[Cite as Prime Equip. Group, Inc. v. Schmidt, 2016-Ohio-3472.]

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 June 16, 2016 

 

On brief: Onda, LaBuhn, Rankin & Boggs Co., LPA, 

Timothy S. Rankin, and Gregory A. Goetz, for appellee. 

Argued: Timothy S. Rankin.

On brief: The Anelli Law Firm, LLC, and Dianna M. Anelli, 

for appellant. Argued: Dianna M. Anelli.

 

APPEAL from the Franklin County Court of Common Pleas 

PER CURIAM. 

{¶ 1} Defendant-appellant, Jack G. Schmidt, Jr., appeals from a decision of the 

Franklin County Court of Common Pleas granting summary judgment in favor of 

plaintiff-appellee, Prime Equipment Group, Inc. ("Prime"). The judgment declares 

Schmidt to be a vexatious litigator pursuant to Ohio's vexatious litigator statute, 

R.C. 2323.52, and imposes filing limitations on him in future litigation. 

I. Facts and Procedural History 

{¶ 2} Most, but not all, of the litigation underlying the present vexatious litigator 

action relates to Schmidt's divorce from his former wife, Gina G. Gasbarro; two lawsuits 

involving Schmidt and his own relatives are also implicated. Prime, a business operated 

by Gasbarro's brothers, became involved as a defendant in an ancillary action initiated by 
No. 15AP-584 2 

Schmidt in Athens County. While defending that case, Prime initiated the present 

vexatious litigator action against Schmidt with a complaint (and subsequent amended 

complaint) under R.C. 2323.52 in the Franklin County Court of Common Pleas, General 

Division. The amended complaint itemizes Schmidt's allegedly vexatious conduct in six 

different actions involving Gasbarro, Prime, and various other entities or persons, most of 

which were dismissed for lack of subject-matter jurisdiction by the trial courts involved. 

{¶ 3} Under R.C. 2323.52(D)(1), Prime sought to bar Schmidt from instituting 

legal proceedings without leave of court in any Ohio court of common pleas, municipal 

court, county court, or the Court of Claims of Ohio. Prime also requested a temporary 

restraining order and a preliminary injunction. The court referred the latter two requests 

to a magistrate for disposition. The magistrate first denied the temporary restraining 

order. The magistrate then held an extensive preliminary injunction hearing on October 7 

and 8, 2013, which produced much of the testimony and other evidence invoked in later 

proceedings. The magistrate denied the request for a preliminary injunction on the basis 

that an injunction would essentially anticipate a declaration that Schmidt was a vexatious 

litigator and thereby alter the status quo in the litigation and impair Schmidt's ability to 

proceed in related cases. 

{¶ 4} Schmidt did not file an answer to Prime's complaint. Instead, he filed a 

motion to dismiss in which he asserted that Prime did not have standing to bring the 

vexatious litigator action. The trial court deferred consideration of the motion until the 

conclusion of the case. Prime moved for summary judgment on the merits, supporting 

the motion with a transcript of testimony from the preliminary injunction hearing, 

additional affidavits, depositions, and documentary exhibits. 

{¶ 5} The trial court rendered two decisions on May 15, 2015 that concluded the 

matter and form the basis for this appeal. The court first denied Schmidt's motion to 

dismiss, finding that Prime had standing based on Prime's position as a party defendant 

in the case initiated by Schmidt in Athens County Common Pleas Court. The court then 

granted Prime's motion for summary judgment pursuant to a lengthy and detailed 

decision recounting the general course of litigation between the parties here and 

Schmidt's litigation against other parties. The court concluded that Schmidt had engaged 

in vexatious conduct in much of the companion litigation, including conduct that served 
No. 15AP-584 3 

only to harass or maliciously injure other parties, conduct not warranted under existing 

law and not supported by a good faith argument for extension, modification or reversal of 

existing law, or conduct undertaken solely for purposes of delay. The court noted that 

Schmidt had opposed Prime's evidentiary submissions in support of summary judgment 

solely with his own self-serving testimony and affidavit, which contradicted his prior 

sworn testimony during the preliminary injunction hearing before the magistrate. 

{¶ 6} The court then entered judgment and tailored the R.C. 2323.52 restrictions 

to actions involving Schmidt's current and former family members and any attorneys 

involved in litigation involving Schmidt and his family members. The court prohibited 

Schmidt from instituting legal proceedings in the Court of Claims, court of common pleas, 

municipal court, or county court without seeking leave from the Franklin County Court of 

Common Pleas, and from instituting or continuing legal proceedings in the court of 

appeals other than an application for leave pursuant to R.C. 2323.52(F)(2). 

