[Cite as Helfrich v. Madison, 2012-Ohio-551.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



JAMES HELFRICH                                     JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellant                        Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 11 CA 26
TIMOTHY G. MADISON, et al.

        Defendants-Appellees                       OPINION




CHARACTER OF PROCEEDING:                        Civil Appeal from the Court of Common
                                                Pleas, Case No. 07 CV 394


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         February 13, 2012



APPEARANCES:

For Plaintiff-Appellant                         For Defendants-Appellees

CHRISTOPHER M. CORRIGAN                         KRISTIN E. ROSAN
19041 Lake Road                                 TIMOTHY G. MADISON
Rocky River, Ohio 44116                         DARCY A. SHAFER
                                                MADISON & ROSAN
                                                39 East Whittier Street
                                                Columbus, Ohio 43206
Licking County, Case No. 11 CA 26                                                          2

Wise, J.

       {¶1}   Appellant, James Helfrich, appeals a judgment of the Licking County

Common Pleas Court finding him to be a vexatious litigator. Appellees are Timothy

Madison, Madison & Rosan L.L.P., Carol Strickland, David Garner and N.R.T.

Columbus Inc. D.B.A. Coldwell Banker King Thompson Realty.

                          STATEMENT OF FACTS AND CASE

       {¶2}   Appellant filed the instant action on March 16, 2007, for abuse of process,

tortious interference with a business relationship and fraud.

       {¶3}   On April 13, 2007, Appellees filed a Counterclaim, alleging that Appellant

was a vexatious litigator as defined by R.C. 2323.52(A)(2).

       {¶4}   Appellees moved for summary judgment on their counterclaim. The trial

court granted summary judgment and declared Appellant to be a vexatious litigator.

       {¶5}   In a Judgment Entry filed November 25, 2008, the trial granted Appellee’s

motion for summary judgment. The trial court found that the instant case arose out of a

dispute during a previous suit filed by Appellant. In its conclusions of law, the trial court

stated that in February of 2004, Appellant filed suit in Licking County Municipal Court

against Appellees Strickland, Garner and Coldwell Banker over the sale of property to

Appellant. Appellant dismissed the municipal court case and brought suit for the same

claims in Licking County Common Pleas Court (Case No. 05 CV 00120) in January of

2005, “inexplicably seeking $27,000.00 in damages.” The trial court stated that

Appellees were granted summary judgment when Appellant failed to present any

evidence of damages. In that case, Appellant sought to amend to join the defendants’
Licking County, Case No. 11 CA 26                                                              3


counsel, Timothy Madison, as a defendant. The motion was denied, and Appellant

brought the instant action (Case No. 07-CV-00394) including claims against Madison.

       {¶6}   The trial court noted that Appellees had cited numerous instances of

vexatious conduct in the instant case and in Case No. 05 CV 00120, as well as

numerous instances of “similarly frivolous and malicious behavior” in cases filed by

Appellant against other defendants. The trial court held that the many instances of

Appellant’s behavior in this case and in 05CV00120 were more than sufficient to

constitute vexatious behavior. The trial court stated:

       {¶7}   “While plaintiff is entitled to criticize the justice system, he is not entitled to

abuse process, waste the Court’s time, and use repeated frivolous filings to do so.

Plaintiff mistakenly believes his First Amendment rights include using civil actions as a

vehicle to express his disenchantment with the legal processes. The evidence

submitted by defendant shows habitual and persistent conduct on the part of plaintiff

that consists of impugning defendants, opposing counsel, judges, and the judicial

system. Plaintiff even continues this conduct in his memorandum contra defendants’

motion for summary judgment, maligning defendants Strickland and Madison and

raising issues that this Court and the Supreme Court have already ruled upon. This

conduct rises to the level of harassment and is a strain on the Court’s time and

patience.”

       {¶8}   The trial court declared Appellant to be a vexatious litigator as defined in

R.C. §2323.52(A). The trial court held that unless Appellant has leave of court, he is

prohibited from instituting legal proceedings in the court of claims or in a court of
Licking County, Case No. 11 CA 26                                                            4


common pleas, municipal court, or county court, and from continuing any legal

proceedings that he had instituted in any of these courts prior to the entry of the order.

