Ohio Attorney Gen. v. Brock
| Decision Date | 01 October 2015 |
| Docket Number | Case No. 14CA19 |
| Citation | 2015 Ohio 4173 |
| Parties | OHIO ATTORNEY GENERAL, Plaintiff-Appellee, v. DENNIS R. BROCK, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Dennis R. Brock, Nelsonville, Ohio, pro se Appellant.
Michael DeWine, Ohio Attorney General, and Maura O'Neill Jaite, Senior Assistant Ohio Attorney General, Columbus, Ohio, for Appellee.
{¶ 1} Defendant-appellant, Dennis R. Brock ("Brock"), appeals the decision of the Hocking County Common Pleas Court granting summary judgment in favor of plaintiff-appellee, the Ohio Attorney General ("OAG"). The OAG filed a vexatious litigator complaint against Brock pursuant to R.C. 2323.52. During the proceedings, the OAG filed a motion for summary judgment. The trial court granted the motion, declared Brock to be a vexatious litigator, and imposed a preliminary injunction under Civ.R. 65 against Brock. Brock now appeals the trial court's decision.
{¶ 2} Brock argues that he is not a vexatious litigator because he should have been granted a mandatory hearing pursuant to R.C. 2969.24(C) prior to the dismissal of his habeas corpus petition which was filed in December 2013 in this court. However, wefind that Brock failed to comply with R.C. 2969.25(A) and (C). Brock included in his notice of appeal an affidavit of indigency requesting a waiver of fees but it failed to include a statement setting forth the balance in his inmate account for each of the preceding six months, as certified by the institutional cashier, in violation of R.C. 2969.25(C). Brock also failed to provide an affidavit describing each civil action or appeal of a civil action within the last five years, in violation of R.C. 2969.25(A). Therefore, we dismiss this appeal.
{¶ 3} In August 2007, a jury found Brock guilty of 13 counts of Rape, first-degree felonies, in violation of R.C. 2907.02(A)(1)(b). The trial court sentenced Brock to 13 consecutive life sentences. Upon his direct appeal, the Third District Court of Appeals affirmed the trial court's convictions and sentences. Since then, Brock has filed numerous motions and appeals with the Hancock County Common Pleas Court, the Third District Court of Appeals, the Twelfth District Court of Appeals, the Fourth District Court of Appeals, and the Ohio Supreme Court.
{¶ 4} In May 2012, Brock filed a petition for a writ of habeas corpus in the Twelfth District Court of Appeals. That court granted the respondent's motion to dismiss and dismissed Brock's petition on the ground that habeas corpus relief was not a proper remedy for Brock's various legal challenges. Brock v. Brunsman, 12th Dist. Warren No. CA2012-05-043. Brock appealed the Twelfth District's dismissal to the Ohio Supreme Court. The Ohio Supreme Court dismissed his appeal as untimely and further found Brock to be a vexatious litigator under S.Ct.Prac.R. 4.03(B), citing five different Ohio Supreme Court decisions involving Brock. See Brock v. Moore, 135 Ohio St.3d 188,2013-Ohio-70, 985 N.E.2d 465 ().
{¶ 5} Later, Brock was transferred from the Lebanon Correctional Facility Institute in Warren County to the Hocking Correctional Facility in Hocking County. Then, Brock filed a petition for a writ of habeas corpus in this court in December 2013. The OAG filed a motion to dismiss Brock's petition. In March 2014, this court granted the OAG's motion and dismissed Brock's petition because it failed to establish that the trial court lacked jurisdiction over his criminal trial; and he had other adequate legal remedies he could have pursued to protect his rights. Brock v. Duffey, 4th Dist. Hocking No. 13CA25.
{¶ 6} The case sub judice commenced in May 2014 when the OAG filed a vexatious litigator complaint against Brock. Brock filed a Civ.R. 12(B)(1) and 12(B)(6) motion to dismiss and a Civ.R. 13(D) counterclaim. The OAG filed a motion for summary judgment; and Brock then filed an "opposition to plaintiff's reasons for summary judgment." Brock proceeded to file approximately twelve various motions such as multiple motions to dismiss and motions arguing the merits of a habeas corpus petition.
