[Cite as Whipps v. Ryan, 2013-Ohio-4382.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Edward F. Whipps, Trustee,                       :

                Plaintiff-Appellee,              :
                                                                  No. 12AP-685
v.                                               :        (C.P.C. No. 05CVH-10-11685)

James M. Ryan,                                   :        (REGULAR CALENDAR)

                Defendant-Appellant.             :

Sky Bank et al.,                                 :

                Plaintiffs-Appellees,            :
                                                                  No. 12AP-722
v.                                               :        (C.P.C. No. 06CVH-01-1244)

Michael F. Colley et al.,                        :       (REGULAR CALENDAR)

                Defendants-Appellees,            :

(James M. Ryan,                                  :

                Defendant-Appellant).            :



                                        D E C I S I O N

                                    Rendered on October 3, 2013


                James M. Ryan, pro se.

                 APPEALS from the Franklin County Court of Common Pleas

CONNOR, J.
        {¶ 1} Defendant-appellant, James M. Ryan ("Ryan"), appeals from the August 1,
2012 orders of the Franklin County Court of Common Pleas declaring Ryan a vexatious
litigator pursuant to R.C. 2323.52. For the reasons that follow, we reverse.
Nos. 12AP-685 and 12AP-722                                                                2


I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} The underlying dispute in this case concerns several parcels of land located
on East Main Street in Columbus, Ohio ("the property"). The dispute over the property
has spanned several years and has been extensively examined by our prior decisions. See
Whipps v. Ryan, 10th Dist. No. 07AP-231, 2008-Ohio-1216; Whipps v. Ryan, 10th Dist.
No. 08AP-838, 2009-Ohio-2228; Whipps v. Ryan, 10th Dist. No. 10AP-167, 2011-Ohio-
3300; and Whipps v. Ryan, 10th Dist. No. 12AP-509, 2013-Ohio-4334 ("Whipps I").
Although the case has a long history involving several parties, the instant appeal concerns
only the trial court's orders declaring Ryan a vexatious litigator. As such, we will briefly
summarize the facts relevant to the instant appeal.
       {¶ 3} The litigation in the case began in October 2005 when Edward F. Whipps,
as trustee, filed a complaint for partition against Ryan. Ryan filed a counterclaim to the
partition action. In January 2006, Sky Bank filed a complaint for money damages against
Ryan and Michael F. Colley. Sky Bank's complaint concerned a promissory note executed
by Ryan and Colley which was secured by the property. Ryan and Colley each filed cross-
claims against each other in the money damages action.
       {¶ 4} On February 7, 2006, Sky Bank filed a motion to intervene in the partition
action, noting that it held a mortgage on the property which was the subject of the
partition action. The trial court granted Sky Bank's motion to intervene, and Sky Bank
filed an answer to the partition complaint, as well as a cross-claim and counterclaim for
foreclosure. On August 3, 2006, Sky Bank moved to consolidate the partition/foreclosure
action and the money damages action. The trial court granted Sky Bank's motion to
consolidate. Thereafter, the court granted Sky Bank's motion for summary judgment and
issued a decree of foreclosure and order of sale.
       {¶ 5} On May 23, 2008, Sky Bank moved to substitute DB Midwest, LLC ("DB
Midwest"), noting that DB Midwest had purchased the loans which were the subject of the
action. On June 18, 2012, DB Midwest filed a motion under R.C. 2323.52, asking the
court to declare Ryan a vexatious litigator. In response, Ryan filed a Civ.R. 12(E) motion
for a definite statement.
       {¶ 6} On August 1, 2012, the trial court granted DB Midwest's motion and entered
orders declaring Ryan a vexatious litigator under R.C. 2323.52. In accordance with R.C.
Nos. 12AP-685 and 12AP-722                                                                 3


2323.52(D)(1)(a) through (c), the court ordered that Ryan must request and obtain leave
of court before instituting legal proceedings in certain courts.
       {¶ 7} On August 15, 2012, Ryan filed an application, pursuant to R.C.
2323.52(F)(2), asking this court to grant him leave to proceed with his appeal from the
orders declaring him a vexatious litigator. On August 16, 2012, this court granted Ryan's
motion for leave to appeal the vexatious litigator orders.
II. ASSIGNMENTS OF ERROR
       {¶ 8} Ryan appeals, assigning the following errors:
              [I.] The Trial Court Erred in granting DB Midwest LLC's
              Motion to Declare Defendant, James M. Ryan, A Vexatious
              Litigator.r-334. and docketing its Order Declaring James M.
              Ryan a Vexatious Litigator r-332/255 as the Trial Court lacked
              subject matter jurisdiction over the case and personal
              jurisdiction over James M. Ryan as the case was on appeal to
              the Tenth District Court of Appeals at the time the Trial Court
              ruled on the motion and issued its Order.

