Opinion
No. 2021CA0017
12-03-2021
STATE of Ohio, Plaintiff-Appellee v. Thomas M. WEST, Defendant-Appellant
Thomas West (#A720-823), Marion Correctional Institution, P.O. Box 57, Marion, Ohio 43301, Appellant. Marcy Vonderwell, 61 Greene Street, Suite 200, Xenia, Ohio 45385, Attorney for Appellee, State of Ohio.
Thomas West (#A720-823), Marion Correctional Institution, P.O. Box 57, Marion, Ohio 43301, Appellant.
Marcy Vonderwell, 61 Greene Street, Suite 200, Xenia, Ohio 45385, Attorney for Appellee, State of Ohio.
DECISION AND ENTRY
PER CURIAM: {¶ 1} This matter is before the court for resolution of our July 1, 2021 show cause order, and appellant's application for leave to appeal. We conclude that we have jurisdiction, and grant West leave to file and prosecute an appeal from one of the trial court's orders.
{¶ 2} The case underlying this appeal is a civil matter, brought by the State of Ohio in the Greene County Common Pleas Court, to declare Thomas M. West a vexatious litigator. See R.C. 2323.52 (the vexatious litigator statute). West filed counterclaims against the State relating to his conviction in a separate criminal case. After the case was fully resolved in the trial court, West filed an "Application for Leave to Appeal Trial Court's April 2, 2021, and May 14, 2021, Judgment Entries." His Application instituted this appeal. He has not yet filed a notice of appeal.
{¶ 3} In the first of the entries on appeal, the April 2 Judgment Entry, the trial court designated West a vexatious litigator, resolving the State of Ohio's claim. In the second, the May 14 Judgment Entry, the trial court denied West's request for leave to proceed in the remainder of the case, and dismissed his counterclaims.
{¶ 4} This court has not yet ruled on West's application for leave to pursue this appeal. On July 1, 2021, we issued a show cause order noting several preliminary issues that were raised by these filings:
First, was the April 2 Judgment Entry a final order? See Onady v. Wright State Physicians, Inc. , 2d Dist. Montgomery No. 27954, 2018-Ohio-3096 , ¶ 7, citing Chef Italiano Corp. v. Kent State Univ. , 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989) ("For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B)"). Notably, the trial court did not include Civ.R. 54(B) language in the [April 2] entry, but there appears to be some dispute about whether it is required, depending on the type of final order at issue. See generally Painter & Pollis, Ohio Appellate Practice , Section 2:16 (Oct. 2020) ("there is good reason to question whether Rule 54(B) properly applies to appeals under R.C. 2505.02(B)(2) [concerning special proceedings]").
Relatedly, if the April 2 Judgment Entry was a final order, did it have to be appealed within 30 days of its entry? Compare App.R. 4(A)(1) ("a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry") with App.R. 4(B)(5) ("If an appeal is permitted from a judgment or order entered in a case in which the trial court has not disposed of all claims as to all parties, other than a judgment or order entered under Civ.R. 54(B), a party may file a notice of appeal within thirty days of entry of the judgment or order appealed or the judgment or order that disposes of the remaining claims. Division (A) of this rule applies to a judgment or order entered under Civ.R. 54(B)").
If the April 2 Judgment Entry was not a final order, but an interlocutory order, it appears that it merged into the May 14 Judgment Entry resolving the case. See App.R. 4(A) ([2]) ("a party who wishes to appeal from an order that is
not final upon its entry but subsequently becomes final – such as an order that merges into a final order entered by the clerk or that becomes final upon dismissal of the action – shall file the notice of appeal required by App.R. 3 within 30 days of the date on which the order becomes final"). West's application for leave was filed within 30 days of the May 14 Judgment Entry. See R.C. 2323.52(F)(2) ("If a person who has been found to be a vexatious litigator under this section requests the court of appeals to grant the person leave to proceed as described in division (F)(2) of this section, the period of time commencing with the filing with the court of an application for the issuance of an order granting leave to proceed and ending with the issuance of an order of that nature shall not be computed as a part of an applicable period of limitations within which the legal proceedings or application involved generally must be instituted or made").
However, it appears that at least part of the May 14 Judgment Entry may not be subject to appeal. Therein, the trial court found no reasonable grounds for West's counterclaim(s) and denied his application for leave to proceed on them. R.C. 2323.52(F)(1). The trial court then dismissed the counterclaims. Can West appeal this order? The vexatious litigator statute does not appear to permit an appeal of a decision denying leave to continue [existing proceedings]:
no appeal by the person who is the subject of that order [designating him a vexatious litigator] shall lie from a decision of the court of common pleas * * * that denies that person leave for the institution or continuance of * * * legal proceedings in the * * * court of common pleas * * *.
R.C. 2323.52(G). It appears that the scope of this appeal, if this court were to grant West leave to proceed, would not include the trial court's denial of leave to proceed on West's counterclaims.
(Emphasis sic.] Show Cause Order. We ordered West to file a written response addressing these issues, and granted him leave to do so. We also ordered the State of Ohio to file a reply. We specified that "[n]o other filings on this issue will be considered."
{¶ 5} West filed a timely but unsigned Response on July 9, 2021. Thereafter, he filed an "Application for Leave in Order to File Motion for Extension of Time to File," on July 12, 2021, and a signed copy of his Response, attaching additional documents, on July 19, 2021. We STRIKE West's July 12 and July 19 filings, as they were filed contrary to our instructions. The State filed a reply on July 19, 2021. The matter, along with West's application for leave to proceed, is now ripe.
