{¶ 10} Because the trial court properly concluded that Bryant was not a vexatious litigator, I respectfully dissent from the majority and would affirm the judgment of the trial court. Vexatious conduct, as defined in R.C. 2323.52(A)(2), is meant to harass or maliciously injure another party to a civil action, is unwarranted under existing law and there is no good faith argument to extend, modify, or reverse existing law, or is imposed solely for delay.

{¶ 11} Although Bryant filed four separate lawsuits against the county (and others) pertaining to his employment as a patrol officer, Bryant's conduct is not "vexatious" under the statute. The county failed to allege in its counterclaim that Bryant's refiling was to harass or maliciously injure the county, was not warranted (i.e., frivolous), or was imposed solely to delay the proceedings. Instead, the county conclusively alleged that Bryant's actions of filing four lawsuits constituted vexatious conduct. While one might conclude that Bryant's conduct is suspicious, it is more provident to simply allow the doctrine of res judicata to bar any subsequent actions. Without more, the trial court did not err in denying the county's motion for judgment on the pleadings pursuant to Civ.R. 12(C) on its counterclaim that Bryant is a vexatious litigator. Thus, I would affirm the decision of the trial court.

{¶ 2} We find the common pleas court erred by granting judgment for Bryant on the county's counterclaim. Therefore, we reverse and remand for further proceedings on the counterclaim.

{¶ 4} The county answered the complaint and filed a counterclaim to have this action declared "frivolous conduct" and to have Bryant declared a vexatious litigator. In its counterclaim, the county asserted that this was the fourth action¹ filed by Bryant concerning the termination of his employment in August 1997 for dishonesty and failure of good behavior. The county asserted that this complaint constituted frivolous conduct and vexatious conduct, and that Bryant was a vexatious litigator within the meaning of R.C. 2323.52, and demanded attorney's fees and other reasonable expenses and a declaration that Bryant was a vexatious litigator.

{¶ 5} The county filed a motion for judgment on the pleadings as to both the complaint and the counterclaim. The court granted the motion in part and denied it in part, holding that: "Defendants' * * * motion for judgment on the pleadings on plaintiff's complaint and on defendant's counterclaim Civ.R. 12(C) is granted and denied in part. Defendants' motion for judgment on the pleadings is granted as plaintiff's complaint fails to state a claim unpon [sic] which relief can be granted. Defendants' motion for judgment on the pleadings on its counterclaim to declare plaintiff a vexatious litigator is denied as plaintiff's conduct does not meet the requirements of a vexatious litigator as set forth in O.R.C. 2323.52. Court cost assessed to the plaintiff(s)."

{¶ 7} Bryant's answer to the counterclaim denied the county's allegations that he engaged in frivolous and vexatious conduct and was a vexatious litigator. These denials created questions of fact which precluded the court from granting judgment on the pleadings to either party on the counterclaim. Without evidence, the court simply could not have determined, as it did, that "plaintiff's conduct does not meet the requirements of a vexatious litigator." Cf. Catalano v. Pisani (1999),134 Ohio App.3d 549. By the same token, however, the court also could not have determined that Bryant was a vexatious litigator as a matter of law. Thus, although we must reject the county's assertion that the court should have entered judgment in its favor, we nonetheless reverse the judgment in Bryant's favor on the counterclaim and remand for further proceedings on that counterclaim.

{¶ 8} Furthermore, the common pleas court granted judgment on the pleadings in favor of a party who did not move for that relief. Due process demands that parties be afforded notice and an opportunity to be heard before judgment is entered against them. This basic rule of fairness precludes a court from dismissing a claim sua sponte. See American Gen. Fin. v. Beemer (1991), 73 Ohio App.3d 684, 687. Even if the pleadings did not create questions of fact, the court still erred by granting judgment for the plaintiff on the counterclaim without a motion.

{¶ 9} Accordingly, we reverse and remand for further proceedings on the county's counterclaim.

This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.

It is, therefore, considered that said appellants recover of said appellee their costs herein.

It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Dyke, P.J. Concurs Corrigan, J. Dissents (See AttachedDissenting Opinion)

¹ The state Personnel Board of Review affirmed the order removing Bryant in March 1998, and Bryant did not appeal this decision.

In November 2000, Bryant filed an action to obtain public records pertaining to his former employment. He voluntarily dismissed this action in January 2001, and filed a petition for a writ of mandamus and a complaint for declaratory judgment and injunctive relief regarding his removal from employment. He also voluntarily dismissed this complaint as to the county on August 22, 2002, although claims against other defendants went forward.

On May 2, 2003, Bryant filed another complaint against the county. The county moved to dismiss this complaint for failure to state a claim. Bryant did not oppose the motion and the court granted it. Bryant then filed the present action on March 5, 2004.

DISSENT