[Cite as Easterling v. Union Sav. Bank, 2013-Ohio-1068.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                   GREENE COUNTY

WARREN EASTERLING                               :
                                                :     Appellate Case No. 2012-CA-52
        Plaintiff-Appellant                     :
                                                :     Trial Court Case No. 10-CV-1267
v.                                              :
                                                :
UNION SAVINGS BANK                              :     (Civil Appeal from
                                                :     (Common Pleas Court)
        Defendant-Appellee                      :
                                                :
                                             ...........

                                             OPINION

                            Rendered on the 22nd day of March, 2013.

                                             ...........

WARREN EASTERLING, 71 Arlington Avenue, Dayton, Ohio 45417
    Plaintiff-Appellant, pro se

ANTHONY M. VERTICCHIO, Atty. Reg. #0084645, Keating, Muething & Klekamp PLL,
One East Fourth Street, Suite 1400, Cincinnati, Ohio 45202
      Attorney for Defendant-Appellee, Union Savings Bank

                                            .............

PER CURIAM

        {¶ 1}    Warren Easterling appeals, pro se, from the trial court’s entry of summary

judgment for Union Savings Bank, the appellee, declaring him a vexatious litigator under R.C.
2323.52. We affirm.

        {¶ 2}    Between 2009 and 2011, Easterling filed four identical, pro se actions against

the Bank, his former employer. In the third action (the present case), the Bank asserted a

counterclaim asking the trial court to declare Easterling a vexatious litigator under R.C.

2323.52, the vexatious-litigator statute. Both parties moved for Summary Judgment on the

plaintiff’s original cause of action. By Judgment Entry filed June 7, 2011, the trial court

granted the defendant’s summary judgment motion and overruled the plaintiff’s motion for

summary judgment, and reserved consideration of the vexatious litigator counterclaim. Both

parties moved for summary judgment on the counterclaim. The trial court held a hearing and,

on July 20, 2012, entered judgment granting the Bank’s summary-judgment motion, denying

Easterling’s summary-judgment motion, and declaring Easterling to be a vexatious litigator.

By Decision and Entry filed October 18, 2012, we limited this appeal to a challenge of the

trial court’s order that declared Easterling to be a vexatious litigator.

        {¶ 3}    The vexatious-litigator statute provides that to institute legal proceedings in a

court of appeals a vexatious litigator must first obtain leave from the court of appeals. R.C.

2323.52(F)(2). Accordingly, Easterling moved for leave to appeal from the trial court’s

judgment. We granted him leave but limited his appeal “to that part of the trial court’s order

that declared him to be a vexatious litigator under R.C. 2323.52.” Emphasizing the narrowness

of the permissible appeal, we said, “our decision to grant Easterling leave to proceed is limited

to the above-captioned appeal, which stems only from the trial court’s July 20, 2012 order,

and specifically, that declares Easterling to be a vexatious litigator under R.C. 2323.52.”

        {¶ 4}    We review for error only the vexatious-litigator declaration. Easterling

presents eleven assignments of error. Many of the assignments of error and their supporting
                                                                                                                                        3


arguments concern issues that are beyond the scope we established for this appeal. 1 We

address only the issues he raises (and consider his arguments on those issues) that are related

to the declaration. There are two such issues–the constitutionality of the vexatious-litigator

statute and the declaration itself.

                                       The Constitutionality of R.C. 2323.52

         {¶ 5}        Easterling, in the eighth assignment of error, argues that the vexatious-litigator

statute violates the Tenth Amendment to the U.S. Constitution, the Supremacy Clause, and

federal statutes.2 We disagree.




            1
             On the third page of argument in Easterling’s reply brief, he acknowledges that he has ignored the established scope of appeal,
 and he cautions that further legal action may result: “In accordance with due process, the appellant has taken the liberty to appeal each and
 every issue argued in the trial case to prove the steps taken by the trial court was deeply flawed and reckless and therefore the final decision by
 the court was flawed and reckless. ANY ATTEMPT BY THIS COURT TO INJURE THE APPELLANTS [sic] RIGHTS OF DUE PROCESS
 IN THE INSTANT APPEAL WILL BE MET WITH FEDERAL LAWSUITS SEEKING INJUNCTIVE RELIEF along with personal lawsuits
 seeking monetary damages because an honorable judge is fully aware of his/her obligation and compulsion to obey the law of the land.”
            2
           Easterling also alleges “[a]ny judgment based upon 2323.52 of The Ohio Revised Code represents an unauthorized practice of
 law.” He makes no argument in support of this statement. Therefore, pursuant to App.R. 12(A)(2) we disregard it.
[Cite as Easterling v. Union Sav. Bank, 2013-Ohio-1068.]
         {¶ 6}       The Tenth-Amendment argument contends that the vexatious-litigator statute

