DeWine v. Morgan

[Cite as DeWine v. Morgan, 2017-Ohio-5600.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Michael DeWine Attorney General, :

Plaintiff-Appellee, : No. 16AP-592
(C.P.C. No. 15CV-1367)
v. :
(ACCELERATED CALENDAR)
Gregory B. Morgan, :

Defendant-Appellant. :

D E C I S I O N

Rendered on June 29, 2017

On brief: Michael DeWine, Attorney General, and Daniel R.
Forsythe, for appellee. Argued: Daniel R. Forsythe.

On brief: Gregory B. Morgan, pro se. Argued: Gregory B.
Morgan.

APPEAL from the Franklin County Court of Common Pleas

PER CURIAM.

{¶ 1} Gregory B. Morgan, defendant-appellant, appeals from the judgment of the
Franklin County Court of Common Pleas, in which the court granted the motion for
summary judgment filed by Michael DeWine, Ohio Attorney General ("OAG"), plaintiff-
appellee.
{¶ 2} Appellant's litigation history is extensive. Generally, in 2006, appellant
began receiving dental care from The Ohio State University College of Dentistry ("OSU
Dental"), which is part of The Ohio State University ("OSU"). Appellant claims OSU
Dental was negligent in its dental care. On March 22, 2010, appellant filed an action in the
Court of Claims of Ohio against OSU Dental, alleging malpractice, breach of contract, and
No. 16AP-592 2

aiding and abetting ("first malpractice action"). After a four-day trial, the jury returned a
verdict in favor of OSU Dental. We affirmed the Court of Claims' decision in Morgan v.
Ohio State Univ. College of Dentistry, 1oth Dist. No. 13AP-287, 2014-Ohio-1846
("Morgan I"), which contains a more thorough treatment of the underlying factual details.
Appellant appealed to the Supreme Court of Ohio, which declined jurisdiction in Morgan
v. Ohio State Univ. College of Dentistry, 140 Ohio St.3d 1522, 2014-Ohio-5251.
{¶ 3} Also in 2010, during the litigation of the first malpractice action, appellant
filed another case against OSU Dental in the Court of Claims ("second malpractice
action"). Appellant claimed he was forced to file this second malpractice action due to the
court's refusal to allow him to amend his complaint in the first malpractice action. The
Court of Claims dismissed the second malpractice action, finding appellant was
attempting to appeal the judge's decision to deny his motion for leave to amend in the first
malpractice action by filing the second malpractice action.
{¶ 4} Also in 2010, appellant filed an action ("third malpractice action") in the
Franklin County Court of Common Pleas against the individual OSU Dental providers
based on the same conduct in the first malpractice action. Appellant contended the Court
of Claims' judge told him he should file such an action to preserve the statute of
limitations. The common pleas court dismissed the action.
{¶ 5} In 2014, appellant filed an action in the Court of Claims against OSU Dental
("fourth malpractice action"), which included "new" claims based on the same
circumstances raised in the first malpractice action. The Court of Claims dismissed the
fourth malpractice action.
{¶ 6} Also in 2014, appellant filed an action in the Court of Claims against the
OAG ("constitutional-violations action"), alleging the trial judge and trial counsel violated
his constitutional rights in the first malpractice action. The Court of Claims dismissed the
action because it lacked jurisdiction to consider constitutional claims. Appellant appealed,
and this court affirmed the judgment of the Court of Claims in Morgan v. Atty. Gen. of
Ohio, 10th Dist. No. 15AP-455, 2016-Ohio-778.
{¶ 7} Also in 2014, appellant filed an action in federal court ("federal court
action"), asserting various claims against the trial judge and trial counsel from the first
malpractice action. The federal court dismissed the action, sua sponte, for failure to state
No. 16AP-592 3

a claim. Appellant attempted to appeal, but his motion to proceed in forma pauperis was
denied.
{¶ 8} On February 13, 2015, the OAG filed the instant action, seeking a
declaration that appellant was a vexatious litigator. On September 1, 2015, the OAG filed
a motion for summary judgment. After the trial court granted appellant a stay due to
pending surgery, the case was reactivated on March 14, 2016.
{¶ 9} On August 12, 2016, the trial court granted the OAG's motion for summary
judgment. The court found appellant failed to support his arguments with any Civ.R.
56(C) evidence to establish the existence of genuine issues of material fact. The materials
he attached to his memorandum contract were not authenticated. The court further
found that numerous courts have reviewed appellant's claims and allegations and found
them to be without merit. The court stated appellant's habitual and consistent conduct
was not warranted under existing law and not supported by a good-faith argument for an
extension, modification, or reversal of existing law, and has served to harass and
maliciously injure his opponents. The court concluded the OAG's exhibits support a
declaration of vexatious litigator pursuant to R.C. 2323.52.
{¶ 10} Appellant appeals the trial court's decision, asserting the following
assignment of error:
The trial Court abused its discretion and the subjective nature
of a ruling on appellee's motion for summary judgment when
it disregarded Civ[.] R. 56(E) and granted that motion for
summary judgment, when the complaints filed by appellant
do not suggest vexatious behavior. Additionally there are
issues of credibility to be examined at trial as well as
additional evidence related to those complaints not presented
in [appellee's] motion for summary judgment that should be
examined at trial.

