in the court of comon pleas franklin county, ohio

IN THE COURT OF COMON PLEAS

FRANKLIN COUNTY, OHIO

JACK G. SCHMIDT )

)

Plaintiff, ) CASE NO. 13CV9703

)

v. )

)

GROSSMAN LAW OFFICES, et al. ) JUDGE REESE

)

Defendants. )

REPLY TO GROSSMAN LAW OFFICES’S AND ANTHONY R. AUTEN’S

MEMORANDUM IN OPPOSITION TO JACK G. SCHMIDT’S MOTION FOR LEAVE

TO FILE COMPLAINT

Grossman Law Offices (“Grossman”) and Anthony R. Auten (“Auten”) engaged in fraud

on the court when they improperly and without a factual basis sought and obtained a Temporary

Restraining Order (“TRO”) in a case styled Schmidt v. Schmidt, Franklin County Case No.

12DR-02-856 (the “Divorce Action”) restraining Mr. Schmidt from harassing and assaulting his

wife. Coulson v. Coulson (1983), 5 Ohio St.3d 12, 15; Booth v. Booth (10th Dist.), Franklin App.

No. 93APF11-1559 (July 21, 1994). The TRO’s language placed Mr. Schmidt at risk for

possible criminal prosecution for possessing firearms and ammunition during the time that the

TRO improperly restrained him. Rieger v. Montgomery Cty., 2009-Ohio-4125, ¶ 7; 18 U.S.C.

922(g)(8); Snell v. Snell, 2010-Ohio-2245, ¶ 34. (Exhibits G, H, I). They refused to amend the

TRO when requested. They maliciously and in bad faith requested a vocational evaluation at

Mr. Schmidt’s expenses and requested a seek work order when they knew Mr. Schmidt was

unable to do so. (Exhibits Q, R, W). They improperly, maliciously and in bad faith advised their

client to violate a court order by removing Mr. Schmidt’s equipment needed for his rehabilitation

Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com

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of his near fatal heart attack from his Athens County farm. (Exhibit QQ). They refuse to return

it when asked. (Exhibit PP). They terrified Mr. Schmidt with their maliciousness, overzealous

posture and past fraudulent filings, leading to a cardiac event and a trip to the hospital.

(Complaint, ¶ 28).

Their conduct is tortious, damaging Mr. Schmidt for which he now seeks redress through

in his complaint for which he seeks leave (“current Complaint”). That the conduct occurred in

the Divorce Action does not negate its tortiousness. Tort claims are to be brought in the General

Division rather than the Domestic Relations Division. State, ex rel. Cook v. Cook (1902), 66

Ohio St. 566; Howard v. Pharis-Rine (5th Dist.), 2009-Ohio-3981.

In Schmidt v. Grossman Law Offices, Franklin Cty. Case No. 13CV003379 (the “Franklin

County case” or the “Franklin County Court”) Grossman and Auten argued that Mr. Schmidt’s

claims against them should have been redressed in the Divorce Action. Obligingly, the Franklin

County Court recast Mr. Schmidt’s claims as a request for sanctions for ethical misconduct or

frivolous conduct and dismissed the claims for lack of subject matter jurisdiction. Decision and

Entry, October 25, 2013, pp. 3-4.

Clearly, the Franklin County Court was not dismissing tort claims. Such an interpretation

defies logic. The Domestic Relations Division’s jurisdiction is limited to domestic relations

matters, which do not include contract, tort or other collateral claims between spouses. State ex

rel. Judson v. Spahr (1987), 33 Ohio St.3d 111; Zeigler v. Zeigler (5th Dist.), Licking Cty. Case

No. 98-CA-00054 (Nov. 3, 1998); Lisboa v. Karner (8th Dist.), 167 Ohio App.3d 359, 2006-

Ohio-3024, ¶¶ 6; Mitchell v. Mitchell (11th Dist.), 2008-Ohio-833, ¶ 60; Tanagho v. Tanagho

(10th Dist.), Franklin Cty. App. No. 92AP-1190, (Feb. 23, 1993), 1993 WL 50950, at *2. The

equitable powers of the Domestic Relations Court extend only to determine the rights of the


