Pierce v. Workman

[Cite as Pierce v. Workman, 2023-Ohio-2022.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY

EDWIN A. PIERCE, AUGLAIZE
COUNTY PROSECUTING ATTORNEY,

PLAINTIFF-APPELLEE, CASE NO. 2-22-21

v.

TIMOTHY SCOTT WORKMAN,
OPINION
DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court
Trial Court No. 2022-CV-0071

Judgment Affirmed

Date of Decision: June 20, 2023

APPEARANCES:

Thomas Lucente for Appellant

Reed D. Searcy for Appellee
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ZIMMERMAN, J.

{¶1} Defendant-appellant, Timothy Scott Workman (“Workman”), appeals

the September 6, 2022 judgment entry of the Auglaize County Court of Common

Pleas declaring him to be a vexatious litigator. For the reasons that follow, we

affirm.

{¶2} On May 10, 2022, Edwin A. Pierce (“Pierce”), as Auglaize County’s

Prosecuting Attorney, filed a civil complaint in the Auglaize County Court of

Common Pleas requesting that the trial court declare Workman to be a vexatious

litigator pursuant to R.C. 2323.52. On June 15, 2022, Workman filed a pro se

document captioned as “Reply To Complaint”, which the trial court construed to be

a motion to dismiss filed under Civ.R. 12(B). The trial court denied Workman’s

request.

{¶3} On June 29, 2022, Workman filed a motion for summary judgment.

Thereafter, on July 8, 2022, Pierce filed a cross motion for summary judgment,

which he supplemented on July 12, 2022. Both parties filed replies to the summary-

judgment motions. On September 6, 2022, the trial court granted Pierce’s motion

for summary judgment (declaring Workman to be a vexatious litigator) and denied

Workman’s motion for summary judgment.1

1
The trial court determined that Workman denied being a vexatious litigator, but deemed all remaining
allegations in Pierce’s complaint to be admitted under Civ.R. 8(D).

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{¶4} Workman filed a timely appeal and raises the following four

assignments of error for our review, which we will address together.

First Assignment of Error

The Court Abused Its Discretion In Not Holding A Hearing
Before Determining Workman A Vexatious Litigator, In
Violation Of Workman’s Due Process Rights. Petitioner Was
Deprived Of His Fifth And Fourteenth Amemdment [sic] To The
Constitution Of The United States, Article 1, Section 16 To The
Constitution Of The State Of Ohio; Due Process [sic]

Second Assignment of Error

The Court Abused Its Discretion In Finding Workman A
Vexatious Litigator, In Contradiction To The Record, As The
Motions Filed Do Not Contain Valid Grounds. Petitioner Was
Deprived Of His Fifth And Fourteenth Amemdment [sic] To The
Constitution Of The United States, Article 1, Section 16 To The
Constitution Of The State Of Ohio; Due Process [sic]

Third Assignment of Error

The Trial Court Relied On Findings Of Fact By The Third
District Court Of Appeals That Are In Error. Petitioner Was
Deprived Of His Fifth And Fourteenth Amemdment [sic] To The
Constitution Of The United States, Article 1, Section 16 To The
Constitution Of The State Of Ohio; Due Process [sic]

Fourth Assignment of Error

The Trial Court Never Held Jurisdiction Over The Subject
Matter Or Over The Person Workman. Petitioner Was Deprived
Of His Fifth And Fourteenth Amemdment [sic] To The
Constitution Of The United States, Article 1, Section 16 To The
Constitution Of The State Of Ohio; Due Process [sic]

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{¶5} In his assignments of error, Workman challenges the trial court’s

determination that he is a vexatious litigator under R.C. 2323.52. Specifically,

Workman argues that the trial court’s decision was erroneous and denied him due

process of law.

Standard of Review

{¶6} This court reviews a trial court’s decision to grant summary judgment

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000), citations omitted. “De

novo review is independent and without deference to the trial court’s

determination.” ISHA, Inc. v. Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149,

¶ 25, citing Costner Consulting Co. v. U.S. Bancorp, 10th Dist. Franklin No. 10AP-

974, 2011-Ohio-3822, ¶ 10. Summary judgment is proper where there is no genuine

issue of any material fact, the moving party is entitled to judgment as a matter of

law, and reasonable minds can reach but one conclusion when viewing the evidence

in favor of the non-moving party, and the conclusion is adverse to the non-moving

party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.,

69 Ohio St .3d 217, 219 (1994), citations omitted.

{¶7} “The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of material

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is

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not required to produce any affirmative evidence, but must identify those portions

of the record which affirmatively support his argument.” Id., citing Dresher at 292.

