, and (c) sent this judge and

adverse counsel a fax message that he would retain a recording because he mistakenly perceived it

would reflect unfavorably on the judge. In filed documents and at the counterclaim trial, he

periodically referred to argument or testimony as lies and fraud when they were at most differing

perceptions or opinions about events.

28. Mr. Helfrich demonstrated his disdain for court procedures by his demeanor during

the vexatious litigator trial. He frequently argued with the judge about rulings and argued with

witnesses rather than questioning them. He persisted in addressing issues after the judge ruled

that they lacked relevance.

VEXATIOUS CONDUCT FINDINGS FOR OTHER ACTIONS OR PROCEEDINGS

29. When asked about his litigation history, Mr. Helfrich gave evasive testimony that he

could not remember how many cases he had filed, he could not approximate that number, and he

could not remember or approximate what portion of those cases involved tenant relations. His

testimony caused the judge to infer and find that he recognized that he had filed an extraordinary

number of cases.

30. Mr. Helfrich asserted that he prevailed in every case he filed, but he provided no

details about the results of most of them. For at least one case, the adverse lawyer testified that

This judge filed a written order to strike those documents on January 5, 2011.

15

Mr. Helfrich's claims had no merit. For the Mellon Municipal Court Case (listed above at p. 4),

Mr. Helfrich claimed that his tenant owed him at least $6,300 damages, but the trial court's

judgment awarded him only $569.56, while awarding the tenant $2,500 as damages and $48,000

for attorney fees on her counterclaim. His subsequent post judgement motions and his appeal

documents belie any claim that he prevailed.

31. Mr. Helfrich was the person with the greatest knowledge about his litigation history,

and he knew that the counterclaim complained about that history. He ignored or denied that his

lawsuits imposed stress and expense on adverse parties. His evasive testimony and his failure to

provide more responsive information caused this judge to infer and find that he lost some cases,

he obtained some judgements for considerably less than his claimed losses, and he obtained some

settlement payments when adverse parties sought to avoid or limit stress and litigation expense.

32. On July 25, 2005, Mr. Helfrich Shortly after he received the adverse verdict in the

Mellon Municipal Court Case, Mr. Helfrich filed suit against an opposing witness in that trial. He

later filed suits against his liability insurer and the lawyers who that insurer retained to defend him

against the tenant's counterclaim.

33. Approximately three years after the adverse Mellon Municipal Court verdict, Mr.

Helfrich sued the trial court judge, his court reporter, the City of Newark, and Licking County -

alleging their misconduct in the Mellon case. This judge finds that Mr. Helfrich's lawsuits

against those Mellon case participants were unsupportable and retaliatory. He disregarded

common law and statutory immunity provisions in his attempt to punish those defendants for

adverse results he sustained.

34. During the period that the prior judge's vexatious litigator order remained in effect,

16

Mr. Helfrich applied for leave to file separate pro se lawsuits against (a) that judge, and (b) the

three appeals court judges who affirmed the dismissal of the Strickland Common Pleas Case.

Those proposed cases claimed that the judges wrongfully performed their judicial duties in W.

Helfrich's cases. The assigned judge properly declined to grant leave for those unsupportable

cases which ignored very well established judicial immunity principles. Mr. Helfrich's attempts

to file those cases further demonstrated his urge to retaliate against those who offend him,

regardless of the merits of his claims, and to intimidate judges who then preside or may soon

preside over his cases.

35. Mr. Helfrich sent a federal district court judge a$2,Q0© cashier's check while that

judge was presiding over a case in which Mr. Helfrich was a party. He invited that judge to cash

the check if he could swear on a bible that he had never done anything unethical and had no

reason to believe there is corruption in the system. He then reported his offer to multiple law

firms and the media.

36. While he had cases pending in the Licking County Municipal and Commo.n Pleas

Courts, Mr. Helfrich sent accusatory and defamatory letters to judges who presided over those

cases and to their colleagues, which he contemporaneously and subsequently publicized

elsewhere.

37. He sent numerous private communications to the judge assigned to the Strickland

Common Pleas Court Case without showing that he supplied adverse counsel with copies. This

judge finds and concludes that those ex parte communications sought to influence that judge's

decisions.

38. Mr. Helfrich claims that he sent all those messages to express his views, and that he

17

had a "free speech" right to express them in that manner. This judge finds and concludes that Mr.