“limit[s] an individual[’]s right to liberty and justice and due process” under the Fourteenth

Amendment.3 The Ohio Supreme Court has held that “R.C. 2323.52, the vexatious litigator

statute, is constitutional in its entirety.” Mayer v. Bristow, 91 Ohio St.3d 3, 740 N.E.2d 656

(2000), at paragraph one of the syllabus. In doing so, the Court concluded that the statute does

not violate due process. State ex rel. Lisboa v. Fuerst, 133 Ohio St.3d 76, 2012-Ohio-3913,

975 N.E.2d 995, ¶ 1 (citing Mayer as “upholding the constitutionality of * * * R.C. 2323.52,

by rejecting claims that the statute violated constitutional rights to due process and access to

courts”); Lasson v. Coleman, 2d Dist. Montgomery No. 21983, 2008-Ohio-4140, ¶ 55 (saying

that Mayer rejected appellant’s due-process argument challenging the constitutionality of the

vexatious-litigator statute). The vexatious-litigator statute does not violate due process.

         {¶ 7}       The Supremacy-Clause and federal-statutes arguments are intertwined. The

Supremacy Clause gives “the United States Congress * * * the power to preempt state laws.”

(Citation omitted.) Girard v. Youngstown Belt Ry. Co., 134 Ohio St.3d 79, 2012-Ohio-5370,

979 N.E.2d 1273, ¶ 13. State law can be preempted “when the state law actually conflicts with

federal law.” Talik v. Fed. Marine Terminals, Inc., 117 Ohio St.3d 496, 2008-Ohio-937, 885

N.E.2d 204, ¶ 23. Such a conflict exists “when compliance with both state and federal

requirements is impossible.” (Citation omitted.) Id. Easterling contends that the

vexatious-litigator statute violates the Supremacy Clause because it conflicts with 42 U.S.C.

1985.

         {¶ 8}       The vexatious-litigator statute allows a person who has defended against

           3
             Easterling also bases this contention on the Fifth Amendment, but the due process clause of that amendment applies only to the
 federal government. It is the due-process clause in the Fourteenth Amendment that explicitly applies to the states.
                                                                                                  5


habitual and persistent vexatious conduct to ask a trial court to declare the person who

allegedly engaged in that conduct a vexatious litigator. R.C. 2323.52(B). “Section 1985

provides a private civil remedy for individuals injured by conspiracies to deprive them of their

right to equal protection under the laws.” Greene v. Cincinnati, 1st Dist. Hamilton No.

C-070830, 2008-Ohio-4908, ¶ 26, citing Griffin v. Breckenridge, 403 U.S. 88, 102-103, 91

S.Ct. 1790, 29 L.Ed.2d 338 (1971). Easterling asserts that the two statutes conflict because the

vexatious-litigator statute deprives a person of rights or privileges granted to U.S. citizens.

       {¶ 9}    There is no conflict between these two statutes, which apply in vastly different

arenas. The vexatious-litigator statute does not violate due process. Nor does it violate equal

protection. The Ohio Supreme Court has concluded that the statute’s classification provisions

have a rational basis. Lasson at ¶ 55, citing Mayer, 91 Ohio St.3d 3, 740 N.E.2d 656. For this

reason, an equal-protection challenge to the vexatious-litigator statute must fail. Id. We note

too that the Court has cited approvingly a federal district court’s conclusion that “R.C.

2323.52 * * * does not violate constitutional rights of due process or equal protection.”

Lisboa, 133 Ohio St.3d 76, 2012-Ohio-3913, 975 N.E.2d 995, at ¶ 1, citing Grundstein v.

Ohio, N.D. Ohio No. 1:06 CV 2381, 2006 WL 3499990 (Dec. 5, 2006). The

vexatious-litigator statute does not violate the Supremacy Clause or 42 U.S.C. 1985(3).

       {¶ 10} The eighth assignment of error is overruled.