“The nonmoving party must then rebut with specific facts showing the existence of

a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings.” Id., citing id. and Civ.R. 56(E).

Factual Background

{¶8} This appeal concerns a vexatious-litigator-civil action that arose from

Workman’s criminal convictions in Auglaize County Court of Common Pleas, in

case number 2014-CR-0075 (“2014 case”). In that case, Workman was tried and

convicted of 79 criminal counts involving the illegal use of a minor in nudity-

oriented material and tampering with evidence. See State v. Workman, 3d Dist.

Auglaize No. 2-15-05, 2015-Ohio-5049, ¶ 3. The trial court sentenced Workman to

an aggregate prison term of 40 years. Id. at ¶ 7. Workman filed a direct appeal of

his convictions, and we affirmed the judgment of the trial court. Id. at ¶ 1, 63.

{¶9} Following his direct appeal, Workman has filed numerous motions in

the trial court relative to his conviction. The motions included three requests for a

Frank’s hearing2, 12 motions for new trial and for leave to file motions for new trial,

and a post-trial motion captioned as a “Jurisdictional Challenge”. The trial court

2
We construed Workman’s February 16, 2016, “motion for Franks hearing” to be a petition for post-
conviction relief under State v. Withers, 10th Dist. Franklin No. 12AP-865, 2013-Ohio-4201, ¶ 12-13. (See
Appellate Case No. 2-16-03, Judgment Entry dated July 25, 2016).

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denied all of these motions. Further, Workman filed ten petitions for post-

conviction relief, which were all denied by the trial court. Workman appealed

nearly all of these denials, and we affirmed the judgments of the trial court. Further,

Workman filed memoranda in support of jurisdiction to the Supreme Court of Ohio.

In addition to the foregoing, Workman also filed several citizen’s complaints in the

trial court against Detective Patrick Green (“Det. Green”) and both victims in his

criminal case alleging that they committed perjury.

{¶10} On May 10, 2022, Pierce filed a civil complaint in the Auglaize County

Court of Common Pleas requesting that the trial court declare Workman to be a

vexatious litigator under R.C. 2323.52. In that complaint, Pierce alleged that

Workman had filed approximately 21 post-conviction motions in his 2014 criminal

case that were either petitions for post-conviction relief or could be construed as

such a petition under State v. Reynolds, 79 Ohio St.3d 158 (1997), syllabus.3

3
In his merit brief, Pierce encourages us to construe Workman’s motions for new trial and his motions for
leave to file a motion for new trial under Crim.R. 33 as post-conviction petitions pursuant to Reynolds.
Notably, the Supreme Court of Ohio, in Reynolds, considered an enigmatic titled “Motion to Correct or
Vacate Sentence” filed without reference to a specific Rule of Criminal Procedure or statute unlike the fillings
in Workman. Since there was no controlling rule or statutory provision governing or providing for such a
motion, the Supreme Court looked at the contents of the motion, determining that it was substantively a
petition for post-conviction relief, and analyzed it accordingly. State v. Reynolds, 3d Dist. Putnam No. 12-
01-11, 2002-Ohio-2823, ¶ 24. However, following Reynolds, the Supreme Court held that the narrow rule
of law set forth in Reynolds is limited to the context of Reynold’s case. See State v. Bush, 96 Ohio St.3d 235,
2002-Ohio-3993, ¶ 10. More recently, the Supreme Court, declined an invitation to conclude that Bush was
wrongly decided on this point, and instead held “that * * * a motion for leave to file a motion for a new trial
is not a collateral challenge under R.C. 2953.21(K).” (Emphasis added.) State v. Bethel, 167 Ohio St.3d
362, 2022-Ohio-783, ¶ 46-47. Thus, we decline to construe those motions as such. Nevertheless, even
though we look to the civil cases to determine whether Workman engaged in vexatious conduct, we are still
permitted to consider those motions filed in his criminal case to determine if the arguments and legal theories
he asserted were repetitive in our assessment of Workman’s vexatiousness. See Johnson, 159 Ohio St.3d
552, 2020-Ohio-999, at ¶ 21.