Helfrich pursued these practices in an effort to influence or intimidate those judges and the local

judiciary in order to enhance his litigation success.

39. From Mr. Helfrich's demeanor at the vexatious litigator trial, his testimony there,

and all the other evidence, this judge fmds that Mr. Helfrich enjoys pro se litigation as a contest

where he can match wits with professionals and inflict pain on those who offend him. He

testified that he disfavors hiring lawyers because he doesn't trust them.

40. From the documents he filed to complain about his lawyers' perfonnance in

defending the Mellon counterclaim, this judge finds that Mr. Helfrich prefers to represent himself

because lawyers will not assert his contentions or adopt his tactics." In other documents he

expresses pride that he can perform as effectively as lawyers who charge $200 per hour. He

denies that professional ethics and professional regniations apply to him. He attacks the judiciary

and the legal profession to show that he is as competent and moral as they claim to be.

CONCLUSTONS

A. This judge finds and concludes from clear and convincing evidence that Mr.

Helfrich's conduct in or in connection with the cases about which the court received evidence

constitutes vexatious conduct within the meaning of R.C. 2323.52 (A)(2).5 The described conduct

"obviously serves merely to harass or maliciously injure another party" to a civil action; and/or

4 For example, he complains bitterly that the lawyers whom his insurer hired todefend the Mellon counterclaim failed to use inadmissible character evidence [See Evid. R.404(A)] and a juror's inadmissible affidavit to impeach the verdict [See Evid. R. 606(B).]

S This court's findings list some examples of Mr. Helfrich's vexatious conduct, but

the record contains others.

18

the described conduct "is not warranted under existing law and cannot be supported by a good

faith argument for an extension, modification, or reversal of existing law; and/or the described

conduct was "imposed solely for delay."

B. Mr. Helfrich argues that his conduct must have been proper because no judge

complained or censured him. This judge's review of the record and the exhibits contradict his

statement, since the evidence reports multiple occasions when a judge complained or threatened

to sanction him. However, assuming that no judge expressly objected to his conduct, it may still

be vexatious. Like frivolous conduct defined in R.C. 2423.51(A)(2), vexatious conduct may have

greater or lesser significance, depending on it frequency, gravity, and effect. Not every frivolous

or vexatious act merits sanctions. Some misconduct is better ignored or controlled with a brief

remonstrance. Sanetions can dismpt proceedings, so many judges accept lesser misconduct rather

than challenging or penalizing it.

C. Some of Mr. Helfrch's misconduct may have merited prompt judicial response, but

the judge at that proceeding may have justifiably disregarded it to facilitate a fair resolution of the

real issues. In any event, a judge's failure to control Mr. Helfrich does not demonstrate that his

conduct was acceptable. In this case, this judge finds that the cumulative effect of NIr. Helfrich's

persistent vexatious misconduct requires the controls that R.C. 2323.52 affords.

D. This judge finds and concludes from clear and convincing evidence that Mr. Helfrich

has "habitually, persistently, and without reasonable grounds engaged in vexatious conduct" in

multiple civil actions. Therefore, this court declares that he is a "vexatious litigator" within the

meaning of R.C. 2323.52(A)(3).

E. That finding does not preclude his access to the courts. He has never argued that he

19

lacks sufficient resources to retain counsel for any litigation needs. A vexatious litigator may

pursue a claim with retained counsel, who are better trained and may be subject to more rigorous

judicial supervision and disciplinary control than apro se litigant. Indeed, a vexatious litigator

may pursue a claim pro se if he first demonstrates that he will not abuse process and that there are

reasonable grounds for the proceedings he proposes to pursue.

Judge Richard M. Markus, Rehred Judge Recalled toService pursuant to Ohio Constitution, Ast. IV, §6(C)and R.C. 141.16 and assigned to the Licking CountyCommon Pleas Court for this matter

THE CLERK SHALL MAIL TIME STAMPED COPIES OF THESE FINDINGSAND CONCLUSIONS TO THE PLAINTIFF, DEFENDANTS' COUNSEL,

AND THE ASSIGNED VISITING JUDGE

20

May.23. 2012 9:31AM LlGklllg GOUnTy G12Yk 0T 40UrTS iuu.714]..-_.r•

COURT OF APPEALSLICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JAMES HELFRICH

Plaintiff-Appellant

-vs-

TIMOTHY G. MADISON, et al.