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parties to alimony and a division of property. Griste v. Griste (1960), 171 Ohio St. 160,

paragraph two of the syllabus. Tort and other actions, even between divorcing spouses, are to be

brought in the General Division. Griste v. Griste (1960), 171 Ohio St. 160, paragraph two of the

syllabus; Shearer v. Shearer (1985), 18 Ohio St.3d 94, 97 LeCrone v. The Ohio Bell Telephone

Co. (10th Dist. 1963), 120 Ohio App. 129; Howard v. Pharis-Rine (5th Dist.), 2009-Ohio-3981;

Koepke v. Koepke (6th Dist. 1989), 52 Ohio App.3d 47, 49; Pyle v. Pyle (8th Dist. 1983), 11

Ohio App.3d 31. The Domestic Relations Division has no jurisdiction to determine the rights of

third parties to divorce actions. State ex rel. Ross v. O'Grady, Franklin Cty. App No. 94APD03-

443, (Sept. 27, 1994), unreported, 1994 WL 532056. The Domestic Relations Court is without

jurisdiction to award money damages. State, ex rel. Cook v. Cook (1902), 66 Ohio St. 566;

Davis v. Spriggs (5th Dist.), 2010-Ohio-5802, ¶ 35; Gibson v. Gibson (4th Dist. 1993), 87 Ohio

App.3d 426, 428; Howard v. Pharis-Rine (5th Dist.), Licking Cty. App. No. 08 CA 001114 (Aug.

10, 2009), 2009-Ohio-3981, ¶ 20. No jury is available in the domestic relations division. Civ.R.

75(C). Certainly the Franklin County Court knew of the Divorce Court’s restricted jurisdiction.

A tort, on the other hand, is a collateral claim to a divorce action that must be brought in

the proper court or division. Cook, 66 Ohio St. at 573; Judson, 33 Ohio at 114; Koepke, 52 Ohio

App.3d at 49; Howard, 2009-Ohio-3981, ¶16. Indeed, looking at the substance of the claims, the

Franklin County Court declared they “arose out of what transpired during the divorce

proceedings . . . as opposed to an event ancillary to the divorce action” and dismissed them on

that basis. The instant claims are tort claims that cannot now be confused with claims arising out

of the Divorce Action as that case is completed.

I. GROSSMAN AND AUTEN LACK STANDING TO APPEAR

Grossman and Auten file their Memorandum In Opposition to Jack G. Schmidt Jr.’s


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Motion for Leave to File Complaint (“Memo Contra”) in a case styled Prime Equipment Group,

Inc. v. Jack G. Schmidt, Jr. Defendants Grossman and Auten were never parties to that action

and have no standing to file anything in that case. Notably, nothing in R.C. 2323.52(F) allows

for the filing of responsive memoranda or a hearing to an application for leave to file complaint.

There is as yet no case, as none has been filed. Therefore, there are, as yet, no defendants.

Accordingly, neither Grossman nor Auten have standing nor the right to appear at a hearing to

present arguments on Mr. Schmidt’s application. Mr. Schmidt objects to their Memo Contra and

their appearance and requests that their Memo Contra be stricken and that they be prohibited

from presenting any argument at any hearing on his Motion for Leave to File Complaint. The

matter to be decided is strictly a legal issue well within the purview of the court. There is

absolutely no reason for any nonparty or other person or entity to opine as to whether the

proposed complaint meets the requirements for filing pursuant to R.C. 2323.52(F).

II. PREVIOUS DISMISSALS OF MR. SCHMIDT’S CLAIMS WERE NOT ON THE

MERITS.

Importantly, Mr. Schmidt’s claims in the Franklin County case and Schmidt v. Grossman

Law Offices, Athens Cty. Case No. 13CI0103 (the “Athens County case”) were not dismissed

on the merits. Schmidt v. Grossman Law Offices, et al. (10th Dist.), 2014-Ohio-4227, ¶ 10 (Exh.

Z to Complaint). As Grossman and Auten readily admit, a dismissal for lack of subject matter

jurisdiction is other than on the merits pursuant to Civ.R. 41(B)(4).

A. Res Judicata

Not surprisingly, Grossman and Auten once again try to recast Mr. Schmidt’s claims as

nontorts by declaring they have “their roots” in Mr. Schmidt’s divorce case. Tortious conduct

can and does arise out of domestic relations cases. When it does, especially where, as here, it

involves third parties, it must be brought in the General Division regardless of where it finds it


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roots. Tanagho (10th Dist.), 1993 WL 50950, at *2; Lisboa (8th Dist.), 2006-Ohio-3024, ¶ 6.