{¶ 11} Appellant argues in his assignment of error that the trial court erred when it
granted summary judgment. Summary judgment is appropriate when the moving party
demonstrates that: (1) there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion when viewing the evidence most strongly in favor of the non-moving party and
that conclusion is adverse to the non-moving party. Hudson v. Petrosurance, Inc., 127
Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158,
No. 16AP-592 4

2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for summary
judgment is de novo. Hudson at ¶ 29. This means that an appellate court conducts an
independent review, without deference to the trial court's determination. Zurz v. 770 W.
Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v.
Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
{¶ 12} When seeking summary judgment on the ground that the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
non-moving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the non-moving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
Id. If the moving party meets its burden, then the non-moving party has a reciprocal
burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R.
56(E); Dresher at 293. If the non-moving party does not so respond, summary judgment,
if appropriate, shall be entered against the non-moving party. Id.
{¶ 13} R.C. 2323.52(A)(3) provides that a vexatious litigator is a person "who has
habitually, persistently, and without reasonable grounds engaged in vexatious conduct in
a civil action or actions." The statute defines vexatious conduct as the 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 argument for an extension, modification, or reversal of existing law, or
(c) is imposed solely for delay. R.C. 2323.52(A)(2)(a) through (c).
{¶ 14} " 'The purpose of the vexatious litigator statute is clear. It seeks to prevent
abuse of the system by those persons who persistently and habitually file lawsuits without
reasonable grounds and/or otherwise engage in frivolous conduct in the trial courts of this
state. Such conduct clogs the court dockets, results in increased costs, and oftentimes is a
waste of judicial resources - - resources that are supported by the taxpayers of this state.
The unreasonable burden placed upon courts by such baseless litigation prevents the
No. 16AP-592 5

speedy consideration of proper litigation.' " Mayer v. Bristow, 91 Ohio St.3d 3, 13 (2000),
quoting Cent. Ohio Transit Auth. v. Timson, 132 Ohio App.3d 41, 50 (10th Dist.1998).
{¶ 15} As this court has previously held, a person need not engage in repetitive
actions in order to be deemed a vexatious litigator, and such a finding can be based on the
actions in a single case. Roo v. Sain, 10th Dist. No. 04AP-881, 2005-Ohio-2436, ¶ 18
("[t]his court has specifically found that separate, repetitive actions are not necessary for a
vexatious litigator finding, and such a finding can be based upon actions in a single case");
Farley v. Farley, 10th Dist. No. 02AP-1046, 2003-Ohio-3185, ¶ 48. Additionally, a court
may examine other actions to determine whether a person is a vexatious litigator. Catudal
v. Netcare Corp., 10th Dist. No. 15AP-133, 2015-Ohio-4044, ¶ 8. The critical inquiry is
the nature of the conduct, not the number of actions. Roo at ¶ 18, citing Borger v.
McErlane, 1st Dist. No. C-010262 (Dec. 14, 2001).
{¶ 16} In the present case, appellant asserts there is a large amount of evidence
that has not been submitted by the OAG, including briefs, depositions, and other critical
evidence that explains his motivation for filing each case that he did, and the court needed
to resolve issues of credibility regarding the OAG's witnesses, which is not appropriate for
summary judgment purposes. Appellant claims his motivation for filing the cases stems
from a denial of due process and a flagrant disregard for the rules of court and rules of
evidence on the part of the court, rather than harassment, delay, and frivolous conduct.
Appellant also contends he filed suit in an attempt to amend or change the law.
{¶ 17} We have reviewed the record, the factual background, and appellant's
arguments. We first note appellant's brief contains many extraneous arguments and facts
that are not germane to the issues pertinent to the present appeal. Furthermore, appellant
discusses alleged private conversations with OSU Dental employees, alleged lies by OSU
Dental employees, Ohio doctors who were allegedly unwilling to be expert witnesses for
fear of reprisal from OSU Dental, and an alleged discussion with Ohio House
Representative Jim Butler that prompted Butler to draft bills to change Ohio law to allow
jury trials and constitutional actions in the Court of Claims. However, all of these claims
lack any supporting evidence.
{¶ 18} Notwithstanding, appellant attempts to explain his actions. He claims he
filed the second malpractice action because, during discovery in the first malpractice
No. 16AP-592 6

