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Howdyshell v. Battle

Court of Appeals of Ohio, Fifth District, Morgan

December 12, 2019

MARK HOWDYSHELL Plaintiff-Appellee
v.
BILLY BATTLE Defendant-Appellant

          Appeal from the Morgan County Court of Common Pleas, Case No. 18CV0074

         JUDGMENT: AFFIRMED

          For Plaintiff-Appellee: JANNA C. WOODBURN Assistant Prosecuting Attorney

          For Defendant-Appellant: ERIC J. ALLEN

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

          OPINION

          Delaney, J.

         {¶1} Defendant-appellant Billy Battle appeals from the January 11, 2019 "Decision Finding Defendant a Vexatious Litigator" of the Morgan County Court of Common Pleas. Plaintiff-appellee is Morgan County Prosecutor Mark Howdyshell.

         FACTS AND PROCEDURAL HISTORY

         {¶2} In 2009, appellant was convicted of, e.g., felonious assault against a police officer with a firearm specification. He was sentenced to an aggregate prison term of 10 years. Appellant directly appealed from his convictions and sentence, raising four assignments of error; we overruled each of the assignments of error 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 of 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 attempts at post-conviction relief and ensuing appeals.

         {¶4} Independent of those post-conviction relief attempts, appellant filed a number of lawsuits against public officials, lawyers, and court reporters who had varying levels of involvement in his criminal case. This litigation arises 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 hearing was not provided for appellant's direct appeal. Appellant maintains that during this hearing, the prosecutor said appellant would not be prosecuted for the crimes he was later convicted of.
2.) A Morgan County trial court judge allegedly stated, during 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 purported 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 lawsuits were meritorious.

         {¶6} The instant action arose on April 19, 2018 when appellee filed a Complaint for Vexatious Litigator pursuant to R.C. 2323.52. Appellant answered, 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 ...

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