Grossman and Auten claim that res judicata (claim preclusion) bars Mr. Schmidt’s

current Complaint because he admits that he previously filed these claims. Although true, the

Franklin County Court rejected out of hand that Mr. Schmidt’s previously filed claims were torts.

“Accordingly, the Court finds it does not have subject matter jurisdiction over the instant action.”

Decision and Entry at p. 3-4.

Clearly and by its own determination, the court never dismissed Mr. Schmidt’s tort

claims in the Franklin County case. It dismissed “claims arising out of the conduct of the

Defendants in the Domestic Relations Court,” non-torts over which it lacked subject matter

jurisdiction. Decision and Entry at p. 4. Mr. Schmidt agrees that the nontort claims the Franklin

County court says it dismissed, apparently seeking recourse for ethics and frivolous conduct

violations in the Divorce Action are a matter of res judicata. Those, however, are not the tort

claims brought in the current Complaint. Grossman and Auten cannot have it both ways. They

argued in the Franklin County case that Mr. Schmidt’s claims were not torts and prevailed. They

cannot now say that the Franklin County case claims were torts and seek to apply the doctrine of

res judicata. Now that the Divorce Action is completed, there can be no confusion but that Mr.

Schmidt’s current claims are torts, apparently never before brought and never before dismissed,

for which he seeks redress in the form of damages.

Generously, Grossman and Auten offer the solace that Mr. Schmidt can refile his claims

in “some court”, presumably one with subject matter jurisdiction, but not this court. Where, pray

tell, would that be? In the Domestic Relations Court where torts are disallowed and they were

not and could not be made parties? State ex rel. Ross v. O’Grady, Franklin Cty. App. No.

94APD03-443 (Sept. 27, 1994); Tanagho v. Tanagho, Franklin Cty. App. No. 92AP-1190 (Feb.


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23, 1993); Wareham v. Wareham, Franklin Cty. App. No. 78AP-118 (Dec. 14, 1978) citing Levy

v. Levy, Franklin App. No. 77AP-918 (May 2, 1978). Their argument is nonsensical.

A. Collateral Estoppel

Nor does Grossman’s and Auten’s collateral estoppel (issue preclusion) argument

assist them.

The doctrine of issue preclusion, also known as collateral estoppel, holds that a

fact or a point that was actually and directly at issue in a previous action, and was

passed upon and determined by a court of competent jurisdiction, may not be

drawn into question in a subsequent action between the same parties or their

privies, whether the cause of action in the two actions be identical or different.

Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240, 52 N.E.2d 67,

paragraph three of the syllabus

Fort Frye Teachers Ass'n, OEA/NEA v. State Employment Relations Bd., 1998-Ohio-435, 81

Ohio St. 3d 392, 395, 692 N.E.2d 140, 144.

To successfully assert collateral estoppel, the moving party must prove the

following: (1) The non-moving party was a party, or in privity with a party, to the

prior action; (2) There was a final judgment on the merits in the prior action; (3)

The operative issue was necessary to the final judgment; and (4) The operative

issue in the prior action is identical to the issue in the subsequent action.

Lewis v. Cleveland, 2011-Ohio-347, ¶ 13. Grossman and Auten’s collateral estoppel argument

fails because there was never a final judgment on the merits as to Mr. Schmidt’s abuse of process

and other tort claims in any of the previous litigation. The 10th District has already declared this.

Schmidt v. Grossman Law Offices, et al. (10th Dist.), 2014-Ohio-4227, ¶ 9. (Exhibit Z). The

matter that is subject to res judicata and collateral estoppel is the 10th Districts ruling that the

Franklin County court’s dismissal of Mr. Schmidt’s claims was not on the merits.

B. Cited Case Authority

None of the cases Grossman and Auten cite assist them in their res judicata and collateral

estoppel arguments. State ex rel. Ohio Housing Finance Agency v. Harding, 2014-Ohio-1187,

¶¶ 3, 5 involves a cognovit note where the court granted judgment pursuant to an attorney’s


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confession of liability. The judgment was on the merits and no issue of subject matter

jurisdiction was raised.

