[Cite as Howdyshell v. Battle , 2019-Ohio-5232.]

COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT

MARK HOWDYSHELL : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B . Hoffman, J. : Hon. Patricia A. Delane y , J. -vs- : : Case No. 19AP0001 : BILLY BATTLE : : : Defendant-Appellan t : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Morgan County Court of Common Pleas, Case No. 18CV0074

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: December 12, 2019

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JANNA C. WOODBURN ERIC J. ALLEN Assistant Prosecutin g Attorne y 4200 Re g ent, Suite 200 19 East Main St. Columbus, OH 43219 McConnelsville, OH 43756Morgan County, Case No. 19AP0001 2

Delaney, J. {¶1} Defendant-appellant Billy Battle appeals from the January 11, 2019 “Decision Finding Defendant a Vexatious Litigator” of the Morga n County Court of Common Pleas. Plaintiff-appellee is Morgan County Prosecutor M ark Howdyshell.

FACTS AND PROCEDURAL HISTORY {¶2} In 2009, appellant was convicted of, e.g., felonious assau lt against a police officer with a firearm specification. He was sentenced to an a ggregate prison term of 10 years. Appellant directly appealed from his convictions and se ntence, raising four assignments of error; we overruled each of the assignments of e rror and affirmed appellant’s convictions and sentence. State v. Battle , 5th Dist. Morgan No. 09 AP 0001, 2010-Ohio-4327. The Ohio Supreme Court declined jurisdiction o f an appeal from our decision. 127 Ohio St.3d 1533, 940 N.E.2d 987 (2011). The U.S . Supreme Court denied certiorari. 565 U.S. 861, 132 S.CT. 200, 181 L.Ed.2d 106 (2011 ). {¶3} Appellant’s convictions and sentence led to several attemp ts at postconviction relief and ensuing appeals. {¶4} Independent of those post-conviction relief attempts, appe llant filed a number of lawsuits against public officials, lawyers, and court reporters who had varying levels of involvement in his criminal case. This litigation ar ises from two alleged factual

circumstances: 1.) A hearing was held on August 26, 2008, in appellant’s underlying criminal case. The recording of the hearing was subsequently misplaced or damaged, and a transcript of the hear ing was not provided for appellant’s direct appeal. Appellant main tainsMorgan County, Case No. 19AP0001 3

that during this hearing, the prosecutor said appellant would n ot be prosecuted for the crimes he was later convicted of. 2.) A Morgan County trial court judge allegedly stated, durin g proceedings in a separate, unrelated matter, that appellant was

convicted of a crime which he did not commit. {¶5} Some of the litigation discussed infra also involved a pur ported misstatement of fact in appellant’s pre-sentence investigation in his criminal case. We note none of these allegations are developed in the record, and were merely alluded to by both parties as they argued whether appellant’s various laws uits were meritorious. {¶6} The instant action arose on April 19, 2018 when appellee f iled a Complaint for Vexatious Litigator pursuant to R.C. 2323.52. Appellant an swered, and the matter proceeded to an evidentiary hearing on November 19, 2018. The following cases were introduced at the evidentiary hearing and cited by appellee as examples of vexatious litigation: A) Morgan County Court of Common Pleas case number

12CV0187 , in which appellant alleged libel and slander against the Morgan County Sheriff’s Office. Appellant demanded damages in excess of $25,000. The complaint was dismissed as time-barred because the activity alleged occurred more than four years befo re the complaint was filed. B) Morgan County Court of Common Pleas case number

13CV0042 , in which appellant named defendants Morgan County Court of Common Pleas Judge Dan W. Favreau, Tom Jenkins, AmyMorgan County, Case No. 19AP0001 4

Graham, the Franklin County Sheriff’s Department, the Hocking County Sheriff’s Department, and Sandra Battle. Appellant alle ged slander, defamation, intentional infliction of emotional distre ss, conspiracy to interfere with appellant’s civil rights, and depr ivation of his civil rights by malicious prosecution. Appellant sought compensatory and punitive damages in excess of $25,000. The tr ial court granted Favreau’s motion to dismiss all claims except tho se for