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Moreover, Pierce asserted that those filings support that Workman engaged in

vexatious conduct as defined under R.C. 2323.52(A)(2).

Vexatious-Litigator Statute

{¶11} R.C. 2323.52, the vexatious-litigator statute, was enacted by the

General Assembly 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.’” Mayer v.

Bristow, 91 Ohio St.3d 3, 13, 2000-Ohio-109, quoting Cent. Ohio Transit Auth. v.

Timson, 132 Ohio App.3d 41, 50 (10th Dist.1998).

More recently, the Supreme Court of Ohio has stated:

We have a duty to ensure that the Ohio judicial system functions to
benefit all Ohioans. * * *. Indeed, “Ohio litigants are specifically and
unequivocally entitled under our state Constitution to justice without
delay.” (Emphasis sic.) State ex rel. Johnson v. Bur. of Sentence
Computation, 159 Ohio St.3d 552, 2020-Ohio-999[], ¶ 23, citing Ohio
Constitution, Article I, Section 16. Vexatious litigators, however,
throw a wrench into our well-oiled system and disrupt the wheels of
justice.

* * *. And we have a duty to name as vexatious litigators those
individuals who abuse the court process and engage in frivolous
conduct so that we may put an end to repeated and frivolous conduct
that substantially burdens our court system and deprives litigants of
the prompt handling of their cases. See Johnson at ¶ 22.

State ex rel. Tingler v. Franklin Cty. Prosecutor’s Office, 169 Ohio St.3d 1449,

2023-Ohio-640, ¶ 2-3 (Fischer, J., concurring) (concerning a vexatious-litigator

finding under S.Ct.Prac.R. 4.03).

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{¶12} R.C. 2323.52(B) permits a prosecuting attorney who alleges that he

has “defended against habitual and persistent vexatious conduct * * * in a court of

appeals[ or] court of common pleas * * *” to “commence a civil action in a court of

common pleas with jurisdiction over the person who allegedly engaged in the

habitual and persistent vexatious conduct to have that person declared a vexatious

litigator.” This civil action proceeds “as any other civil action” under the Rules of

Civil Procedure and must be commenced within the one-year statute of limitation.

See R.C. 2323.52(B) and (C).

{¶13} A trial court, in determining whether a party is a vexatious litigator,

may consider the party’s vexatious conduct in other cases as well as his conduct in

the instant case. See Davie v. Nationwide Ins. Co. of America, 8th Dist. Cuyahoga

No. 105261, 2017-Ohio-7721, ¶ 41. Moreover, conduct in an underlying criminal

case can also result in a vexatious-litigator designation when such conduct is civil

in nature. See State v. West, 2d Dist. Greene No. 2021-CA-17, 2022-Ohio-2060, ¶

18. Under R.C. 2323.52(A)(1) conduct has the same meaning as conduct is defined

under R.C. 2323.51. R.C. 2323.51 provides in its pertinent parts:

(1) “Conduct” means any of the following:

(a) The filing of a civil action, the assertion of a claim, defense, or
other position in connection with a civil action, the filing of a
pleading, motion, or other paper in a civil action, including, but not
limited to, a motion or paper filed for discovery purposes, or the taking
of any other action in connection with a civil action;

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(b) The filing by an inmate of a civil action or appeal against a
government entity or employee, the assertion of a claim, defense or
other position in connection with a civil action of that nature or the
assertion of issues of law in an appeal of that nature, or the taking of
any other action in connection with a civil action or appeal of that
nature.

(Emphasis added.) R.C. 2323.51(A)(1)(a)-(b).

{¶14} Significantly, the vexatious-litigator statute “establishes a screening

mechanism that serves to protect the courts and other would-be victims against

frivolous and ill-conceived lawsuits filed by those who have historically engaged in

prolific and vexatious conduct in civil proceedings.” Mayer at 13. Importantly,

“‘[i]t is the nature of the conduct, not the number of actions, that determines whether

a person is a vexatious litigator.’” Prime Equip. Group, Inc. v. Schmidt, 10th Dist.