Defendants-Appel lees

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellant

CHRISTOPHER M. CORRIGAN19041 Lake RoadRocky River, Ohio 44116

F I"-ILED

'"12 FEB 13 A Fi: 51

CLERK OF COURTS

LICKING COUN^1' OHJUDGES: OARYHon. W. Scatt Gwln, P. J.Hon. John W. Wise, J.Hon. Patricia A. Delaney, J.

Case No. 11 CA 28

OPINION

Civil Appeal from the Court of CommonPleas, Case No. 07 CV 394

AfFirmed

For Defendants-Appellees

KRISTIN E. ROSANTIMOTHY G. MADISONDARCY A. SHAFERMADISON & ROSAN39 East Whittier StreetColumbus, Ohio 43208

May.23. 2012 9:31AM Licki ng Uounty t;lerK oT ^ourts_u ^

Licking County, Case No. 11 CA 26

vV )LYJ L

2

{11} Appellant, James Heffrich, appeals a judgment of the Licking County

Common Pleas Court finding him to be a vexatious litigator. Appellees are Timothy

Madison, Madison & Rosan L.L.P., Carol Strickland, David Garner and N,R.T.

Columbus Inc. D.B.A. Coldwell Banker King Thompson Realty.

STATEMENT OF FACTS AND CA$E

{12} Appellant filed the instant action on March 16, 2007, for abuse of process,

tortious interference with a business relationship and fraud.

{13} On April 13, 2007, Appellees filed a Counterciaim, alleging that Appellant

was a vexatious litigator as defined by R.C. 2323.52(A)(2).

{14} Appellees moved for summary judgment on their counterclaim. The trial

court granted summary judgment and declared Appellant to be a vexatious litigator.

{¶5} In a Judgment Entry filed November 25, 2006, the trial granted Appellee's

motion for summary judgment. The trial court found that the instant case arose out of a

dispute during a previous suit filed by Appellant. In its eonclusions of law, the trial court

stated that in February of 2004, Appellant filed suit in Licking County Municipal Court

against Appellees Strickland, Garner and Coldwell Banker over the sa ►e of property to

Appeitant. Appellant dismissed the municipal court case and brought suit for the same

claims in Licking County Common Pleas Court (Case No. 05 CV 00120) in January of

2005, "inexplicably seeking $27,000.00 in damages." The trial couit stated that

Appellees were granted summary judgment when Appellant failed to present any

evidence of damages. In that case, Appellant sought to amend to join the defendants'

(L\11

May.23. 2 0 1 2 9 ; 3 1 A M L ek ng t;ounty ^ erK or vouris IVV JLYJ I. J

Licking County, Case No. 11 CA 26 3

counsel, Timothy Madison, as a defendant. The motion was denied, and Appellant

brought the instant action (Case No. 07-CV-00394) including claims against Madison.

{16} The trial court noted that Appellees had cited numerous Instances of

vexatious conduct in the instant case and in Case No. 05 CV 00120, as well as

numerous instances of "similarly frivolous and malicious behavior" in cases filed by

Appellant against other defendants. The trial court held that the many instances of

Appellant's behavior in this case and in 05CV00120 were more than sufficient to

constitute vexatious behavior. The trial court stated:

{17} "While plaintiff is entitied to criticize the justice system, he is not entitled to

abuse process, waste the Court's time, and use repeated frivolous filings to do so.

Plaintiff mistakenly believes his First Amendment rights include using civil actions as a

vehicle to express his disenchantment with the legal processes. The evidence

submitted by.defendant shows habitual and persistent conduct on the part of plaintiff

that consists of impugning defendants, opposing counsel, judges, and the judicial

system. Plaintiff even continues this conduct in his memorandum contra defendants'

motion for summary judgment, maligning defendants Strickland and Madison and

raising issues that this Court and the Supreme Court have already ruled upon. This

conduct rises to the level of harassment and is a strain on the Court's time and

patience."

(18) The trial court declared Appellant to be a vexatious litigator as defined in

R.C. §2323.52(A). The trial court held that unless Appellant has leave of court, he is

prohibited from instituting legal proceedings in the court of claims or in a court of

664"

May 23. 2U12 9 : 9 1 A N 1 L ektng Uounty G erk or ^ouris IYU. 7L'tJ I. Y

Licking County, Case No. 11 CA 26 . 4

common pleas, municipal court, or county court, and from continuing any legal

proceedings that he had instituted in any of these courts prior to the entry of the order.