       {¶9}   Appellant filed an appeal from this decision to this Court.

       {¶10} Up to this point, Appellant had also filed at least six separate requests to

disqualify Judge Marcelain. On December 18, 2008, the Supreme issued a Judgment

Entry stating the statutory right to seek disqualification of a judge is an extraordinary

remedy not to be used in a frivolous manner. The Supreme Court warned Appellant

“that the filing of any further frivolous, unsubstantiated, or repeated affidavits of

disqualification may result in the imposition of appropriate sanctions.”

       {¶11} By Opinion dated September 28, 2009, this Court found that the trial court

relied on improper evidentiary material from Case No. 05 CV 00120 in granting

summary judgment. The decision of the trial court was vacated and the matter was

remanded back to the trial court for further proceedings. Helfrich v. Madison, Licking

County Case No. 08-CA-150, 2009-Ohio-5140.

       {¶12} Upon remand, on October 20, 2009, Appellees refiled their summary

judgment motion on the vexatious litigator counterclaim.

       {¶13} On October 28, 2009, Appellant filed a document entitled Plaintiffs

Memorandum Contra to Judge Thomas Marcelain's Motion to Quash. Attached to the

Memorandum Contra as Exhibit N is a copy of a Certified Check to Federal Court Judge

Greg Frost dated October 8, 2003. The statement following the check indicates the

check is offered to Judge Frost if he will swear on the Bible that he has never done

anything unethical and has no reason to believe there is corruption or unethical practice

within the judicial system.
Licking County, Case No. 11 CA 26                                                   5


        {¶14} On December 15, 2009, Judge Marcelain petitioned the Supreme Court

for the appointment of a visiting judge and Judge Richard Markus was assigned to the

case.

        {¶15} From November 18, 2010, through November 23, 2010, the trial court

commenced, but did not conclude, a bench trial on Appellees’ counterclaim. The trial

was recessed until January 5, 2011. The parties completed presentation of evidence

and oral arguments on the counterclaim on January 7, 2011.

        {¶16} Between November 23, 2010 and January 5, 2011, Appellant filed a

number of documents, including nine subpoenas. Appellant filed three “Notices” to the

Court and one motion to have the judge pick up a video-taped deposition from the

Clerk's Office. On December 7, 2010, Appellant sent facsimile correspondence to the

presiding judge and Appellees' trial counsel containing what has been characterized as

a threat to the judge concerning a voicemail recording left the previous day.

        {¶17} The trial court filed its Judgment entry on March 4, 2011.

        {¶18} Appellant now assigns eight errors on appeal:

                                  ASSIGNMENTS OF ERROR

        {¶19} “I. THE TRIAL COURT ERRED IN DENYING THE MOTION TO COMPEL

THE DEPOSITION OF KRISTIN ROSAN.

        {¶20} “II. THE TRIAL COURT ERRED IN DENYING THE [SIC] JAMES

HELFRICH A TRIAL BY JURY WHEN THE STATUTE IS A DECLARATORY

JUDGMENT ACTION AND THERE ARE ISSUES OF FACT THAT A JURY MUST

DETERMINE.
Licking County, Case No. 11 CA 26                                     6


      {¶21} “III. THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF

DOCUMENTS IN THE RECORD PURSUANT TO EVIDENTIARY RULE 201(E)

WITHOUT INFORMING THE PARTIES OF WHAT INFORMATION WAS BEING

REVIEWED AND FOR WHAT PURPOSE THE DOCUMENTS WERE TO BE

CONSIDERED.

      {¶22} “IV. THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF

DOCUMENTS IN THE RECORD PURSUANT TO EVIDENTIARY RULE 201(E) WHEN

THERE WAS TESTIMONY THAT CERTAIN DOCUMENTS HAD BEEN IMPROPERLY

PLACED IN THE RECORD BY A THIRD-PARTY.

      {¶23} “V. THE TRIAL COURT ERRED BY DENYING HELFRICH THE RIGHT

TO CALL WITNESSES WHO WOULD TESTIFY AS TO DISCUSSIONS HE HAD

ABOUT APPROPRIAE [SIC] COURT DECORUM.

