City of Madeira v. Oppenheimer

2021-Ohio-2958

CITY OF MADEIRA, Plaintiff-Appellant, v. PHILIP DOUGLAS OPPENHEIMER, Defendant-Appellee.

No. C-200458

Court of Appeals of Ohio, First District, Hamilton

August 27, 2021

Civil Appeal From: Hamilton County TRIAL NO. A-1802415 Court of Common Pleas

Judgment Appealed From Is: Affirmed

Graydon Head & Ritchey LLP, Michael A. Roberts and Brian W. Fox, for Plaintiff-Appellant,

The Law Firm of Curt C. Hartman, and Curt C. Hartman, for Defendant-Appellee.

OPINION

BERGERON, JUDGE.

{¶1} After plaintiff-appellant city of Madeira fended off three lawsuits from one of its residents, its frustration overflowed and it demanded that the trial court declare him a vexatious litigator under R.C. 2323.52. But the city fell well short of the high burden necessary to justify such relief, and the trial court granted summary judgment in the resident's favor. Madeira now appeals and, because we agree that the city cannot satisfy the statutory elements on the facts it presented, we affirm.

I.

{¶2} This case represents the culmination of a series of feuds between a politically-active resident, defendant-appellee Philip Douglas Oppenheimer, and the city of Madeira. As relevant for this appeal, Mr. Oppenheimer filed three cases between 2015 and 2017 that Madeira depicts as vexatious. Mr Oppenheimer first tried to block Madeira from selling land in its historic district, insisting that the city's charter required it to preserve historic "properties." The trial court dismissed the case and we affirmed, holding that the charter defined "properties" as structures, which did not encompass surrounding land. Mr. Oppenheimer next appealed the city's approval of a commercial building permit, but the trial court dismissed the case because he filed the appeal prematurely-before the planning commission issued its written order. In his last suit, Mr. Oppenheimer challenged a proposed charter amendment, faulting the city council for failing to follow various technical requirements outlined in its charter. The trial court again ruled against Mr. Oppenheimer and we ultimately affirmed on mootness grounds because the election had been certified by the time the case arrived on our desk.

{¶3} Tired of dealing with this litigation, Madeira turned around and sued Mr. Oppenheimer to have him declared a vexatious litigator under R.C. 2323.52. The trial court ultimately disagreed, granting summary judgment in Mr. Oppenheimer's favor, which prompted the instant appeal.

II.

{¶4} On appeal, Madeira features one assignment of error, disputing the propriety of summary judgment in light of lingering factual disputes. It is well established that "[s]ummary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears after construing the evidence most strongly in the nonmoving party's favor that reasonable minds can come to but one conclusion." State ex rel. AWMS Water Solutions, L.L.C. v. Mertz, 162 Ohio St.3d 400, 2020-Ohio-5482, 165 N.E.3d 1167, ¶ 23. Thus, we will affirm only if we determine (on de novo review) that no reasonable factfinder could conclude that Madeira marshaled enough evidence to satisfy the vexatious litigator elements in R.C. 2323.52. See Al Neyer, LLC v. Westfield Ins. Co., 2020-Ohio-5417, 163 N.E.3d 106, ¶ 13 (1st Dist.).

{¶5} R.C. 2323.52 allows a party that has repeatedly encountered vexatious conduct to have the offending person declared a "vexatious litigator." Upon satisfaction of the statutory elements, the provision allows the trial court to prohibit the vexatious litigator from instituting, continuing, or making an application in any legal proceeding without first seeking leave of the trial court making the designation. R.C. 2323.52(D)(1). Furthermore, to ensure enforcement, the statute obliges all Ohio courts to refuse or dismiss any action brought by the vexatious litigator without first obtaining leave to proceed. See Mayer v. Bristow, 91 Ohio St.3d 3, 14, 740 N.E.2d 656 (2000) ("R.C. 2323.52(H) and (I) provide for statewide refusal or dismissal of any pleading or action submitted by the vexatious litigator in the absence of leave to proceed.").