Heller v. Prepaid Legal Serv., Inc., 2013-Ohio-680, ¶ 18, actually favors Mr. Schmidt. It

holds that, as here, a dismissal for lack of subject matter jurisdiction is other than on the merits

pursuant to Civ.R. 41(B)(4) and is not res judicata. A review of the decisions in both the

Franklin County case and the Athens County case as well as the 10th District Decision in Schmidt

v. Grossman Law Offices, et al. (10th Dist.), 2014-Ohio-4227 makes clear that all courts declined

to exercise jurisdiction due to the pending Divorce Action. None of the courts in any way

indicated that the Domestic Relations Division could ever have subject matter jurisdiction over

Grossman and Auten in the Divorce Action.

The jurisdictional determination that leads to res judicata or collateral estoppel is one in

which the court determines that it can never have subject matter jurisdiction over the claim.

As a result, res judicata dictated that the Jefferson County Court likewise rule it

lacked subject matter jurisdiction over the Board, as the Franklin County Court

determined the Board was a state agency, over which a common pleas court

lacks jurisdiction. (Emphasis added).

Diagnostic & Behavioral Health Clinic, Inc. v. Jefferson Cty. Mental Health, Alcohol & Drug

Addiction Bd., 2002-Ohio-1567, ¶ 14. The Franklin County Court and Athens County Court

decision to dismiss due to the pending Divorce Action made no such ruling. The Divorce Action

is now completed. Accordingly, any question regarding a lack of jurisdiction to entertain Mr.

Schmidt’s tort actions has been cured. Id. at ¶ 14. Importantly, Grossman and Auten offer no

authority for the proposition that the Domestic Relation Division had personal jurisdiction over

them in the Divorce Action.

As was the case in Diagnostic & Behavioral Health, supra, “[t]he res judicata effect of a

dismissal for lack of subject matter jurisdiction is limited to the jurisdictional issue serving as a


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basis for the dismissal.” Ohio Nat'l Life Ins. Co. v. United States, (C.A.6, 1990), 922 F.2d 320,

325. Id. at ¶ 17. In the Franklin County case, the res judicata issue serving as a basis for the

dismissal was the supposed ethics and frivolous conduct it deemed the Domestic Relations Court

had jurisdiction to address. Decision and Entry at p. 2.

III. THE ATHENS COUNTY CASE

This same analysis set forth above applies to the Athens County case. There the court

specifically stated that it was following the reasoning of the Franklin County Court.

Accordingly, the claims dismissed were, apparently, nontorts and neither res judicata or

collateral estoppel apply.

IV. FAILURE TO STATE A CLAIM

A. Absolute Immunity

Grossman’s and Auten’s “failure to state a claim” argument is far too premature and not

yet ripe for adjudication in this nonexistent case that has yet to be filed. Rather, the place and

time to address a Civ.R. 12(B)(6) failure to state a claim Motion is after the complaint has been

filed and before the judge to whom it is assigned. Nevertheless, in an overabundance of caution,

Mr. Schmidt will address this argument.

Bad faith defeats an attorney’s immunity defenses. Bad faith exists when an attorney

falsifies an affidavit and files it in court. Pheils v. Garber-Lawrence Pub. Group, Inc. (6th Dist.

Dec. 10, 1993), Lucas App. No. L-92-418, *14. Grossman and Auten have no immunity

absolute or otherwise as a result of their bad faith conduct.

Absolute immunity applies to litigants, witnesses and their counsel for liable, slander, or

defamation claims only. Harsh v. City of Franklin, 2011-Ohio-2428, ¶¶ 17-18; Seminatore v.

Dukes, 2004-Ohio-6417, ¶¶ 25-26; Fiori v. Plating Technology, 2004-Ohio-6611, ¶ 5. Mr.


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Schmidt’s current Complaint brings no such claims. Grossman and Auten enjoy no such

immunity for their malicious conduct taken in bad faith for Mr. Schmidt’s abuse of process,

intentional infliction of emotional distress and negligent infliction of emotional distress claims.