              [II.] The Trial Court Erred by Granting DB Midwest LLC's
              Motion to Declare Defendant, James M. Ryan, A Vexatious
              Litigator r-334 and Erred in issuing and docketing its Order
              Declaring James M. Ryan a Vexatious Litigator r-332/256.
              The Trial Court abused its discretion in Granting DB Midwest
              LLC's Motion and by Issuing and Docketing its Order
              Declaring James M. Ryan a Vexatious Litigator.r-332/256.

III. SECOND ASSIGNMENT OF ERROR—R.C. 2323.52

       {¶ 9} As Ryan's second assignment of error is dispositive of the instant appeal, we
address it first. Because DB Midwest did not follow the proper procedure to have Ryan
declared a vexatious litigator, we reverse the trial court's August 1, 2012 orders declaring
Ryan a vexatious litigator.
       {¶ 10} Initially, however, we must confirm that the vexatious litigator
determination is a final appealable order. The Ohio Constitution, Article IV, Section
3(B)(2) and R.C. 2505.03 limit this court's appellate jurisdiction to the review of final
orders of lower courts. " '[T]he entire concept of "final orders" is based upon the rationale
that the court making an order which is not final is thereby retaining jurisdiction for
further proceedings. A final order, therefore, is one disposing of the whole case or some
Nos. 12AP-685 and 12AP-722                                                                4


separate and distinct branch thereof.' " Browder v. Shea, 10th Dist. No. 04AP-1217,
2005-Ohio-4782, ¶ 10, quoting Noble v. Colwell, 44 Ohio St.3d 92, 94 (1989), quoting
Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303, 306 (1971).
       {¶ 11} An appellate court may raise, sua sponte, the jurisdictional question of
whether an order is final and appealable. See Chef Italiano Corp. v. Kent State Univ., 44
Ohio St.3d 86, 87 (1989); State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio
St.3d 543, 544 (1997). Moreover, we must sua sponte dismiss an appeal that is not from a
final appealable order. See Kopp v. Associated Estates Realty Corp., 10th Dist. No.
08AP-819, 2009-Ohio-2595, ¶ 6, citing Whitaker-Merrell Co. v. Geupel Constr. Co., 29
Ohio St.2d 184, 186 (1972).
       {¶ 12} An order of a court is "a final, appealable order only if the requirements of
both Civ.R. 54(B), if applicable, and R.C. 2505.02 are met." Chef Italiano at 88. Thus,
when determining whether a judgment or order is final and appealable, the appellate
court engages in a two-step analysis. In re Estate of L.P.B., 10th Dist. No. 11AP-81, 2011-
Ohio-4656, ¶ 10. "First, we must determine if the order is final within the requirements of
R.C. 2505.02. Second, if the order satisfies R.C. 2505.02, we must determine whether
Civ.R. 54(B) applies and, if so, whether the order contains a certification that there is no
just reason for delay." Id.
       {¶ 13} As applicable to the matter before us, R.C. 2505.02(B)(4) defines a final
order as:
              (4) An order that grants or denies a provisional remedy and to
              which both of the following apply:

              (a) The order in effect determines the action with respect to
              the provisional remedy and prevents a judgment in the action
              in favor of the appealing party with respect to the provisional
              remedy.

              (b) The appealing party would not be afforded a meaningful or
              effective remedy by an appeal following final judgment as to
              all proceedings, issues, claims, and parties in the action.