{19} Appellant filed an appeal from this dacision to this Court.

{110} Up to this point, Appellant had also filed at least six separate requests to

disqualify Judge Marcelain. On December 18, 2008, the Supreme issued a Judgment

Entry stating the statutory right to seek disqualifiration of a judge is an extraordinary

remedy not to be used In a frivolous manner. The Supreme Court warned Appellant

"that the filing of any further frivolous, unsubstantiated, or repeated affidavits of

disqualiflcation may resuft in the imposition of appropriate sanctions,"

{111} By Opinion dated September 28, 2009, this Court found that the trial court

relied on improper evidentiary material from Case No, 05 CV 00120 in granting

summary judgment. The decision of the trial court was vacated and the matter was

remanded back to the trial court for further pr©caedings. Hetirich Y. Madison, Licking

County Case No. 06-CA-150, 2009-Ohio-5140.

(112) Upon remand, on October 20, 2009, Appellees refiled their summary

judgment motion on the vexatious litigator counterclaim.

{113} On October 28, 2009, Appellant filed a document entitied Plaintiffs

Memorandum Contra to Judge Thomas Marcelain's Motion to Quash. Attached to the

Memorandum Contra as Exhibit N is a copy of a Certified Check to Federal Court Judge

Greg Frost dated October 8, 2003, The statement fotlowing the check indicates the

check is offered to Judge Frost if he will swear on the Bible that he has never done

anything unethical and has no reason to believe there is corruption or unethical practice

within the judicial system.

^^l

May 2 3 • 2 U 1 2 9 : 3 2 A M L c k n g ^ o u n t y c e r K O T Uaur s ItlU )LY.1

Licking County, Case No. 11 CA 28 5

{114} On December 15, 2009, Judge Marcelain petitioned the Supreme Court

for the appointment of a visiting judge and Judge Richard Markus was assigned to the

case.

{115} From November 18, 2010, through November 23, 2010, the trial court

commenced, but did not conclude, a bench trial on Appellees' counterclaim. The trial

was recessed until January 5, 2011. The parties completed presentation of evidence

and oral arguments on the counterclaim on January 7, 2011.

(116} Between November 23, 2010 and January 5, 2011, Appellant filed a

number of documents, including nine subpoenas. Appellant filed three "Notices" to the

Court and one motion to have the judge pick up a video-taped deposition from the

Clerk's Office. On December 7, 2010, Appellant sent facsimile correspondence to the

presiding judge and Appellees' trial counsel containing what has been characterized as

a threat to the judge conceming a voicemail recording left the previous day.

{117} The trial court filed its Judgment entry on March 4, 2011.

{118} Appellant now assigns eight errors on appeai:

ASSIGNMENTS OF ERROR

{119} "I. THE TRIAL COURT ERRED IN DENYING THE MOTION TO COMPEL

THE DEPOSITION OF KRISTIN ROSAN.

{120} '91. THE TRIAI. COURT ERRED IN DENYING THE (SIC) JAMES

HELFRICH A TRIAL BY JURY WHEN THE STATUTE IS A DECLARATORY

JUDGMENT ACTION AND THERE ARE ISSUES OF FACT THAT A JURY MUST

DETERMINE.

. 16

May.23. 2012 9:32AM Lick ng Gouniy Uerk oT uourts NU 7LYJ I.

Licking County, Case No. 11 CA 26 S

{121} "IIL THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF

DOCUMENTS IN THE RECORD PURSUANT TO EVIDENTIARY RULE 201(E)

WITHOUT INFORMING THE PARTIES OF WHAT INFORMATION WAS BEING

REVIEWED AND FOR WHAT PURPOSE THE DOCUMENTS WERE TO BE

CONSIDERED.

{1122} "IV. THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF

DOCUMENTS IN THE RECORD PURSUANT TO EVIDENTIARY RULE 201(E) WHEN

THERE WAS TESTIMONY THAT CERTAIN DOCUMENTS HAD BEEN IMPROPERLY

PLACED IN THE RECORD BY A THIRD-PARTY.