II. Assignments of Error 

{¶ 7} Schmidt assigns the following errors for our review: 

[1.] Genuine issues of material fact exist in the remaining 

causes preventing summary judgment; the trial court erred in 

weighing the evidence, believing plaintiff's evidence over 

defendant's and resolving doubts in plaintiff's favor. 

[2.] Plaintiff is not entitled to judgment as a matter of law; 

defendant did not bring the actions merely to harass or 

maliciously injure another. 

[3.] Defendant's behavior is not habitual, persistent, and 

without reasonable cause. 

[4.] Plaintiff lacks standing to bring this vexatious litigation. 

III. Discussion 

{¶ 8} Schmidt's first three assignments of error go to the applicable law and the 

available evidence in the summary judgment determination. We discuss them together. 

{¶ 9} Under Civ.R. 56(C), a court may grant summary judgment only when there 

remains no genuine issue of material fact, the moving party is entitled to judgment as a 

matter of law, and reasonable minds can come to but one conclusion, that conclusion 
No. 15AP-584 4 

being adverse to the party opposing the motion. Tokles & Son, Inc. v. Midwestern 

Indemn. Co., Inc., 65 Ohio St.3d 621, 629 (1992), citing Harless v. Willis Day 

Warehousing Co., 54 Ohio St.2d 64 (1978). Additionally, a moving party cannot 

discharge its burden under Civ.R. 56 simply by making conclusory assertions that the 

nonmoving party has no evidence to prove its case. Dresher v. Burt, 75 Ohio St.3d 280, 

293 (1996). Rather, the moving party must point to some evidence that affirmatively 

demonstrates that the nonmoving party has no evidence to support each element of the 

stated claims. Id. "A plaintiff or counterclaimant moving for summary judgment does 

not bear the initial burden of addressing the nonmoving party's affirmative defenses." 

Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, syllabus. 

{¶ 10} An appellate court's review of summary judgment is de novo. Koos v. Cent. 

Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994); Bard v. Soc. Natl. Bank, 

n.k.a. KeyBank, 10th Dist. No. 97APE11-1497 (Sept. 10, 1998). Thus, we conduct an 

independent review of the record and stand in the shoes of the trial court. Jones v. Shelly 

Co., 106 Ohio App.3d 440, 445 (5th Dist.1995). As such, we have the authority to overrule 

a trial court's judgment if the record does not support any of the grounds raised by the 

movant, even if the trial court failed to consider those grounds. Bard. 

{¶ 11} Summary judgment is an appropriate means of resolving a vexatious 

litigator complaint. There must remain no genuine issue of material fact, however, 

regarding the nature of the defendant's conduct and its impact on the cases involved, and 

the plaintiff must submit appropriate evidence complying with Civ.R. 56. See, e.g., Joyce 

v. Godale, 11th Dist. No. 2006-G-2692, 2007-Ohio-473 (reversing trial court's grant of 

summary judgment in favor of plaintiff in vexatious litigator complaint where plaintiff 

prosecutor's affidavits failed to authenticate documentary evidence in compliance with 

Civ.R. 56(E). 

{¶ 12} The governing law for our review is Ohio's vexatious litigator statute, R.C. 

2323.52, which provides in pertinent part as follows: 

(A) As used in this section: 

(1) "Conduct" has the same meaning as in section 2323.51 of 

the Revised Code. 
No. 15AP-584 5 

(2) "Vexatious conduct" means conduct of a party in a civil 

action that satisfies any of the following: 

(a) The conduct obviously serves merely to harass or 

maliciously injure another party to the civil action. 

(b) The 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. 

(c) The conduct is imposed solely for delay. 

(3) "Vexatious litigator" means any person who has habitually, 

persistently, and without reasonable grounds engaged in 

vexatious 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. * * * 

(B) A person * * * who has defended against habitual and 

persistent vexatious conduct in the court of claims or in a 

court of appeals, court of common pleas, municipal court, or 

county court may commence a civil action in a court of 

common pleas with jurisdiction over the person who allegedly 

engaged in the habitual and persistent vexatious conduct 

to have that person declared a vexatious litigator. The person 

* * * may commence this civil action while the civil action or 

actions in which the habitual and persistent vexatious conduct 

occurred are still pending or within one year after the 

termination of the civil action or actions in which the habitual 

and persistent vexatious conduct occurred. 

