Harris v. Smith , 2012 Ohio 3547 ( 2012 )

[Cite as Harris v. Smith, 2012-Ohio-3547.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DWAYNE HARRIS : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. W. Scott Gwin, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
KEITH SMITH : Case No. 2011CA0108
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2010CV0165
JUDGMENT: Affirmed and Remanded
DATE OF JUDGMENT: August 2, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DWAYNE HARRIS, PRO SE LAWRENCE H. BABICH
#211-083 150 East Gay Street
Richland Correctional Institution 16th Floor
P.O. Box 8107 Columbus, OH 43215
Mansfield, OH 44901
Richland County, Case No. 2011CA0108 2
Farmer, J.
{¶1} On February 3, 2010, appellant, Dwayne Harris, an inmate at the
Mansfield Correctional Institution, filed a complaint against six employees of the
correctional institution, including the warden, Keith Smith, alleging conspiracy to
retaliate against him for exercising his constitutional rights to file grievances and
lawsuits and violations of his due process rights.
{¶2} On October 28, 2010, appellees filed an answer and appellee Smith filed a
counterclaim to declare appellant a vexatious litigator pursuant to R.C. 2323.52.
Appellee Smith filed a motion for summary judgment on his counterclaim on December
8, 2010. By judgment entry filed October 28, 2011, the trial court granted the motion
and declared appellant to be a vexatious litigator.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. As appellant failed to list any assignment of error pursuant to App.R.
16(A)(3), we glean the following assignment from appellant's arguments:
I
{¶4} "THE TRIAL COURT ERRED IN DETERMINING THAT APPELLANT
WAS A VEXATIOUS LITIGATOR AND GRANTING THE MOTION FOR SUMMARY
JUDGMENT."
I
{¶5} Appellant claims the trial court erred in granting the motion for summary
judgment. We disagree.
Richland County, Case No. 2011CA0108 3
{¶6} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
{¶7} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion, and
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274."
{¶8} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶9} R.C. 2323.52(A)(3) defines "vexatious litigator" as follows:
{¶10} " '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.***"
Richland County, Case No. 2011CA0108 4
{¶11} "Vexatious conduct" is defined in subsection (A)(2) as follows:
{¶12} "(a) The conduct obviously serves merely to harass or maliciously injure
another party to the civil action.
{¶13} "(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.
{¶14} "(c) The conduct is imposed solely for delay."
{¶15} " '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-Ohio-109, quoting Central Ohio Transit Authority v. Timson
(1998), 132 Ohio App.3d 41, 50.
{¶16} In its judgment entry filed October 27, 2011, the trial court found the
following:
{¶17} "Plaintiff Harris does not dispute he has filed 31 lawsuits. He has not
prevailed in any of those cases. His lawsuits have been filed against state agencies,
public officials and employees – almost exclusively against the Ohio Dept. of
Corrections and/or its employees. Public funds must be expended to litigate their
defense(s). Mr. Harris begins the process by filing numerous grievances then proceeds
Richland County, Case No. 2011CA0108 5
through the administrative process until he files his lawsuits for toilet access, law library
books, exercising outside of his cell, etc. The conclusion of the Franklin County Watley
[Rogers AG v. Watley, Case No. 07-CVH10-14469] case is directly applicable here:
{¶18} " 'The undisputed evidence in the record establishes that every perceived
slight results in a lawsuit and that this endless litigation is defendant's form of
entertainment. His habitual and persistent filings have had the effect of harassing
ODRC and its employees and constitute vexatious conduct under R.C.
2323.52(A)(2)(a).' "
{¶19} In his motion for summary judgment filed December 8, 2010, appellee
Smith points out that since 1991, appellant has filed at least fifty civil lawsuits against
various state agencies and its employees necessitating defense by the Ohio Attorney
General's Office. In support, appellee Smith attached as Exhibit A the affidavit of J.
Gregory Glasgow, a paralegal in the Corrections Litigation Unit of the Ohio Attorney
General's Office, who performed an exhaustive search of the lawsuits filed by appellant.
Attached to the affidavit is a lengthy list of all the lawsuits filed by appellant and their
outcomes, many of which were dismissed for failure to state a claim. Also attached as
Exhibit B is appellee Smith's affidavit wherein he states appellant has sued him three
times and all three cases were found to be without merit and dismissed.
{¶20} In reviewing the numerous cases attached to the motion for summary
judgment, we agree appellant's filings constitute persistent and habitual conduct done
without reasonable grounds. We concur with the trial court's decision in finding
appellant to be a vexatious litigator.
Richland County, Case No. 2011CA0108 6
{¶21} In reviewing the case file, we find while the trial court ruled on the
counterclaim, the trial court did not enter a disposition on appellant's complaint which
was filed prior to the vexatious litigator finding. We remand the matter to the trial court
for further proceedings on appellant's complaint.
{¶22} The sole assignment of error is denied.
{¶23} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, J.
Delaney, P.J. and
Gwin, J. concur.
s / Sheila G. Farmer________________
s / Patricia A. Delaney______________
s / W. Scott Gwin______________
JUDGES
SGF/sg 718
[Cite as Harris v. Smith, 2012-Ohio-3547.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DWAYNE HARRIS :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
KEITH SMITH :
:
Defendant-Appellee : CASE NO. 2011CA0108
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is affirmed, and the
matter is remanded to the trial court for further proceedings on appellant's complaint.
Costs to appellant.
s / Sheila G. Farmer________________
s / Patricia A. Delaney______________
s / W. Scott Gwin______________
JUDGES