[Cite as Prime Equip. Group, Inc. v. Schmidt, 2015-Ohio-3683.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Prime Equipment Group, Inc.,                          :

                Plaintiff-Appellee,                   :               No. 15AP-584
                                                                   (C.P.C. No. 13CV-9703)
v.                                                    :
                                                                 (REGULAR CALENDAR)
Jack G. Schmidt, Jr.,                                 :

                Defendant-Appellant.                  :



                                           D E C I S I O N

                                  Rendered on September 10, 2015


                Onda, LaBuhn, Rankin & Boggs Co., LPA, Timothy S.
                Rankin and Derek L. Graham, for appellee.

                The Anelli Law Firm, LLC, and Dianna M. Anelli, for
                appellant.

                                      ON MOTION TO DISMSS

KLATT, J.
        {¶ 1} Plaintiff-appellee, Prime Equipment Group, Inc., has filed a motion to
dismiss this appeal arguing that defendant-appellant, Jack G. Schmidt, Jr., has failed to
comply with the requirements of R.C. 2323.52. For the reasons that follow, we deny
appellee's motion.
        {¶ 2} By a decision and entry filed on May 15, 2015, the trial court declared
appellant to be a vexatious litigator pursuant to R.C. 2323.52.                 On June 12, 2015,
appellant filed a notice of appeal from the May 15, 2015 judgment with the clerk of the
trial court. On June 15, 2015, the clerk of this court docketed the notice of appeal and
created an appellate case number. Later that same day, appellant filed a motion for leave
to appeal as a vexatious litigator. Therefore, appellant filed both his notice of appeal and
No. 15AP-584                                                                                2


motion for leave to appeal as a vexatious litigator within 30 days of the May 15, 2015
judgment. On June 19, 2015, this court granted appellant's motion for leave.
       {¶ 3} Appellee has moved to dismiss appellant's appeal arguing that because
appellant filed his notice of appeal prior to filing his motion for leave to proceed as a
vexatious litigator this court lacks jurisdiction and the appeal must be dismissed.
Specifically, appellee argues that Supreme Court of Ohio's decision in State ex rel. Sapp v.
Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, requires an
appellant who has been declared a vexatious litigator, pursuant to R.C. 2323.52, to a file
motion for leave to appeal prior to filing a notice of appeal, and that failure to do so
requires the appeal be dismissed.
       {¶ 4} R.C. 2323.52(F)(2) provides as follows:
              A person who [has been declared a vexatious litigator]
              pursuant to division (D)(1) of this section and who seeks to
              institute or continue any legal proceedings in a court of
              appeals or to make an application, other than an application
              for leave to proceed under division (F)(2) of this section, in
              any legal proceedings in a court of appeals shall file an
              application for leave to proceed in the court of appeals in
              which the legal proceedings would be instituted or are
              pending. * * * If a person who has been found to be a
              vexatious litigator under this section requests the court of
              appeals to grant the person leave to proceed as described in
              division (F)(2) of this section, the period of time commencing
              with the filing with the court of an application for the issuance
              of an order granting leave to proceed and ending with the
              issuance of an order of that nature shall not be computed as a
              part of an applicable period of limitations within which the
              legal proceedings or application involved generally must be
              instituted or made.

       {¶ 5} In Sapp, the Supreme Court addressed the meaning of this provision in the
context of an action for a writ of prohibition brought by two appellees who sought to
prevent this court from exercising jurisdiction over an appeal filed by a vexatious litigator.
The appeal which gave rise to Sapp was taken from a judgment initially declaring the
appellant to be a vexatious litigator. The appellant filed a timely notice of appeal without
filing a motion for leave to proceed and the appellees filed a motion to dismiss. After the
appellees filed their motion to dismiss, and well outside the time for filing a notice of
No. 15AP-584                                                                                  3


appeal, the appellant filed a motion for leave to proceed. Holding that an appellant
appealing from an initial vexatious litigator declaration was not required to obtain leave to
appeal, this court denied the appellees' motion to dismiss and granted the appellant's
motion for leave to proceed. Berman v. Liu, 10th Dist. No. 07AP-996 (Feb. 12, 2008)
(memorandum decision). In response, the appellees sought a writ of prohibition in the
Supreme Court.
       {¶ 6} The Supreme Court granted the requested writ of prohibition holding that a
vexatious litigator is required to file a motion for leave to appeal even when appealing
from an initial vexatious litigator declaration and that such motion must be filed within
the time for filing a notice of appeal. Sapp at ¶ 21-27. In the present case, appellant has
satisfied this holding by filing a motion for leave within the time for filing a notice of
appeal.
       {¶ 7} Appellee, however, reads Sapp for the proposition that an appellant who
has been declared a vexatious litigator must file a motion for leave to appeal prior to filing
a notice of appeal, and that failure to do so requires the appeal be dismissed. We
acknowledge that there is some language in Sapp that appears to support appellee's
argument. However, Sapp must be read in its factual context. As previously noted, the
appellant in Sapp failed to file his motion for leave to appeal before the time to appeal had
expired. Consequently, the court was not required to reach the issue of whether dismissal
is required where an appellant files his motion for leave after filing his notice of appeal,
but within the time for filing an appeal. Further, the Sapp court notes at least three times
that this court was required to dismiss the appeal because "by the time that the
[appellant] sought leave to institute his appeal, the 30-day time limit for him to appeal
* * * had expired." Id. at ¶ 25-31. We believe this language strongly suggests that had the
appellant in Sapp filed his motion for leave before his time to appeal had expired, the
court would have allowed the appeal to proceed.
       {¶ 8}   Further, and perhaps most importantly, appellee's reading of Sapp would
bring R.C. 2323.52 and the Ohio Rules of Appellate Procedure into conflict. Appellee's
reading of Sapp would require an appellant to file a motion for leave to appeal as a
vexatious litigator with the court of appeals, prior to filing a notice of appeal with the trial
court, a procedure that is not possible under the Ohio Rules of Appellate Procedure.
No. 15AP-584                                                                                   4


App.R. 3(A) provides that an appeal is instituted by the filing of a notice of appeal with the
clerk of the trial court. Prior to the filing of a notice of appeal with the trial court, and the
subsequent docketing of that notice with the clerk of the court of appeals, nothing may be
filed in the court of appeals, because no appellate case exists. Yet, R.C. 2323.52(F)(2)
requires a motion for leave to appeal as a vexatious litigator to be filed with the court of
appeals. To resolve this conflict, we conclude that appellant was not required to file his
motion for leave to appeal prior to filing his notice of appeal. Because appellant filed his
motion for leave to appeal within the 30-day period for filing his appeal and, in fact, on
the day the appellate case opened, we deny appellee's motion to dismiss.
                                                                     Motion to dismiss denied.

                           BROWN, P.J., and TYACK, J., concur.