{¶ 6} We conclude that the April 2 Judgment Entry was a partial final order under R.C. 2505.02(B)(2) or (B)(1), but that Civ.R. 54(B) was required to make it appealable. It merged into and became appealable when the trial court entered the May 14 Judgment Entry dismissing West's counterclaims. We also conclude that only part of the May 14 Judgment Entry is subject to appeal.
{¶ 7} Finally, we GRANT West leave to appeal the April 2 Judgment Entry designating him a vexatious litigator, but DENY him leave to appeal the May 14 Judgment Entry. However, he must file his notice of appeal within 13 days of the journalization of this Decision and Entry.
The April 2 Judgment Entry was a Partial Final Order under R.C. 2505.02(B)(2) or (B)(1)
{¶ 8} An appellate court has jurisdiction to review only final orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio Constitution ; R.C. 2505.02. We have no jurisdiction to review an order or judgment that is not final, and must dismiss an appeal taken therefrom. General Accident Ins. Co. v. Ins. Co. of N. Am. , 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 9} Determining finality is a two-step process. "For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable , Civ.R. 54(B)." (Emphasis added.) Onady v. Wright State Physicians, Inc. , 2d Dist. Montgomery No. 27954, 2018-Ohio-3096, 2018 WL 3744814, ¶ 7. Final orders are defined in R.C. 2505.02.
{¶ 10} West argues in his response to our show cause order that the April 2 Judgment Entry is not a final appealable order, because the trial court did not include Civ.R. 54(B) language in it. He argues that this court has no jurisdiction to proceed in this appeal, and that the matter should be remanded to the trial court to allow him to present the genuine issues of material fact to a jury. He does not specifically address any division of R.C. 2505.02.
{¶ 11} The State of Ohio argues that the April 2 Judgment Entry is a final order under R.C. 2505.02(B)(2) concerning special proceedings, and that Civ.R. 54(B) language is not required for such an order. The State also argues that the April 2 Judgment Entry effectively resolved all the issues in the case, including West's counterclaims, because in finding West a vexatious litigator, the trial court noted the repeatedly-rejected arguments West had made in his criminal case – which were the same arguments he raised in his counterclaims.
{¶ 12} Some courts have recognized that "[j]udgments declaring an individual to be a vexatious litigator are generally final appealable orders under R.C. 2505.02(B)(4)" describing provisional remedies. Vincent v. Nusbaum , 4th Dist. Ross No. 16CA3552, 2016-Ohio-7853, 2016 WL 6875826, ¶ 7, citing Askin v. Askin , 10th Dist. Franklin No. 13AP-404, 2013-Ohio-5606, 2013 WL 6728954, at ¶ 12 ; and Whipps v. Ryan , 10th Dist. Franklin No. 12AP-685, 2013-Ohio-4382, 2013 WL 5519830, at ¶ 16 ; Helfrich v. Madison , 5th Dist. Licking No. 08-CA-150, 2009-Ohio-5140, 2009 WL 3111866, ¶ 30. Cases finding finality under Division (B)(4) often arise where a motion to declare a litigant vexatious is filed in an existing civil action. (The vexatious litigator statute anticipates that such a determination will be made in a separate civil action filed in the common pleas court. See R.C. 2323.52(B), (C) ). In such cases, "[a] vexatious litigator proceeding is ancillary to the underlying proceeding and therefore meets the definition of a ‘provisional remedy’ in R.C. 2505.02(A)(3)." Vincent at ¶ 7, citing Whipps at ¶ 14.
{¶ 13} In this case, the vexatious litigator determination is not "ancillary" to the underlying proceeding; it is the only claim raised in the State's Complaint against West. Whether it could be considered ancillary to any other case is not legally relevant. See State v. Gillispie , 2d Dist. Montgomery No. 28766, 2020-Ohio-7032, 2020 WL 8092289, ¶ 11, citing Gehm v. Timberline Post & Frame , 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, ¶ 26 ("according to the Supreme Court of Ohio, the action to which the provisional remedy is ancillary must be the ‘attendant, underlying action,’ and not a different case"). Accordingly, we cannot find that the April 2 Judgment Entry is a final order under R.C. 2505.02(B)(4) concerning provisional remedies.
{¶ 14} Alternatively, R.C. 2505.02(B)(2) provides that "[a]n order that affects a substantial right made in a special proceeding" is a final order subject to review. A substantial right is "a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect." R.C. 2505.02(A)(1). A special proceeding is "an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity." R.C. 2505.02(A)(2).
{¶ 15} The State asserts that a vexatious litigator proceeding under R.C. 2323.52 satisfies the definition of a special proceeding, and that the April 2 Judgment Entry affects West's substantial right to access the courts without first obtaining leave. We agree with both propositions.
{¶ 16} The vexatious litigator statute was enacted in 1997. See 1996 Ohio Laws File 263 (H.B. 570), eff. 3-18-1997. Neither party has suggested, and we have not found, any authority showing that such a cause of action existed prior to 1853. See Lasson v. Coleman , Montgomery C.P. 05-CV-3436, 2006 WL 4453703 (Dec. 7, 2006), aff'd Lasson v. Coleman , 2d Dist. Montgomery No. 21983, 2008-Ohio-4140, 2008 WL 3583356 ("This Court's research has identified no analogous action at law or suit in equity that existed prior to 1853. Therefore, this Court finds that a vexatious litigator cause of action constitutes a ‘special proceeding’ as that term is defined in R.C. § 2505.02(A)(2)").