                  The Declaration that Easterling is a Vexatious Litigator

       {¶ 11} The trial court entered summary judgment for the Bank on its vexatious

litigator claim. “An appellate court reviews an award of summary judgment de novo.” Stemple

v. Dunina, 2d Dist. Miami No. 2008 CA 14, 2008-Ohio-5524, ¶ 5, citing Grafton v. Ohio
                                                                                              6


Edison Co., 77 Ohio St .3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is proper if

“(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable

minds can come to but one conclusion, and viewing such evidence most strongly in favor of

the party against whom the motion for summary judgment is made, that conclusion is adverse

to that party.” Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977),

citing Civ.R. 56(C). To prevail on a summary-judgment motion, the moving party “must be

able to point to evidentiary materials that show that there is no genuine issue as to any material

fact, and that the moving party is entitled to judgment as a matter of law.” Stemple at ¶ 7,

citing Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the moving party

can do this, “[t]he non-moving party must then present evidence that some issue of material

fact remains for the trial court to resolve.” Id., citing Dresher at 293.

       {¶ 12} The key vexatious-litigator terms are defined by the statute itself. A

“vexatious litigator” is “any person who has habitually, persistently, and without reasonable

grounds engaged in vexatious conduct in a civil action or actions, whether in the court of

claims or in a court of appeals, court of common pleas, municipal court, or county court,

whether the person or another person instituted the civil action or actions, and whether the

vexatious conduct was against the same party or against different parties in the civil action or

actions. * * *” R.C. 2323.52(A)(3). “Vexatious conduct” includes a party’s civil-action

conduct that “(a) * * * obviously serves merely to harass or maliciously injure another party to

the civil action” or that “(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.” R.C.
                                                                                                                                       7


2323.52(A)(2). “Conduct” includes filing a civil action or asserting a claim, defense, or other

position. R.C. 2323.51(A)(1)(a). 4 The trial court concluded that Easterling is a vexatious

litigator based on evidence that he has filed four separate but identical actions against the

Bank in the Greene County Common Pleas Court.5

         {¶ 13} Easterling filed the first action in December 2009 (Case No. 2009 CV 1357)

and asserted two employment claims–wrongful termination and fraudulent employment. The

trial court dismissed both claims under Civ.R. 12(B)(6). Easterling did not appeal. Easterling

filed the second action against the Bank in April 2010 (Case No. 2010 CV 0375) and asserted

the same two claims that the trial court dismissed in the first action. The court dismissed both

claims again under Civ.R. 12(B)(6). And it dismissed them on the ground that they were

barred by res judicata. This time Easterling appealed. We affirmed. Easterling v. Union Sav.

Bank, 2d Dist. Greene No. 10-CA-39, 2010-Ohio-4753. In our review, we “compare[d] every

part of the text of Easterling’s 2010 complaint with the counterpart text of Easterling’s 2009

complaint.” Id. at ¶ 13. Our review “confirm[ed] the conclusion of the trial court. Easterling’s

2009 and 2010 complaints against Union Savings Bank are indistinguishable in any material

            4
                The vexatious-litigator statute defines “conduct” as having the same meaning as in this statute. R.C. 2323.52(A)(1).
            5
             The trial court’s written decision cites only the actions that Easterling has filed against the Bank. But there is evidence in the
 record that Easterling has filed many pro se actions against several other parties. He has filed three actions based on the same facts against
 Ameristate Bancorp, Inc. in the Montgomery County Common Pleas Court. We have affirmed the dismissal of two. See Easterling v.
 Ameristate Bancorp, Inc., 2d Dist. Montgomery No. 23980, 2010-Ohio-3340, and Easterling v. Ameristate Bancorp., Inc., 2d Dist.
 Montgomery No. 24723, 2012-Ohio-636. The third action is pending, that asserts the same claims again. Easterling has filed five actions
 against Croswell Bus Lines. In the first we affirmed the entry of summary judgment for Croswell. See Easterling v. Croswell Bus Lines, 2d
 Dist. Montgomery No. 24008, 2010-Ohio-4752. The trial court dismissed the second, third, fourth, and fifth actions on res judicata grounds.
 Easterling did not appeal any of these dismissals. Easterling has also filed eight separate actions against some of the magistrates, trial court
 judges, and a former judge of this Court who have ruled against him. Easterling has also filed two actions against a Montgomery County
 Common Pleas Court bailiff.
                                                                                                                                        8


way.” Id. at ¶ 48. Therefore we held that the two claims in the second action are indeed barred

by res judicata. Easterling did not appeal our judgment. Instead, a couple of months later in

December 2010, he filed the third action against the Bank (Case No. 2010 CV 1267). Again

Easterling asserted the same two employment claims for unlawful termination and fraudulent

hiring. The trial court entered summary judgment for the Bank on res judicata grounds.

