[Cite as State ex rel. Brown v. Logan, 138 Ohio St.3d 286, 2014-Ohio-769.]




   THE STATE EX REL. BROWN, APPELLANT, v. LOGAN, JUDGE, APPELLEE.
  [Cite as State ex rel. Brown v. Logan, 138 Ohio St.3d 286, 2014-Ohio-769.]
Portion of court of appeals’ judgment dismissing complaint for writ of mandamus
        and/or procedendo affirmed—Portion of court of appeals’ judgment
        revoking in forma pauperis privileges reversed.
    (No. 2013-0859—Submitted October 22, 2013—Decided March 5, 2014.)
   APPEAL from the Court of Appeals for Trumbull County, No. 2012-T-0099.
                                ____________________
        Per Curiam.
        {¶ 1} Appellant, Felix Brown Jr., brought an original action for a writ of
mandamus and/or procedendo in the Eleventh District Court of Appeals seeking
to compel Trumbull County Common Pleas Court Judge Andrew D. Logan to rule
on a motion for leave to amend a prior motion for relief from judgment. The
court of appeals denied the petition as moot. The court of appeals also sua sponte
revoked Brown’s in forma pauperis privileges for filing a frivolous action.
        {¶ 2} For the reasons set forth below, we affirm the judgment of the
court of appeals in part and reverse it in part.
Background
        {¶ 3} In September 1995, a Trumbull County jury convicted Brown of
murder. See State v. Brown, 11th Dist. Trumbull Nos. 95-T-5349 and 98-T-0061,
2000 WL 522339 (Mar. 31, 2000). The trial court sentenced Brown to serve a
prison term of 18 years to life.
        {¶ 4} Sixteen years later, on August 25, 2011, Brown filed an omnibus
motion in the trial court, citing Civ.R. 60(B)(4) and 60(B)(5) and Rule 47 of the
Trumbull County Local Rules. On September 20, 2011, Brown filed a Civ.R.
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15(A) motion for leave to amend his omnibus motion to add two additional claims
for relief.
        {¶ 5} On the same day, September 20, 2011, the trial court denied the
omnibus motion and ordered Brown to complete his original sentence.             The
decision did not mention Brown’s motion for leave to amend.
        {¶ 6} Brown appealed to the Eleventh District Court of Appeals. The
court of appeals issued a judgment entry on June 8, 2012, in which it remanded
the case to the trial court for a ruling on the September 20, 2011 motion for leave
to amend. State v. Brown, 11th Dist. Trumbull No. 2011-T-0101 (June 8, 2012).
Unfortunately, the appellate court’s entry contained an error. The court of appeals
wrote, “[I]t is ordered that this case be remanded to the trial court for a period of
twenty days from the date of this judgment entry so that it can rule upon
appellant’s motion to withdraw his guilty plea.” (Emphasis added.) Id. Brown
had never entered a guilty plea, much less filed a motion to withdraw a guilty
plea.
        {¶ 7} The court of appeals quickly realized its mistake. On June 13,
2012, the appellate court vacated the first entry and sua sponte substituted a
second entry nunc pro tunc for the vacated judgment entry. State v. Brown, 11th
Dist. Trumbull No. 2011-T-0101 (June 13, 2012). The nunc pro tunc entry
correctly remanded the case, again for a period of 20 days, for the trial court to
rule on the motion for leave to amend.
        {¶ 8} Also on June 13, 2012, the trial court, apparently unaware of the
nunc pro tunc entry, proceeded to enter judgment pursuant to the first remand
order. The trial court noted that the matter had been remanded for a ruling on
Brown’s motion to withdraw his guilty plea. “However,” the trial court stated,
“the Court ruled on that motion on September 19, 2011” when it denied the
omnibus motion in its entirety. Id. Thus, the trial court evidently overlooked the
fact that the omnibus motion did not include a motion to withdraw a guilty plea.




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          {¶ 9} Nevertheless, even though the original court of appeals’ judgment
contained an error, the trial court correctly recognized that the motion was still
pending and proceeded to rule on it. Specifically, the trial court’s June 13, 2012
judgment entry denied the motion for leave to amend, stating:


          The Court finds the motion to amend is a nullity and is therefore
          not well taken. The Court had previously denied Brown’s motion
          to vacate on September 19, 2011. Therefore, Brown’s motion to
          amend on September 20, 2011 is a legal nullity as the subject of
          amendment had been previously denied.


State v. Brown, Trumbull C.P. No. 1995 CR 00127 (June 13, 2012).
          {¶ 10} Brown responded by filing two successive petitions for writs of
mandamus and/or procedendo in the Eleventh District Court of Appeals to compel
the trial court to rule on his motion for leave to amend. He filed the first request
under the case caption of his direct appeal, rather than as a separate original
action.    For this reason, the court of appeals dismissed the first petition as
procedurally defective. State v. Brown, 11th Dist. Trumbull No. 2011-T-0101
(Sept. 12, 2012). In the same judgment entry, the appellate court wrote that the
request was moot because the trial court did rule on the motion for leave in its
June 13, 2012 judgment entry.
          {¶ 11} Guided by the first dismissal, Brown refiled his petition for a writ
of mandamus and/or procedendo as an original action.            The appellate court
dismissed the second petition as moot. State ex rel. Brown v. Logan, 11th Dist.
Trumbull No. 2012-T-0099 (May 6, 2013). In addition, the court of appeals
revoked Brown’s in forma pauperis privileges due to Brown’s “repetitious and
frivolous conduct.” Id. at 3.
          {¶ 12} Brown timely appealed that judgment to this court.



