[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