{¶ 17} We also agree that the April 2 Judgment Entry affected West's substantial right to access the court without prior permission and screening of his filings. See R.C. 2323.52(D) ; State ex rel. Sapp v. Franklin Cty. Court of Appeals , 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 30 (" R.C. 2323.52 affects the rights of those persons declared to be vexatious litigators to sue or to continue preexisting suits"); Lasson, supra ("this Court is mindful that the * * * determination that Lasson is a vexatious litigator will clearly affect his Ohio constitutional, statutory, and procedural rights pertaining to commencing and maintaining civil litigation and appeals. Accordingly, the vexatious litigator disposition affects a ‘substantial right’ as that term is defined in R.C. § 2505.02(A)(1)").
{¶ 18} Finally, although neither party has argued as much, we note that the April 2 Judgment Entry could be considered final under R.C. 2505.02(B)(1) as "[a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment," at least with respect to the State's Complaint to declare West a vexatious litigator. The April 2 Judgment Entry determined that claim and prevented a judgment in West's favor thereon. See State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty. , 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 16, quoting VIL Laser Sys., L.L.C. v. Shiloh Industries, Inc. , 119 Ohio St.3d 354, 2008-Ohio-3920, 894 N.E.2d 303, ¶ 8 (" ‘[f]or an order to determine the action, it must dispose of the merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court’ ").
{¶ 19} Having determined that the April 2 Judgment Entry is a final order under R.C. 2505.02, we turn to the second step of our finality analysis.
Civ.R. 54(B) Certification is Required
{¶ 20} West emphasizes that the trial court did not certify in the April 2 Judgment Entry that there is no just reason for delay under Civ.R. 54(B), and that his counterclaims were still pending in the trial court at that time. "This court routinely holds that an order dismissing or resolving some of the claims in a civil action is not final if the trial court does not certify that there is no just reason for delay." Stuck v. Miami Valley Hosp. , 2d Dist. Montgomery No. 28233, 2020-Ohio-305, 2019 WL 7819352, ¶ 10. But Civ.R. 54(B) does not always apply.
{¶ 21} Civ.R. 54(B), titled "Judgment Upon Multiple Claims or Involving Multiple Parties," provides:
When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
(Emphasis added.)
{¶ 22} This requirement applies where the order is final under R.C. 2505.02(B)(1) as "[a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment." See Stuck at ¶ 8-10 ; Ohio Appellate Practice , Section 2:16 (" Civ. R. 54(B) affords trial courts a procedural mechanism for entering final judgment in a multi-claim or multi-party case over orders that dispose of some, but not all, of the claims in the action, rendering an order final if the adjudicated claims meet the standard of R.C. 2505.02(B)(1)"). Conceptually, orders dismissing or resolving claims are said to affect a substantial right, determine an action, and prevent a judgment on those claims. See Stuck at ¶ 8 ("A decision dismissing some causes of action, while leaving some remaining does this"). Thus, if the April 2 Judgment Entry is considered final under R.C. 2505.02(B)(1), then Civ.R. 54(B) language would clearly be required before it could be appealed.
{¶ 23} However, Civ.R. 54(B) does not apply and is not required where "judgment was entered on all claims and against all parties." Miller v. First Internatl. Fid. & Trust Bldg., Ltd. , 113 Ohio St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059, ¶ 10. It likewise does not apply "when one portion of a claim has been decided, but another portion is left unresolved." Oak Hill Firefighters Assn. v. Oak Hill , 4th Dist. Jackson No. 01CA16, 2002-Ohio-4514, 2002 WL 2009254, ¶ 15. It categorically does not apply to orders "giving or denying a present right to possession of property," i.e., a writ of restitution issued in a forcible entry and detainer action. Cuyahoga Metropolitan Hous. Auth. v. Jackson , 67 Ohio St.2d 129, 132, 423 N.E.2d 177 (1981).
{¶ 24} Civ.R. 54(B) does not apply to an order denying a preliminary injunction, which is otherwise a final order under the provisional remedy prong of the statute. See Premier Health Care Services, Inc. v. Schneiderman , 2d Dist. Montgomery No. 18795, 2001 WL 1479241, *4. In fact, the entire category of provisional remedies under R.C. 2505.02(B)(4) appears to be exempt from the requirement of Civ.R. 54(B) language. See Dayton Childrens Hosp. v. Garrett Day LLC , 2d Dist., 2018-Ohio-5466, 131 N.E.3d 304, ¶ 15, quoting State ex rel. Butler Cty. Children Servs. Bd. v. Sage , 95 Ohio St.3d 23, 25, 764 N.E.2d 1027 (2002) (" ‘[A]n order granting or denying a provisional remedy is not subject to the requirements of Civ.R. 54(B) ’ "). {¶ 25} The question here is whether Civ.R. 54(B) applies to orders in a different category: orders that affect a substantial right made in a special proceeding under R.C. 2505.02(B)(2). "The Ohio Supreme Court has suggested that Rule 54(B) applies * * * to appeals under R.C. 2505.02(B)(2)." Ohio Appellate Practice , Section 2:16, citing General Accident Ins. Co. v. Ins. Co. of N. America , 44 Ohio St.3d 17, 540 N.E.2d 266 (1989). In General Accident , the Court examined an order in a declaratory judgment action, which it found "final because it affected a substantial right made in a special proceeding." Id. at 22, 540 N.E.2d 266. The Court continued:
Upon finding that this is a final order under R.C. 2505.02, we next must determine if Civ.R. 54(B) applies, and if so, if its requirements were met.