      {¶24} “VI. THE TRIAL COURT ERRED IN QUASHING THE SUBPOENA OF

JUDGE MARCELAIN WHEN EVIDENCE SHOWED THAT CERTAIN DOCUMENTS

HAD BEEN PLACED IN THE RECORD BY HIM.

      {¶25} “VII. THE COURT ERRED IN RELYING ON EXCERPTS OF CASES

INSTEAD OF REVIEING [SIC] THE ENTIRE RECORD OF EACH CASE TO

DETERMINE WHETHER APPELLANT HAD ENGAGED IN VEXATIOUS CONDUCT IN

PREVIOUS SUITS.

      {¶26} “VIII. THE COURT ERRED IN DECLARING THE [SIC] HELFRICH WAS A

VEXATIOUS LITIGATOR WHEN THE EVIDENCE WAS INSUFFICIENT TO SUPPORT

SUCH DETERMINATION.”
Licking County, Case No. 11 CA 26                                                         7


                                                I.

      {¶27} In his first assignment of error, Appellant argues that the trial court erred in

denying his motion to compel the deposition of Kristen Rosan. We disagree.

      {¶28} Appellant herein deposed Attorney Kristen Rosan on May 28, 2010.

During the deposition, Appellant questioned Attorney Rosan regarding her affidavit

which was attached to Appellees’ Reply in Support of their Motion for Summary

Judgment. Attorney Rosen responded to a number of questions by stating that she did

not have any personal knowledge outside of her capacity as a lawyer in the case. On

June 21, 2010, Appellant filed a motion to compel.

      {¶29} The trial court herein found that Attorney Rosen is not a fact witness in this

case, that the summary judgment motion which the affidavit supported had been

abandoned, that Attorney Rosen was not filing an affidavit in support of a renewed

motion for summary judgment, and finally that there was no evidence that Attorney

Rosen’s client had waived the attorney-client privilege.

      {¶30} Revised Code 2317.02(A) provides for testimonial privilege. It prevents an

attorney from testifying concerning communications made to the attorney by a client or

the attorney's advice to a client. A testimonial privilege applies not only to prohibit

testimony at trial, but also to protect the sought-after communications during the

discovery process.

      {¶31} Upon review, we find the trial court did not err in denying Appellant’s

motion to compel.

      {¶32} Appellant’s first assignment of error is overruled.
Licking County, Case No. 11 CA 26                                                           8


                                                   II.

       {¶33} In his second assignment of error, Appellant argues that he had the right

to jury trial on the issue of whether he is a vexatious litigator pursuant to R.C. §2323.52.

We disagree.

       {¶34} Appellant’s argument fails to take into account that the right to a jury trial is

not absolute. Section 5, Article I applies only to those causes of action to which the right

attached at common law when Section 5 was adopted. See Arrington v.

DaimlerChrysler Corp., 109 Ohio St.3d 539, 2006-Ohio-3257, 849 N.E.2d 1004; see

also, Belding v. State ex rel. Heifner (1929), 121 Ohio St. 393, 169 N.E. 301, paragraph

one of the syllabus.

       {¶35} The vexatious litigator statute by its own terms clearly indicates that it

provides a form of declaratory judgment, and that certain consequences flow from the

trial court's declaration that a person is a vexatious litigator.

       {¶36} A civil action under the statute constitutes a specific statutory and legal

action with statutorily prescribed remedies which did not exist at common law.

       {¶37} Appellant’s second assignment of error is overruled.

                                                III., IV.

       {¶38} In his third and fourth assignments of error, Appellant argues that the trial

court erred in taking judicial notice of certain documents in the record. We disagree.

       {¶39} Evid.R. 201 governs the trial court's ability to take judicial notice of

adjudicative facts, or the facts of the case. Further, the court has the power to take

judicial notice of its own records and judicial notice of its own actions in earlier
Licking County, Case No. 11 CA 26                                                         9

proceedings of the same case. Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of

Revision (1982), 7 Ohio App.3d 157, 159, 454 N.E.2d 1330.

      {¶40} In the instant action, the trial court took judicial notice of the entire record

of the matter herein, all of which was known to Appellant.

      {¶41} This Court has stated in dicta that we agreed with the proposition that the

trial court can take judicial notice of prior lawsuits filed in its own court. Lansing v.

