[Cite as In re Disqualification of Browne, 136 Ohio St.3d 1279, 2013-Ohio-4468.]




                        IN RE DISQUALIFICATION OF BROWNE.
                                 CATUDAL v. CATUDAL.
         [Cite as In re Disqualification of Browne, 136 Ohio St.3d 1279,
                                    2013-Ohio-4468.]
Judges—Affidavit        of    disqualification—R.C.         2701.03—Vexatious-litigator
        declaration and restricting e-filing rights—Remedy lies on appeal, not
        through the filing of an affidavit of disqualification.
                  (No. 13-AP-087—Decided September 11, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Franklin County Court of Common Pleas,
               Domestic Relations Division, Case No. 10 DR 004934.
                                ____________________
        O’CONNOR, C.J.
        {¶ 1} The plaintiff in the underlying case, Chance Catudal, has filed an
affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify
Judge Kim A. Browne from presiding over any further proceedings in case No. 10
DR 004934, now pending in the Domestic Relations Division of the Court of
Common Pleas of Franklin County.
        {¶ 2} Catudal claims that Judge Browne has demonstrated bias against
him by declaring him a vexatious litigator, stating that such a declaration
“should’ve happened a long time ago,” and restricting his e-filing account with
the Franklin County Clerk of Courts. Catudal further alleges that Judge Browne’s
counsel made a false statement in a motion filed in a related mandamus case
brought by Catudal against the judge.
        {¶ 3} For the following reasons, no basis has been established to order
the disqualification of Judge Browne.
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        {¶ 4} First, neither Judge Browne’s order declaring Catudal a vexatious
litigator nor her restriction of his e-filing rights are grounds for disqualification. It
is well established that a party’s disagreement or dissatisfaction with a court’s
legal rulings, even if those rulings may be erroneous, does not constitute bias or
prejudice. In re Disqualification of Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351,
803 N.E.2d 818, ¶ 4. Therefore, Catudal’s dissatisfaction with Judge Browne’s
order or the manner in which she restricted his e-filing account does not
demonstrate bias against him. Moreover, the court’s e-filing policy plainly states
that “[i]ndividuals who have been deemed vexatious litigators pursuant to R.C.
2323.52 will not be permitted to file documents electronically.” In re Electronic
Filing of Court Documents, Fourth Amended Administrative Order (June 25,
2013), at 12, available at http://www.franklincountyohio.gov/clerk/e-file.cfm The
remedy for Catudal’s claims here, if any, lies on appeal, not through the filing of
an affidavit of disqualification. In re Disqualification of Russo, 110 Ohio St.3d
1208, 2005-Ohio-7146, 850 N.E.2d 713, ¶ 6.
        {¶ 5} Second, Judge Browne’s comment that Catudal should have been
declared a vexatious litigator “a long time ago” does not establish bias or
prejudice. “The term ‘bias or prejudice’ ‘implies a hostile feeling or spirit of ill-
will * * * toward one of the litigants or his attorney, with the formation of a fixed
anticipatory judgment on the part of the judge.’ ” In re Disqualification of
O'Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 14, quoting
State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956).
Judge Browne made this comment after the defendant presented evidence of
Catudal’s allegedly frivolous filings.         During that hearing, Judge Browne
explained that she had repeatedly warned Catudal that he would be declared a
vexatious litigator if he did not cease making frivolous filings, but according to
Judge Browne, he continued the behavior. Read in context, Judge Browne’s
comment appears to be based on her interpretation of the law and evidence, and it




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therefore does not convey the impression that she has developed any hostile
feelings towards Catudal or a fixed anticipatory judgment.
       {¶ 6} Third, Catudal has waived his right to object to Judge Browne
based on a statement made by her counsel in a related mandamus proceeding. An
affidavit of disqualification must be filed “as soon as possible after the incident
giving rise to the claim of bias and prejudice occurred,” and failure to do so may
result in waiver of the objection, especially when “the facts underlying the
objection have been known to the party for some time.” In re Disqualification of
O'Grady, 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996). Catudal claims that
the judge’s counsel made the allegedly false statement in a November 2012 filing,
yet Catudal waited until September 2013 to file this affidavit. As nothing in the
record justifies the delay, Catudal has waived the right to disqualify Judge
Browne based on this allegation.
       {¶ 7} In conclusion, “[a] judge is presumed to follow the law and not to
be biased, and the appearance of bias or prejudice must be compelling to
overcome these presumptions.” In re Disqualification of George, 100 Ohio St.3d
1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been
overcome in this case. The affidavit of disqualification is therefore denied. The
case may proceed before Judge Browne.
                                     Sanctions
       {¶ 8} The statutory right to seek disqualification of a judge is an
extraordinary remedy not to be used in a frivolous manner. Indeed, the filing of
frivolous, unsubstantiated, or repeated affidavits of disqualification is contrary to
the purpose of R.C. 2701.03 and a waste of judicial resources. Catudal has now
filed five affidavits of disqualification in the underlying case: four against Judge
Browne, see affidavit-of-disqualification case Nos. 11-AP-120, 11-AP-131, and
12-AP-023, and one against retired Judge Katherine Lias, who had temporarily sat
by assignment for Judge Browne, see affidavit-of-disqualification case No. 12-



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AP-121. None of Catudal’s affidavits have been sustained. Moreover, the chief
justice has previously warned Catudal that the filing of any further frivolous,
unsubstantiated, or repeated affidavits will result in an imposition of sanctions.
See case No. 12-AP-121.          This admonition, however, has been ignored.
Accordingly, it is sua sponte ordered that Catudal is prohibited from continuing or
instituting any affidavit-of-disqualification proceedings relating to Catudal v.
Catudal, case No. 10 DR 004934, without first obtaining leave. Any request for
leave shall be submitted to the clerk of this court for the chief justice’s review.
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