Grossman and Auten used the domestic relations process for an improper purpose to obtain a

collateral advantage. Robb v. Chagrin Lagoons (1996), 75 Ohio St.3d 264, 271. Through

coercion and intimidation they sought to so demoralize Mr. Schmidt and compromise his

physical and mental health in his already vulnerable state that they could easily obtain his money

and property. They are no better than thugs with a law degree. The venue may be more pleasant

and the clothing superior, but the conduct is the same.

Willitzer v. McCloud (1983), 6 Ohio St.3d 447 actually favors Mr. Schmidt. In Willitzer,

Dr. McCloud lied to the in testimony and reports before the Industrial Commission about the

conditions of claimants the Industrial Commission sent to him for evaluation of injuries covered

by Worker’s Compensation. The Supreme Court of Ohio declined to grant absolute immunity to

him for his substandard examinations, notwithstanding that his report and testimony to the

Industrial Commission were privileged under the doctrine of witness immunity. Id. at 450. The

court recognized as essential a damages remedy to injured claimants in such situations.

Thus, while the physician is immune from liability for damages as a result of his

submitting false or defamatory statements as to the medical condition of the

individual examined, the physician may be held liable for damages on a theory

akin to malpractice by virtue of his failure to conduct an adequate and complete

examination

Willitzer v. McCloud (1983), 6 Ohio St.3d 447, 451. As in Willitzer, Grossman and Auten lied in

their documents filed in the Divorce Action. As in Willitzer, a damages remedy is essential to

the injured party. Grossman’s and Auten’s conduct was done in bad faith, which defeats their

immunity defense. Pheils v. Garber-Lawrence Pub. Group, Inc. (6th Dist. Dec. 10, 1993), Lucas



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App. No. L-92-418, *14. While Grossman and Auten may be immune from civil suit for

defamation, libel and slander, they have no immunity for abuse of process and other claims.

B. Qualified Immunity

Falsification of affidavits filed in court is bad faith that defeats Grossman’s and Auten’s

affirmative defense of qualified immunity. Scholler v. Scholler, (1984), 10 Ohio St.3d 98,

paragraph 1 of the syllabus. Moreover, malice is implied by Grossman’s and Auten’s statements

regarding Mr. Schmidt. Pheils v. Garber-Lawrence Pub. Group, Inc. (6th Dist. Dec. 10, 1993),

Lucas App. No. L-92-418, *14. Ahlbreck v. Joelson, Lucas Cty. App. No. L-96-418 (6th Dist.

Aug. 8, 1997) did not rule that an attorney is immune from liability where he acts with his

client’s knowledge and authority. It ruled that an attorney may only be held liable to third parties

if he has acted maliciously. Id at 7. Here both Grossman and Auten have so acted.

C. Mootness

Grossman and Auten misrepresent to the court that Mr. Schmidt’s current claims “arose

solely out of actions in the Divorce Action.” Of course, they must so state to justify their

spurious argument that Mr. Schmidt’s claims are somehow subject to res judicata. Following

Grossman’s and Auten’s arguments to its logical conclusions, Mr. Schmidt was to bring his

claims against them in the Divorce Action because the claims supposedly arise “solely out of

actions in the Divorce Action.” Somehow this was to be done despite the fact that the Domestic

Relations Division has no subject matter jurisdiction over torts, cannot award damages, had no

provision for a jury and cannot obtain jurisdiction over nonparties Grossman and Auten. The

suggestion is absurd.

It may well be so that “the Domestic Relations Court has already addressed and

determined all of the parties’ rights and responsibilities regarding the Divorce Action.” Such a





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resolution involves Domestic relations matters only, which are the rights of the parties to

alimony and property division. It has no application to the torts between Mr. Schmidt and

Grossman and Auten who were nonparties to the Divorce Action.

D. Abuse of Process

Again misstating the facts, Grossman and Auten claim Mr. Schmidt has stated no ulterior

purpose other than filing a Motion for a Temporary Restraining Order based on lies to deprive

Mr. Schmidt of participation in his gun related activities. Grossman’s and Auten’s conduct and

purpose, however, was much more nefarious.