Hybud Equipment Co., Stark App.No. 002CA00112, 2002-Ohio-5869, ¶ 16. A trial court

can take judicial notice of the court's docket. State v. Washington (August 27, 1987,

Cuyahoga App. Nos. 52676, 52677, 52678 at 15. However, a court does not have the

authority to take judicial notice of the proceedings in another case, including its own

judgment entries. Eg., State v. LaFever, Belmont App. No. 02 BE 71, 2003-Ohio-6545,

¶ 27; State v. Blaine, Highland App. No. 03CA9, 2004-Ohio-1241, ¶ 17; Diversified

Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 454

N.E.2d 1330; NorthPoint Properties, Inc. v. Petticord, 179 Ohio App.3d 342, 2008-Ohio-

5996, ¶ 16. The rationale for this holding is that if a trial court takes notice of a prior

proceeding, the appellate court cannot review whether the trial court correctly

interpreted the prior case because the record of the prior case is not before the

appellate court. Eg. Blaine, supra, ¶ 17; LaFever, supra, ¶ 27; Buoscio, supra, ¶ 34.

      {¶42} Appellant’s third and fourth assignments of error are overruled.

                                             V., VI.

      {¶43} In his fifth and sixth assignments of error, Appellant argues that the trial

court erred in quashing the subpoena of Judge Marcelain and in denying him the right to
Licking County, Case No. 11 CA 26                                                       10


call witnesses to testify as to discussions he had concerning “appropriate court

decorum”. We disagree.

       {¶44} In the instant case, Appellant subpoenaed Judge Marcelain, the judge

who had presided over Appellant’s case before Judge Markus was appointed.

Appellant argues that the purpose for subpoenaing Judge Marcelain was to have him

testify as to private conversations which took place between him and Appellant

regarding “how the legal system works” and “issues of courtroom decorum”. Appellant

wanted to offer this testimony in support of his actions in these legal proceedings.

       {¶45} A trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with

the rules of procedure and evidence. The admission of relevant evidence rests within

the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 31,

paragraph two of the syllabus. An appellate court that reviews the trial court's admission

or exclusion of evidence must limit its review to whether the lower court abused its

discretion. State v. Finnerty (1989), 45 Ohio St.3d 104, 107. As this Court has noted

many times, the term ‘abuse of discretion’ connotes more than an error of law; it implies

that the court acted unreasonably, arbitrarily or unconscionably. E.g., Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142.”

       {¶46} A reviewing court should be slow to interfere unless the court has clearly

abused its discretion and a party has been materially prejudiced thereby. State v.

Maurer (1984), 15 Ohio St.3d 239, 264, 473 N.E.2d 768, 791. The trial court must

determine whether the probative value of the evidence and/or testimony is substantially
Licking County, Case No. 11 CA 26                                                             11


outweighed by the danger of unfair prejudice, or of confusing or misleading the jury. See

State v. Lyles (1989), 42 Ohio St.3d 98, 537 N.E.2d 221.

       {¶47} Upon review, we do not find that the trial court abused its discretion by

quashing the subpoena for Judge Marcelain. We find that even if Judge Marcelain had

personal knowledge as to Appellant’s motivation for his comment or comments, which is

very unlikely, such knowledge is irrelevant in that it is the effect of Appellant’s conduct

and/or actions which is required for a finding of vexatious litigation, not the motivation.

       {¶48} Appellant’s fifth and sixth assignments of error are overruled.

                                               VII., VIII.

       {¶49} In his seventh and eighth assignments of error, Appellant argues that the

trial court erred in determining that Appellant is a vexatious litigator. We disagree.

       {¶50} Appellant argues that the trial court failed to review the entire record in

making its determination.

       {¶51} Vexatious litigator is defined in R.C. § 2323.52(A) as:

       {¶52} “[A]ny 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.”
Licking County, Case No. 11 CA 26                                                        12


       {¶53} Additionally, “vexatious conduct” is defined as the conduct of a party in a

civil action that “obviously serves merely to harass or maliciously injure another party to

the civil action,” “is not warranted under existing law and cannot be supported by a good

faith argument for an extension, modification, or reversal of existing law,” or “is imposed

solely for delay.” R.C. § 2323.52(A)(2)(a) through (c).