{123} 'V. THE TRIAL COURT ERRED BY DENYING HELFRICH THE RIGHT

TO CALL WITNESSES WHO WOULD TESTIFY AS TO DISCUSSIONS HE HAD

ABOUT APPROPRIAE [SIC] COURT DECORUM.

{124} "VI. THE TRIAL COURT ERRED IN QUASHING THE SUBPOENA OF

JUDGE MARCELAIN WHEN EVIDENCE SHOWED THAT CERTAIN DOCUMENTS

HAD BEEN PLACED IN THE RECORD BY HIM,

(925) "VII. THE COURT ERRED IN RELYING ON EXCERPTS OF CASES

INSTEAD OF REVIEING [SIq THE ENTIRE RECORD OF EACH CASE TO

DETERMINE WHETHER APPELLANT HAD ENGAGED IN VEXATIOUS CONDUCT IN

PREVIOUS SUITS.

{}(26} "VIII. THE COURT ERRED IN DECLARING THE [SIC) HELFRICH WAS A

VEXATIOUS LITIGATOR WHEN THE EVIDENCE WAS INSUFFICIENT TO SUPPORT

SUCH DETERMINATION."

May,23. 2012 9:32AM Lick ng Gounty Gierk ot Uurts IVU )147 r.

Licking County, Case No. 11 CA 26 7

L

{127} In his first assignment of error, Appellant argues that the trial court erred in

denying his motion to compel the deposition of Kristen Rosan. We disagree.

(128) Appellant herein deposed Attorney Kristen Rosan on May 28, 2010.

During the deposition, Appellant questioned Attomey Rosan regarding her affidavit

which was attached to Appailees' Reply in Support of their Motion for Summary

Judgment. Attorney Rosen responded to a number af questions by stating that she did

not have any personal knowledge outside of her capacity as a lawyer in the case. On

June 21, 2010, Appellani filed a motion to compel.

(129) The trial court herein found that Attorney Rosen is not a fact witness in this

case, that the summary judgment motion which the affidavit supported had been

abandoned, that Attomay Rosen was not filing an affidavit in support of a renewed

motion for summary judgment, and finally that there was no evidence that Attorney

Rosen's client had waived the attomey-client privilege.

{130} Revised Code 2317.02(A) provides for testimonial privilege. It prevents an

attomey from testifying conceming communications made to the attorney by a client or.

the attorney's advice to a client. A testimonial privilege applies not only to prohibit

testimony at trial, but also to protect the sought-after communications during the

discovery process.

{1#34} Upon review, we find the trial court did not err in denying Appellant's

motion to compel.

{132} Appellant's first assignment of error is overruled.

!

May.23. 2U12 9:32AM Lick ng Uunty clerk ot courts Vo. 7143 r. 0

Licking County, Case No. 11 CA 26 8

It.

{133) In his second assignment of error, Appellant argues that he had the right

to jury trial on the issue of whether he is a vexatious litigator pursuant to R.C. §2323.52.

We disagree.

4341 Appellants argument fails to take into account that the right to a jury trial is

not absolute. Section 5, Article I applies only to those causes of action to which the right

attached at common law when Section 5 was adopted. See Anington v.

DalmlerChryster Corp., 109 Ohio St.3d 539, 2006-dhio-3257, 849 N.E.2d 1004; see

also, 8etding v. State ex rel. Neifner (1929), 121 Ohio Bt. 393, 169 N.E. 301, paragraph

one of the syllabus.

(135) The vexatious litigator statute by its own terms clearly indicates that it

provides a form of.declaratory judgment, and that certain consequences flow from the

trial court's declaration that a person is a vexatious litigator.

{¶38} A civil action under the statute constitutes a specific statutory and legal

action with statutorily prescribed remedies which did not exist at common law.

{137} Appellant's second assignment of error Is overruled.

IIt., IV.

M381 In his third and fourth assignments of error, Appellant argues that the trial

court erred in taking judicial notice of c»rfain documents in the record. We disagree.

{139} Evid.R. 201 govems the trial court's ability to take judiciat notice of

adjudicative facts, or the facts of the case. Further, the court has the power to take

judicial notice of its own records and judicial notice of its own actlons In earlier

May,13. 2U12 9:39AIVI l c k n g ^ o u n t y G e r k O T iourrs uu 7t`tJ r, 7

Licking County, Case No. 11 CA 26 9

proceedings of the same case, Diversified Mortgage tnvestors, Inc. v. Athens Cty. Bd, of

Revision (1982), 7 Ohio App.3d 157, 159, 454 N.E.2d 1330.