Franklin No. 15AP-584, 2016-Ohio-3472, ¶ 40, quoting Borger v. McErlane, 1st

Dist. Hamilton No. C-010262, 2001-Ohio-4030, *3 (Dec. 14, 2001). The Supreme

Court of Ohio has held that consistent repetitive arguments and legal theories that

have been rejected numerous times by courts can constitute a factor in the

“assessment of a litigant’s vexatiousness”. See Johnson, 159 Ohio St.3d 552, 2020-

Ohio-999, at ¶ 21.

Analysis

{¶15} The trial court determined Workman to be a vexatious litigator since

he engaged in vexatious conduct under R.C. 2323.52(A)(2)(b), which was not

warranted under existing law and could not be supported by a good faith argument

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for an extension, modification, or reversal of existing law, and under subsection (c),

the trial court found that Workman’s actions were to delay his conviction becoming

final to avoid such finality.

{¶16} On appeal, Workman challenges the subject-matter jurisdiction of the

trial court as well as the trial court’s personal jurisdiction over him. Importantly,

Workman failed to raise a defense regarding the trial court’s subject-matter

jurisdiction in the civil action. He did however, assert that the trial court lacked

personal jurisdiction. Nevertheless, “[b]ecause subject-matter jurisdiction goes to

the power of the court to adjudicate the merits of a case, it can never be waived and

may be challenged at any time.” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-

1980, ¶ 11, citing United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 1785

(2002) and State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75 (1998). Thus,

we will review the issue of jurisdiction de novo.

{¶17} As we previously noted, this civil action arose from Workman’s filings

related to his criminal conviction. To us, Workman’s argument (on appeal) centers

around whether the trial court had subject-matter jurisdiction and/or personal

jurisdiction over him in his 2014 criminal case and not the instant civil action. On

this point, Workman asserts that the metadata for State’s Exhibit 104-3 (a picture),

used to identify him (in his criminal trial) supports that Det. Green and the victims

testimonies (at trial) were untruthful; that he was in jail at the time the picture was

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taken; and that A.B. (one of the victims) was over 18 when the photo was taken.

Hence, Workman’s challenge is truly attacking the sufficiency of the evidence

regarding his criminal convictions (i.e., by virtue of an identity defense), and the

manifest weight of the evidence (i.e., by attacking the witnesses’ credibility) in his

criminal trial.4 Workman’s arguments are misplaced in this appeal since we are not

concerned with the sufficiency or weight of the evidence in his 2014 criminal case

or whether the trial court had subject-matter jurisdiction or personal jurisdiction in

that case. Rather, the jurisdiction of the trial court in the civil action is what is at

issue.

{¶18} An appellant has the burden of affirmatively demonstrating the error

of the trial court assigned on appeal. Riddle v. Riddle, 3d Dist. Marion No. 9-19-

08, 2019-Ohio-4405, ¶ 49. Indeed, “an appellate court may disregard an assignment

of error pursuant to App.R. 12(A)(2): ‘if the party raising it fails to identify in the

record the error on which the assignment of error is based or fails to argue the

assignment separately in the brief, as required under App.R. 16(A).’” Rodriguez v.

Rodriguez, 8th Dist. Cuyahoga No. 91412, 2009-Ohio-3456, ¶ 4, quoting App.R.

12(A); Hawley v. Ritley, 35 Ohio St.3d 157, 159 (1988).

4
Significantly, Workman did not raise sufficiency or manifest weight arguments with respect to Counts One
through 78 in his direct appeal; however, he did challenge the sufficiency of Count 79 for tampering with
evidence in his second assignment of error, which we overruled. Workman, 2015-Ohio-5049, ¶ 48, 62.

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{¶19} App.R. 16(A)(7) requires that Workman include in his brief: “[a]n

argument containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on

which appellant relies. The argument may be preceded by a summary.” “‘It is not

the duty of an appellate court to search the record for evidence to support an

appellant’s argument as to any alleged error.’” Rodriguez at ¶ 7, quoting State v.

McGuire, 12th Dist. Preble No. CA95-01-001, 1996 WL 174609, *14 (Apr. 15,

1996). “‘“An appellate court is not a performing bear, required to dance to each and

every tune played on an appeal.”’” Id., quoting State v. Watson, 126 Ohio App.3d

316, 321 (12th Dist. 1998), quoting McGuire at *14.