{¶ 7} In August 2014, the trial court filed a judgment entry granting summary judgment in favor of the OAG. The trial court declared Brock a vexatious litigator under R.C. 2323.52; imposed R.C. 2323.52(D) vexatious litigator restrictions against Brock; and issued a preliminary injunction under Civ.R. 65. The trial court stated: "This Court hereby issues a preliminary injunction under Civ. R. 65 which prohibits Dennis R. Brock from instituting any litigation, continuing any litigation, or making any application in anylitigation in any Ohio Common Pleas, Municipal, County, or Appellate Court while this litigation is pending, without first obtaining leave from this Court[.]"
{¶ 8} Shortly thereafter, Brock filed an appeal from the trial court's decision without first obtaining leave from the court of appeals to proceed pursuant to R.C. 2323.52(F)(2). On October 27, 2014, we ordered Brock to file his application for leave to proceed with this court in accordance with R.C. 2323.52(F)(2) within twenty days from the entry date of that order. On November 12, 2014, the trial court filed an entry stating that it was correcting the record to reflect that on or before September 5, 2014, Brock filed a motion for leave to appeal but that his motion was subsequently lost or destroyed. The trial court had granted Brock's motion for leave to file an appeal but it was never properly ruled upon by the court of appeals pursuant to R.C. 2323.52(F)(2).
{¶ 9} On December 18, 2014, this court found that the error regarding the motion for leave to appeal was not jurisdictional and ruled that Brock's motion for leave to appeal was timely filed on or before September 5, 2014. Brock and the OAG subsequently filed appellate briefs for this court to consider. In our December 2014 decision we specifically instructed that this appeal be limited to the trial court's determination that Brock is a vexatious litigator.
{¶ 10} Brock's sole assignment of error:
{¶ 11} We review the trial court's decision on a motion for summary judgment de novo. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we afford no deference to the trial court's decision and independently review the record and the inferences that can be drawn from it to determine whether summary judgment is appropriate. Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, ¶ 12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 2009-Ohio-3126, ¶ 16.
{¶ 12} Summary judgment is appropriate only when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); DIRECTV, Inc. v. Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15. In ruling on a motion for summary judgment, the court must construe the record and all inferences therefrom in the nonmoving party's favor. Civ.R. 56(C). The party moving for summary judgment "bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To meet its burden, the moving party must specifically refer to "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts ofevidence, and written stipulations of fact, if any, timely filed in the action," that affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C); Dresher at 293. Moreover, the trial court may consider evidence not expressly mentioned in Civ.R. 56(C) if such evidence is incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E). Discover Bank v. Combs, 4th Dist. Pickaway No. 11CA25, 2012-Ohio-3150, ¶ 17; Wagner v. Young, 4th Dist. Athens No. CA1435, 1990 WL 119247, *4 (Aug. 8, 1990). "If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied." Dresher at 293. However, once the initial burden is met, the nonmoving party then has a reciprocal burden to set forth specific facts to show that there is a genuine issue for trial. Id.; Civ.R. 56(E).
{¶ 13} Brock appeals the trial court's summary judgment against him. He argues that he is not a vexatious litigator. Instead, he contends that he is just being persistent in trying to make this court understand that his present incarceration is illegal. Brock fashions a creative argument. He basically argues that he cannot be considered a vexatious litigator because he has not been afforded a hearing on the OAG's motion to dismiss his petition for habeas corpus that he filed before this court in December 2013. Brock first sets forth the premise that he can be designated as a vexatious litigator if his habeas corpus case is a civil case. He then argues that if his habeas corpus case is indeed categorized as a civil case, then he was entitled to a mandatory hearing pursuant to R.C. 2969.24(C). Thus, he argues that his right to due process has been violated.
{¶ 12} In defense of Brock's argument on appeal, the OAG sets...
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