{140} In the Instant action, the trial court took judicial notice of the entire record

of the matter herein, all of which was known to Appellant.

{141} This Court has stated in dicta that we agreed with.the proposition that the

trial court can take judicial notice of prior lawsuits filed in its own court. Lansing v.

Hybud Equipment Co., Stark App.No. 002CA00112, 2002-Ohio-5869, ¶ 18, A trial court

can take judicial notice of the court's docket. State v. Washington (August 27, 1987,

Cuyahoga App. Nos. 52676, 52677, 52678 at 15. However, a court does not have the

authority to take judicial notice of the proceedings in another case, including its own

judgment ent(es. Eg., State v. LaFever, Belmont App. No. 02 BE 71, 2003-Ohio-6545,

¶ 27; State v. 8laine, Highland App. No. 03CA9, 2004-Ohio-1241, ¶ 17; Diversit"rsd

Mortgage Investors, lnc. v, Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 454

N.E.2d 1330; NorthPoint Ptoperties, Inc. v. Petticord, 179 Ohio App.3d 342, 2008-Qhio-

5996, ¶ 16. The rationale for this holding is that if a trial court takes notice of a prior

proceeding, the appellate court cannot review whether the trial court correctly

interpreted the prior case because the record of the prior case is not before the

appellate oaurt, Eg. Alaine, supra, ¶ 17; LaFever, supra, ¶ 27; 8uoscio, supra, ¶ 34_

{¶42} Appellant's third and fourth assignments of error are overruled,

V„VI.

{143} In his fifth and sixth assignments of error, Appellant argues that the trial

court erred in quashing the subpoena of Judge Marcelain and in denying him the right to

`_611

May Z3. 1 01 2 9:33Ftwl e k n g c o u n t y ^ e r K o Uour s IYV 71YJ I. IV

Licking County, Case No. 11 CA 26 10

call vfitnesses to testify as to discussions he had conceming "appropriate court

decorum". We disagree.

{q44} In the instant case, Appellant subpoenaed Judge Marcelain, the judge

who had presided over Appellant's case before Judge Markus was appointed.

Appellant argues that the purpose for subpoenaing Judge Marcelain was to have him

testify as to private conversations which took place between him and Appellant

regarding "how the legal system works° and "issues of courtroom decorum". Appellant

wanted to offer this testimony in support of his actions in these legal proceedings.

(145) A trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion Is exercised in line with

the rules of procedure and evidence. The admission of relevant evidence rests wfthin

the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 31,

paragraph two of the syllabus. An appellate court that reviews the trial court's admission

or exclusion of evidence must limit its review to whether the lower court abused its

discretion. State v, Finnerty (1989), 45 Ohio St,3d 104, 107. As this Court has noted

many times, the term 'abuse of discretion' connotes more than an error of law; it.implies

that the court acted unreasonably, arbitrarily or unconscionably. E.g., Blakemore v.

Blakemore (1983), 5 Ohio St,3d 217, 219, 5 OBR 481, 482,450 N.E.2d 1140, 1142 '

{146} A reviewing court should be slow to interfere unless the court has cleady

abused its discretion and a party has been materially prejudiced thereby. State v.

Maurer (1984), 15 Ohio St.3d 239, 264, 473 N.E.2d 768, 791. The trial court must

determine whether the probative value of the evldence and/or testimony is substantially

May.13 2 0 1 1 9:39HIVI L c k n g u o u n t y ^ e r K O T ^our s IVV. 7LYJ F . I I

Licking County, Case No. 11 CA 26 11

outweighed by the danger of unfair prejudiee, or of confusing or misleading the jury. See

State v. Lyles (1969), 42 Ohio St.3d 98, 537 N.E.2d 221.

{147) Upon review, we do not find that the trial court abused its discretion by

quashing the subpoena for Judge Marcelain. We find that even if Judge Marcelain had

personal knowledge as to Appellant's motivation for his comment or comments, which is

very unlikely, such knowledge is irrelevant in that it is the effect of Appellant's conduct

and/or actions whioh is required for a finding of vexatious litigation, not the motivation,

{148} Appellant's fifth and sixth assignments of error are overruled.