Civ.R. 54(B) applies in multiple-claim or multiple-party actions where fewer than all the claims or fewer than all the parties are adjudicated. If a court enters final judgment as to some but not all of the claims and/or parties, the judgment is a final appealable order only upon the express determination that there is no just reason for delay.
The case before us involves multiple claims and multiple parties. Although the trial court disposed of appellants’ claim based on duty to defend and, in doing so, effectively resolved appellants’ claim of duty to indemnify, appellee's counterclaim still remains. Additionally, it appears from the record that claims by Dr. C. Otto against Gerling and Nordstern remain pending. The trial court, however, complied with Civ.R. 54(B) by making the determination that there was no just reason for delay. Therefore Civ.R. 54(B) requirements were met.
Accordingly, we hold that the trial court's judgment was a final appealable order and we reverse the judgment of the court of appeals and remand the cause to the court of appeals for further proceedings.
General Accident at 22-23, 540 N.E.2d 266. Other Ohio courts similarly apply the traditional rule requiring Civ.R. 54(B) in special-proceeding orders. See, e.g. , Niehaus v. Columbus Maennerchor , 10th Dist. Franklin No. 07AP-1024, 2008-Ohio-4067, 2008 WL 3319289, ¶ 16-24 (concluding that the trial court's addition of Civ.R. 54(B) language was appropriate in the special-proceeding order); In re Nichols , 4th Dist. Washington No. 03CA41, 2004-Ohio-2026, 2004 WL 868364, ¶ 6-8 (dismissing appeal for lack of Civ.R. 54(B) language in a special-proceeding order); Braelinn Green Condominium Unit Owner's Assn. v. Italia Homes, Inc. , 10th Dist. Franklin No. 09AP-1144, 2010-Ohio-2371, 2010 WL 2162641, ¶ 7-13 (rejecting argument that Civ.R. 54(B) did not apply to a special-proceeding order).
{¶ 26} Two additional observations can be made about General Accident in this respect. First, the Supreme Court did not look further than whether the case involved multiple claims or parties, and whether some claims remained to be resolved, when implicitly finding that Civ.R. 54(B) was required. That is, the Court's determination was not a categorical determination that Civ.R. 54(B) was required for all special-proceeding orders; the Court simply applied the language of the rule to the order on appeal. Second, the Supreme Court in General Accident did not expressly say what would have resulted if Civ.R. 54(B) language was not included. The arguments discussed next have arisen in the absence of such an explicit holding. {¶ 27} The State of Ohio argues that the April 2 Judgment Entry did not require Civ.R. 54(B) language to be considered final and appealable. Some courts have questioned whether such language should be required for orders affecting substantial rights in special proceedings. See, e.g., Garden v. Langermeier, 2017-Ohio-972, 86 N.E.3d 645, ¶ 13, fn.1 (8th Dist.) ; Zhong v. Liang , 2020-Ohio-3724, 155 N.E.3d 1042, ¶ 18 (8th Dist.) ; Guardianship & Protective Servs., Inc. v. Setinsek , 11th Dist. Trumbull No. 2010-T-0099, 2011-Ohio-6515, 2011 WL 6339841, ¶ 23-25 (Wright, J., concurring). These courts, however, did not hold that Civ.R. 54(B) was categorically not required, or was not required under the specific facts of the case. They instead reflected back to General Accident , either avoiding the issue or following General Accident explicitly.
"Civ.R. 54(B) undoubtedly applies to R.C. 2505.02(B)(1) – that section speaks in terms of an order that ‘affects a substantial right in an action that in effect determines the action and prevents a judgment.’ Whether Civ.R. 54(B) applies to R.C. 2505.02(B)(2) is not as clear. In Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. , 44 Ohio St.3d 17, 540 N.E.2d 266 (1989), the Ohio Supreme Court noted compliance with Civ.R. 54(B) in an R.C. 2505.02(B)(2) appeal, without any elaboration as to why the rule would apply. Gen. Acc. Ins. has been questioned because R.C. 2505.02(B)(2) does not reference an order that ‘determines the action.’ For this reason, ‘[w]hen an order affects a substantial right in a special proceeding, it is final under R.C. 2505.02(B)(2) even though that same order would not qualify as a final order under R.C. 2505.02(B)(1).’ Painter and Pollis, Ohio Appellate Practice , Section 2:13 (2016). See also Guardianship & Protective Servs., Inc. v. Setinsek , 11th Dist. Trumbull No. 2010-T-0099, 2011-Ohio-6515, 2011 WL 6339841 (Wright, J., concurring).
We need not decide this question, however. Appellate jurisdiction requires that an order meet both R.C. 2505.02 and Civ.R. 54(B). Lycan v. Cleveland , 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593, ¶ 21. Our holding that the Gardens have not established that the order granting the motion for distribution affects a substantial right moots a fuller consideration of the issue." Garden v. Langermeier , 2017-Ohio-972, 86 N.E.3d 645, ¶ 13, fn.1 (8th Dist.).