* * * 

(D) 

(1) If the person alleged to be a vexatious litigator is found to 

be a vexatious litigator, subject to division (D)(2) of this 

section, the court of common pleas may enter an order 

prohibiting the vexatious litigator from doing one or more of 

the following without first obtaining the leave of that court to 

proceed: 
No. 15AP-584 6 

(a) Instituting legal proceedings in the court of claims or in a 

court of common pleas, municipal court, or county court; 

(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; 

(c) Making any application, 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 specified in division (D)(1)(a) of 

this section. 

* * * 

 (3) A person who is subject to an order entered pursuant to 

division (D)(1) of this section may not institute legal 

proceedings in a court of appeals, continue any legal 

proceedings that the vexatious litigator had instituted in a 

court of appeals prior to entry of the order, or make any 

application, other than the application for leave to proceed 

allowed by division (F)(2) of this section, in any legal 

proceedings instituted by the vexatious litigator or another 

person in a court of appeals without first obtaining leave of 

the court of appeals to proceed pursuant to division (F)(2) of 

this section. 

{¶ 13} " 'The purpose of the vexatious litigator statute is clear. It seeks to prevent 

abuse of the system by those persons who persistently and habitually file lawsuits without 

reasonable grounds and/or otherwise engage in frivolous conduct in the trial courts of this 

state. Such conduct clogs the court dockets, results in increased costs, and oftentimes is a 

waste of judicial resources -- resources that are supported by the taxpayers of this state. 

The unreasonable burden placed upon courts by such baseless litigation prevents the 

speedy consideration of proper litigation.' " Mayer v. Bristow, 91 Ohio St.3d 3, 13 (2000), 

quoting Cent. Ohio Transit Auth. v. Timson, 132 Ohio App.3d 41, 50 (10th Dist.1998). 

Ohio's vexatious litigator statute has survived due process, equal protection, and asapplied constitutional challenges to its constitutionality under the United States 

Constitution. See generally Hall v. Callahan, 727 F.3d 450 (6th Cir.2013). 
No. 15AP-584 7 

{¶ 14} On appeal, Schmidt presents both evidentiary and legal arguments. With 

respect to the state of the evidence, Schmidt asserts that the trial court eliminated the 

existence of genuine issues of material fact by falsely categorizing and considering all 

issues to be questions of law, improperly weighed the credibility of witnesses to ignore 

conflicting evidence, and completely disregarded Schmidt's affidavits in which he asserted 

that he did not commence the actions for purposes of harassment or delay. Schmidt also 

argues that most of the cases relied on by Prime should not be considered because Prime 

was not a party to those cases, and they terminated more than one year prior to the filing 

of the present vexatious litigator action. 

{¶ 15} Schmidt then proposes that two legal theories should have precluded a 

vexatious litigator finding. The first is that at all times during the various cases, he 

proceeded on the advice of counsel, and relied on counsel's professional judgment 

regarding the advisability of pursuing each particular case or filing within a case. This, he 

claims, makes his conduct inherently reasonable and justifiable by definition because he 

could only be expected to rely on the advice and good judgment of his attorneys. The 

second theory proposes that because courts in some of the cases specifically declined to 

award sanctions against him, this stands as res judicata to establish the non-vexatious 

nature of his conduct in those cases. 

{¶ 16} Prime relies on six cases in which Schmidt filed allegedly unsupported or 

legally untenable complaints or otherwise engaged in conduct that satisfies the R.C. 

2323.52 definition of "vexatious conduct." 

{¶ 17} Four of these actions are directly or indirectly related to Schmidt's 

divorce from Gasbarro: their divorce action proper, Schmidt v. Schmidt, Franklin C.P. No. 

12DR-0856, commencing with a complaint filed by Gasbarro ("the divorce action"); 

a foreclosure action, Fed. Natl. Mtge. Assn. v. Gina G. Schmidt et al., Franklin C.P. No. 

12CV-14322, brought by Federal National Mortgage Association against Schmidt and 

Gasbarro, in which Schmidt filed various cross-claims against Gasbarro that later resulted 

in an award of sanctions ("the foreclosure action"); a complaint filed by Schmidt in the 

Franklin County Court of Common Pleas, General Division, on March 26, 2013, stating 

claims against Gasbarro and her attorneys personally based on alleged abuse of process in 

the domestic case, Schmidt v. Grossman Law Offices et al., Franklin C.P. No. 13CV-3379 
No. 15AP-584 8 

("the Grossman action"); and an action in Athens County against Gasbarro and her 

attorneys asserting various claims arising out of a removal of personalty from the couple's 

real estate in that county, Schmidt v. Grossman Law Offices et al., Athens C.P. No. 13CI103 ("the Athens County action"). 