Their ulterior purpose was to use the Domestic Relations TRO processes (1) to embarrass

him publically before his peers and to cause damage to his reputation, credibility, business and

personal interests; (2) to embarrass him and cause damage to his relationship with his children;

(3) to reduce and keep him in a physically and emotionally vulnerable medical state; (4) to extort

money and force him to pay Ms. Gasbarro’s debt for which he had no liability; and (5)

improperly to force him to relinquish his rights to the marital property. Executive Builders, Inc.

v. Trisler (Ind. Ct. App. 2000), 741 N.E.2d 351; Kumar v. Bornstein, (2d Dist. 2004), 354

Ill.App.3d 159; Givens v. Mullikin ex rel. Estate of McElwaney (Tenn. 2002), 75 S.W.3d 383;

Crackel v. Allsate Ins. Co. (Ct. App. Div. 2 2004), 208 Ariz. 252, 92 P.3d 882, Sands v. Living

Word Fellowship, 34 P.3d 955 (Alaska 2001); Almerico v. Dale, 927 So. 2d 586 (La. Ct. App.

5th Cir. 2006); Blank v. Securx, Inc. (1997), 123 Ohio App.3d 248, 255; Thompson v. R & R

Service Systems, Inc. v. Cook (June 19, 1997), Franklin App. No. 96APE10-1277, 96APE10-

1278, unreported, at p. 14; Chain v. Internatl. City Bank and Trust Co. (E.D. La. 1971), 333

F.Supp. 463, 466. None of these objectives is a legitimate purpose to be achieved in a domestic


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relations case. Nor can the court in a domestic relations action issue an order accomplishing

these goals.

“Where a pleading ties a party's actions to the elements of a claim, but fails to

state in detail the facts underlying the claim, that pleading has not failed to ‘state a

claim upon which relief can be granted,’ pursuant to Civ.R. 12(B)(6).

Clermont Environmental Reclamation Co. v. Hancock (1984), 16 Ohio App.3d 9, 12;

Blank v. Securx, Inc. (1997), 123 Ohio App. 3d 248, 256, 704 N.E.2d 21, 26. Certainly, the

Complaint recites facts that, if taken as true, properly pleads abuse of process.

E. Intentional Infliction of Emotional Distress

Let’s see, Grossman and Auten filed a false affidavit with the court in the Divorce Action

alleging that Mr. Schmidt harasses and assaults his wife. (Exhibit B, C). This places Mr. Schmidt

at risk for possible criminal prosecution for possessing firearms and ammunition during the time

that he was inappropriately subject to the TRO. Rieger v. Montgomery Cty., 2009-Ohio-4125, ¶

7. 18 U.S.C. 922(g)(8); Snell v. Snell, 2010-Ohio-2245, ¶ 34. (Exhibits G, H, I). They

maliciously and in bad faith request a vocational evaluation at Mr. Schmidt’s expenses and

request a seek work order when they know that Mr. Schmidt cannot work. (Exhibits Q, R, W).

They improperly, maliciously and in bad faith advise their client to the remove Mr. Schmidt’s

property from the Athens location negatively impacting his recover from his near fatal heart

attack. (Exhibit QQ). They refuse to return it when asked. (Exhibit PP). They advise Ms.

Gasbarro to quit her job for which Mr. Schmidt receives health care benefits during his recovery

from a near fatal heart attack. They terrify Mr. Schmidt with their malicious, overzealous

posture and past fraudulent filings, leading to a cardiac event and a trip to the hospital.

(Complaint, ¶ 28).


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Somehow, Grossman and Auten posit that such conduct is not extreme and outrageous

within the meaning of Yeager v. Local Union 20 Teamsters Chauffeurs Warehousemen &

Helpers of America (1983), 6 Ohio St.3d 369. A jury may well find differently. Threats and

menacing remarks and conduct leading to deleterious physical consequences are the very types

of conduct Yeager states supports an intentional infliction of emotional distress claim. Id. at 369.

Grossman’s and Auten’s conduct is so outrageous that they would risk possible contempt

complete with jail implications, economic sanctions, the loss of Auten’s law license and civil

prosecution to place sufficient pressure on Mr. Schmidt to accede to their demands. That is

extreme and outrageous. Stockdale v. Baba, (10th Dist.), 2003-Ohio-4366, ¶ 48. Certainly the

Complaint recites facts that, if taken as true, properly pleads intentional infliction of emotional

distress.

