[Cite as In re Contempt of Anderson, 2017-Ohio-86.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 103732


                              IN RE: CONTEMPT OF
                             WILFRED L. ANDERSON
                                                            APPELLANT

                                         In the matter styled:

                                   Wilfred L. Anderson, Plaintiff

                                                      vs.

                Cuyahoga Metropolitan Housing Authority, et al., Defendants




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                       Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CV-14-820828

        BEFORE:           Boyle, J., E.A. Gallagher, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                           January 12, 2017
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

For Cuyahoga Metropolitan Housing Authority, et al.

Timothy A. Marcovy
Willacy, Lopresti & Marcovy
1468 West Ninth Street
Western Reserve Building, Suite 330
Cleveland, Ohio 44113

Michele L. Larissey
Swartz Campbell, L.L.C.
The Illuminating Building
55 Public Square, Suite 1120
Cleveland, Ohio 44113

For Luann Mitchell

Luann Mitchell, pro se
2485 Newbury Drive
Cleveland Heights, Ohio 44118
MARY J. BOYLE, J.:

       {¶1} Appellant, Wilfred Anderson, appeals the judgment entered by the Cuyahoga

County Court of Common Pleas that found Anderson guilty of five instances of indirect

criminal contempt and imposed penalties that included 50 days in jail and a total fine of

$2,600.

       {¶2} Finding merit to the appeal, we reverse and remand.

       A. Procedural History and Facts

       {¶3} In January 2014, Anderson commenced a civil suit against the Cuyahoga

Metropolitan Housing Authority and Luann Mitchell. Mitchell answered the complaint

and filed a counterclaim, asking the court to declare Anderson a vexatious litigator.

Although Anderson’s case against Mitchell was ultimately stayed due to Mitchell’s

bankruptcy filing, the trial court held that the counterclaim was not subject to the stay.

Following a hearing on March 6, 2015, and upon Mitchell’s motion for summary

judgment, the trial court ultimately found in Mitchell’s favor on her counterclaim and

declared Anderson a vexatious litigator under R.C. 2323.52.        In its order of March 6,

2015, the trial court stated in pertinent part the following:

       The court finds defendant has met her burden for this court to declare
       plaintiff a vexatious litigator pursuant to R.C. 2323.52. The court placed
       its findings on the record and incorporates them herein. Plaintiff Wilfred
       Anderson is hereby prohibited doing one or more of the following without
       first obtaining leave of this court to proceed: (1) institute legal proceedings
       in the court of claims or in a court of common pleas, municipal court, or
       county court; (2) continuing any legal proceedings that the plaintiff has
       instituted in any of the court listed above prior to the entry of this order;
       and (3) making any application, other than an application for leave to
       proceed. See R.C. 2323.52(D)(1)(A)-(C). Defendant’s motion for
       summary judgment is granted. Defendant is to submit an affidavit as to
       damages with respect to sanctions and attorney fees by 3/13/15. The
       clerk of courts is hereby ordered to send a certified copy of this order to the
       Supreme Court for publication pursuant to R.C. 2323.52(H). Plaintiff is
       not precluded from filing appeals in this case. Court cost assessed to the
       plaintiff. Notice issued.

       {¶4} Prior to the trial court deciding the issue of sanctions or attorney fees,

Anderson appealed the trial court’s decision declaring him a vexatious litigator.

Recognizing that the issue of sanctions and attorney fees remained pending in the

underlying action, this court sua sponte dismissed Anderson’s appeal on May 6, 2015,

for lack of a final, appealable order.

       {¶5} The following day, on May 7, 2015, Mitchell filed a motion to show cause,

alleging that Anderson had intentionally disregarded the trial court’s March 6, 2015

order by filing five additional pleadings in existing litigation and a complaint in a new

action and requesting that he appear and show cause why he should not be held in

contempt.

       {¶6} On June 8, 2015, the trial court decided the issue of sanctions and attorney

fees, awarding $1,137.50 to Mitchell. On that same day, the trial court also held a

hearing on Mitchell’s motion to show cause. Although a transcript from the hearing

has not been provided in the record on appeal, the record contains a journal entry issued

the day following the hearing, which states the following:

       Hearing held on 6/8/15. Plaintiff was given in open court on the record a

       copy of the signed order attached to this half-sheet.    The court explained
       the potential penalties and plaintiff’s right to counsel. Plaintiff waived

       right to counsel on the record.    A criminal contempt hearing is set for

       7/1/15 at 1:30 p.m.