{¶ 18} Prime also relies on two cases involving Schmidt and his family members 

other than Gasbarro. The first of these involved a dispute between Schmidt and his 

brother over trust assets held in a trust governed under Alaska law: In re: In the Matter 

of All Assets of the G-One Trust, Franklin C.P. No. 12MS-000206 ("the trust action"). In 

the second of these, the "interpleader action," Schmidt was not a party. His conduct is 

cited because he allegedly encouraged an attorney, Stanley Shayne, who formerly 

represented Schmidt's mother, to seek interpleader of the mother's confidential client files 

with the probate court. Shayne Nichols, LLC v. J. Daniel Schmidt et al., Franklin P.C. No. 

562612(A). 

{¶ 19} We first examine Schmidt's contention that the trial court could not rely on 

the older cases when assessing his conduct, or could not consider cases in which Prime 

was not a party. This court has specifically held that whether vexatious litigator finding is 

made based on conduct in a single case or across multiple cases, the plaintiff in the 

vexatious litigator action need not be a party to all cases relied on. Farley v. Farley, 10th 

Dist. No. 02AP-1046, 2003-Ohio-3185, ¶ 48; Roo v. Sain, 10th Dist. No. 04AP-881, 2005-

Ohio-2436, ¶ 18; Catudal v. Netcare Corp., 10th Dist. No. 15AP-133, 2015-Ohio-4044, 

¶ 20. This applies the clear language of R.C. 2323.52(A)(3), which specifies that a 

complaint may be based on "conduct * * * against the same party or against different 

parties in the civil action or actions." 

By including the word "actions," the statutes permits a court 

to examine other actions that a person has participated in to 

determine if that person is a vexatious litigator. See Buoscio v. 

Macejko, 7th Dist. No. 00-CA-00138, 2003-Ohio-689, ¶ 33 

("Under R.C. 2323.52(A)(3), a person's behavior in prior civil 

actions can also form the basis for declaring him a vexatious 

litigator."); Georgeadis v. Dials, 10th Dist. No. 99AP-232, 

1999 Ohio App. LEXIS 5848 (Dec. 9, 1999) (agreeing with the 

trial court that the appellant fit the definition of a vexatious 

litigator because her vexatious conduct was demonstrated by 

both the instant action and prior actions). Therefore, we 
No. 15AP-584 9 

conclude that the trial court did not err in reviewing Catudal's 

conduct in other proceedings to adjudge whether he was a 

vexatious litigator * * * . 

Catudal at ¶ 8. 

{¶ 20} We do not find any restriction on the trial court's reliance on conduct 

occurring in cases that terminate more than one year before Prime filed its vexatious 

litigator complaint. Schmidt points to the one-year statute of limitations stated in R.C. 

2323.52(A)(3). While that section does state that the vexatious litigator complaint must 

be filed within one year of termination of the action involving the plaintiff, it does not 

address the use of conduct from older cases. As with any other type of action, there is no 

authority for the proposition that the statute of limitations that sets a filing deadline must 

also automatically restrict the chronological scope of the evidence relied on in assessing 

the defendant's conduct. 

{¶ 21} We also reject Schmidt's assertion that, because the courts in all but two of 

the cases awarded no sanctions in those cases for frivolous conduct under Ohio's general 

sanctions statute, R.C. 2323.51, the doctrine of res judicata bars a subsequent finding that 

his actions were frivolous in those cases. While R.C. 2323.51 and 2323.52 sanction similar 

conduct, they provide different remedies. Pursuant to R.C. 2323.51, a court may award 

court costs, reasonable attorney fees, and other reasonable expenses as a compensatory 

remedy to any party adversely affected by another party's frivolous conduct in a given 

action. "The vexatious litigator statute, while sharing the same definition of reprehensible 

conduct, seeks to provide a protective remedy in the form of restriction upon future 

frivolous filings by mandating that a person adjudicated to be a vexatious litigator seek 

leave of court before proceeding with further filings in the designated cases. The two 

sections provide complementary, not conflicting, remedies." Roo at ¶ 15. "Nothing in 

either statute precludes a party who has received an award of expenses under 

R.C. 2323.51 from later requesting relief under R.C. 2323.52 as well." Catudal at ¶ 20. 

Conversely, "[n]othing in either statute requires a party to seek and obtain the 

R.C. 2323.51 remedy before asking for a vexatious litigator declaration under 

R.C. 2323.52." Id. The refusal of the trial courts to award R.C. 2323.51 sanctions against 
No. 15AP-584 10 

Schmidt in some cases does not preclude an examination of his conduct in those cases to 

support a vexatious litigator determination here. 