action, he discovered deception that OSU Dental doctors perpetrated to conceal their
malpractice from him and when he sought to amend his complaint in his first malpractice
action to add causes of action, the court denied it, so he was forced to file the second
malpractice action. He claims it is ludicrous to suggest he frivolously filed the second
malpractice action to harass OSU Dental. Although he admits the second malpractice
claim stems from the same facts as the first malpractice action, the second malpractice
action added claims of fraudulent concealment and civil conspiracy not related to the
medical negligence of the doctors.
{¶ 19} With regard to the third malpractice action filed in the common pleas court,
appellant claims the Court of Claims' judge urged him to file the common pleas action
against OSU Dental doctors during a telephone status conference in order to preserve the
statute of limitations. Appellant alleges that OSU Dental's attorney knew the judge was
instructing him to file the third malpractice action prematurely but said nothing.
Appellant contends he did not file the third malpractice action to harass or delay, as the
doctors had acted outside the scope of their employment when they engaged in a
conspiracy to cover up their malpractice.
{¶ 20} Appellant also explains why he staged several protests outside OSU College
of Dentistry, posted negative consumer reviews online, and participated in an interview
with the OSU school newspaper about his protests and claims. Although OSU cites such
activities as evidence of their claim that appellant's goal in filing his myriad legal actions
was to harass, appellant claims that his goal was not to harass OSU Dental but effect
positive change at the school. Appellant asserts that during the deposition of several
doctors, the doctors made many contradictory statements and lied. He claims that after
he learned the doctors were prepared to lie under oath and realized their incredible
dishonesty, he felt it was his duty to bring their conduct to the attention of the public and
OSU. He further claims that during the protests, OSU Dental employees walked beside
him slowly and whispered that OSU Dental needed a "shake up," but they could not be
seen speaking to him, lest they be terminated. He also claims the OSU newspaper article
about his claims and protests resulted in treatment and protocol changes at the dental
school; thus, he asserts his protests were successful.
No. 16AP-592 7

{¶ 21} In his brief, appellant also explains why he filed actions against the trial
judge from the first malpractice action. He claims that, during the first malpractice action,
he was denied his first, fifth, and fourteenth amendment rights when the judge made
serious errors showing he lacked knowledge of the case after being assigned a short time
before trial due to the retirement of two other judges. His main argument is that the judge
denied his motion to allow his previously deposed medical expert to submit a
supplemental report testifying as to proximate cause, which the expert failed to do in the
first deposition. Further, appellant asserts the judge made errors during the first trial
regarding witness credibility. Appellant claims the judge failed to acknowledge the many
contradictory statements OSU Dental witnesses made and specifically indicated he did
not care if the witnesses were lying. Finally, appellant contends the trial judge erroneously
ruled appellant had withdrawn his breach of contract and aiding-and-abetting claims at
trial. As a result, appellant claims he was forced to file the action alleging constitutional
violations. He asserts that his actions sought to change the law to give litigants a court
they can turn to when their constitutional rights are violated.
{¶ 22} Appellant also explains why he filed his federal case against the trial judge
and OAG attorneys. He indicates that these cases were not to harass but to confront
injustice and contest the state officials' abuse of power.
{¶ 23} After a review of the record and appellant's arguments on appeal, we find
appellant's arguments are without merit. Initially, OSU Dental points to a variety of
pleadings filed by appellant that had no basis under existing law and could not be
supported by a good-faith argument for a reversal of existing law. In the first malpractice
action, although he did not explicitly request it, it appears that appellant sought, via a
motion for temporary restraining order, to prevent students who performed dental work
on him from moving outside of the jurisdiction of the court. Such a request was frivolous.
The Court of Claims denied the motion, finding there was an adequate remedy at law via
usual discovery methods. Also in the first malpractice action, appellant subpoenaed OSU
President Gordon Gee for a deposition. OSU Dental filed a motion to quash the subpoena
because Gee is a high-ranking official who has no personal knowledge of the facts of the
matter, and the Court of Claims quashed the subpoena. These pleadings had no basis
No. 16AP-592 8