"While Civ.R.54(B) clearly applies to R.C. 2505.02(B)(1), an order that ‘affects a substantial right in an action that in effect determines the action and prevents a judgment,’ it is less clear whether Civ.R. 54(B) applies to R.C. 2505.02(B)(2). See, e.g., Garden v. Langermeier , 2017-Ohio-972, 86 N.E.3d 645, ¶ 13, fn. 1 (explaining that Gen. Acc. Ins. Co . has been questioned with respect to R.C. 2502.02(B)(2)); Guardianship & Protective Servs. [Inc.] v. Setinsek , 11th Dist. Trumbull No. 2010-T-0099, 2011-Ohio-6515, 2011 WL 6339841, ¶ 23 (Wright, J., concurring) (advocating that Civ.R. 54(B) should not apply to R.C. 2505.02(B)(2) ); Painter and Pollis, Ohio Appellate Practice , Section 2:16 (2019). However, we must follow the Ohio Supreme Court's precedent from Gen. Acc. Ins. Co. and apply Civ.R. 54(B) to orders that are otherwise ‘final’ under R.C. 2505.02(B)(2)." Zhong v. Liang, 2020-Ohio-3724, 155 N.E.3d 1042, ¶ 18 (8th Dist.).
"As a final point, I would indicate that, in many respects, it seems illogical to apply Civ.R. 54(B) to judgments which are otherwise final because they affect a substantial right in a special proceeding. Pursuant to R.C. 2505.02(B)(2), the only requirement for finality in regard to a ‘special proceeding’ judgment is that it must affect a substantial right of a party to the action. Given the lack of any reference to ‘determining’ the case, as is required under R.C. 2505.02(B)(1), it is evident that R.C. 2505.02(B)(2) was intended to permit appeals from partial judgments which would only be considered interlocutory orders in ‘non-special’ civil actions. By adding the requirement that Civ.R. 54(B) must also be satisfied in regard to judgments affecting a substantial right in a special proceeding, we have essentially eliminated the distinction between the two types of final orders under R.C. 2505.02(B)(1) and (B)(2).
Stated otherwise, there is no logical reason to determine whether an order qualifies as one that affects a substantial right in a special proceeding if, in the end, it is going to be treated as any other claim in the absence of Civ.R. 54(B) ‘no just cause for delay’ language. The legislature could not have intended for such orders to be anything other than immediately appealable, even absent ‘no just cause for delay’ language.
However, under the precedent originally stated by the Supreme Court of Ohio in the General Accident opinion, Civ.R. 54(B) must be followed in multiple-claim cases in which the declaratory judgment claim has already been fully decided. Thus, I concur in the dismissal of this appeal." Guardianship & Protective Servs., Inc. v. Setinsek , 11th Dist. Trumbull No. 2010-T-0099, 2011-Ohio-6515, 2011 WL 6339841, ¶ 23-25 (Wright, J., concurring).
{¶ 28} One court has held to the contrary, that the absence of Civ.R. 54(B) in special-proceeding orders does not necessarily prevent finality. In Doe v. Sherwin , the Eleventh District held "that the requirement of ‘no just reason for delay’ language under Civ.R. 54(B) was not necessary to render the trial court's final order immediately appealable." 11th Dist. Portage No. 2013-P-0058, 2014 WL 10188278, *2 (Oct. 23, 2014), further proceedings at Doe v. Sherwin , 2015-Ohio-2451, 2015 WL 3824019, ¶ 6-7 (June 25, 2015). Sherwin involved the resolution of a third-party declaratory judgment complaint against an insurer seeking a defense and indemnification. The underlying claim was not yet resolved.
{¶ 29} The Eleventh District in Sherwin relied on the Fourth District's decision in Gardner v. Energy Research & Dev. Corp , 4th Dist. Scioto No. 1416, 1983 WL 3140, *5 (Mar. 11, 1983), which found a degree of flexibility in requiring Civ.R. 54(B) certification under the unique circumstances of that case. In Gardner , one claim was resolved, but others were stayed by virtue of a bankruptcy. The order on appeal did not contain Civ.R. 54(B) certification.
{¶ 30} The Sherwin court said:
Relying on United States Supreme Court and Ohio Supreme Court case law, the Fourth Appellate District applied three legal principles to the facts in Gardner that are equally applicable here:
First: The lack of a Rule 54(B) ‘no just reason for delay’ determination is not necessarily fatal to appeal of an order which adjudicates less than all of the claims or parties in an action. Second: Rule 54(B) cannot abridge, enlarge, or modify substantive rights flowing from the Section 2505.02 definition of ‘final appealable order.’ Third: Equitable reasoning must be applied to the facts of each case involving a Rule 54(B) question.
Gardner at *9-10.
In reaching its decision, the Fourth District analyzed Alexander v. Buckeye Pipe Line Co. , 49 Ohio St.2d 158, 359 N.E.2d 702 (1977). In Alexander , the Ohio Supreme Court reversed the appellate court's holding that the trial court had "abused its discretion in finding there was no just reason to delay appeal"; the Court went on to hold that there was no abuse of discretion by the trial court. Gardner at *7, citing Alexander . Relying on the Ohio Supreme Court's approach to the Civ.R. 54(B) issue, the Fourth District held that it is within the jurisdiction of an appellate court to review a trial court's decision regarding the inclusion of Civ.R. 54(B) language for an abuse of discretion. Id. "Arguably, if the appellate court finds an abuse of discretion, jurisdiction may be assumed regardless of the lack of a Rule 54(B) determination." Id.