{¶ 22} Finally, we examine Schmidt's proposition that, as a matter of law, his 

reliance on the advice of past counsel to justify his filings and other actions in prior 

litigation precludes any finding that his personal conduct was vexatious. Schmidt asserts 

that he cannot be personally held to account if his licensed and qualified counsel advised a 

course of action that was later deemed vexatious.1 

{¶ 23} There is no authority in Ohio on the question of whether a represented 

party may find refuge behind the advice of his former counsel when explaining his 

potentially vexatious conduct before the courts. In the context of this case, we conclude 

that the past advice of counsel does not screen Schmidt from personal accountability for 

his vexatious conduct. Particularly in cases such as this one, in which a client repeatedly 

changes counsel through time and across venues, trial counsel will inevitably be tributary 

to the representations of a client, particularly a new client, regarding the state of facts and 

the attitude of the opposing parties. What may seem like sound strategy to counsel 

functioning with a limited view of the facts and history of the case may be quite clearly 

unreasonable to the client operating with full knowledge thereof. It is true that legal 

counsel has a clear duty to investigate the status of the case before undertaking filings. 

Bartelt Dancers, LLC v. Icenhour, 10th Dist. No. 13AP-154, 2013-Ohio-5604, ¶ 11. In this 

case, however, it is obvious that the cumulative impact of the frivolous and unwarranted 

conduct across multiple cases is attributable to Schmidt, even if advice of counsel in each 

instance may—and we assume this solely for purposes of argument—appear facially 

reasonable when taken in isolation. We conclude that Schmidt's general reliance on 

advice of counsel in specific instances does not bar a vexatious litigator finding based on 

his aggregate conduct across an array of cases. 

 

1 We note that this is a distinct question from the broader one of whether the vexatious litigator statute as 

a whole applies only to conduct occurring while the defendant was acting as a pro se litigant; that issue 

was not properly raised in the trial court by way of answer or in opposition to summary judgment and is 

waived on appeal. "It is well settled that a litigant's failure to raise an issue before the trial court waives 

the litigant's right to raise that issue on appeal." Gentile v. Ristas, 160 Ohio App.3d 765, 2005-Ohio-2197, 

¶ 74, citing Estate of Hood v. Rose, 153 Ohio App.3d 199, 2003-Ohio-3268, ¶ 10; State ex rel. Zollner v. 

Indus. Comm., 66 Ohio St.3d 276, 278 (1993); Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43 (1975) 

("[o]rdinarily, errors which arise during the course of a trial, which are not brought to the attention of the 

court by objection or otherwise, are waived and may not be raised upon appeal"). 
No. 15AP-584 11 

{¶ 24} With these overarching legal arguments disposed of, we will next examine 

the conduct of Schmidt in the cases described and relied on by Prime in this matter. For 

each case, we examine the course of litigation to see if Schmidt's actions obviously served 

merely to harass or maliciously injure another party, were not warranted under existing 

law and could not be supported by a good faith argument for extension, modification, or 

reversal of existing law, or imposed solely for delay. R.C. 2323.52(A)(2). After reviewing 

the cases and supporting evidence, we will then determine if there remains no genuine 

issue of material fact, and whether as a matter of law Schmidt is a vexatious litigator by 

virtue of having habitually, persistently, and without reasonable grounds engaged in 

vexatious conduct in one or more of the cases. R.C. 2323.52(A)(3). 

{¶ 25} In the Franklin County trust action, Schmidt filed pleadings in his capacity 

as "Trust Protector" of a family trust domiciled in Alaska, despite the fact that prior to 

commencing the action Schmidt had been removed as trust protector by an Alaska court 

because under the terms of the trust, a person related to the grantor could not serve as 

trustee. Schmidt's brother Daniel Schmidt was the grantor of the trust and the 

beneficiaries were Daniel and Daniel's son Guy, a minor. Schmidt sought an accounting 

of trust assets and alleged that Daniel had misappropriated assets and otherwise 

committed malfeasance. Schmidt personally had no beneficial interest in the trust. 