{¶6} Mr. Oppenheimer attempts to cut this inquiry off at the pass by deeming the statute limited to pro se litigants and inapplicable to represented parties (in all three cases at hand, he was represented by counsel). We resist Mr. Oppenheimer's invitation to shield himself from scrutiny by virtue of his representation by counsel. While we acknowledge that the statute often applies to pro se parties, no language in the statute indicates that it is so limited. Instead, the statute provides that a vexatious litigator is a person, see R.C. 2323.52(A)(3), and that courts should evaluate a party's conduct, see R.C. 2323.52(A)(2). Furthermore, the General Assembly could have easily limited the entire statute to pro se parties, instead reserving that specific limitation to licensed attorneys. See R.C. 2323.52(A)(3) (precluding the vexatious litigator designation for attorneys "unless that person is representing or has represented self pro se in the civil action or actions"); R.C. 2323.52(D)(2) (providing that a common pleas court may issue an order preventing an attorney from filing civil actions "only insofar as the person would seek to institute proceedings * * * on a pro se basis"). Thus, if a party's conduct is vexatious within the meaning of the statute, a common pleas court may appropriately designate that party as a vexatious litigator (provided the remaining elements are satisfied, of course). See R.C. 2323.52(A) and (B). Furthermore, we must take care to ensure that a party is liable only for the consequences of its own conduct, and not that of counsel, because the statute exempts counsel from its purview. See R.C. 2323.52(A)(3) (" 'Vexatious litigator' does not include a person who is authorized to practice law in the courts of this state * * * ."). Other provisions exist to address wayward lawyers. See, e.g., R.C. 2323.52(D)(2) (noting other remedies available to address attorney misconduct, such as R.C. 2323.51 and Civ.R.11).

{¶7} Having determined that R.C. 2323.52 applies to Mr. Oppenheimer, we proceed with our analysis of the statute. The General Assembly provided that a two-pronged test must be satisfied before a trial court may declare someone a vexatious litigator. First, the person must have "engaged in vexatious conduct in a civil action or actions." See R.C. 2323.52(A)(3). And second, the vexatious conduct must have been "habitual[], persistent[], and without reasonable grounds." See id. However, as the parties' contentions have highlighted, the statute is silent on the burden of proof by which these elements must be established.

{¶8} We ultimately agree with two of our sister courts that the elements in R.C. 2323.52(A)(3) must be established by clear and convincing evidence. See In re T.D.J., Appeal by S.M.J., Mother, 8th Dist. Cuyahoga No. 102772, 2016-Ohio-293, ¶ 7 (" '[T]he vexatious litigator designation * * * should be applied * * * on clear and convincing evidence * * * .' "), quoting Lasson v. Coleman, 2d Dist. Montgomery No. 21983, 2008-Ohio-4140, ¶ 33. We find the clear-and-convincing standard to be appropriate (as opposed to the lower, preponderance standard) because the statute provides the "extreme measure," see Howdyshell v. Battle, 5th Dist. Morgan No. 19AP0001, 2019-Ohio-5232, ¶ 15, of curtailing a constitutional guarantee-access to judicial process. See Mayer v. Bristow, 91 Ohio St.3d 3, 14, 740 N.E.2d 656 (2000). Our constitution provides that "[a]ll 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." Ohio Constitution, Article I, Section 16. And as the Ohio Supreme Court has observed, "R.C. 2323.52 is obviously designed to prevent vexatious litigators from gaining direct and unfettered access to our trial courts." Mayer at 14. In particular, the statute prevents a "person from engaging the processes of any Ohio trial court" unless the person first obtains leave from the trial court that issued the vexatious litigator designation. (Emphasis added.) Id., citing R.C. 2323.52(D)(1). To be sure, the Supreme Court has upheld the constitutionality of R.C. 2323.52 because it does not "preclude vexatious litigators from proceeding forward on their legitimate claims." (Emphasis added.) Id. at 14, 16. But nonetheless, the limitation of such an important constitutional right should not be permitted, except by clear and convincing evidence. See, e.g., McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 147, 729 N.E.2d 364 (2000) (holding that the actual-malice standard, which removes free speech protections provided by the federal and state constitutions, must be proven by clear and convincing evidence); In re Schmidt, 25 Ohio St.3d 331, 335, 496 N.E.2d 952 (1986) (holding that the clear-and-convincing standard in R.C. 2151.414 sufficiently protected "the fundamental rights of both parents and children" contained "in both the Ohio and United States Constitutions").

{¶9} With this standard in mind, we first review Mr. Oppenheimer's three lawsuits to identify potentially vexatious conduct. We then evaluate the second prong of the test to determine whether any vexatious conduct (assuming it exists) was habitual, persistent, and without reasonable grounds.

A.

{¶10} "Vexatious conduct" is "conduct of a party in a civil action" that: (a) "obviously serves merely to harass or maliciously injure another party to the civil action"; (b) "is not warranted under existing law and cannot be supported by a good faith...