This court agrees with the equitable approach espoused by the Fourth Appellate District. Further, "the effect of Civ.R. 54(B) is purely procedural. It permits both the separation of claims for purposes of appeal and the early appeal
of such claims, within the discretion of the trial court, but it does not affect either the substantive right to appeal or the merits of the claims." Alexander, supra , at 159, 359 N.E.2d 702. As the trial court's declaratory judgment was a final order pursuant to R.C. 2505.02(B)(2), Civ.R. 54(B) cannot be used to "abridge, enlarge, or modify" the substance of that finality. Id. Therefore, if application of a procedural rule results in the denial of a substantive right to appeal established by statute, the statute should control.
Finally, we must consider the possible harm that could result from not allowing an immediate appeal. See Gardner at *10. "Occasionally a decision determines a claim of right which is separable from other claims ‘asserted in the action, too important to be denied review and too independent of the (other claims in the action) to require appellate consideration be deferred until the whole case is adjudicated.’ " Id. at *3-4, 49 Ohio St.2d 158, 359 N.E.2d 702, quoting Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
This case involves multiple claims and multiple parties. However, the third-party complaint against appellee has been dismissed, and there are no issues with respect to the declaratory judgment action that remain to be resolved. Only plaintiffs’ claim against appellant remains pending. This favors immediate review of appellants’ appeal against appellee. Prohibiting an appeal at this time would result in immediate harm to appellants, as it would require them to defend the pending action at their own expense. Also, appellants would be forced to make this decision without knowing whether a future appeal seeking indemnification against appellee could possibly be successful.
For the foregoing reasons, the trial court's June 6, 2013 order is appealable. All issues regarding the declaratory judgment action have been resolved. The order clearly affected a substantive right and should be appealable based on the statute. To hold otherwise would give the trial court discretion to apply a procedural rule in such a way that denies appellants’ substantive statutory right to an immediate appeal of the trial court's order.
Sherwin at *2-3. The majority of the court overruled a motion to dismiss for lack of jurisdiction. Compare id. at *4 (Grendell, J., dissenting) (noting established case law contrary to the majority's decision).
{¶ 31} On review, we are not convinced that we should disregard the traditional rule requiring Civ.R. 54(B) language where some but not all of the claims are resolved. Although there may be "good reason to question whether Rule 54(B) properly applies to appeals under R.C. 2505.02(B)(2)," Ohio Appellate Practice , Section 2:16, at least in cases where no claims are resolved, this court may not disregard the clear implication of General Accident that Civ.R. 54(B) applies to special-proceeding orders and must be satisfied. Moreover, we decline to make a categorical determination to the contrary, and instead follow the Court's lead by evaluating each order by the standard described in Civ.R. 54(B) for applicability: whether some but not all of the claims are resolved. The State of Ohio's legal argument that we should find the April 2 Judgment Entry final without such language does not convince us otherwise. We find that the April 2 Judgment Entry was not appealable when entered because it lacked Civ.R. 54(B) language.
{¶ 32} The State also presents a factual argument for finality without Civ.R. 54(B). It argues that the trial court's order declaring West a vexatious litigator actually did resolve West's counterclaims. West appeared to raise counterclaims for "Fraud upon the Court" and "Tampering with the Record." West also suggested a conspiracy between the State of Ohio and the trial court judge.
{¶ 33} The State argues that in finding West a vexatious litigator, the trial court necessarily rejected West's arguments concerning fraud on the court. While this may be true, the trial court did not take action on any of the counterclaims, in whatever form it considered them, in the April 2 Judgment Entry. The court did not issue a judgment on the counterclaims, in that it did not sign and have journalized "a written entry ordering or declining to order a form of relief" on the counterclaims. See Civ.R. 54(A) (defining a judgment). Whatever merit the counterclaims had or did not have, they were formally unresolved until the trial court dismissed them on May 14, 2021. We decline to hold that they were resolved by implication earlier.
{¶ 34} Because the April 2 Judgment Entry resolved some, but not all, of the claims in the case, and because the trial court did not certify that there was no just reason for delay under Civ.R. 54(B), the April 2 Judgment Entry was not appealable when entered. It remained interlocutory until May 14, when the trial court entered the Judgment Entry dismissing the counterclaims and resolving the case.
West's Application for Leave was Timely Filed
{¶ 35} According to App.R. 4(A)(2), "a party who wishes to appeal from an order that is not final upon its entry but subsequently becomes final – such as an order that merges into a final order entered by the clerk or that becomes final upon dismissal of the action – shall file the notice of appeal required by App.R. 3 within 30 days of the date on which the order becomes final." Under normal circumstances, this would mean that a notice of appeal from the April 2 Judgment Entry must have been filed within 30 days of the May 14 Judgment making it final, or by June 14, 2021. However, West has not yet filed a notice of appeal, but has filed an application for leave to proceed under the vexatious litigator statute. These are different documents: a notice of appeal is filed in the trial court; an application for leave is filed in the court of appeals. App.R. 3(A) ; R.C. 2323.52(F)(2).
Thirty days after May 14 would be June 13, 2021, a Sunday, making a notice of appeal due the next day, June 14, 2021. See App.R. 14(A) ("The last day of the period so computed shall be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or a legal holiday").