VII., Vltt.

{148} In his seventh and eighth assignments of error, Appellant argues that the

trial court erred in determining that Appellant is a vexatious litigator, We disagree.

{150} Appellant argues that the trial court failed to review the entire record in

making its detennination.

{151} Vexatious litigator is defined in R.C. § 2323.52(A) as:

{152} "[A)ny person who has habitually, persistently, and without reasonable

grounds engaged In 8exatious 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. "Vexatious litigatoT' does not Include a person who is authorized to

practice law in the courts of this state under the Ohio Supreme Court Rules for the

Government of the Bar of Ohio unless that person is representing or has represented

self pro se in the civil action or actions,"

May,23. 2012 9:33AM Licking Gounty lerk oi Gouris IYO. 7LzFJ P. IZ

iacking County, CaseNo. 11 CA 26 12

{153} Additionally, "vexatious conduct" is defined as the conduct of a party in a

civil action that "obviously serves merely to harass or maiiciousiy 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 iaw," or "is imposed

solely for delay." R.C. § 2323.52(A)(2)(a) through (c).

{154} Said section further provides:

{155} "(D)(1) if the person alleged to be a vexatious litigator is found to be a

vexatious iitigator, subject to division (D)(2) of this section, the court of common pleas

may enter an order prohibiting the vexatious iitigator from doing one or more of the

following without first obtaining the leave of that court to procx;ed,

{155} "(a) instituting legal proceedings in the court of claims or in a court of

common pleas, municipal court, or county court;

{157} "(b) Continuing any legal proceedings that the vexatious litigator had

instituted in any of the courts specified in division (D)(1)(a) of this section prior to the

entry of the order;

{158} "(c) Making any appiication, other than an application for leave to proceed

under division (F)(1) of this section, in any legal proceedings instituted by the vexatious

litigator or another person in any of the courts spec'rfied in division (D)(1)(a) of this

section.

{159} "(2) if the court of common pleas finds a person who is authorized to

practice law in the courts of this state under the Ohio Supreme Court Rules for the

Government of the Bar of Ohio to be a vexatious litigator and enters an order described

in division (0)(1) of this section in connection with that finding, the order shaii apply to

May.23. 2012 9:34AM Licking Gounty Clerk ot Courts 1o.^14j r. s

Licking County, Case No. 11 CA 28 13

the person only insofar as the person would seek to institute proceetdings described in

division (D)(1)(a) of this section on a pro se basis, continue proceedings described in

division (D)(1)(b) of this section on a pro so basis, or make an application described In

division (D)(1)(c) of this section on a pro so basis. The order shall not apply to the

person Insofar as the person represents one or more other persons In the person's

capacity as a licensed and registered attorney in a civil or criminal action or praceeding

or other matter in a court of common pleas, municipal court, or county court or in the

court of claims. Division (D)(2) of this sebtion does not affect any remedy that is

available to a court or an adversely affected party under section 2323.51 or another

section of the Revised Code, under Civil Rule 11 or another provision of the Ohio Rules

of Civil Procedure, or under the common law of this state as a result of frivolous conduct

or other inappropriate conduct by an attomey who represents one or more clients in

connection with a civil or criminal action or proceeding or other matter in a court of

common pleas, municipal court, or county court or in the court of claims."

{184} Declaring a plaintiff to be a vexatious litigator is "an extreme measure" that

should be granted only "when there is no nexus" between "the filings made by the

plaintiff and [his or her] intended claims." McC/ure v. FischerAttached Homes, 145 Ohio

Misc.2d 38, 882 N.E.2d 61, 2007-phio-7259 at ¶ 33.

{161} In the case at bar, after hearing days of testimony on the vexatious

litigator counterclaim, the trial court found by "clear and convincing evidence that Mr.

Melfrich has 'habitually, persistently, and without reasonable grounds engaged in

vexatious conduct' in multiple civil actions." See Judgment Entry, March 4, 2011, at

page 19. In reaching this conclusion, the trial court thoroughly reviewed Appellant's

(ylu

Nay. Z3. yUIZ 9;34RIVI ck ng ^ounty t erk ot vourts IVO. 9Lrf) r. 14

Licking County, Case No, 19 CA 26 14

history of filing complaints, motions, and affidavits for disqualification in that Court, in

addition to Appellant's conduct in connection with said cases. The trial court found that

AppeAant's "conduct 'obviously serves merely to harass or maliciously injury another

party and/or 'is not warranted under existing law and cannot be supported by a good

faith argument for an extension, modification, or reversal of existing law; and/or the

described conduct was "imposed solely for delay'." Id, at 18-18.