under existing law and were frivolous, resulting in a needless waste of time, money, and
energy.
{¶ 24} With regard to the second malpractice action, in which appellant filed
another complaint based on the same underlying facts as in his first malpractice action,
OSU Dental also points out that appellant attached a note to his second malpractice
complaint in which he indicated he was going to personally contact OSU President Gee
and members of the OSU Board of Trustees, an act suggestive of a threat or harassment.
{¶ 25} Furthermore, although appellant relies on alleged comments whispered to
him by OSU Dental employees during his OSU campus demonstrations, as well as the
alleged fallout from the OSU newspaper article detailing his claims and a bill introduced
by Representative Butler allegedly on behalf of appellant to support his view that his
claims were not frivolous, he presented no evidence to support any of these allegations, as
mentioned above. These claims, having been raised without any evidentiary support, are
deemed frivolous.
{¶ 26} Also, appellant contends the trial judge made errors during the first trial
regarding the credibility of the OSU Dental witnesses. Appellant claims this was a factor
in filing additional cases against the judge. However, we first note that appellant had the
opportunity to raise such error in Morgan I, and did raise the credibility of one of OSU
Dental's witnesses in his original appeal. Notwithstanding, appellant's challenging of the
trial court's determination of witness credibility from the first malpractice action was not
a valid basis for filing the subsequent original actions. In a bench trial, there is a
presumption that the trial court is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing the
credibility of the proffered testimony. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-
Ohio-4953, ¶ 6, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
Accordingly, the trial court is afforded great deference to the determination of witness
credibility. State v. Redman, 10th Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing State
v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 55. An original action filed
against a trial judge is not the proper action to address the trial court's determination of
witness credibility at trial.
No. 16AP-592 9

{¶ 27} With regard to appellant's argument that he was forced to file the second
malpractice action to add causes of actions that the Court of Claims prohibited him from
raising via an amendment to his original complaint, we already addressed this in
Morgan I, in which we found the trial court did not abuse its discretion when it denied
appellant leave to amend his complaint. Id. at ¶ 51. We concluded that justice did not
require the amendment of appellant's complaint, as the trial court granted appellant a full
and complete opportunity to introduce evidence concerning his grievances against OSU
Dental, and appellant did not argue at the conclusion of trial that he had established that
OSU Dental is liable for fraudulent conduct, civil conspiracy, or battery, nor did he ask the
court to conform the complaint to the evidence. Thus, appellant's filing of a second
complaint was not the proper method to raise these issues, and we find it frivolous.
{¶ 28} Finally, with regard to appellant's argument that he filed the subsequent
action against the trial judge because the judge improperly denied his motion to allow his
previously deposed medical expert to submit a supplemental report testifying to
proximate cause, we also addressed this issue in Morgan I. We first note that the trial
judge granted appellant's motion to provide a supplemental expert report of the doctor
but limited the doctor's testimony to the opinions he expressed in his deposition. We
concluded that the ruling was an in limine order, and appellant failed to proffer the
evidence during trial to allow the court to make a final ruling; thus, appellant did not
preserve for appellate review any error. We also found that, notwithstanding appellant's
failure to preserve the issue for appeal, the doctor's deposition contained his opinions
regarding proximate cause so appellant could have questioned the doctor regarding issues
of proximate cause as expressed in his deposition while still complying with the trial
court's in limine order. See Morgan I at ¶ 33-36. Therefore, appellant raised this alleged
error on appeal in Morgan I, and it was not a proper basis for filing an original action
against the trial judge. His attempt to do so constituted a frivolous action.
{¶ 29} In sum, appellant lost his first malpractice action and appeal in Morgan I
but continues to pursue the same. Appellant continues to litigate and re-litigate issues
already resolved in the first malpractice action and Morgan I and has not accepted that
his claims have been rejected at every legal turn. The legal claims have been rejected in
every case because they are not warranted under existing law and cannot be supported by
No. 16AP-592 10

a good-faith argument for an extension, modification, or reversal of existing law. Even in
his appellate brief in the present case, appellant continues to assert many arguments
related to perceived wrongs and deficiencies occurring in Morgan I and even repeats
arguments this court already rejected in his original appeal in Morgan I. Appellant
continues to pursue these matters although the courts have determined he failed to
present a meritorious case for medical malpractice. Although appellant couches all of his
actions subsequent to the first malpractice action in various other legal terms, they all
consistently and persistently reargue the merits of the original case and seek to right
perceived wrongs suffered. We find the trial court did not err in granting summary
judgment. No genuine issues of material fact remained, and the OAG was entitled to
judgment as a matter of law because appellant persistently and habitually filed lawsuits
without reasonable grounds and engaged in frivolous conduct. Therefore, appellant's
single assignment of error is overruled.
{¶ 30} Accordingly, the judgment of the Franklin County Court of Common Pleas
is affirmed.
Judgment affirmed.

BROWN, J., TYACK, P.J., & DORRIAN, J., concur.

____________________