{¶ 36} The vexatious litigator statute requires a person subject to an order thereunder "who seeks to institute or continue any legal proceedings in a court of appeals * * * [to] file an application for leave to proceed in the court of appeals in which the legal proceedings would be instituted" before or along with a notice of appeal. R.C. 2323.52(F)(2) ; See Prime Equip. Group, Inc. v. Schmidt , 10th Dist. Franklin No. 15AP-584, 2015-Ohio-3683, 2015 WL 5310207, ¶ 5-8 (discussing whether the application for leave must be filed before or with the notice of appeal); State ex rel. DeWine v. Johnson , 4th Dist. Athens No. 17CA13, 2017-Ohio-5701, 2017 WL 2838639, ¶ 6 (reading Schmidt to mean that a "vexatious litigator is not required to file the application for leave before filing a notice of appeal, but he or she must do so before the expiration of the 30-day time for filing an appeal in App.R. 4(A)"). In practice, an application for leave and a notice of appeal are often filed on the same day, if both are filed. See, e.g. , Schmidt at ¶ 2.
{¶ 37} Where they are not filed together, and an application is filed first, a tolling provision applies. "[T]he time period for filing a notice of appeal under App.R. 4(A) is tolled ‘during the period of time commencing with the filing with the court of an application for the issuance of an order granting leave to proceed and ending with the issuance of an order’ " granting leave. DeWine at ¶ 6, quoting Humbert v. Borkowski , 6th Dist. No. F-05-007, 2005-Ohio-918, 2005 WL 501328, ¶ 4, fn. 1. The statute says that if a vexatious litigator
requests the court of appeals to grant the person leave to proceed as described in division (F)(2) of this section, the period of time commencing with the filing with the court of an application for the issuance of an order granting leave to proceed and ending with the issuance of an order of that nature shall not be computed as a part of an applicable period of limitations within which the legal proceedings or application involved generally must be instituted or made.
R.C. 2323.52(F)(2). Thus, West's application for leave had to have been filed by the deadline discussed above – by June 14, 2021. He filed on June 1, 2021, within time. West's application for leave was therefore timely. Our show cause order is satisfied in this respect.
{¶ 38} However, West has not yet filed a notice of appeal in the trial court. Because his time to do so is currently tolled by R.C. 2323.52(F)(2), we turn to the next question before us about whether the May 14 Judgment Entry is subject to appeal.
{¶ 39} Before doing so we note parenthetically that if we had concluded differently in the previous section – that Civ.R. 54(B) did not apply and such language was not required for finality – this appeal would still be considered timely. App.R. 4(B)(5) discusses an alternative deadline for appeals from partial final judgments or orders:
If an appeal is permitted from a judgment or order entered in a case in which the trial court has not disposed of all claims as to all parties, other than a judgment or order entered under Civ.R. 54(B), a party may file a notice of appeal within thirty days of entry of the judgment or order appealed or the judgment or order that disposes of the remaining claims. Division (A) of this rule applies to a judgment or order entered under Civ.R. 54(B).
(Emphasis added.) Thus, even if the April 2 Judgment Entry had been final and appealable when entered because Civ.R. 54(B) did not apply, it appears that West could have chosen to appeal it after the May 14 Judgment Entry dismissed his counterclaims. See In re S Children , 2018-Ohio-5010, 126 N.E.3d 239, ¶ 35 (1st Dist.) (finding that App.R. 4(B)(5) applies "when there has been an order that affects a substantial right made in a special proceeding, but where there is no Civ.R. 54(B) certification on the partial judgment. * * * [The rule] permitted [appellant] to file its appeal within 30 days of the trial court's partial judgment or await the end of the case").
Part of the May 14 Judgment Entry is Potentially Appealable
{¶ 40} As noted above, West also seeks this court's permission to appeal the May 14, 2021 Judgment Entry. That Judgment Entry denied West's Application for Leave to Proceed on his counterclaims in the underlying case. It also dismissed the counterclaims. {¶ 41} The vexatious litigator statute says that "no appeal * * * shall lie" from a common pleas court's decision denying a person leave to continue legal proceedings. R.C. 2323.52(G). We therefore conclude that the trial court's denial of leave to proceed with the counterclaims in the May 14 Judgment Entry is not appealable.
{¶ 42} The statute does not contain a similar explicit prohibition of an appeal from the dismissal of existing claims. Thus, although we see no practical difference between an appeal from the denial of leave and one from the dismissal of the counterclaims in this instance, we decline to hold that an appeal of the dismissal is barred as a matter of law. We narrow the scope of the application for leave before us to the April 2 Judgment Entry and the counterclaim-dismissal portion of the May 14 Judgment Entry. Our show cause order is not satisfied in this respect.
We Grant West Leave to Appeal the April 2 Judgment Entry and Deny him Leave to Appeal the May 14 Judgment Entry
{¶ 43} Having considered West's Application and the April 2 Judgment Entry designating him a vexatious litigator, we GRANT West leave to appeal the April 2 Judgment Entry, and any interlocutory orders that merged into the April 2 Judgment Entry, on the condition that West file a timely notice of appeal as described below. Assuming the above-captioned appeal is not otherwise dismissed, we grant West leave to file any and all documents necessary to proceed to a final judgment on the merits in this case. This grant of leave does not extend to any post-judgment filings in this case, or to proceedings in any other cases. West is still required to seek leave to proceed with any other actions pending here or in the courts designated in R.C. 2323.52, or to initiate proceedings in said courts.
{¶ 44} To the extent it is potentially appealable, we DENY West's request to appeal the May 14 Judgment Entry dismissing his counterclaims.
West Must File a Timely Notice of Appeal
{¶ 45} As we said above, West's notice of appeal is due 30 days after the May 14 Judgment Entry. Certain days do not count in this calculation. In particular, from June 1, 2021 until the date that this Decision and Entry is journalized does not count in this calculation. R.C. 2323.52(F)(2). However, the days from May 15 until May 31 – after the May 14 Judgment Entry but before West's Application was filed – do count. Humbert , at fn.1. We calculate this as 17 days. After this Decision and Entry is journalized (time-stamped by the clerk of this court), it appears that West will have 13 days remaining to file his notice of appeal with the clerk of the trial court.