       {¶ 14} An order declaring an individual to be a vexatious litigator is a final order
under R.C. 2505.02(B)(4). R.C. 2505.02(A)(3) defines a "provisional remedy" as "a
proceeding ancillary to an action, including, but not limited to, a proceeding for a
Nos. 12AP-685 and 12AP-722                                                                5


preliminary injunction, attachment, discovery of privileged matter, [or] suppression of
evidence." In Helfrich v. Madison, 5th Dist. No. 08-CA-150, 2009-Ohio-5140, the court
found an order declaring a party a vexatious litigator was a final order under R.C.
2505.02(B)(4), stating as follows:
               The vexatious litigator proceeding is ancillary to the
               underlying action filed by appellant. Therefore, it meets the
               definition of a provisional remedy under R.C. 2505.02(A)(3).
               Further, the order meets both requirements of R.C.
               2505.02(B)(4). The trial court's decision is a final
               determination as to appellant's vexatious litigator status, not
               only in the instant action but in all actions in any state court.
               The order also meets the requirement in subsection (b) that
               no meaningful or effective remedy can be provided on later
               appeal. Appellant is prohibited from filing anything in the
               underlying action without seeking leave of court. R.C.
               2323.52(G) provides that a vexatious litigator cannot appeal a
               decision of the court of common pleas that denies that person
               leave for the institution, continuance of, or making of an
               application in any legal proceeding in the court of claims,
               court of appeals, court of common pleas, municipal court or
               county court. Therefore, any order denying him leave to file a
               pleading in the underlying action or in any other action in a
               state court would not be subject to review on appeal. For these
               reasons, we find the instant order is a provisional remedy and
               a final, appealable order as defined by statute.

Id. at ¶ 30.
       {¶ 15} As the vexatious litigator orders satisfy R.C. 2505.02(B)(4), we next must
determine whether Civ.R. 54(B) applies to the order. Civ.R. 54(B) provides that "[w]hen
more than one claim for relief is presented in an action whether as a claim, counterclaim,
cross-claim, or third-party claim," or when the action involves multiple parties, "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." Our review of the
record demonstrates that claims remain pending in the action, see Whipps I, and that the
vexatious litigator orders lacks a Civ.R. 54(B) finding of "no just reason for delay."
       {¶ 16} However, because the orders concern a provisional remedy, Civ.R. 54(B) is
inapplicable. It is well established that " '[a] provisional remedy is a remedy other than a
claim for relief. Therefore, an order granting or denying a provisional remedy is not
subject to the requirements of Civ.R. 54(B).' " Randall v. Cantwell Mach. Co., 10th Dist.
Nos. 12AP-685 and 12AP-722                                                                    6


No. 12AP-786, 2013-Ohio-2744, ¶ 8, quoting State ex rel. Butler Cty. Children Servs. Bd.
v. Sage, 95 Ohio St.3d 23, 25 (2002). See also Empower Aviation, L.L.C. v. Butler Cty.
Bd. of Commrs., 185 Ohio App.3d 477, 2009-Ohio-6331, ¶ 15 (1st Dist.); N. Fairfield
Baptist Church v. G129, L.L.C., 12th Dist. No. CA2009-11-281, 2010-Ohio-2543, ¶ 22;
State ex rel. Hawes-Saunders Broadcast Properties v. Hall, 2d Dist. No. 19552 (Oct. 10,
2002). Accordingly, the orders declaring Ryan a vexatious litigator are final appealable
orders.
       {¶ 17} DB Midwest filed a motion asking the court to declare Ryan a vexatious
litigator. R.C. 2323.52, the vexatious litigator statute, provides:
              (B) A person * * * who has defended against habitual and
              persistent vexatious conduct in the court of claims or in a
              court of appeals, court of common pleas, municipal court, or
              county court may commence a civil action in a court of
              common pleas with jurisdiction over the person who allegedly
              engaged in the habitual and persistent vexatious conduct to
              have that person declared a vexatious litigator. The person
              * * * may commence this civil action while the civil action or
              actions in which the habitual and persistent vexatious conduct
              occurred are still pending or within one year after the
              termination of the civil action or actions in which the habitual
              and persistent vexatious conduct occurred.

              (C) A civil action to have a person declared a vexatious
              litigator shall proceed as any other civil action, and the Ohio
              Rules of Civil Procedure apply to the action.