defamation and intentional infliction of emotional distress. F avreau appealed the trial court’s denial of portions of the motion to dismiss, but we dismissed the appeal for lack of a final appealable orde r. Battle v. Favreau , 5th Dist. Morgan No. 13AP0004, 2014-Ohio-2170. Appellant’s complaint against Favreau continued in the trial court, with Favreau filing a motion for summary judgment agains t appellant which was granted on August 22, 2014. Appellant thereupon appealed from the trial court’s decision, asserting h e was not given time to respond to Favreau’s motion for summary judgm ent. We agreed, and reversed and remanded the matter to the trial co urt to permit appellant to respond to the motion for summary judgme nt. Battle v. Favreau, 5th Dist. Morgan No. 14AP0008, 2015-Ohio-585. Upon remand, the trial court issued a motion schedule, ordering appellant to respond to Favreau’s motion for summary judgment by a date certain. Appellant responded; Favreau repli ed;Morgan County, Case No. 19AP0001 5

and on May 12, 2015, the trial court granted summary judgment i n favor of Favreau. Appellant appealed from the decision of the trial court and we

affirmed. Battle v. Favreau , 5th Dist. Morgan No. 15AP0007, 2015-

Ohio-5106. C) Morgan County Court of Common Pleas case number

13CV0043 , in which appellant named Court Reporter Dawn Hosom as defendant; asserted claims of fraudulent misrepresentation o f the truth, fraud upon the court, and deprivation of due process of law; and sought compensatory and punitive damages in excess of $25,000. Appellant’s claims were dismissed and the Court found Hosom to be entitled to sovereign immunity and qualified immunity. 1 D) Morgan County Court of Common Pleas case number 13CV0105, in which appellant filed a petition for a writ of mandamus agai nst Judge Favreau and Matt Cook, respondents, demanding that they retract portions of a P.S.I. containing erroneous information. Appellant also sought a temporary injunction. The trial court

1 Appellant’s filings related to a previously-omitted record of a hearing held on August 26, 2008. On July 13, 2012, appellant filed a motion in the trial court to certify the record of the hearing. The trial court denied the motion, and appellant appealed from the decision and filed the writ of mandamus supra. In the appeal, appellant argued the trial court erred in failing to provide the recording or to certify a transcripti on of the recording. We overruled appellant’s assignments of error, noting appellant’s “only conceivable purpose in filing the motion with the trial court is for use in reopeni ng his direct appeal,” and we had already denied the application to reopen. State v. Battle, 5th Dist. Morgan No. 12AP008, 2013-Ohio-1759, ¶ 12. The Ohio Supreme Court declined to accept appellant’s appeal from our decision. 136 Ohio St.3d 1494, ** N.E.3d ** (2 013).Morgan County, Case No. 19AP0001 6

dismissed the complaint upon determining that it lacked subject

matter jurisdiction. E) Ohio Supreme Court case number 2013-1343 , in which appellant sought a writ of mandamus regarding removal of statem ents from the P.S.I., but the case was dismissed. F) Morgan County Court of Common Pleas case number

17 CRA 201 , in which appellant attempted to file a criminal complaint on behalf of the state of Ohio seeking appointment of a special prosecutor. Appellant’s complaint alleged perjury and multiple counts of tampering with records arising from alleged false statements made under oath in Morgan County Court of Common Pleas case number

13-CV-0043. The case was dismissed. G) Morgan County Court of Common Pleas case number

17CV167 , in which appellant filed suit against his former defense

counsel. The matter was dismissed. H) Morgan County Court of Common Pleas case number

18CV0021 , in which appellant again sought appointment of a special prosecutor and injunctive relief. Appellant sought a writ of m andamus compelling appellee and his office to recuse themselves from al l investigations and subsequent prosecution of current or former officials of the Morgan County, including its Courts . Appellant sought a special prosecutor to pursue criminal charges against Michael

Totman. The case was dismissed.Morgan County, Case No. 19AP0001 7

{¶7} By judgment entry dated January 11, 2019, the trial court found appellant to be a vexatious litigator. {¶8} Appellant now appeals from the trial court’s “Decision Fin ding Defendant a Vexatious Litigator and Order” dated January 11, 2019. {¶9} Appellant raises one assignment of error:

ASSIGNMENTS OF ERROR {¶10} “THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THE

RESPONDENT TO BE A VEXATIOUS LITIGATOR.”