       {¶54} Said section further provides:

       {¶55} “(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:

       {¶56} “(a) Instituting legal proceedings in the court of claims or in a court of

common pleas, municipal court, or county court;

       {¶57} “(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;

       {¶58} “(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.

       {¶59} “(2) If the court of common pleas finds 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 to be a vexatious litigator and enters an order described

in division (D)(1) of this section in connection with that finding, the order shall apply to
Licking County, Case No. 11 CA 26                                                      13


the person only insofar as the person would seek to institute proceedings described in

division (D)(1)(a) of this section on a pro se basis, continue proceedings described in

division (D)(1)(b) of this section on a pro se basis, or make an application described in

division (D)(1)(c) of this section on a pro se basis. The order shall not apply to the

person insofar as the person represents one or more other persons in the person's

capacity as a licensed and registered attorney in a civil or criminal action or proceeding

or other matter in a court of common pleas, municipal court, or county court or in the

court of claims. Division (D)(2) of this section does not affect any remedy that is

available to a court or an adversely affected party under section 2323.51 or another

section of the Revised Code, under Civil Rule 11 or another provision of the Ohio Rules

of Civil Procedure, or under the common law of this state as a result of frivolous conduct

or other inappropriate conduct by an attorney who represents one or more clients in

connection with a civil or criminal action or proceeding or other matter in a court of

common pleas, municipal court, or county court or in the court of claims.”

      {¶60} Declaring a plaintiff to be a vexatious litigator is “an extreme measure” that

should be granted only “when there is no nexus” between “the filings made by the

plaintiff and [his or her] intended claims.” McClure v. Fischer Attached Homes, 145 Ohio

Misc.2d 38, 882 N.E.2d 61, 2007-Ohio-7259 at ¶ 33.

      {¶61} In the case at bar, after hearing days of testimony on the vexatious

litigator counterclaim, the trial court found by “clear and convincing evidence that Mr.

Helfrich has ‘habitually, persistently, and without reasonable grounds engaged in

vexatious conduct’ in multiple civil actions.” See Judgment Entry, March 4, 2011, at

page 19. In reaching this conclusion, the trial court thoroughly reviewed Appellant’s
Licking County, Case No. 11 CA 26                                                          14


history of filing complaints, motions, and affidavits for disqualification in that Court, in

addition to Appellant’s conduct in connection with said cases. The trial court found that

Appellant’s “conduct ‘obviously serves merely to harass or maliciously injury another

party’ and/or ‘is not warranted under existing law and cannot be supported by a good

faith argument for an extension, modification, or reversal of existing law; and/or the

described conduct was “imposed solely for delay’.” Id. at 18-19.

       {¶62} Based on our review of the record and Appellant’s numerous lawsuit and

copious filings, we conclude that the trial court did not err in finding in favor of Appellees

on their vexatious litigator counterclaim. Upon review of the record, we find

overwhelming evidence that Appellant habitually files unnecessary, inappropriate, or

supernumerary pleadings and motions. Further, the record shows that Appellant insists

on raising and re-raising arguments which have been rejected by the trial court, and this

Court, sometimes repeatedly.

       {¶63} While this Court is sympathetic to a party who feels he has suffered an

injustice, and takes all measures within the law to correct such, we find that Appellant's

actions have long passed this stage. His conduct in the various matters before the

Licking County Common Pleas Court are “vexatious,” within the meaning of the statute,

in that “[t]he 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.” R.C. §

2323.52(A)(2)(b). His conduct is also “vexatious” insofar as some of it “is imposed solely

for delay.” As such, the trial court properly declared him a vexatious litigator.
Licking County, Case No. 11 CA 26                                                15


      {¶64} Appellant’s seventh and eighth assignments of error are overruled.

      {¶65} For the foregoing reasons, the judgment of the Court of Common Pleas,

Licking County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.



                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
JWW/d 0124
Licking County, Case No. 11 CA 26                                             16


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




JAMES HELFRICH                             :
                                           :
       Plaintiff-Appellant                 :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
TIMOTHY G. MADISON, et al.                 :
                                           :
       Defendants-Appellees                :         Case No. 11 CA 26




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
