Opinion
Case No. 2018CA00016
08-06-2018
JOHN D. FERRERO, STARK COUNTY PROSECUTOR Plaintiff-Appellee v. GARY C. STAATS Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney Stark County, Ohio By: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Division 110 Central Plaza, South - Suite 510 Canton, Ohio For Defendant-Appellant GARY C. STAATS, PRO SE Inmate No. A661-652 Richland Correctional Institution P.O. Box 8107 Mansfield, Ohio
JUDGES: Hon. William B. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2017-CV-0916 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO
Prosecuting Attorney
Stark County, Ohio By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Division
110 Central Plaza, South - Suite 510
Canton, Ohio For Defendant-Appellant GARY C. STAATS, PRO SE
Inmate No. A661-652
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio Hoffman, P.J.
{¶1} Appellant Gary C. Staats appeals the grant of summary judgment entered by the Stark County Common Pleas Court finding him to be a vexatious litigator pursuant to R.C. 2323.52. Appellee is John D. Ferrero, Stark County Prosecutor.
STATEMENT OF THE FACTS AND CASE
{¶2} In July of 2014, Appellant, along with three others, forcibly invaded a home. Appellant punched a man present in the home, while his companions beat the same man over the head with a cane. Appellant was indicted by the Stark County Grand Jury with felonious assault and aggravated burglary. Appellant entered a plea of guilty to the charges, and was sentenced to six years incarceration. The sentence was jointly recommended by Appellant and the prosecutor. Appellant was conveyed to prison on October 15, 2014, and began a series of pro se filings challenging his plea and sentence in November of 2014.
{¶3} Appellee filed the instant action on September 21, 2017, seeking to have Appellant designated a vexatious litigator pursuant to R.C. 2323.52. Attached to the complaint was a list of over seventy pleadings Appellant had filed in various courts subsequent to entry of his guilty plea. Appellant filed an answer and a counterclaim, in which he challenged the constitutionality of the vexatious litigator statute.
{¶4} Both parties moved for summary judgment. The court granted Appellee's motion for summary judgment, finding the pleadings filed by Staats after his negotiated plea are civil in nature and fall under the umbrella of the vexatious litigator statute. The court concluded based on the number and nature of Appellant's filings, Appellant has abused the judicial process and should be barred from future filings without leave of court. The court granted Appellee's motion for summary judgment and declared Appellant to be a vexatious litigator.
{¶5} It is from the January 29, 2018 judgment Appellant prosecutes this appeal, assigning as error:
"I. THE TRIAL COURT ERRED AND EXCEEDED ITS AUTHORITY WHEN IT GRANTED FERRERO'S MOTION FOR SUMMARY JUDGMENT.
"II. THE TRIAL COURT ERRED WHEN IT HELD SENATE BILL 168 AMENDING O.R.C. § 2323.52 CONSTITUTIONAL AS WRITTEN.
"III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED STAATS HIS REQUEST FOR A CONTINUANCE TO FILE AN OPPOSITION AGAINST FERRERO'S MOTION FOR SUMMARY JUDGMENT."
I.
{¶6} Appellant first argues the court erred in considering pleadings he filed in the Ohio Supreme Court in finding him to be a vexatious litigator. He argues consideration of pleadings filed in the Supreme Court is prohibited by R.C. 2323.52(A)(3) and (B), which provides:
(A)(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. "Vexatious litigator" does not include a person who is authorized to practice law in the courts of this state under the Ohio Supreme Court Rules for the Government of the Bar of Ohio unless that person is representing or has represented self pro se in the civil action or actions. For the purposes of division (A)(3) of this section, "civil action" includes a proceeding under section 2743.75 of the Revised Code.
(B) A person, the office of the attorney general, or a prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation 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, office of the attorney general, prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation 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.