(1[62} Based on our review of the record and Appellant's numerous lawsuit and

copious fllings, we conclude that the triat court did not err in finding in favor of Appellees

on their vexatious litigator counterclaim. Upon review of the record, we find

overwhelming evidence that Appellant habitually files unnecessary, inappropriate, or

supernumerary pleadings and motions. Further, the record shows that Appellant insists

on raising and re-raising arguments which have been rejected by the trial court, and this

Court, sometimes repeatedly,

(163} While this Court is sympathetic to a party who feels he has suffered an

injustice, and takes all measures wifhin. the law to correct such, we find that Appeilant's

actions have long passed this stage. His conduct in the various matters before the

Licking County Common Pleas Court are "vexatious," within the meaning of the statute,

in that "ftjhe conduct is not warranted under existing law and cannot be supported by a

good faith argument for an extension, modification, or reversal of existing law." R.C. §

2323.52(A)(2)(b). His conduot is also "vexatious" insofar as some of it "is imposed solely

for delay." As such, the trial eourt properly declared him a vexatious litigator.

0

May.13 1U12 9:34pfVl L cK ng county c erK OT Uourts

Licking County, Case No. 11 CA 28

190. 71`1] P. 14

15

{164} Appellants seventh and eighth assignments of error are overruled.

{165} For the foregoing reasons, the judgment of the Court of Common Pleas,

Licking County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

JWW/d 0124JUDGES

114 COMPL'IANCE W1TH CIVIL RULE i8.

IT rS V£sR1Ff'FD THAT f:()PIn5 HAVE HEEKSF,NT TF3 THE• PARTlE a AN 17r+1R, THi37 R ATTQRN^EY

4g LiECOR 7IN A'1!'1ANNHI^;U p"Y oF^^

^iUy6 g(g) ON T>iIS -A fl

1XI

v d y . L j . (U L N : j4HNI L ck ng l;ounty ^lerk oT 4;our1 s

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHICI

CLERf'+ Of COURTSIvaA

FIFTH APPELLATE DISTRICT tilfl FEQ (3 A& S 1

^PQEACS.tCKlNgGaRY R A^TR H. W EJAMES HELFRICH .

S

Plaintiff-Appellant

-vs-

TIMOTHY G, MADISON, et al:

Defendants-Appellees

JUDGMENT ENTRY

Case No. 11 CA 26

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.

Costs assessed to Appellant.

JUDGES

RllLB 5(8) ON T'OF

tN COM4LL4NCFt a'ITH C1V11. RULE S6.IT TS VERIF7Ft) TFI AT COPIES HAVE BEENSENT TQ THF PARTIIi!{ AN I^iOR 1"H r;IR ATPfJRNEY

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IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIOFIFTH APPELLATE DISTRICT

JAMES HELFRICH

Plaintiff Appeiiant

JUDGMENT ENTRY

TIMI(?THY O. MADISON, et ai.

13efendents=Appeitees CASE NO. 2011 CA 26

ED

TflII AF'R-4 P 2;QI

Ci-ERK OF COURTSLIC}01%N^ APPEALS

aFiGARY R. WALTERS

iatter c^me t7efore : the :Court . on,.;AppeiianYs Appiica6on ;tar,

dFetiruary 28, 2012: Appeliees' Brief Opposition was tited March

9, 2012. Appeliant's Reply in Support of the Application for Reconsideration was filed

that was not fully considered or considered at aii when it should have been. Appeliant's

motion simply sets forth AppeNant's disagreement with the decision, and reiterates

Appetiant'sappeiiate argumertts.

As Appellant has not raised any issues in said Appiication that this Court

did not carefully consider when making its decision, we find said Motion for

March 23, 2012.

Upon review of Appellants Motion for Reconsideration, we find that

Appellant has failed to bring to this CourE's attention any obvious error or raisean issue

tain not=rvell tatten arid he^eby deny same.,

JUDGES

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