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Analysis
       {¶ 13} For a writ of procedendo to issue, Brown must show a clear legal
right to require the court to proceed, a clear legal duty on the part of the court to
proceed, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d
564, ¶ 7. A writ of procedendo is proper when a court has refused to enter
judgment or has unnecessarily delayed proceeding to judgment. State ex rel.
Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180, 184, 652 N.E.2d
742 (1995).
       {¶ 14} Brown argues that the appellate court erred when it held that the
trial court had already ruled on his motion for leave to amend. According to
Brown, the first remand from the court of appeals conferred limited jurisdiction
upon the trial court, that is, jurisdiction to rule only upon the nonexistent motion
to withdraw a guilty plea. So when the trial court ruled on the motion to amend, it
exceeded its limited mandate, and therefore, the June 13, 2012 trial court
judgment entry was void.
       {¶ 15} According to Brown, the trial court did not regain jurisdiction to
decide the motion for leave to amend until the appellate court entered its nunc pro
tunc entry on June 13, 2012, and since that time, the trial court has not issued a
new decision on the motion. Therefore, Brown contends, the motion for leave to
amend remains pending and the petition for a writ of mandamus/procedendo is
not moot.
       {¶ 16} Judge Logan, on the other hand, argues that Brown’s
mandamus/procedendo action is barred by res judicata.          According to Judge
Logan, Brown either raised or could have raised the same issue in his first
mandamus/procedendo action, which the court of appeals dismissed on September
12, 2012.




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        {¶ 17} We hold that the first dismissal does not operate as res judicata.
The appellate court’s judgment entry makes clear that it dismissed the first
mandamus/procedendo action for lack of subject-matter jurisdiction.


        Preliminarily, we note that Brown filed his petition under his
        existing direct appeal, 11th Dist. No. 2011-T-0101. To invoke our
        jurisdiction to institute an original action, Brown must file his
        petition separate and apart from his existing appeal.


Brown, 11th Dist. Trumbull No. 2011-T-0101 (Sept. 12, 2012), at 1. A dismissal
for lack of subject-matter jurisdiction does not operate as res judicata when the
complaint is refiled. Billiter v. Banks, 135 Ohio St.3d 426, 2013-Ohio-1719, 988
N.E.2d 556, ¶ 11. Once the appellate court declared that it lacked subject-matter
jurisdiction to entertain the mandamus/procedendo complaint, any discussion of
the merits was dicta. Wallace v. Dept. of Commerce, 96 Ohio St.3d 266, 2002-
Ohio-4210, 773 N.E.2d 1018, ¶ 17, fn. 4. The portions of the appellate court
decision declaring that the trial court had issued a valid ruling on Brown’s motion
and that Brown’s petition was therefore moot were dicta and thus cannot
constitute res judicata.
        {¶ 18} But although Judge Logan cannot prevail on res judicata grounds,
he is entitled to judgment on the merits. The evidence in the record demonstrates
that both the appellate court’s nunc pro tunc order and the trial court’s decision to
reject the motion for leave to amend were issued on June 13, 2012. The clerk of
court’s date stamp on Judge Logan’s judgment entry does not indicate the time of
day at which the entry was filed, so it is impossible to determine which entry was
journalized first. It is at least possible that the appellate court’s nunc pro tunc
entry was journalized first, which means that the trial court did in fact have




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jurisdiction to decide the motion, even if it was unaware of the nunc pro tunc
entry at the time.
       {¶ 19} Brown has the burden of proof to show that he is entitled to
extraordinary relief. Brown has not eliminated the possibility that the trial court
had jurisdiction at the time Judge Logan ruled, which means he cannot prevail.
       {¶ 20} Brown argues that even if the trial court did have jurisdiction to
issue its June 13, 2012 order, it was not free to make the ruling that it did
regarding the timeliness of his motion to amend. He argues that the court of
appeals necessarily decided that his motion for leave to amend was filed before
the trial court ruled on the omnibus motion, because otherwise there would have
been no reason to remand the case in the first place. Brown then reasons that this
determination became the law of the case, and the trial court was not free to reach
a different conclusion. This argument construes the appellate court order too
broadly. The purpose of the remand was to determine whether the motion for
leave had merit, which would include determining whether it had been timely
filed or was moot. Nothing in the language of the remand order indicates that the
appellate court intended to preempt the trial court by deciding this issue. And
even if Brown is correct that the trial court erred when it denied his motion for
leave to amend as moot, because his omnibus motion was still pending when he
filed his motion for leave to amend, he would not be entitled to an extraordinary
writ. If the trial court wrongly denied his motion as moot, Brown’s remedy would
lie in a direct appeal of the entry denying his motion to amend.
       {¶ 21} Moreover, the writ was properly denied because Brown’s own
logic is ultimately self-defeating. Both the original (erroneous) June 2012 remand
order and the nunc pro tunc order provided for a limited remand lasting 20 days
only. So if Brown were correct that the trial court’s June 13, 2012 entry was void
for lack of subject-matter jurisdiction, it would necessarily follow that the trial
court was also without subject-matter jurisdiction to decide the motion when