ANALYSIS {¶11} In his sole assignment of error, appellant argues the tri al court abused its discretion in finding him to be a vexatious litigator. We disa gree. {¶12} R.C. 2323.52(B) describes the process by which a county p rosecutor may seek to have an individual declared a vexatious litigator. Tha t section states in pertinent part: A * * * prosecuting attorney * * * who has defended against habitual and persistent vexatious conduct in the court of claim s 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 wi th jurisdiction over the person who allegedly engaged in the habit ual and persistent vexatious conduct to have that person declared a vexatious litigator. The * * * prosecuting attorney * * * may c ommence this civil action while the civil action or actions in which th e habitual and persistent vexatious conduc t occurred are still pending or withinMorgan County, Case No. 19AP0001 8

one year after the termination of the civil action or actions i n which the habitual and persistent vexatious conduct occurred. {¶13} “Vexatious conduct” means conduct of a party in a civil a ction 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. R.C. 2323.52(A)(2). {¶14} A “vexatious litigator” is defined as “any person who has habitually, persistently, and without reasonable grounds engaged in vexatio us 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. * * * *.” R.C. 2323.52(A)(3). {¶15} Declaring a plaintiff to be a vexatious litigator is “an extreme measure” that should be granted only “when there is no nexus” between “the fi lings 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. {¶16} In the instant case, the trial court found by a preponder ance of the evidence that appellant “is a vexatious litigator who engaged in vexatio us conduct numerous timesMorgan County, Case No. 19AP0001 9

in Morgan County.” Decision Finding Defendant a Vexatious Liti gator and Order, January 11, 2019, 5. In reaching this conclusion, the trial court thoro ughly reviewed appellant's history of filing cases which were not warranted under existing law and could not be supported by a good-faith argument for extension, modification, or reversal of existing law. The trial court also reviewed appellant's conduct in conn ection with those cases. Upon our review of the record, we agree with the following find ings of the trial court: * * *[T]he conduct [appellant] engaged in, especially the conduct against the public officials, served merely to harass o r maliciously injure the parties listed as defendants. While [ap pellant] is correct that a transcript of a hearing was misplaced and an inaccurate comment was in his presentence investigation, those matters had nothing to do with his conviction (as noted by the Court of Appeals and this Court) and/or his sentence. [Appellant] co ntinues

to blame others for his criminal conduct which led to his convi ction. Decision Finding Defendant a Vexatious Litigator and Order,

5. {¶17} Based on our review of the record and appellant's numerou s filings, we conclude that the trial court did not err in finding appellant to be a vexatious litigator. See,

Helfrich v. Madison , 5th Dist. Licking No. 11 CA 26, 2012-Ohio-551, ¶ 62; Castrataro v.

Urban , 5th Dist. No. 03-CA-E-06-030, 155 Ohio App.3d 597, 2003-Ohio- 6953, 802 N.E.2d 689, ¶ 58. In reviewing the cases cited by appellee and the tr ial court, we agree appellant's filings constitute persistent and habitual conduct done without reasonable grounds. Harris v. Smith , 5th Dist. Richland No. 2011CA0108, 2012-Ohio-3547, ¶ 20.Morgan County, Case No. 19AP0001 10

{¶18} Upon review of the record, we find overwhelming evidence that a ppellant habitually files unnecessary, inappropriate, or supernumerary p leadings and motions.

Plummer v. Westfall , 5th Dist. Guernsey No. 09 CA 8, 2009-Ohio-4998, ¶ 53. Further, the record shows that appellant insists on raising and re-raisi ng arguments which have been rejected by the trial court, and this Court, sometimes rep eatedly. Id. {¶19} Appellant’s baseless litigiousness goes beyond holding pu blic officials accountable for perceived errors in his prosecution and convict ion. “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 action s have long passed this stage.” Helfrich , supra, at ¶ 63. His conduct in the various matters described by the trial court are “vexatious,” within the meaning of the statute, in th at “[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.” Id ., citing R.C. 2323.52(A)(2)(b). His conduct is also “vexatious” insofar as some of it “is imposed s olely for delay.” Id . As such, the trial court properly declared him a vexatious litigator. {¶20} Appellant’s sole assignment of error is overruled.Morgan County, Case No. 19AP0001 11

CONCLUSION {¶21} Appellant’s sole assignment of error is overruled and the judgment of the Morgan County Court of Common Pleas is affirmed. By: Delaney, J., Gwin, P.J. and Hoffman, J., concur.