{¶ 46} This is a jurisdictional deadline, which means that this court will not have the authority or ability to proceed with this appeal unless a timely notice of appeal is filed. See Wilson v. Wilson , 2d Dist. Montgomery No. 28227, 2019-Ohio-1480, 2019 WL 1767155, ¶ 6, quoting Moldovan v. Cuyahoga Cty. Welfare Dept. , 25 Ohio St.3d 293, 294-295, 496 N.E.2d 466 (1986) ("The timely filing of a notice of appeal ‘is a prerequisite to a civil appeal as of right’ "). This appeal will be dismissed without further notice if a timely notice of appeal is not filed . We cannot extend this time. App.R. 14(B) ("The court may not enlarge or reduce the time for filing a notice of appeal").
West's Motion to Use the Mailbox Rule is Overruled
{¶ 47} On June 21, 2021, West filed a motion asking this court to use the so-called "prison mailbox rule" in this appeal. The rule considers filings placed into institutional mailrooms to be "filed" when deposited there. The rule is not a part of Ohio law. See State v. Garrett , 7th Dist. Belmont No. 06 BE 67, 2007-Ohio-7212, 2007 WL 4696851, ¶ 12, citing State ex rel. Tyler v. Alexander , 52 Ohio St.3d 84, 84-84, 555 N.E.2d 966, 967 (1990) ("there is no longer a prisoner's mailbox rule in Ohio"). We decline to utilize it here. Assuming a timely notice of appeal is filed, West's filings will be due as outlined in the Local Rules and the Ohio Rules of Appellate Procedure, or other court order. The motion is OVERRULED.
In Summary
{¶ 48} We STRIKE West's July 12 and July 19 filings herein. This court's July 1, 2021 show cause order is SATISFIED in part and NOT SATISFIED in part. West's June 1, 2021 Application for Leave to Appeal is GRANTED in part and DENIED in Part. West is conditionally granted leave to appeal the trial court's April 2, 2021 Judgment Entry designating him a vexatious litigator. To do so, he must file a timely notice of appeal within 13 days of the journalization of this Decision and Entry. This appeal will be dismissed if a timely notice of appeal is not filed. Finally, West's July 12, 2021 motion to use the mailbox rule is OVERRULED.
SO ORDERED.
Hall, J., concurring.
{¶ 49} I write separately to express the opinion that a declaration of a person as a vexatious litigator, recognized by my colleagues as a final order, is immediately appealable and does not require Civ. R. 54(B) certification.
{¶ 50} In my opinion, designation of a litigant as vexatious is a final order in a special proceeding allowing for immediate appeal. Indeed, a designation as a vexatious litigator is a separate statutory proceeding from any other claims. I believe Civ. R. 54(B) should not apply to this unique statutory process. A vexatious litigator cannot even ask the trial court to add Rule 54(B) certification to its decision without first obtaining permission from the trial court to file a motion to do so. Likewise, the vexatious litigator cannot proceed with any counterclaims without obtaining leave from the trial court to proceed.
{¶ 51} More importantly, pursuant to R.C. § 2323.52(D)(1), and the trial court's order, West is prohibited from initiating or continuing any legal proceedings in any trial courts of this state. Vexatious litigators most often have, or have had, multiple cases in multiple courts at the same time and cannot proceed with any of them without permission of the designating court. Additionally, by statute, R.C. § 2323.52(D)(3), the vexatious litigator cannot institute or proceed with any appeals without obtaining leave from that court of appeals to do so.
{¶ 52} Designation as a vexatious litigator is a paradigm shift. The designee does not have a meaningful or effective remedy by appeal if that person has to wait for final judgment as to all proceedings, issues, claims, or parties in the vexatious litigation case. This is particularly so when the designee may have other separate pending litigation unrelated to the vexatious litigation case. Therefore, in my opinion, the order designating and restricting a vexatious litigator should be immediately appealable.
{¶ 53} Although the order designating and restricting a vexatious litigator should be immediately appealable, that doesn't mean I disagree with the majority opinion that West's leave to appeal should be partially granted. The trial court designated him as vexatious by Judgment entry filed April 2, 2021. I believe he could have appealed at that time but did not. Still pending were his counterclaims. The trial court denied his request for leave to proceed with those counterclaims, and dismissed them, by entry filed May 14, 2021.
{¶ 54} App.R. 4(B)(5) gives a choice of appeal times on partial final orders that do not involve Civ.R. 54(B). That subsection states:
(5) Partial final judgment or order. If an appeal is permitted from a judgment or order entered in a case in which the trial court has not disposed of all claims as to all parties, other than a judgment or order entered under Civ. R. 54(B), a party may file a notice of appeal within thirty days of entry of the judgment or order appealed or the judgment or order that disposes of the remaining claims.
{¶ 55} When the remaining claims were decided on May 14, 2021, West could request leave to appeal both the April 2nd and the May 14th orders. Under App. R. 4(B)(5), his request for leave to appeal was therefore timely as to both judgments.
{¶ 56} For the separate reasons I expressed, I agree with my colleagues to grant leave for West to appeal his April 2, 2021 designation as a vexatious litigator, but deny leave to appeal the May 14, 2021 judgment entry. I concur in that judgment.