{¶ 26} At the injunction hearing in the present case, Prime presented expert 

testimony from an experienced attorney, Michael Johrendt, to assess Schmidt's conduct 

in the trust action. Johrendt testified that he had practiced in tax, trust, and business 

litigation for 36 years. Johrendt testified that certain confidential documents disclosing 

trust assets had been filed in the Franklin County trust action as exhibits to the complaint, 

thereby improperly and unnecessarily disclosing trust information. Johrendt opined that 

there was no basis for Schmidt to seek appointment of a guardian ad litem for his minor 

nephew, since there was no allegation that Daniel lacked the capacity to protect his son's 

interest with respect to the trust. Johrendt also further opined that Schmidt's conduct in 

initiating the Franklin County trust action, requesting a guardian ad litem, and putting 

himself forward as trust protector after the Alaska court had definitively removed him 

from that role, were not supported by existing law, could only be intended to harass and 

injure Daniel Schmidt, and constituted vexatious conduct. 
No. 15AP-584 12 

{¶ 27} At the injunction hearing, Schmidt attempted to justify his conduct in 

bringing the trust action. He stated he felt that when he filed the trust action it did not 

matter that an Alaska court, exercising its subject-matter and personal jurisdiction over 

the trust, had previously removed him as trust protector. Schmidt apparently considered 

himself unbound by the Alaska court's judgment, stating: "Just because an action has 

been taken doesn't mean it's complete." (Oct. 7, 2013 Tr. Vol. I at 38.) 

{¶ 28} The Franklin County Court of Common Pleas dismissed the trust action for 

lack of subject-matter jurisdiction less than one month after Schmidt filed his complaint. 

In the Matter of all Assets of the G-One Trust, Franklin County C.P. No. 12MS-000206 

(Mar. 28, 2012 order granting motion to dismiss with prejudice). 

{¶ 29} In the interpleader action, Shayne, who formerly represented Schmidt's 

mother, Sarah Schmidt, filed an action in the name of his law firm, Shayne Nichols, LLC, 

to interplead his client files with the probate court, thereby potentially exposing certain 

confidential documents to improvident disclosure. Shayne's complaint alleged that Sarah 

Schmidt was the object of undue influence from her son Daniel. While Schmidt was not a 

party to this action, Schmidt acknowledged that prior to Shayne filing the suit, Schmidt 

had communicated with Shayne regarding Sarah Schmidt's capacity to execute 

documents, and Schmidt had taken video of his mother at the hospital while she was 

preparing for surgery as she executed certain documents provided by Daniel Schmidt. 

Schmidt later provided the videos to Shayne. Schmidt acknowledged that on the day in 

question there was a family dispute and his mother had asked him to leave the hospital 

room. 

{¶ 30} Prime's theory is that Schmidt instigated this interpleader action as part of 

an ongoing family dispute. Prime concedes that Schmidt was not a party to the 

interpleader action. Our research discloses no Ohio case in which a vexatious litigator 

determination was based on conduct by a non-litigant. The object of the vexatious 

litigator statute is to prevent "abuse of the system by those persons who persistently and 

habitually file lawsuits without reasonable grounds and/or otherwise engage in frivolous 

conduct in the trial courts of this state." (Emphasis added.) Timson at 50. The statute is 

not intended to address conduct occurring outside the purview of the court, and, as a 

result, we give no weight to any aspect of the interpleader action. 
No. 15AP-584 13 

{¶ 31} The third action described in this case is the Franklin County divorce action 

between Schmidt and Gasbarro. Trial in the divorce matter was eventually set for 

April 25, 2013. Shortly before trial, Schmidt filed the Grossman action and Athens 

County action described below, naming Gasbarro's then-domestic counsel, Anthony R. 

Auten, Andrew Grossman, and the Grossman Law Offices as defendants. This created a 

conflict and forced Gasbarro to change domestic counsel at the last hour, retaining 

Christopher Geer. 

{¶ 32} The parties ultimately reached an agreement reflected in an agreed 

judgment entry and decree of divorce entered on April 29, 2013. Geer testified at the 

injunction hearing that Schmidt thereafter failed to comply with the terms thereof by 

refusing to sign the quit claim deed for the former marital residence, refusing to sign over 

an insurance check to pay for repairs on the home, and refusing to sign over title to a 

vehicle awarded to Gasbarro in the divorce decree. Based on this and other conduct, the 

domestic relations court eventually held Schmidt in contempt and sentenced him to 15 

days in jail subject to purge by compliance with various orders. The court also imposed a 

fee sanction based on frivolous conduct. 