{¶20} Because Workman has failed to include any argument relating to the

jurisdiction of the trial court with citations to authorities in the civil case, we need

not review it.

{¶21} Next, we address Workman’s assertion that he was entitled to a

hearing before the trial court determined him to be a vexatious litigator. Contrary

to his assertion on appeal, R.C. 2323.52 does not require the trial court to hold a

hearing before declaring a person to be a vexatious litigator. Compare with R.C.

2323.51 (concerning frivolous conduct in filing civil claims requiring such a

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hearing). Thus, his assertion that the trial court erred by failing to hold a hearing is

without merit.

{¶22} Next, we address Workman’s argument that the trial court relied upon

erroneous factual findings issued by this court. As an appellate court, we review

the record for legal issues identified in the brief; however, we do not take evidence

or make factual findings. See Ohio Constitution, Article IV, Section 3(B)(2)

(providing that courts of appeals shall have such jurisdiction as may be provided by

law to “review and affirm, modify, or reverse judgments or final orders” of trial

courts within their district); App.R. 9; App.R. 12(A)(1)(a)-(c); App.R. 16(A)(6).

Moreover, we do not resolve the merits of factual disputes because that role is

reserved for the trier of fact. See Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360

(1992); Bank of Am., N.A. v. Seymour, 10th Dist. No. 18AP-272, 2019-Ohio-2884,

¶ 31; In re D.K., 9th Dist. No. 26272, 2012-Ohio-2605, ¶ 11; Great Invest.

Properties, L.L.C. v. Bentley, 3d Dist. Marion No. 9-0-36, 2010-Ohio-981, ¶ 30; In

re M.B., 9th Dist. No. 21760, 2004-Ohio-597, ¶ 9. Thus, the trial court could not

rely upon erroneous factual findings that we made since we do not make factual

findings. Consequently, this portion of Workman’s argument lacks merit.

{¶23} Finally, Workman argues that the trial court erred by declaring him to

be a vexatious litigator. Workman submits that he provided the trial court with

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documents outside the record based upon valid grounds. Those documents, which

he detailed in his motion:

A. Document written by Jason@vipersystems.biz
B. Document written by Eric Bennett from PC Solutions
C. Sgt. Matthew Pack of the Auglaize County Sheriff’s Department
Report
D. Affidavit for Warrant, written by Detective Patrick Green
E. Vehicle Identification Search Results
F. Affidavit of Aaron Chapman
G. Affidavit of Skyler Leugers
H. Affidavit of Timothy Workman
I. Affidavit of Forensic Expert Mark Lucas, Photographer
Description
J. Affidavit of Attorney Stephen D. Hartman
K. Affidavit of Forensic Expert Mark Lucas, Date and Time
Photograph was Taken [sic].

(Doc. No. 10). Workman asserts that because he presented the above documentary

evidence on what he believes to be valid grounds the trial court should not have

determined that he engaged in vexatious conduct. We disagree.

{¶24} Significantly, the record establishes that Workman has filed numerous

pro se motions and appeals in his underlying criminal matter in which he raises the

same or similar arguments that he raises in his civil filings. Many of his motions

(and appeals) address similar issues referencing identical documents that contain

substantially identical arguments concerning the victims’ purported perjured

testimony, his identity defense as well as discrepancies regarding how law

enforcement acquired one of the victim’s IPhone. Indeed, Workman’s constant and

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repetitive arguments (and legal theories) have all previously been rejected by the

trial court, and by this court on appeal.

{¶25} Given the purpose and design of the vexatious-litigator statute,

Workman’s legion of filings constitutes vexatious litigation. We recognize it may

not be obvious to Workman that his “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”, but it is objectively obvious to us. Moreover, Workman’s

prolific history as a pro se litigator demonstrates vexatious conduct to which the

vexatious-litigator statute applies.

{¶26} Based on the evidence in the record, we conclude that the trial court

did not err by granting Pierce’s summary-judgment request and declaring Workman

a vexatious litigator.

{¶27} For the foregoing reasons, Workman’s first, second, third, and fourth

assignments of error are overruled.

{¶28} Having found no error prejudicial to the defendant-appellant herein in

the particulars assigned and argued, we affirm the judgment of the Auglaize County

Court of Common Pleas.

Judgment Affirmed

MILLER, P.J. and WILLAMOWSKI, J., concur.

/jlr

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