(Emphasis added.)
       {¶ 18} In Kinstle v. Union Cty. Sheriff's Office, 3d Dist. No. 14-07-16, 2007-Ohio-
6024, ¶ 10, the court held that R.C. 2323.52 "unambiguously requires the commencement
of a 'civil action,' and * * * a motion is not the equivalent of a complaint." In Kinstle, one
of the defendants, Cincinnati Insurance Company ("Cincinnati"), responded to Kinstle's
complaint by filing a motion asking the court to sanction Kinstle under Civ.R. 11 and to
declare Kinstle a vexatious litigator under R.C. 2323.52.             Id. at ¶ 3.   Following a
January 25, 2007 hearing, the court found Kinstle was a vexatious litigator. Kinstle then
filed a Civ.R. 41(A) motion to dismiss the complaint on January 29, 2007. On March 6,
2007, the court filed a judgment entry declaring Kinstle a vexatious litigator. Id. at ¶ 5.
Nos. 12AP-685 and 12AP-722                                                                  7


       {¶ 19} Kinstle appealed the vexatious litigator finding, asserting that R.C. 2323.52
required Cincinnati to commence a separate civil action to have the court declare Kinstle a
vexatious litigator. Id. at ¶ 6. The court agreed, noting that pursuant to Civ.R. 3, a party
commences a civil action by filing a complaint. Accordingly, the court held that "filing a
motion in a pending cause of action is not the equivalent of 'commencing a civil action' as
intended by both R.C. 2323.52 and Civ.R. 3." (Emphasis sic.) Id. at ¶ 9.
       {¶ 20} The Kinstle court, however, further held that Kinstle's Civ.R. 41(A) motion
to dismiss divested the trial court "of jurisdiction to enter judgment declaring Kinstle a
vexatious litigator." Id. at ¶ 11. The court thus concluded that, because "the trial court did
not have jurisdiction to do so, and since a separate civil action was not commenced
seeking a vexatious litigator declaration, the judgment entry of March 6, 2007 is void
insofar as it declares Kinstle a vexatious litigator." Id.
       {¶ 21} In the instant action, unlike Kinstle, the trial court possessed jurisdiction to
rule on the vexatious litigator motion. See State ex rel. Tauwab v. Ambrose, 8th Dist. No.
97472, 2012-Ohio-817 (ruling on a writ of prohibition, the appellate court concluded that,
because a common pleas court is a court of general jurisdiction, and R.C. 2323.52
specifically vests the common pleas court with the power to declare a person a vexatious
litigator, the common pleas court did not patently and unambiguously lack jurisdiction to
rule on a vexatious litigator claim brought by way of motion, as an appeal from such
ruling would be "an adequate remedy at law which preclude[d] granting the writ"). As
such, the orders declaring Ryan a vexatious litigator are not void, but simply voidable
upon appeal. See Miller v. Nelson-Miller, 132 Ohio St.3d 381, 2012-Ohio-2845, ¶ 12,
citing In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, ¶ 10, 15 (explaining that "a
judgment is generally void only when the court rendering the judgment lacks subject-
matter jurisdiction or jurisdiction over the parties; however, a voidable judgment is one
rendered by a court that lacks jurisdiction over the particular case due to error or
irregularity").
       {¶ 22} R.C. 2323.52 unambiguously requires a party to commence a civil action, by
filing a complaint, to have the trial court declare a person a vexatious litigator. DB
Midwest filed a motion requesting the court to declare Ryan a vexatious litigator. The
filing of a motion in a pending case does not satisfy the requirements of R.C. 2323.52.
Nos. 12AP-685 and 12AP-722                                                             8


Accordingly, the trial court erred in granting DB Midwest's motion to declare Ryan a
vexatious litigator.
       {¶ 23} Based on the foregoing, we sustain Ryan's second assignment of error and
remand the cause to the trial court. Our disposition of Ryan's second assignment of error
renders the first assignment of error moot.
IV. DISPOSITION
       {¶ 24} Having sustained Ryan's second assignment of error, rendering the first
assignment of error moot, we reverse the judgments of the Franklin County Court of
Common Pleas granting DB Midwest's motion to declare Ryan a vexatious litigator under
R.C. 2323.52.
                                                                   Judgments reversed;
                                                                      cause remanded.

                            TYACK and SADLER, JJ., concur.
                               _________________