{¶ 33} When Geer filed the motion for contempt on behalf of Gasbarro, Schmidt 

issued ten subpoenas in preparation for the contempt hearing, including subpoenas 

directed to Geer and other attorneys at the firm, including Michael Close. These 

subpoenas were extraordinarily broad, and Close, a former common pleas and appellate 

judge, would testify at the injunction hearing that in 38 years of practice as an attorney 

and judge, he had never seen a similar abuse of subpoena practice except from another, 

unnamed vexatious litigator. Close testified that he had never represented or opposed 

Schmidt in legal proceedings, and that Schmidt's subpoenas were overly broad and sought 

documents pertaining to all 58 attorneys at the firm. None of the information sought was 

relevant to the divorce, except possibly Geer's fees in that case. Geer testified that the 

subpoena addressed to him requested all records, notes, emails, faxes, correspondence, 

timesheets, reports, photos, logs, estimates, phone records, billable records, and quotes 

on billable hours. Most of this material would have been privileged, with the exception of 

Geer's billing records, which he intended to produce anyway in order to support his 

motion for fee sanctions. 
No. 15AP-584 14 

{¶ 34} In the Grossman action against Gasbarro's counsel, Schmidt made claims 

for abuse of process, intentional infliction of emotional distress, and negligent infliction of 

emotional distress—all stemming from allegedly false information provided to the 

Franklin County Domestic Relations Court during the course of the divorce proceeding. 

Schmidt attached to his complaint a copy of a confidential document, the client intake 

questionnaire filled out by Gasbarro when retaining the Grossman firm in the divorce. 

Schmidt then published a redacted version of this questionnaire on a website that he 

personally created titled www.schmidtvgrossmanlawofficesetal.com and only removed it 

when compelled by a gag order issued by the domestic court. He also admittedly "passed 

[the intake questionnaire] out to people." (Oct. 7, 2013 Tr. Vol. I at 123.) Schmidt 

testified at the injunction hearing that he found the document in the basement of the 

marital residence after Gasbarro moved out, and disclosed it because he believed that it 

was evidence of "fraud" committed by Gasbarro and her attorneys. (Oct. 7, 2013 Tr. Vol. I 

at 112.) 

{¶ 35} Gasbarro testified to the contrary that she would not have stored the 

document in the former marital residence because Schmidt had locked her out by that 

point. She filed the intake questionnaire in a notebook with other litigation documents, 

and this eventually disappeared at some point, possibly taken from the back seat of her 

car. Gasbarro confirmed that the intake questionnaire contained an array of personal and 

confidential information, including details of Gasbarro's medical history. 

{¶ 36} During the injunction hearing, Geer, a former Franklin County Domestic 

Relations Court judge, testified that the claims against the Grossman firm and individual 

attorneys had no perceptible legal basis and could only have been asserted to harass 

opposing parties and delay proceedings, given that the actions were filed shortly before 

the scheduled trial date and forced Gasbarro to change attorneys. 

{¶ 37} The trial court eventually dismissed the Grossman action for lack of subjectmatter jurisdiction, finding that all claims arose out of conduct occurring in the divorce 

case. Schmidt v. Grossman Law Offices et al., Franklin C.P. No. 13CV-3379 (Oct. 23, 

2013 order of dismissal). 

{¶ 38} Schmidt filed the Athens County action on the same day as the Grossman 

action, adding Prime as a defendant in addition to Gasbarro's attorneys. The complaint 
No. 15AP-584 15 

asserted claims for trespass, conversion, trespass to chattels, intentional and negligent 

infliction of emotional distress, and civil conspiracy. Schmidt alleged that the defendants, 

including Gasbarro, with the use of Prime vehicles, had removed Schmidt's personal 

property from a farm he owned in Athens County. Schmidt testified at the injunction 

hearing that the defendants in the Athens County Grossman case had violated a domestic 

relations court order prohibiting removal of personal property, and that he could not 

obtain redress for this in the divorce proceeding. The Athens County Court of Common 

Pleas dismissed the Athens County Grossman action for lack of subject-matter 

jurisdiction. When the defendants sought sanctions, the Athens County Court of 

Common Pleas determined that the action did not warrant R.C. 2323.51 sanctions. 

{¶ 39} The final action relied on by Prime is the Franklin County foreclosure 

action, which involved the couple's marital residence. In this case, Schmidt filed crossclaims against Gasbarro and attempted to raise the prenuptial agreement between the 

parties and litigate their respective rights and liabilities regarding the marital home. The 

trial court dismissed Schmidt's cross-claims in the foreclosure action for lack of 

jurisdiction, and eventually, on motion by Gasbarro, awarded attorney fees under R.C. 

2323.51 because of the frivolous nature of the cross-claims. Franklin C.P. No. 12CV-14322 

(Apr. 11, 2013 order granting motion to dismiss cross-claim); Franklin C.P. No. 12CV14322 (Sept. 19, 2014 order adopting magistrate's decision and awarding sanctions). This 

court affirmed those sanctions on appeal. Fed. Natl. Mtge. Assn. v. Schmidt, 10th Dist. 

