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11th District affirms murderer’s `vexatious litigator’ label
TRACEY BLAIR
Legal News Reporter
Published: August 16, 2017
A Trumbull County trial court did not err by declaring a convicted murderer a vexatious litigator in his pro se appeals, the 11th District Court of Appeals recently ruled.
Lance Pough was charged in 2000 with aggravated murder and conspiracy to commit aggravated murder in the 1998 death of Braderick McMillan.
Pough was sentenced to 15 years to life in prison after pleading guilty to an amended count of complicity to commit murder.
According to case summary, Pough first appealed in 2002 arguing his plea was not knowing and voluntary and his attorney was ineffective.
The appellate court affirmed the conviction, and Pough proceeded to file multiple, repetitive appeals and motions over the years.
Trumbull County Prosecutor Dennis Watkins filed a complaint in June 2016 to designate Pough as a vexatious litigator. Watkins asked the trial court to ban Pough from filing legal motions without leave.
In October, the trial court granted summary judgment in favor of Watkins.
The appellant then claimed the trial court abused its discretion, arguing his counterclaim had not yet been addressed. Pough also claimed the court’s judgment should not have included “no just reason for delay language” as addressed in Civ.R. 54(B).
The appellate panel disagreed.
“While a trial court has wide discretion to determine whether to include Civ.R. 54(B) language to allow an appeal from an order where claims remain pending, we need not reach this issue,” 11th District Judge Diane V. Grendell stated in her 2-1 opinion. “The only claim Pough alleges remains pending is his `counterclaim,’ which amounted to arguments that R.C. 2323.52, the vexatious litigator statute, is unconstitutional.
“… The Ohio Supreme Court has declared the vexatious litigator statute constitutional in its entirety, citing Mayer v. Bristow, 91 Ohio St.3d 3, 740 N.E.2d 656 (2000). As the court had ruled on all pending matters, the judgment entry stated that the `case was concluded.’ Thus, while the court included the `no just cause for delay’ language, it was unnecessary to make the order final.”
Pough also argued that the vexatious litigator statute applies to conduct in a civil action.
“While it is accurate that the initial findings prior to conviction and the direct appeal in the underlying criminal matter are not considered for the purposes of making a vexatious litigator finding, the subsequent motions, appeals, and original actions were generally of a civil nature,” Judge Grendell wrote.
“… As the trial court noted, Pough has filed over 60 motions relating to his conviction and subsequent attempts to have the conviction and sentence overturned. While we recognize that some of these motions were procedural, the number of motions is not particularly significant. Rather’s Pough’s repeated attempts to raise the same issues, his lack of compliance with procedural rules, and the amount of time expended on resolving these matters is of importance.”
Appellate Judge Cynthia Westcott Rice concurred.
Eleventh District Judge Colleen Mary O’Toole dissented.
“This writer’s review of Pough I through Pough VII shows that Pough has filed 61 motions seeking redress from this court. However, 24 of these motions were filed in Pough I, Pough’s appeal of right from his criminal conviction,” Judge O’Toole stated in her dissenting opinion. “Of the remaining 37 motions filed in Pough II through Pough VII, only 16 motions are of a substantive nature that required this court to expend significant time and energy to resolve them. The 21 remaining motions can be categorized as `housekeeping’ motions such as motions for extensions of time or motions to supplement a prior filing.
“… This writer does not feel that reasonable minds could come to no other conclusion that (effectively) four appeals filed over 13 years, related to a defendant’s underlying criminal case, constitutes vexatious litigation. Nor would 16 substantive motions filed over 13 years seem to place an unreasonable burden upon this court or prevent our speedy consideration of other litigation.”
Judge O’Toole added that she was unable to find case law where a court has declared a defendant a vexatious litigator based solely upon postconviction motions and appeals relating to an underlying criminal case.
The case is cited Watkins v. Pough, 2017-Ohio-7026.