{¶7} R.C. 2323.52(A)(3) specifically requires the person engage in the vexatious conduct in the court of claims, court of appeals, court of common pleas, municipal court, or county court; the Ohio Supreme Court is excluded from the list. In Borger v. McErlane, 1st Dist. Hamilton No. C-010262, 2001-Ohio-4030, the appellant argued the trial court erred in considering actions filed in federal court to declare him a vexatious litigator. The First District Court of Appeals held although civil actions filed in a federal court cannot be the predicate actions for declaring a person a vexatious litigator under R.C. 2323.52, they may have evidentiary relevance for determining vexatious conduct as defined in R.C. 2953.52(A)(2)(a), or to identify a vexatious litigator as defined in R.C. 2953.52(A)(3). Id. at *4.
{¶8} In the instant case, the list of over seventy of Appellant's filings which was attached to Appellee's complaint included only four filings in the Ohio Supreme Court. Although such filings may not be the predicate action for declaring Appellant a vexatious litigator, they do have evidentiary relevance in determining whether his conduct served merely to harass or maliciously injure another party pursuant to R.C. 2953.52(A)(2)(a). We find no error in consideration of these four filings in the Ohio Supreme Court, as more than sixty filings remained in the common pleas court which served as the predicate for the court's vexatious litigator finding.
{¶9} Appellant next argues the court erred in considering pleadings filed in his underlying criminal case, State v. Staats, Stark County Common Pleas Court No. 2014CR1179(A).
{¶10} The trial court held in pertinent part, "While the vexatious litigator statute refers to civil litigation and not criminal litigation, filings made by a criminal defendant after conviction and direct appeal are considered actions of a civil nature." Judgment Entry, 1/29/18, p. 6. "A review of just the pleadings Staats has filed since 2016 reveals numerous pleadings which are civil in nature. Staats has filed writs for procedendo, actions in mandamus, petitions for postconviction relief, requests for discovery, requests for public records - the list goes on." Id. at 7. "The pleadings filed by Staats after his negotiated plea are civil in nature and fall under the umbrella of the vexatious litigator statute." Id.
{¶11} The 11th District Court of Appeals has held pleadings of a civil nature, although filed in a criminal case, may for the predicate for a vexatious litigator finding:
As stated above, the vexatious litigator statute applies to conduct in a civil action. R.C. 2323.52(A)(2). While it is accurate that the initial filings prior to conviction and the direct appeal in the underlying criminal matter are not considered for the purposes of making a vexatious litigator finding, the subsequent motions, appeals, and original actions were generally of a civil nature. It has been repeatedly held that a "postconviction proceeding is not an appeal of a criminal conviction but, rather, a collateral civil attack on the judgment." State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905
(1999). Motions filed after conviction and sentencing seeking to render a judgment void, such as those to resentence, have been repeatedly construed as postconviction petitions. State v. Perry, 11th Dist. Trumbull No. 2016-T-0005, 2016-Ohio-7446, ¶ 16; see also State v. Jordan, 8th Dist. Cuyahoga No. 100686, 2014-Ohio-2408, ¶ 7, fn. 1 (relitigation of issues through postconviction motions can warrant a determination that a defendant is a vexatious litigator).
{¶12} Watkins v. Pough, 11th Dist. Trumbull No. 2016-T-0100, 2017-Ohio-7026, ¶ 41, appeal not allowed, 151 Ohio St.3d 1476, 2017-Ohio-9111, 87 N.E.3d 1273, ¶ 41.
{¶13} Although we caution not every pleading filed after conviction and direct appeal is necessarily of a civil nature, and such pleadings must be examined by the trial court to determine whether they are in fact civil in nature, the trial court correctly found the docket in the instant case reflects an extensive number of filings of a civil nature: multiple postconviction relief petitions, writs of procedendo and mandamus, and public records requests. The judgment does not reflect the trial court improperly considered criminal filings in finding Appellant to be a vexatious litigator.
{¶14} The first assignment of error is overruled.
II.
{¶15} In his second assignment of error, Appellant argues the court erred in finding R.C. 2323.52, as amended by Senate Bill 168 on June 28, 2002, to be constitutional.
{¶16} Appellant filed a counterclaim in the instant case seeking a declaration R.C.2323.52 is unconstitutional. R.C. 2721.12(A) states:
(A) Subject to division (B) of this section, when declaratory relief is sought under this chapter in an action or proceeding, all persons who have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding. Except as provided in division (B) of this section, a declaration shall not prejudice the rights of persons who are not made parties to the action or proceeding. In any action or proceeding that involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party and shall be heard, and, if any statute or the ordinance or franchise is alleged to be unconstitutional, the attorney general also shall be served with a copy of the complaint in the action or proceeding and shall be heard. In any action or proceeding that involves the validity of a township resolution, the township shall be made a party and shall be heard. (Emphasis added.)