Easterling filed the fourth action in June 2011 (Case No. 2011 CV 0593) and asserted yet

again the same two claims.

         {¶ 14} The trial court noted that, at the hearing, Easterling acknowledged that the

actions he has filed against the Bank are all the same.6 The court concluded that there are no

issues of material fact. The court found that Easterling “habitually, persistently, and without

reasonable grounds engaged in vexatious conduct in a civil action or actions.” Easterling’s

conduct in filing the cases, found the court, “obviously serves merely to harass or maliciously

injure another party to the civil action.” And the court found 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.”

         {¶ 15} In reviewing a vexatious-litigator declaration, we must consider the

vexatious-litigator statute’s purpose:

            6
             Accord Tr. 19 (“Now I then go and I say well they didn’t really hear what I was saying, okay. So I went and I filed the exact same
 case again. If there’s no valid judgment on the merits you can file the exact same case again.”); Tr. 20 (“So now here’s what the Court does, I
 plead yes Your Honor I filed the exact same case again because my argument–I’m still saying fraud.”); Tr. 29 (“Do you know why I filed case
 1267? Because my related issues never got heard, okay.”).
            Easterling also explained why he kept filing the same action: “If I get a judgment from any court, as an American citizen, I have the
 right to appeal. I have the right to skip the appeal and re-file the case again and address res judicata to prove that there was no valid judgment
 on the merits so that I can seek justice. And I never, ever have to quit. If the Court would like to know it; I filed the first case on Croswell; I
 appealed it; I filed the second case; I filed a third case. * * * I finally–I filed a case on them [the judges] twice in May.” (Tr. 25-26).
                                                                                             9


       “‘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

       speedy consideration of proper litigation.’”

Lasson, 2008-Ohio-4140, at ¶ 31, quoting Mayer, 91 Ohio St.3d 3, 13, 740 N.E.2d 656,

quoting Cent. Ohio Transit Auth. v. Timson, 132 Ohio App.3d 41, 50, 724 N.E.2d 458 (10th

Dist.1998). We note too that the statute was designed to curb “the untoward effects of

vexatious litigation in depleting judicial resources and unnecessarily encroaching upon the

judicial machinery needed by others for the vindication of legitimate rights.” Mayer at 13. To

this end, the vexatious-litigator statute “‘[a]t its core * * * 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.’” Lasson at ¶ 35, quoting Mayer at 13.

       {¶ 16} Given the purpose and design of the vexatious-litigator statute, it makes sense

that “the consistent repetition of arguments and legal theories that have been rejected by the

trial court numerous times can constitute vexatious litigation.” Id. at ¶ 36, citing Farley v.

Farley, 10th Dist. Franklin No. 02AP-1046, 2003-Ohio-3185, ¶ 46. Easterling’s multiple

actions constitute vexatious litigation. That his conduct serves merely to harass may not be
                                                                                              10


obvious to Easterling, but it is obvious to others–objectively so. Easterling’s history as a pro se

litigator demonstrates the conduct to which the vexatious-litigator statute should apply.

       {¶ 17} The Bank met its burden to show that no genuine issue of material fact exists

by filing affidavits to which are attached various documents that support the trial court’s

declaration. Easterling did not present any evidence other than documents that he says support

his two oft-asserted employment claims. Because Easterling did not meet his reciprocal

burden to show that some issue of material fact remains for trial, summary judgment for the

Bank is proper.

       {¶ 18} In addition to the eighth assignment of error, the first, second, third, fourth,

fifth, six, seventh, ninth, tenth, and eleventh assignments of error are also overruled.

       {¶ 19} The trial court’s judgment is affirmed.

                                         .............

DONOVAN, FROELICH, and HALL, JJ., concur.


Copies mailed to:

Warren Easterling
Anthony M. Verticchio
Hon. Dale A. Crawford
(sitting for Judge Michael A. Buckwalter)