No. 14AP-844, 2015-Ohio-2659. We subsequently denied Schmidt's application for 

reconsideration, certification of the matter to the Supreme Court, and rehearing en banc. 

Fed. Natl. Mtge. Assn. v. Schmidt, 10th Dist. No. 14AP-844 (Oct. 27, 2015 memorandum 

decision). 

{¶ 40} Based on the evidence in the record, we find that the trial court did not err 

in concluding that there remained no genuine issue of material fact, and that Schmidt's 

conduct in the various actions was vexatious under the definition set forth in 

R.C.2323.52(A)(2). While separate or repetitive actions are not necessary for a vexatious 

litigator finding, which can be based on actions in a single case, Roo and Farley, the 

record in the present case presents overwhelming evidence of Schmidt's determined 

attempt to misuse the judicial system and employ tactics that served only to harass and 
No. 15AP-584 16 

delay without regard for the additional burden on opposing parties and the courts. Farley 

at ¶ 48. "It is the nature of the conduct, not the number of actions, that determines 

whether a person is a 'vexatious litigator.' " Borger v. McErlane, 1st Dist. No. C-010262 

(Dec. 14, 2001). Whether undertaken in an array of cases or in a single action, the 

consistent repetition of arguments and legal theories that have been rejected by the court 

numerous times can constitute vexatious litigation. Farley at ¶ 46; Caghan v. Caghan, 

5th Dist. No. 2014 CA 00094, 2015-Ohio-1787. 

{¶ 41} Based on the actions taken by Schmidt across five cases, we find that the 

trial court did not err in concluding that Schmidt has engaged in vexatious conduct under 

R.C. 2323.52(A). His conduct has been habitual, persistent, and without reasonable 

grounds. The trial court did not err in giving no weight to Schmidt's own self-serving 

affidavits in which he asserted that he operated with legitimate intent. The standard for 

vexatious conduct is not, nor can it be, assessed under the subjective opinion of the 

vexatious litigator regarding his own intentions. Application of an objective standard here 

maintains consistency in assessing the conduct required for a vexatious litigator 

determination under R.C. 2323.51 and the standard for an award of sanctions under R.C. 

2323.51: "R.C. 2323.51 employs an objective standard in determining whether sanctions 

may be imposed against either counsel or a party for frivolous conduct." Sain v. Roo, 10th 

Dist. No. 01AP-360 (Oct. 23, 2001), citing Stone v. House of Day Funeral Serv., Inc., 140 

Ohio App.3d 713 (6th Dist.2000). 

{¶ 42} The trial court properly relied on the objective character of Schmidt's 

conduct, which was established here both by the state of the record and testimony from 

expert attorneys that addressed the standard for whether a party's conduct can be deemed 

vexatious. Schmidt offers his own adamant denial of intent, but no objective evidence to 

create a genuine issue of material fact regarding his conduct. We find that the trial court 

did not err in granting summary judgment in favor of Prime and declaring Schmidt to be 

a vexatious litigator. Schmidt's first three assignments of error are overruled. 

{¶ 43} Schmidt's fourth assignment of error asserts that the trial court erred when 

it denied his motion to dismiss Prime's complaint for lack of standing. Schmidt asserts 

that Prime was a defendant in only one of the six cited actions and cannot invoke 

Schmidt's conduct in the other five cases when bringing Prime's vexatious litigator 
No. 15AP-584 17 

complaint. This argument lacks merit on its face because it essentially admits Prime's 

standing as a plaintiff in this vexatious litigator action. By stating that Prime in 

fact defended at least one of the cases involved, Schmidt concedes that Prime is "a person 

* * * who has defended against * * * vexatious conduct," R.C.2323.52(B), and thereby 

qualifies as a plaintiff in this action. Alternatively, if the argument is taken as an objection 

to the trial court's reliance on Schmidt's conduct in the cases not involving Prime, it is 

duplicative of the similar arguments rejected in our discussion of Schmidt's first three 

assignments of error above. Schmidt's fourth assignment of error is accordingly 

overruled. 

IV. Disposition 

{¶ 44} In summary, we overrule Schmidt's four assignments of error and affirm the 

trial court's judgment determining him to be a vexatious litigator and imposing 

restrictions on future filings pursuant to R.C. 2323.52. 

Judgment affirmed.

KLATT, SADLER, and LUPER SCHUSTER, JJ.