       {¶7} Thereafter, on August 3, 2015, Anderson filed a notice of appeal.          On

August 12, 2015, this court sua sponte dismissed Anderson’s appeal, stating the

following:

       Sua sponte, this appeal is dismissed at appellant’s costs. The appellant

       was declared a vexatious litigator by the Cuyahoga County Court of

       Common Pleas in Anderson v. Cuyahoga Metro Housing Authority,

       Cuyahoga County C.P. No. CV-14-820828.              The declaration as a

       vexatious litigator remains in full force and effect.      Accordingly, the

       appellant was required to seek leave to proceed as required by R.C.

       2323.52.   The appellant has failed to seek leave to proceed.      Thus, no

       basis exists for this appeal to continue. Notice issued.

       {¶8} The trial court ultimately held the contempt hearing on October 29, 2015,

after appointing a public defender for Anderson and providing notice to all the parties.

       {¶9} At the hearing, Mitchell presented certified copies of the complaint and four

motions that Anderson had filed in court proceedings after being declared a vexatious

litigator and ordered not to file anything without leave of court. Each filing was signed

by Anderson, filed pro se, and contained Anderson’s address. The four motions were

actually only two separate motions filed on April 14, 2015 in a consolidated case,
thereby giving rise to the duplicative filings. The complaint was filed on April 24,

2015. Mitchell submitted all five documents as exhibits into evidence.

      {¶10} After overruling Anderson’s Crim.R. 29 motion for acquittal, the trial court

found Anderson guilty of five separate instances of contempt — one violation for each

corresponding motion or pleading that Anderson had filed in other cases in violation of

the trial court’s March 6, 2015 order.   The trial court imposed ten days in jail for each

violation and ordered that those days be served consecutively.     The trial court further

imposed fines of $100, $250, $500, $750, and $1,000 for a cumulative fine of $2,600.

      {¶11} Anderson now appeals, raising the following four assignments of error:

             I. The order declaring Mr. Anderson a vexatious litigator was not
      lawful and cannot be the basis for contempt charges in this case.

             II. The written charge of contempt alleged one offense committed
      in multiple ways, not five separate offenses.

            III. The evidence of identity was insufficient to sustain the
      convictions.

             IV. The sentences imposed for the filing of the second through

      fifth pleadings are contrary to law and must be vacated.

      B. Indirect Criminal Contempt

      {¶12} Contempt proceedings are classified as either “civil” or “criminal.”

Denovcheck v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362

(1988). The distinction between civil and criminal contempt proceedings is based on

the purpose to be served by the sanction. State ex rel. Corn v. Russo, 90 Ohio St.3d

551, 554-555, 740 N.E.2d 265 (2001). The purpose of a civil contempt sanction is to
coerce or remedy the party harmed, whereas the purpose of a criminal contempt is to

punish the contemnor for past violations of the court’s orders as a means to vindicate the

court. State v. Kilbane, 61 Ohio St.2d 201, 206-207, 400 N.E.2d 386 (1980). The

classification of criminal contempt is significant because “many of the constitutional

safeguards required in criminal trials are also required in criminal contempt

proceedings.”   Id. at 205.

      {¶13} Contempt also falls into the following general categories: direct, which

means that the offending action was done in the court’s presence, and indirect, where the

action occurs outside the presence of the court. State v. Chavez-Juarez, 185 Ohio

App.3d 189, 2009-Ohio-6130, 923 N.E.2d 670, ¶ 40-41 (2d Dist.).

      {¶14} In this case, there is no dispute that Anderson was found guilty of indirect

criminal contempt.

      {¶15} Decisions in contempt proceedings rest within the discretion of the trial

court and will not be reversed on appeal absent an abuse of discretion. N. Royalton v.

Awadallah (In re Leary), 8th Dist. Cuyahoga No. 96424, 2011-Ohio-6626, ¶ 18; see also

State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 75, 573 N.E.2d 62 (1991). An

abuse of discretion connotes that the court’s attitude is unreasonable, arbitrary, or

unconscionable. N. Royalton at id.

      {¶16} We now turn to the merits of Anderson’s assignments of error.