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Brown filed his mandamus/procedendo action in December 2012 because
jurisdiction had returned to the court of appeals when the 20 days elapsed. And if
the trial court had no jurisdiction to rule on the motion, then it necessarily follows
that the trial court had no clear legal duty to rule on the motion, and Brown has no
clear legal right to a writ.
        {¶ 22} We therefore affirm the dismissal of Brown’s petition.
        {¶ 23} The remaining issue for decision is whether the court of appeals
abused its discretion by revoking Brown’s in forma pauperis status. “In forma
pauperis” means that a party is indigent and may file an action or appeal without
payment of costs. See, e.g., R.C. 2969.25(C); Loc.App.R. 3(B)(1) of the Eleventh
District Court of Appeals. Brown erroneously equates the revocation of his in
forma pauperis status with a declaration that he is a vexatious litigator. The two
sanctions are not the same.       Brown has not been subjected to any of the
restrictions provided in R.C. 2323.52(D)(1), such as being required to obtain
leave of court before filing a complaint.
        {¶ 24} Courts have inherent authority to revoke a litigant’s in forma
pauperis status prospectively. In re Guess, 75 Ohio St.3d 1515, 665 N.E.2d 684
(1996). Generally, a litigant’s improper conduct must reach a high threshold
before a court will take such severe action. For example, in In re McDonald, 489
U.S. 180, 183, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989), the United States Supreme
Court revoked a petitioner’s in forma pauperis privileges after the petitioner made
73 meritless filings. And in In re Sindram, 498 U.S. 177, 111 S.Ct. 596, 112
L.Ed.2d 599 (1991), the court revoked the privileges after the petitioner filed 43
petitions and motions in the Supreme Court and pursued litigation in five separate
state and federal courts on 27 occasions, all in relation to a speeding ticket.
        {¶ 25} Ohio courts have taken such action only upon a similar showing of
abuse. The Ohio Court of Claims revoked Maharathah Karmasu’s in forma
pauperis privileges because he had filed 37 frivolous, repetitive suits. Karmasu v.



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S. Ohio Corr. Facility, 63 Ohio Misc.2d 377, 378, 629 N.E.2d 1132 (Ct. of
Cl.1993). Also in 1993, Karmasu filed the same complaint in a different venue,
which led to a revocation of his privileges in that court as well. Karmasu v.
Wilkinson, 115 Ohio App.3d 737, 686 N.E.2d 309 (12th Dist.1996); see also State
ex rel. Nash v. Cleveland Police Dept., 8th Dist. Cuyahoga No. 84501, 2004-
Ohio-4351, ¶ 5 (in forma pauperis status revoked after Nash filed “more than
twenty” original actions and appeals that had no merit); State ex rel. Richard v.
Cuyahoga Cty. Bd. of Commrs., 100 Ohio App.3d 592, 600, 654 N.E.2d 443 (8th
Dist.1995) (in forma pauperis status revoked after petitioner filed 63 meritless
original actions for extraordinary relief).
       {¶ 26} In this case, by contrast, the court of appeals took action in
response to one filing. Brown, 11th Dist. Trumbull No. 2012-T-0099, at 3-4
(“this court deemed Brown’s original action, filed July 27, 2012, moot, and then,
just five months later, Brown filed a subsequent original action seeking the same
remedy. Based on Brown’s filing, this court hereby revokes his in forma pauperis
privilege”). As discussed above, Brown filed his first request for extraordinary
relief under the case caption of his criminal appeal, rather than as a separate
action, so the appellate court dismissed the petition for lack of subject-matter
jurisdiction. Thus, any discussion of mootness in that first dismissal entry was
dicta, and there was nothing improper in Brown’s filing an original action in
proper form to secure a ruling on the merits.
       {¶ 27} Revocation of one’s in forma pauperis privileges is reserved for the
most serious cases of abuse of the privileges.       Although Brown’s complaint
proved meritless and even close to frivolous, it does not warrant this severe
action. We therefore find that the court of appeals abused its discretion, and we
reverse its judgment as to the revocation of in forma pauperis privileges.




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Conclusion
       {¶ 28} We affirm the portion of the court of appeals’ judgment dismissing
the petition for writ of mandamus and/or procedendo and reverse the portion
revoking Brown’s in forma pauperis privileges.
                                                       Judgment affirmed in part
                                                            and reversed in part.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                            ____________________
       Felix Brown Jr., pro se.
       Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne
Annos, Assistant Prosecuting Attorney, for appellee.
                          ________________________




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