March 25, 2011
Mr. Robert A. Neinast
8617 Ashford Lane
Pickerington, Ohio 43147Re: Neinast v. Board of Trustees of the Fairfield County District Library
Dear Mr. Nienast:
We are in receipt of your "Notice of Appeal of Appellant Robert A. Neinast" and the "Memorandum in Support of Jurisdiction of Appellant Robert A. Neinast" filed in the Ohio Supreme Court in Robert A. Neinast, Appellant v. Board of Trustees of the Fairfield County District Library, Appellee. Supreme Court Case No. 11-0435. Your Notice of Appeal states that the appeal is "from the judgment of Fairfield County Court of Appeals, Fifth Appellate District, entered in Court of Appeals case no. 2010-CA-11 on November 15, 2010. Furthermore, appellant filed an Application for Reconsideration on November 24, 2010 and the Court of Appeals denied that Application on January 31, 2011."
At the outset, Appellate Rule 26(A) states that "The filing of an application for reconsideration shall not extend the time for filing a notice of appeal in the Supreme Court." Supreme Court Rule II, Section 2 requires that "the appellant shall file a notice of appeal in the Supreme Court within 45 days from the entry of the judgment being appealed." Supreme Court Rule II, Section 2 goes on to state that "Except as provided in divisions (A)(2), (3), and (4) of this section, the time period designated in this rule for filing an notice of appeal is mandatory, and the appellant's failure to file within this time period shall divest the Supreme Court of jurisdiction to hear the appeal." Assuming, for the sake of argument, that your appeal is otherwise valid, it is untimely by more than two months.
In addition, as you are aware, this case was not concluded by the Court of Appeals decision cited above. It was remanded to the Common Pleas Court for further evidentiary proceedings. As stated by the Court of Appeals:
{56} We therefore determine because there is non-mutuality of parties, it was error to impose collateral estoppel. We remand this case to the trial court to determine if in fact appellee can establish reasons for the footwear rule that applies specifically to appellee."
The hearing held in the Common Pleas Court on March 8, 2011 was the evidentiary hearing ordered by the Court of Appeals. As of the date of this letter, Judge Martin has not yet issued a ruling on that hearing and, in theory, could find that appellee did not establish reasons for the footwear rule that applied to appellee. As such, a final judgment has not been rendered in this case and your appeal is premature. In addition, your appeal to the Ohio Supreme Court failed to comply with various other rules of the Ohio Rules of Appellate Procedure including Rules 9 and 10.
Accordingly, we are requesting that you withdraw your appeal to the Ohio Supreme Court before this office is constrained to incur the time and expense to respond to your attempted appeal.
By this correspondence we are also apprising you of Supreme Court Rule XIV, Section 5 which reads in its totality as follows:
S.Ct. Prac. R. 14.5. Frivolous Actions; Sanctions; Vexatious Litigators.
(A) If the Supreme Court, sua sponte or on motion by a party, determines that an appeal or other action is frivolous or is prosecuted for delay, harassment, or any other improper purpose, it may impose, on the person who signed the appeal or action, a represented party, or both, appropriate sanctions. The sanctions may include an award to the opposing party of reasonable expenses, reasonable attorney fees, costs or double costs, or any other sanction the Supreme Court considers just. An appeal or other action shall he considered frivolous it' it is not reasonably well-grounded in fact or warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.
(B) If a party habitually, persistently, and without reasonable cause engages in frivolous conduct under division (A), the Supreme Court may, sua sponte or on motion by a party, find the party to be a vexatious litigator. If the Supreme Court determines that a party is a vexatious litigator under this rule, the Court may impose filing restrictions on the party. The restrictions may include prohibiting the party from continuing or instituting legal proceedings in the Supreme Court without first obtaining leave, prohibiting the filing of actions in the Supreme Court without the filing fee or security for costs required by S.Ct. Prac. R. 15.1 and 15.2,, or any other restriction the Supreme Court considers just.
Please provide us with your date stamped notice of withdrawal of the appeal with the Ohio Supreme Court by no later than April 2, 2011. If we have not received the date stamped notice of withdrawal by that date and are compelled to incur the time and expense to respond to this improvidently filed appeal, we will make a determination as to whether to seek appropriate sanctions against you.
Jason M. Dolin
Asst. Prosecuting Attorney