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Watkins v. Perry

Court of Appeals of Ohio, Eleventh District, Trumbull

December 29, 2017

DENNIS WATKINS, TRUMBULL COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee,
v.
ALFONSIA PERRY, Defendant-Appellant.

         Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CV 02180.

          Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).

          Alfonsia Perry, pro se, PID# A300-444, Richland Correctional Institution, P.O. Box 8107, 1001 Olivesburg Road, Mansfield, OH 44905 (Defendant-Appellant).

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} Defendant-appellant, Alfonsia Perry, appeals the trial court's determination that he is a vexatious litigator pursuant to R.C. 2323.52. The issues before this court are whether, for the purposes of applying the statute of limitations, postconviction proceedings constitute civil actions; whether a trial court errs by sua sponte ruling on a counterclaim challenging the constitutionality of a statute when granting summary judgment in favor of the plaintiff where the statute's constitutionality would have constituted a defense to the plaintiffs claim; and whether a trial court may consider a party's postconviction filings to support a determination that he is a vexatious litigator. For the following reasons, we affirm the judgment of the court below.

         {¶2} On November 29, 2016, Dennis Watkins, the Trumbull County Prosecuting Attorney, filed a Complaint to Designate Defendant as Vexatious Litigator against Alfonsia Perry.

         {¶3} On December 20, 2016, Perry filed a Motion to Dismiss Complaint pursuant to Civil Rule 12(B)(6), based on the statute of limitations and the claim that the "litigation identified in the complaint to declare the Defendant a vexatious litigator is not reviewable by the plain language of the statute." Watkins responded on December 22, 2016.

         {¶4} On January 5, 2017, the trial court denied Perry's Motion to Dismiss.

         {¶5} On January 31, 2017, Watkins filed a Motion for Summary Judgment.

         {¶6} On February 13, 2017, Perry, with leave of court, filed an Answer and Counterclaim. In the counterclaim, Perry asserted that the Ohio Vexatious Litigator Statute, as amended by Senate Bill 168, is unconstitutional. Watkins replied to the counterclaim on February 22, 2017.

         {¶7} On February 24, 2017, Perry filed his Opposition against the Plaintiff's Motion for Summary Judgment.

         {¶8} On March 14, 2017, the trial court granted summary judgment in Watkins' favor, determining that it was "abundantly clear" that "Defendant exceeds any and all definitions of a vexatious litigator." The court summarized the litigation underlying its decision as follows:

Defendant was indicted by the January 1994 Term of the Trumbull County Grand Jury on one count of Aggravated Murder pursuant to R.C. 2903.01, for the beating death of his live-in girlfriend, Jeanette Purdue, in Case Number 1994-CR-0042. On November 7, 1994, Perry was convicted of Aggravated Murder and was sentenced to life imprisonment. Defendant filed his direct appeal through licensed counsel with the Eleventh District Court of Appeals on December 6, 1994. The Eleventh District Court of Appeals affirmed the Defendant's conviction and sentence. State v. Perry (Aug. 29, 1997), 11th Dist. No. 1994-T-5165, 1997 WL 590789. The Ohio Supreme Court declined jurisdiction in State v. Perry, 80 Ohio St.3d 1467 (1997).
After the disposition of his direct appeal, Defendant has filed a number of post-conviction motions in this Court resulting in several related appeals before the Eleventh District Court of Appeals. For two of those appeals, Defendant was represented by counsel. State v. Perry, 11th Dist. No. 1995-T-5315, 1997 WL 269202[;] State v. Perry, 11th Dist. No. 1996-T-5597, 1997 WL 772942. All subsequent appeals were handled pro se by Defendant. Notwithstanding the amount of his post-judgment litigation, Defendant has not obtained any modification of his conviction or sentence, nor has any of his ancillary litigation been successful.
State v. Perry, 11th Dist. No. 2008-T-0127, 2009-Ohio-1320[;] State v. Perry, 11th Dist. No. 2009-T-0090, 2010-Ohio-713, ¶ 17[;] State v. Perry, 11th Dist. No. 2010-T-0014, 2010-Ohio-2956, ¶ 13[;] Perry v. McKay, 11th Dist. No. 2009-T-0023, 2009-Ohio-5767[;] State v. Perry, 11th Dist. No. 2014-T-0095, 2015-Ohio-2899, ¶ 15[;] State v. Perry, 11th Dist. No. 2016-T-0005, 2016-Ohio-7446. Defendant currently has another ...

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