F. Negligent Infliction of Emotional Distress

Grossman and Auten somehow claim that their conduct as set forth above does not meet

the elements of negligent infliction of emotional distress because he was not a bystander. To the

contrary, Mr. Schmidt was absolutely a bystander, watching as his own family, business and

personal relationships were destroyed through Grossman’s and Auten’s lies to the Domestic

Relations Court, maliciously zealous conduct in the Divorce Action and advice that Ms.

Gasbarro deprive Mr. Schmidt of his property integral to his recovery and loss of his health care

insurance while treating for a heart attack. Grossman and Auten (1) negligently engaged in

conduct; (2) it was reasonably foreseeable that such conduct would cause Mr. Schmidt severe

emotional distress; and (3) the conduct did, in fact, cause severe emotional distress.

“[T]he gravity of appellant's injury and the inherent humanitarianism of our

judicial process and its responsiveness to the current needs of justice dictate that

appellant be afforded a chance to present [her] case to a jury * * *.” Sinn v. Burd


14

(1979), 486 Pa. 146, 174, 404 A.2d 672, quoting Niederman, supra, 436 Pa. at

page 404, 261 A.2d 84.

Schultz v. Barberton Glass Co. (1983), 4 Ohio St. 3d 131, 135. Certainly the Complaint

recites facts that, if taken as true, properly pleads intentional infliction of emotional distress.

CONCLUSION

As the above demonstrates, the conduct of Grossman and Auten was

reprehensible, not worthy of that of an attorney licensed to practice law in the state of Ohio and

no better than thuggery. They lied to the court placing Mr. Schmidt at risk for possible federal

criminal prosecution. They refused to correct the matter when requested. They maliciously and

in bad faith requested a vocational evaluation at Mr. Schmidt’s expenses and requested a seek

work order when they knew Mr. Schmidt was unable to do so. They improperly, maliciously and

in bad faith advised their client to violate a court order by removing equipment integral to Mr.

Schmidt’s rehabilitation from a near fatal heart attack. They refuse to return it when asked. They

advised Ms. Gasbarro to quit her job taking away Mr. Schmidt’s health insurance during his

recovery. They terrified Mr. Schmidt with their maliciousness, overzealous posture and past

fraudulent filings, leading to a cardiac event and a trip to the hospital. They did this (1) to

embarrass him publically before his peers and to cause damage to his reputation, credibility,

business and personal interests; (2) to embarrass him and cause damage to his relationship with

his children; (3) to reduce and keep him in a physically and emotionally vulnerable medical

state; (4) to extort money and force him to pay Ms. Gasbarro’s debt for which he had no liability;

and (5) improperly to force him to relinquish his rights to the marital home. This is more than

just bad strategy, even if successful. This is tortious misconduct for which Mr. Schmidt has

viable claims against them.


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For the foregoing reasons, Mr. Schmidt respectfully requests this Honorable Court to

grant his Motion for Leave to File his Complaint.

Respectfully submitted,

/s/ Dianna M. Anelli____________________

Dianna M. Anelli (0062973)

The Anelli Law Firm, LLC

3010 Hayden Road

Columbus, OH 43230

P: 614-228-7710

F: 614-340-3140

[email protected]

Attorney for Plaintiff, Jack G. Schmidt

CERTIFICATE OF SERVICE

The undersigned certifies that copies of the foregoing were filed electronically through

the court’s e-filing system on March 17, 2016. Notice of the filing will be sent to all parties or

their counsel by operation of the court’s electronic filing system and via electronic mail pursuant

to Civ.R. 5(B)(2)(f) to:

William D. Kloss, Jr. Timothy S. Rankin

Tyler B. Pensyl Onda, LaBuhn, Rankin & Boggs Co., L.P.A.

Vorys, Sater, Seymour and Pease LLP 35 N. Fourth Street, Suite 100

52 East Gay Street, P. O. Box 1008 Columbus, OH 43215

Columbus, OH 43216

Counsel for Grossman Law Office Counsel for Timothy S. Rankin, Onda, LaBuhn,

And Anthony R. Auten Rankin & Boggs Co., L.P.A., Gina Gasbarro

Michael Gasbarro and Prime Equipment Group,

Inc.

/s/ Dianna M. Anelli____________________

Dianna M. Anelli (0062973)

Attorney for Plaintiff, Jack G. Schmidt


mailto:[email protected]

in the court of comon pleas franklin county, ohio

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