Cent. Ohio Transit Auth. v. Timson

• Decision Date: 24 December 1998
• Docket Number: No. 98AP-509.,98AP-509.
• Citation: 724 NE 2d 458,132 Ohio App.3d 41
• Parties: CENTRAL OHIO TRANSIT AUTHORITY, Appellee, v. TIMSON, Appellant.
• Court: Ohio Court of Appeals

132 Ohio App.3d 41

724 NE 2d 458

CENTRAL OHIO TRANSIT AUTHORITY, Appellee, v. TIMSON, Appellant.

No. 98AP-509.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided December 24, 1998.

Laurence E. Sturtz, for appellee.

John W. Timson, pro se.

TYACK, Judge.

On March 26, 1997, the Central Ohio Transit Authority ("COTA") filed a complaint in the Franklin County Court of Common Pleas against John W. Timson. COTA averred that Timson had engaged in habitual and persistent vexatious conduct against COTA in the previous four years and that Timson was a vexatious litigator as defined in R.C. 2323.52(A)(2) and (3). COTA requested that the trial court, pursuant to R.C. 2323.52, declare Timson a vexatious litigator.

Timson filed an answer, a counterclaim, and a motion to dismiss. Timson's counterclaim alleged negligence and intentional infliction of "mental anguish." On June 6, 1997, the trial court denied Timson's motion to dismiss.

On December 23, 1997, COTA filed a motion for summary judgment, contending that it was undisputed that Timson was a vexatious litigator under R.C. 2323.52. Timson filed a memorandum contra, and COTA submitted a reply.

On March 5, 1998, the trial court rendered a decision, concluding Timson was a vexatious litigator and granting COTA's motion for summary judgment. A judgment entry was journalized on April 3, 1998.

Timson has appealed to this court, assigning the following errors for our consideration "Assignment of Error No. I

"The court of Judge Johnson erred in overruling appellant's motion to dismiss for failure to state a claim, under OH Civ Rule 12(B) by reason section 2323.52 ORC vexatious litigator is unconstitutional being in violation of Article I Section 16 Ohio CONSTITUTION and the First and Fourteenth Amendments to the U.S. Constitution.

"Assignment of Error No. II

"The court of Judge Johnson erred in granting a summary judgment to COTA and denying appealants [sic] memo contra summary judgment in violation of the due process provisions of the Fourtteenth [sic] Amendment to the U.S. Constitution."

As a threshold matter, we address the issue of whether there exists a final, appealable order.¹ As noted above, appellant asserted a counterclaim against COTA alleging, essentially, negligence. COTA filed an answer to the counterclaim asserting as one defense that appellant was a vexatious litigator. In its motion for summary judgment, however, COTA addressed only its claim that appellant was a vexatious litigator. Likewise, the trial court's decision and judgment entry only addressed COTA's claim under the vexatious litigator statute.

Civ.R. 54(B) states that in the absence of a determination that there is no just reason for delay, an order that adjudicates fewer than all the claims does not terminate the action as to any of the claims. R.C. 2323.52(C) states that the Ohio Rules of Civil Procedure apply to actions under R.C. 2323.52. In the case at bar, the trial court's judgment entry adjudicated only COTA's claim pursuant to R.C. 2323.52 and did not contain language stating there was no just reason for delay. Despite the trial court's failure to include the Civ.R. 54(B) language, we conclude that there exists a final, appealable order.

In Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 21, 540 N.E.2d 266, 270-271, the Supreme Court of Ohio stated that even though all the claims were not expressly adjudicated by the trial court, if the effect of the judgment was to render moot the remaining claim(s), then compliance with Civ.R. 54(B) was not required to make the judgment final and appealable. Here, the trial court granted appellee's motion for summary judgment, finding that appellant was a vexatious litigator and ordering him not to continue any legal proceedings he had instituted. Because appellant had instituted the negligence claim against appellee and had been declared a vexatious litigator, he could no longer continue that proceeding. Hence, the effect of the trial court's adjudication under appellee's R.C. 2323.52 claim was to render appellant's counterclaim moot. Accordingly, there is a final, appealable order.

We now turn to the merits of the appeal. In his first assignment of error, appellant contends that the trial court erred in failing to grant his motion to dismiss for failure to state a claim. Appellant asserts that his motion to dismiss should have been granted because (1) the complaint was not signed by appellee's chief legal officer, (2) appellee was not a party authorized to bring a suit under R.C. 2323.52, and (3) R.C. 2323.52 is unconstitutional. Appellee contends that appellant has waived these arguments because appellant failed to raise them below.

Appellee is correct that appellant did not raise the issues regarding the signing of the complaint and proper party below. However, R.C. 2323.52 authorizes only certain persons and entities to bring a suit under R.C. 2323.52. R.C. 2323.52(B) states, in pertinent part:

"(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 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. * * *" (Emphasis added.)

We note first that the record before us indicates that the complaint was signed by appellee's chief legal officer, Robert E. Tanner, Jr. More important, however, appellee is a party authorized to bring a suit under R.C. 2323.52. Appellee, a regional transit authority, is a political subdivision of the state and a body corporate. As a body corporate, COTA was authorized under R.C. 2323.52(B) to bring this suit as "a person."

We now turn to appellant's contention regarding the constitutionality of R.C. 2323.52. Appellee asserts that appellant waived any argument in this regard because appellant failed to raise the issue below. We disagree. In his motion to dismiss, appellant stated that the trial court should declare R.C. 2323.52 unconstitutional in violation of Section 16, Article I of the Ohio Constitution and, for this reason, should dismiss the complaint. Hence, appellant's constitutional argument has not been waived.

Substitute House Bill No. 570 ("Sub.H.B. No. 570"), passed into law on November 14, 1996, and codified at R.C. 2323.52, in essence, provides for the commencement of a civil action against a person who has allegedly engaged in habitual and persistent vexatious conduct as defined in the statute, to declare such person a vexatious litigator. R.C. 2323.52(B). If a court of common pleas determines that the person is a vexatious litigator, it may enter an order prohibiting him or her from instituting, continuing and/or making any application in legal proceedings in the Court of Claims, a court of common pleas, a municipal court or county court without first obtaining leave of the court of common pleas that declared that person to be a vexatious litigator. R.C. 2323.52(D)(1)(a)(b) and (c).

Pertinent portions of R.C. 2323.52 state: "(A) As used in this section:

"(1) `Conduct' has the same meaning as in section 2323.51[²] of the Revised Code.

"(2) `Vexatious conduct' means conduct of a party in a civil action that satisfies any of the following:

"(a) The conduct obviously serves merely to harass or maliciously injure another party to the civil action.

"(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.

"(c) The conduct is imposed solely for delay.

"(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 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. "* * *

"(E) An order that is entered under division (D)(1) of this section shall remain in force indefinitely unless the order provides for its expiration after a specified period of time."

Pursuant to R.C. 2323.52(D)(1) and (F), a person declared to be a vexatious litigator may file, in the court that declared him or her a vexatious litigator, for leave of court to institute, continue, or make application in legal proceedings in the Court of Claims, a court of common pleas, a municipal court, or a county court. The court with which such leave is filed may grant leave only if it is satisfied that the proceedings or application are not an abuse of process of the court in question and there are reasonable grounds for the proceedings or application. R.C. 2323.52(F).³ Pursuant to R.C. 2323.52(G), no appeal lies from the common pleas court's decision denying such person leave to institute, continue or make application in legal proceedings in the applicable courts.

Appellant contends that R.C. 2323.52 violates Section 16, Article I of the Ohio Constitution, which states:

"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay."

Section 16, Article I of the Ohio Constitution protects the right...