{¶17} The requirement that the Attorney General be served with a copy of the proceedings has repeatedly been held to be a mandatory jurisdictional requirement. Asbury Apts. v. Dayton Bd. of Zoning, 77 Ohio St.3d 1229, 673 N.E.2d 1379 (1977); Ohioans for Fair Representation, Inc. v. Taft (1993), 67 Ohio St.3d 180, 183, 616 N.E.2d 905 (1993); Westlake v. Mascot Petroleum, 61 Ohio St.3d 161, 163, 573 N.E.2d 1068 (1991); Sebastiani v. Youngstown, 60 Ohio St.2d 166, 167, 398 N.E.2d 558 (1979); and Malloy v. Westlake, 52 Ohio St.2d 103, 104, 370 N.E.2d 457 (1977). The Attorney General must be served at the same time and in the same manner in which the complaint is served under Civil Rules 4, 4.1 and 4.3. Hydraulic Press Brick Co. v. City of Independence, 38 Ohio App.2d 37, 39, 311 N.E.2d 873 (1974).
{¶18} Appellant failed to serve the attorney general with a copy of the counterclaim seeking to have R.C. 2323.52 declared unconstitutional. The trial court was therefore without jurisdiction to consider his counterclaim, and we therefore find no error in the dismissal of the counterclaim.
{¶19} The second assignment of error is overruled.
III.
{¶20} Appellant argues the court erred in denying his request for a continuance to file a pleading in opposition to Appellee's motion for summary judgment.
{¶21} The trial court filed an assignment notice on October 30, 2017, setting a deadline of December 20, 2017 for filing dispositive motions. On December 18, 2017, Appellant filed a motion to file his summary judgment motion instanter. Appellee filed his motion for summary judgment on December 20, 2017. Appellant filed his motion for summary judgment on January 8, 2018, and on the same day the court granted his motion for leave to file the summary judgment motion instanter. On January 4, 2018, the court filed a notice stating Appellant's opposition to Appellee's motion for summary judgment was to be filed by January 16, 2018, and a non-oral hearing would be held on or after January 24, 2018, at which time the record and briefs would be considered.
{¶22} On January 11, 2018, Appellant filed a motion to strike Appellee's motion for summary judgment. In the alternative, he sought an additional twenty days to file a responsive pleading addressing Appellee's summary judgment motion. His motion did not set forth a reason for his request for additional time. Without expressly addressing Appellant's request for more time, the trial court granted Appellee's motion for summary judgment on January 29, 2018, overruling the motion to strike.
{¶23} Appellant argues the court did not file a briefing schedule after he filed his motion for summary judgment, giving him the false impression proceedings would be tolled until the motion to strike was decided. He also argues his request for twenty additional days to respond to Appellee's motion for summary judgment was not excessive and should have been granted.
{¶24} The decision as to whether to grant a motion for extension of time lies within the discretion of the trial court and will be reversed on appeal only for an abuse of discretion. Johnson v. Univ. Hosp. Case Med. Ctr., 8th Dist. Cuyahoga No. 90960, 2009-Ohio-2119, ¶ 5. An abuse of discretion connotes more than an error of law or judgment; it implies the court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶25} Appellant has not demonstrated the court abused its discretion. The court's notice filed January 4, 2018, clearly set forth January 16, as the date by which Appellant's opposition to summary judgment must be filed, and January 24, 2018, as the date on which it intended to consider the motion for summary judgment. Appellant's request for additional time did not set forth any reason for his need for additional time to respond. Further, Appellant filed his own motion for summary judgment which set forth his position as to the issues before the court in the summary judgment proceedings.
{¶26} The third assignment of error is overruled
{¶27} The judgment of the Stark County Common Pleas Court is affirmed. Cost are assessed to Appellant. By: Hoffman, P.J. Delaney, J. and Baldwin, J. concur