      C. Vexatious Litigator Statute and Remedies Available

      {¶17} In his first assignment of error, Anderson challenges the trial court’s
 authority to impose contempt sanctions for his violation of the March 6, 2015 order

 declaring him a vexatious litigator.         Anderson notes that a prerequisite for a finding of

 contempt under R.C. 2705.02(A) is that the order be “lawful.”                According to Anderson,

 the contempt finding for disobeying the trial court’s March 6, 2015 order cannot stand

 because the underlying order was not “lawful.”             While we find that the underlying final

 order declaring Anderson a vexatious litigator is lawful and not subject to a collateral

 attack,1 we nonetheless find that the trial court abused its discretion in exercising its

 contempt powers and imposing criminal penalties for Anderson’s vexatious conduct in

 this case.

            {¶18} R.C. 2323.52, Ohio’s vexatious litigator statute, was enacted 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, 23, 740 N.E.2d 656 (2000).

 The statute, which the Ohio Supreme Court has expressly recognized as constitutional in


             The record reflects that Anderson never properly appealed from the trial court’s
        1


determination declaring him a vexatious litigator. A final judgment rendered in a civil case is
generally not subject to collateral attack unless (1) the issuing court lacked jurisdiction or (2) the order
was procured by fraud. Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375,
2007-Ohio-5024, 875 N.E.2d 550, ¶ 23, citing Coe v. Erb, 59 Ohio St. 259, 267-268, 52 N.E. 640
(1898). “[I]n the absence of those [two] fundamental deficiencies, a judgment is considered ‘valid’
(even if it might perhaps have been flawed in its resolution of the merits of the case) and is generally
not subject to collateral attack.” Ohio Pyro at ¶ 25. While Anderson clearly believes that the trial
court’s March 6, 2015 is flawed under Civ.R. 56, he raises no claim attacking the jurisdiction of the
court or that the judgment was the product of fraud. We therefore must respect the final judgment
and have no authority to entertain a collateral attack.
its entirety, grants authority to the court of common pleas to order a vexatious litigator to

obtain its leave before proceeding in the court of claims, a court of common pleas,

municipal court, or county court.   Id. at paragraphs one and two of the syllabus; see also

R.C. 2323.52(D)(1).       The statute specifically operates to restrict those individuals

declared to be vexatious litigators from making frivolous filings by requiring such

individuals to seek leave of court before proceeding. Catudal v. Netcare Corp., 10th

Dist. Franklin No. 15AP-133, 2015-Ohio-4044, ¶ 19.

       {¶19} The statute also specifically sets forth a remedy of dismissal if a vexatious

litigator fails to obtain leave. Specifically, R.C. 2323.52(I) provides as follows:

       Whenever it appears by suggestion of the parties or otherwise that a person
       found to be a vexatious litigator under this section has instituted,
       continued, or made an application in legal proceedings without obtaining
       leave to proceed from the appropriate court of common pleas or court of
       appeals to do so under division (F) of this section, the court in which the
       legal proceedings are pending shall dismiss the proceedings or application
       of the vexatious litigator.
       {¶20} The record reflects that the underlying conduct giving rise to the contempt

finding occurred on two separate days but prior to the trial judge’s order becoming a

final appealable order.     And although Anderson attempted to appeal his vexatious

litigator designation, he failed to properly navigate the appeal process.

       {¶21} While we do not condone Anderson’s vexatious conduct, we question the

reasonableness of the trial court’s decision to impose a criminal penalty for Anderson’s

violation of the civil statute under the circumstances of this case. R.C. 2323.52 expressly

provides for the remedy of dismissal to address Anderson’s conduct in this case.

Furthermore, R.C. 2323.51 separately provides for monetary sanctions in the form of
attorney fees awarded for frivolous conduct in a civil action.     Accordingly, based on

these other remedies available, we find that the trial court acted unreasonably in relying

on its contempt powers to criminally punish Anderson as a means of first resort. We

find no support in the law justifying the imposition of 50 days in jail and $2,600 in fines

for the conduct at issue.

       {¶22} The first assignment of error is sustained in part. Having sustained this

assignment of error, we find that the other assignment of errors challenging the notice of

the charges, the sufficiency of the evidence, and the sentence imposed are moot.

       {¶23} Judgment reversed and case remanded to vacate the imposition of criminal

contempt penalties.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.




MARY J. BOYLE, JUDGE

EILEEN A. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR
