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IN THE SUPREME COURT OF OHIO
Sky Bank et al41 South High StreetColumbus Ohio 43215
Plaintiff-Appeilee,
V
Michael F. Colley et al4200 Dublin RoadColumbus Ohio
Defendant -Appellee
( James M. Ryan3165 Dale Avenue
Columbus Ohio 43209Defendant-Appellant .)
1 2- 1 8^ 9On Appeal from the Franklin
County Court of Appeals,Tenth Appellate DistrictCase No. 1 lAP-1075
Sl^y Bank41 South High StreetColumbus Ohio 43215
Plaintiff Appellee,
Huntington National Bank41 South High StreetColumbus Ohio 43215
Plaintiff-Appellee
DB Midwest LLC% Fortress Investment Group1345 Avenue of AmericasNew York, NY. 10020
Plaintiff-Appellee
Felex Melchor519 Madison AvenueToledo Ohio 43604
Plaintiff -Appellee
Michael F. Colleyaka Michael M. Colley4200 Dublin RoadColumbus Ohio
Defendant- Appellee
James M. Ryan3165 Dale AvenueColumbus Ohio 43209
Defendant - Appellant
Michael Dewine Esq.Attorney,General for theState of Ohio30 E. Broad StreetColumbus, Ohio 43215
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MEMORANDUM IN SUPPORT OF JURISDICTION
OF APPELLANT JAMES M. RYAN
James M. Ryan Pro se, Appellant3165 Dale AvenueColumbus Ohio 43209(614)670-4396(614)732-5349 faxj imr^anbroker(a, ^rnail. com
Stephen A Santanangelo Esq.Weltman Weinberg & Reis Co.LPA175 South Third Street, SuiteColumbus Ohio 43215Attorney for Sky Bankssantanangelo(a^weltman.com
Matthew G. Burg #0072556Weltman Weinburg & Reis, Co. L.P.A.323 West Lakeside Ave. Suite 200Cleveland , Ohio 44113(216)685-1111(216)b85-4345 faxmburg(a^weltman.comAttorney for Appellee D.B. Midwest LLC,Huntington National Bank, Sky Bank
John R. Wirthlin Esq.Weltman , Weinberg & Reis Co. LPA525"Vine Street Suite 800Cincinnati Ohio 45202Attroney for Huntington National Bank,Sky Bank, D.B. Midwest LLC& Felex Melchor
Anthoney J. Cimperman Esq.3145 N. High StreetColumbus Ohio 43202Attorney for Michael F. Colley
Michael F. Colley Esq.4200 Dublin RoadColumbus Ohio
Michael Dewine Esq.Attorney General of Ohio30 E. Broad StreetColumbus Ohio 43215
TABLE OF CONTENTS Page
Explanation of why this case is a case of public or great general interest P.1And involves substantial constitutional questions.
Statement of the Case and Facts
Argument in suppart of Propositions of Law
Proposition of Law # 1
P.7
P. 10
The language of Ohio Revised Code Section 2323.13(A) requires an attorney confessingjudgment to present the original warrant of attorney to the Trial Court at the time the attorneymakes confession.. Because the requirements of Ohio Revised Code Section 2323.13(A) arejurisdictional failure to present the original note and warrant of attorney render any cognovitjudgment entered void ab initio for failure to invoke the subject matter jurisdiction of the TrialCourt . Any appeal from the void cognovit judgment is a nullity. The principal of res judicataincluding the doctrine of law of the case arising from an appeal of the void cognovit judgmentis also a nullity and can not used to bar revisiting the case in a subsequent appeal.
Propositionof Law # 2 P. 13
Ohio Revised Code Section 2323.52 and specifically Ohio Revised Code Sections 2323.52A(3)& D(2) violate Article I, Section 17 of the Ohio Constitution thereby violating the EqualProtection and Due Process Clause of the United States Constitution and Article I Section 16 of
the Ohio Constitution.
Proposition of Law # 3 P. 14
Ohio Civil Rule 60(B) has no application to void orders . A Trial Court's sua sponteconversion of a Motion to Vacate a Void Order or Judgment to a Civil Rule 60 (B) motionshall on appeal be reversed for further proceeding in the Trial Court in accordance with
applicable law .
Conclusion :
Certificate of Service
Appendix
Decision of Franklin County Court of AppealsTenth Appellate District dated September 25, 2012Judgment Entry of Franklin County Court of AppealsTenth Appellate District dated September 25, 2012Jo^arnal Entry of the Franklin County Court of AppealsTenth Appellate District dated October 5, 2012
P.15
P.16
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL
CONSTITUTIONAL QUESTION.
The issues brought before this Court include a decision by the Franklin County Court of
Appeals , Tenth Appellate District holding that the law of the case doctrine from a previous
appeal prohibits further review of the initial subject matter jurisdiction of the trial court to
issue a judgment against Appellant in the action.
Appellant argues that if subject matter jurisdiction was not invoked at the trial court to issue
a cognovit judgment any subsequent proceeding initiated from the void judgment are also void .
Therefore, any subsequent appeal proceedings pertaining to the void judgment would be
held a nullity eliminating any application of law of the case doctrine or res judicata coming
from that appeal proceeding
Appellant argues that this issue is of public and great general interest as this jurisdictional
issue is also applicable to many court cases recently decided and waiting to be reversed as a
result of this Court's recent decision in Fed.Home Loan Mtge. Corp. v Schwartzwald, Slip
Opinion 2012-Ohio-5017 . If not reversed the Court of Appeals decision in this case may
provide a basis to prohibit revisiting many erroneous decisions decided by far to many courts
in favor of creditors to the extreme cost to homeowners in Ohio and provide a basis to leave
void judgments in effect penalizing debtors for unjust reasons.
Appellant is not seeking an advisory opinion for those cases but is arguing that the facts of
this case has close similarities with cases affected by this Court's decision in Fed Home Loan
Mtge.Corp v Schwartzwald, supra.
A Motion to Vacate with similar arguments as Appellant's has recently been filed in a 2008
Delaware County Court of Common Pleas Court case No. 08CVE 09 1219 , Deutsch Bank Natl.P.1
Trust Co. v Robert Slayton in which the attorney argues that the failure to invoke subject matter
jurisdiction in the Trial Court at commencement of the action nullifies all subsequent
proceedings including appeals and requires that the original Trial Court action be dismissed.
This argument is generally the same argument Appellant brought before the Franklin County
Court of Appeals in this case which was denied review for the reason that the Law of the Case
Doctrine prohibited revisiting the issue.
In the case at bar Appellant argues that the trial court lacked subject matter jurisdiction
over the controversy as a result of the failure of Attorney Anthony J. Cimperman to invoke
the jurisdiction of the Trial Court to issue a cognovit judgment by his failure to present to the
Trial Court the original cognovit note, confession of judgment and the warrants of attorney at
the time of his and/or Plaintiff's confession of judgment on behalf of Appellant ..The fact that
Mr. Cimperman or Plaintiff failed to comply with Ohio Revised Code Section 2323.13(A)
when presenting the original cognovit note, confession of judgment and the warrant of
attorney to the Trial Court at the time of confession of judgment leaves the trial court without
subject matter jurisdiction to render judgment, and a judgment entered on that cognovit note is
void ab initio . . Klosterman v. Turnkey-Ohio, L.L.C., 182 Ohio App.3d S1S, 2009-Chio-2578,
@19. citing Taranto v. Wan-Noor (May 1S, 1990), lOth Dist. No. 90AP-1, citing Patton v.
Diemer (1988), 3S Ohio St.3d 68.
The law in the Tenth Appellate District which is firmly established that strict compliance
with the statutory scheme set forth in Ohio Revised Code Section 2323.12 and 2323.13 must be
strictly complied with in order to obtain a cognovit judgment. See Huntington Natl. Bank v 199
S. Fifth St. Co., 2011-Ohio-3707 at 9:
Yet the Franklin County Court o_f Appeals in this case avoided recognizing the fact thatP.2
the Trial Court made error by issuing the void cognovit judgment by refusing to review the Trial
Court's actions relying on the Law of the Case Doctrine from the faulty findings of a previous
Tenth Appellate District appeal from the void cognovit judgment.
In fact this Court has recently expressed its concern over noncompliance with mandatory
requirements contained in the Ohio Revised Code. Recently in State v Fisher, 128 Ohio St. 3d
92 , 2010-Ohio-6238 when it stated in its Syllabus No. 1:
"A sentence that does not include a statutory mandated term of post release control is void, is notprecluded from appellate review by principals of res judicata, and may be reviewed at any time , ondirect appeal or by collateral attack. This Court went on to hold @ 40 : principals of res judicata ,including the doctrine of the law of the case , do not preclude appellate review."
State v Fisher has recently been followed by State v Billiter, Slip Opinion 2012-Ohio-5144
which further expands the time for collateral attack of void judgments .
It is Appellant's understanding that substantive issues decided in criminal cases are applicable
to civil cases especially pertaining to constitutional challenges such as void judgments and the
law of the case doctrine. As an example of the criminal - civil relationship See In re GMS Mgt.
Co., Inc. v. Unpaid Court Costs, Fees & Delinquencies, 187 Ohio App.3d 426, 2010-Ohio-
2203 @ 19citing State v Hochhausler,(1996)76 Ohio St. 3d 455,relating to procedural due
process.
Appellant further argues that due to Mr. Cimperman's failure to strictly comply with Ohio
Revised Code Section 2323.13(A) when he confessed judgment for Appellant ,that the subject
matter jurisdiction of the Trial Court was not invoked and any judgment entered on that
cognovit note is void ab initio. Kloesterman v Turn Key- Ohio LLC, supra. Therefore, an
appeal arising from that void judgment is also void..
If Appellant's argument is valid, the Decision and Judgment Entry issued on September 25,
2012 in this case by the Franklin County Court of Appeals @ 8 holding that the P.3
decision from the appeal of the void judgment in 2008 stands as the law of the case and
prohibits revisiting the Trial Court case is in clear error and must be reversed.
Appellant argues, just as surely many wronged litigants will from the forthcoming
foreclosure debacle resulting from Fed Home Loan Mtge. Corp. v Schwartzwald, supra, , that
the State may not deny equal treatment under the law to one group of litigants while granting
relief to another group of litigants in its review of void judgment cases . Distinguishing the
res judicata and law of the case holdings in State v Fisher & State v Billiter, supra, away from
Appellant's case clearly denies Appellant rights to equal protection guaranteed by Article I,
Section 1& 16, Ohio Constitution and the Due Process and Equal Protection Clauses of the
Fourteenth Amendment of the United States Constitution..
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny
to any person the equal protection of the laws. The Equal Protection Clause prevents states
from treating people differently under its laws on an arbitrary basis. Harper v. Virginia State
Bd. of Elections (1966), 383 U.S. 663, 681, 86 S.Ct. 1079, 1089 (Harlan, J., dissenting).
It is established law that one may raise the issue of subject matter jurisdiction at any
time , it may be reviewed on direct appeal or collateral attack nor can waiver apply to a
challenge to the subject-matter jurisdiction of a court. Rosen v. Celebrezze, 117 Ohio St.3d
241, 2008-Ohio-853 @ 45.
Appellant has raised subject matter jurisdiction in the case at bar as well as the law of the case
doctrine. Appellant has supported his arguments with Constitutional arguments and established
laws of this Court and Court of Appeals through out Ohio .Considering existing law and his
constitutional arguments Appellant's appeal has wrongfully been denied review by the Franklin
County Court of Appeals. This Court should reverse the Appeals Court decision.P.4
Appellant argues that this appeal is of Public and Great Interest for reasons stated herein and
this Court should grant Jurisdiction to Appellant's appeal.
Unfortunately Appellant's appeal is not limited to the void judgment , subject matter
jurisdiction and law of the case argument.
Appellant , upon application of counsel for Appellee D.B. Midwest LLC , moved to
declare Appellant a vexatious litigator in a companion case in which the same cognovit note at
issue in this case is at issue and pending in the companion case. D.B. Midwest LLC's
motion was granted declaring Appellant a vexatious litigator .
While the Order Declaring James M. Ryan a Vexatious Litigator is not on appeal in this case
the Constitutionality of the under lying Ohio Revised Code Statute as applied to the Journal
Entry by the Franklin County Court of Appeals in this case is on appeal.
Appellant must adhere to its restrictions placed upon him as being a vexations litigator,
subject to the pending appeal. . Appellant has complied and in so doing filed with the Franklin
County Court of Appeals an Application for Leave to Proceed in an attempt to file a
Motion for Reconsideration of its Judgment and Decision and a Motion to Certify a Conflict .
in this case
On October 9, 2012 the Franklin County Court of Appeals without explanation denied
Appellant's Application for Leave to Proceed thereby denying him due process and equal
protection under the law.
While Appellant is prohibited from appealing to this Court the Denial of his Application
for Leave To Proceed Appellant does have the right to appeal the Constitutionality of Ohio
Revised Code Section 2323.52
Appellant argues that Ohio Revised Code Section 2323.52 et seq. and specifically Ohio
Revised Code Section 2323.52 A(3) and 2323.52 A(D) (2) bestows upon a class called P.5
Attorneys and their clients with the privilege of an exemption from the restrictions of Ohio
Revised Code Section 2323.52 et seq. contrary to Article I Section 17 of the Ohio Constitution.
Article I, Section 17 of the Ohio Constitution states:
"Article 1. Section 17 Hereditar^privileges, etc. (1851) "No hereditary emoluments, honors,
or privile^es shall ever be granted or conferred by this state."
Appellant argues that this challenge to the Constitutionality of Ohio Revised Code
Section 2323.52 et seq. is a Substantial Constitutional Question and is a case of Public and
Great General Interest. Appellant requests that this Court grant Jurisdiction to have Appellant
`s appeal to be heard before the Court..
Appellant also argues that he was greatly prejudiced by the Trial Court's
Civil Rule 60 (B) proceedings as the Trial Court did not provide Appellant notice of the
conversion of his Motion to Vacate Void Judgment into a Civil Rule 60 (B) Motion thereby
denying him his procedural due process rights to present evidentiary & operative facts in a
proper form in support of the Trial Court's analysis of Appellant's case.
Appellant argues that the Franklin County Court of Appeals made clear error in not reversing
the Trial Court's decision to convert Appellant's Motion to Vacate a Void Judgment to a Civil
Rule 60(B) Motion with out notice as established law clearly states that a Civil Rule 60 (B)
Motion has not application to void orders. Milton Banking Co. v. Dulaney, 2010-Ohio-1907 @
17: Patton v. Diemer (1988), 35 Ohio St.3d 68, at paragraph four of the syllabus.
The Franklin County Court of Appeals dismissed this lack of authority of a Trial Court
to convert a Motion to Vacate a Void Judgment to a Civil Rule 60(B) Motion by concluding that
no prejudicial error resulted from the Trial Court's application of 60(B) analysis .
Obviously the Franklin County Court of Appeals came to its conclusion based P.6
upon the same record as was before the Trial Court for its Civil Rule 60(B) analysis.. But this
record was not sufficient to be considered a proper submission of evidence in a Civil Rule 60
(B) analysis .
Appellant was not given notice of the Trial Court's conversion of his Motion to Vacate
Void Judgment to a Civil Rule 60(B) proceeding. Notice of a conversion is a fundamental right
which if not given constitutes an abuse of discretion on the part of the Trial Court Judge.
Appellant argues it is a matter of first impression regarding a Trial Court's sua sponte
conversion of a Motion to Vacate Void Judgment to a Civil Rule 60(B) Motion ,with out
giving proper notice to the parties to respond.
This act on the part of the Trial Court is contrary to law and the Civil Rules and constitutes
a violation of Appellant's rights to Procedural Due Process guaranteed under Article I, Section
16 of the Ohio Constitution and the Fourteenth Amendment of the United States Constitution
Appellant respectfully requests this Court to find that all of Appellant's Propositions of Law
and the related issues argued herein involve Substantial Constitutional Questions and are of
Public and Great General Interest . Appellant does not waive any issues not argued herein as
space limits this memorandum to the most important issues that can be placed before this
Court. .STATEMENT OF FACTS AND THE CASE
On or about August 10, 2007 Attorney Anthony J. Cimperman allegedly permitted Mr.
Stephen A. Santangelo Esq. to incorporate into a Complaint on Cognovit Note A copy of an
alleged answer all of which was filed with the Clerk of the Franklin County Common Pleas
Court .Also attached to the Complaint on Cognovit Note was a affidavit sworn to by a Mr.
Felex Melchor attesting amongst other issues that a copy of the note is attached hereto as
exhibit A. P•^
Mr. Cimpermnan's alleged answer does refer to a warrant of attorney as being annexed to and
mentioned in the foregoing complaint. There is not a warrant of attorney attached to Mr.
Cimperxnnan's alleged answer nor any other exhibit.
On August 17, 2007 the Honorable Judge Richard Frye docketed a Judgment Entry against
Michael F. Colley and James M. Ryan in the amount of $324,232.80 plus interest at the rate of
$83.309816 per day. From January 4, 2006 plus late fees in the amount of $ 6,981.72 ,
insurance in the amount of $3,451 , costs in the amount of $1,454 and attorney fees in the
amount of $8,548.
On September 14, 2007 Appellant through counsel filed an appeal to the tenth Appellate
District Court of Appeals. A Decision was issued by the tenth Appellate District Court of
Appeals on March 18, 2008 affirming the Trial Court's Judgment Entry.
On or about August 1, 2011 Appellant , Pro se , filed a Motion to Vacate Void Judgment as
well as an answer of Defendant . On or about August 15, 2011 Appellant filed an Amended
Answer and Counterclaim. Various filing ensued with the Trial Court docketing its Journal
Entry Denying Defendant Ryan's Motion to Vacate Void Judgment and Motion to Dismiss and
Granting Plaintiff's Motions to Strike. . Appellant filed an appeal to the Franklin County
Court of Appeals on December 7, 201 l, Pro se. The Franklin County Court of Appeals
issues its Decision and Judgment Entry affirming the Trial Court's Judgment on September 25,
2012. On October 5, 2012 Appellant filed a Motion for Leave to Proceed which the Appea'ls
Court denied on October 9, 2012. It is from this Decision, Judgment Entry and Denial of
Motion for Leave to Proceed that Appellant has filed this appeal. While the facts of this case
include other issues these facts are relevant to this Memorandum in Support of Jurisdiction.
P.8
The case involves substantial Constitutional issues and well established Law of this State and
in the Tenth Appellate District . Having said that Appellant does admit that he is some what
amazed as to why this particular Tenth District panel of Judges of which two of the three
Judges were the Court in Huntington Natl. Bk. v 199 S. Fifth St. Co., supra, ,have refused to
consider its own past decision regarding void judgments which decision reaffirmed the strict
requirements of Ohio Revised Code Section 2323.13 A
Be that what it may the record of this case clearly establishes that Mr. Cimperman simply
failed in his duty to provide to the Trial Court the original warrant of attorney making his
confession of judgment flawed and the Judgment of the Trial Court void ab initio.
The issue the Constitutionality of Ohio Revised Code Section 2323.52 and specifically
Sections A(3) & A(D)(2) takes Appellant back to the 1950's & 60's and the contentious
litigation regarding Civil Rights.. It appears to Appellant that this argument is so fundamental
to the rights of the poor, their inability to hire an attorney and to their right to a day in Court
that one really has to wonder where the American Civil Liberties Union were when this
legislation was debated at hearings. Appellant believes that the Constitutionality of Ohio
Revised Code Section 2323.52 and specifically Sections A(3) & A(D)(2) will be decided one
way or another in the near future , so why not in this Court.
Appellants final issue is clearly an error on the part of the Trial Court and the Franklin
County Court of Appeals. Civil Rule 60 (B) is not the proper procedure to address a Motion to
Vacate a Void Judgment and the Trial Court's conversion of Appellant's Motion to Vacate
Void Judgment to a Civil Rule 60(B) Motion clearly prejudiced Appellant's case. .
P.9
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law # l: The language of Ohio Revised Code Section 2323.13(A) requires anattorney confessing judgment to present the original warrant of attorney to the Trial Court atthe time the attorney makes confession.. Because the requirements of Ohio Revised CodeSection 2323.13(A) are jurisdictional failure to present the original note and warrant ofattorney render any cognovit judgment entered void ab initio for failure to invoke the subjectmatter jurisdiction of the Trial Court . Any appeal from the void cognovit judgment is anullity. The principal of res judicata including the doctrine of law of the case arising from anappeal of the void cognovit judgment is also a nullity and can not used to bar revisiting thecase in a subsequent appeal.
Ar uigu nent: Appellant argues in this appeal that his right to challenge the subject matter
jurisdiction of the Trial Court in this case is without limits in that subject matter jurisdiction of
the Trial Court was never was invoked due to non compliance with the mandatory requirements
of Ohio Revised Code Section 2323.13(A) by Attorney Anthoney J. Cimperman when he
purportedly confessed judgment to the Trial Court on behalf of Appellant but failed to present
the original cognovit note, the warrant of attorney and confession of judgment to the Trial
Court at the time of confession of judgment for Appellant there by failing to invoke the subject
matter jurisdiction of the Trial Court to act upon Plaintiff's claim for a cognovit judgment.
Without invoking the subject matter jurisdiction of the Trial Court any judgment rendered by
the Trial Court is void ab initio as well as any appeals taken there from are also void. .
The law in the Tenth Appellate District is firmly established that strict compliance with the
statutory scheme set forth in Ohio Revised Code Section 2323.12 and 2323.13 must be strictly
complied with in order to obtain a cognovit judgment. The Franklin County Court of
Appeals recently reaffirmed establish law on this issue where it held in Huntington Natl. Bank v
199 S. Fifth St. Co., 2011-Ohio-3707 @21 :"In the final analysis, the language of R.C.2323.13(A), as the Supreme Court interpreted it in Lathrem v Foreman, (1958) 168 Ohio St. 186,, requires an attorney confessing judgment to present the original warrant of attorney to the trialcourt at the time the attorney makes the confession; the plaintiff may then choose to file either
Pe10
the original warrant or a copy of it with the clerk for purposes of maintaining the record. Becausethe requirements of R.C. 2323.13(A) are jurisdictional, plaintiffs failure to present the originalnote and warrants of attorney renders the cognovit judgment entered void. See Klosterman at
¶25."
Yet the Franklin County Court of Appeals did find that the cognovit judgment
docketed against Appellant by the Trial Court to be valid by holding that the law of the case
doctrine from a previous appeal of the case prohibited revisiting the Trial Court case even in the
face of compelling evidence that the Trial Court's subject matter jurisdiction was never invoked
to issue the cognovit judgment . The law of Ohio does not support this Tenth District Appeals
Court Decision ..
This Court in Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980 stated @ 11:
"If a court acts without jurisdiction, then any proclamation by that court is void." Id.; Patton v.
Diemer(1988), 35 Ohio St.3d 68, 518 N.E.2d 941, paragraph three of the syllabus."
This Court has recently expressed its concern over noncompliance with mandatory
requirements contained in the Ohio Revised Code. Recently in State v Fisher, 128 Ohio St. 3d
92 , 2010-Ohio-6238 this Court set forth its opinion regarding res judicata as it applies to
attempts by courts to disregard statutory requirements in their judgments when it stated in
its Syllabus No. 1: "A sentence that does not include a statutory mandated term of post release
control is void, is not precluded from appellate review by principals of res judicata,
and may be reviewed at any time , on direct appeal or by collateral attack." This Court went on
to hold @ 40 :"principals of res judicata , including the doctrine of the law of the case , do noi
preclude appellate review." followed by State v. Greenleaf, 2012-Ohio-686 , State v Billiter,
Slip Opinion 2012_Ohio-5144 (which further supports Appellant's time line argument.)
This Court's decision in State v Fischer , supra, was argued to the Franklin County
Court of Appeals in this case.. It was disregarded in favor of the law of the case doctrine. P.11
Appellant argues, just as surely many wronged litigants will from the forthcoming
foreclosure debacle resulting from Fed Home Loan Mtge. Corp. v Schwartzwald, supra, , that
the State may not deny equal treatment under the law to one group of litigants while granting
relief to another group of litigants in its review of void judgment cases . Distinguishing the
law of the case holdings in State v Fisher and State v Greenleaf , supra, away from Appellant's
case as the Franklin County Court of Appeals has clearly done clearly denies
Appellant's rights to Equal Protection guaranteed by Article I, Section 1& 16, Ohio
Constitution and the Due Process and Equal Protection Clauses of the Fourteenth Amendment
of the United States Constitution especially since State v Fisher was argued to the Court.
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny
to any person the equal protection of the laws. The Equal Protection Clause prevents states
from treating people differently under its laws on an arbitrary basis. Harper v. Virginia State
Bd. of Elections (1966), 383 U.S. 663, 681, 86 S.Ct. 1079, 1089 (Harlan, J., dissenting).
Appellant argues that even though State v Fisher , State v Greenleaf and State v Billiter ,supra,
are criminal cases the substantive law related to the applicability of the law of the case doctrine
pertaining to void judgments is analogous and applicable to Appellant's case as well as those
many cases that will follow via Fed. Home Loan Mtge. Corp. v Schwartzwald, supra.
As discussed earlier in this Memorandum the criminal case State v.Hochhausler (1996), 76
Ohio St.3d 455 has been cited many times in civil cases regarding procedural due process.
It is established law that one may raise the issue of subject matter jurisdiction at any time , it
may be reviewed on direct appeal or collateral attack nor can waiver apply to a challenge to the
subject-matter jurisdiction of a court. Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853
@ 45.P.12
Appellant argues that he has been denied the benefit of established Law in Ohio as well as his
right to Equal Protection and Due Process guaranteed under the Fourteenth Amendment of the
United States Constitution and Article I Section 1& 16 of the Ohio Constitution by the Franklin
County Court of Appeals by its refusal to consider Appellant's challenge of the
subject matter jurisdiction of the Trial Court case and its void judgment under the Franklin
County Appeals Court holding that the law of the case doctrine prohibits review of the Trial
Court case.
Proposition of Law # 2: Ohio Revised Code Section 2323.52 and specifically Ohio RevisedCode Sections 2323.52 A(3)& D(2) violate Article I, Section 17 of the Ohio Constitution .thereby violating the Equal Protection and Due Process Clause of the United States Constitutionand Article I Section 16 of the Ohio Constitution.
Argument: Ohio Revised Code Sections 2323.52 A(3) & D(2) permit attorneys and their
clients to be exempt from being declared vexatious litigators in their pursuit of legal action
against another as long as the attorney represents the client in his legal pursuits. .
Appellant argues that the exemptions set forth in Ohio Revised Code Sections 2323.52 A(3),
& D(2) bestow a special privileges upon a class of attorneys and their clients in clear violation
of Article I, Section 17 of the Ohio Constitution.
Article I Sectionl7 states:
"Article 1 Section 17 Hereditary_privile es etc. 1851) "No hereditary emoluments, honors,or privileges shall ever be granted or conferred by this state."
Clearly the State through its adoption of Ohio Revised Section 2323.52 grants attorneys a
privilege of exemption from Ohio Revised Code Section 2323.52 in their practice of law on
behalf of clients. This Statute distinguishes the right of access to the Courts between Pro se
litigators and attorneys and their clients . What the Statute implies is that an attorney can be as
vexatious as he ehooses on behalf of his elient by filing questionable actions or motions ,P.13
even a vexatious motion against the Pro se litigator, but in doing so the attorney nor his client
may not be declared a vexatious litigator and have his or her future access to the Courts
conditioned upon prior approval of a Court .
But the Pro se litigant who chooses to file multiple actions or motions is subject to being
declared a vexatious litigator pursuant to Ohio Revised Code Section 2323.52 having his or
her access to the Courts subject to approval, which in Appellant's case before the Franklin
County Court of Appeals access was denied with out cause or explanation. ..
Discrimination based upon on education or financial ability to pay in order to obtain access
to the Courts smacks of the Civil rights actions of the 50's & 60's.
Unfettered access to the Courts is the most fundamental Constitutional Right under the
Fourteenth Amendment of the United State Constitution and Article I Section 16 of the Ohio
Constitution. It is clearly unconstitutional to permit attorneys and their clients to be exempt
from the shackles of Ohio Revised Code Section 2323.52 et seq. while making Pro se litigants
subject to such an restrictive law.
Statutory privilege is unconstitutional in the State of Ohio. Attorneys, their clients and Pro se
litigants must be treated equally under the law and subject to the same conditions and
restrictions contained in Ohio Revised Code Section 2323.52. To grant a special privilege to
attorney's and their clients to be exempt from Ohio Revised Code Section 2323.52 violates
Article I Section 16 & 17 of the Ohio Constitution and violates the Fourteenth Amendment of
the United States Constitution.
Proposition of Law # 3: Ohio Civil Rule 60(B) has no application to void orders . A TrialCourt's sua sponte conversion of a Motion to Vacate a Void Order or Judgment to a Civil Rule60 (B) motion shall on appeal be reversed for further proceeding in the Trial Court in
accordance with applicable law .
Argument: Appellant argues that the Franklin County Court of Appeals made clear error P.14
in not reversing the T'rial Court's decision to convert Appellant's Motion to Vacate a Void
Judgment to a Civil Rule 60(B) Motion as established law clearly states that a Civil Rule 60 (B)
Motion has not application to void orders. Recently the Fourth Appellate District held in Milton
Banking Co. v. Dulaney, 2010-Ohio-1907 @ 17: -
"The significance of this distinction is that Civ.R. 60(B) has no application to void orders.Civ.R. 60(B) Staff Comment ("It should be noted that Rule 60(B), unlike Federal Rule 60(b),does not provide for vacation of a void judgment. *** Any court has inherent power to vacatea void judgment[.] *** In effect then Rule 60(B) deals with vacation of voidable judgments.")(emphasis sic); Patton v. Diemer (1988), 35 Ohio St.3d 68, at paragraph four of the syllabus."
Contrary to the findings by the Franklin County Court of Appeals Appellant was prejudiced by
the Trial Court's conversion of his Motion to Vacate Void Judgment to a Civil Rule 60 (B)
motion as the Trial Court's analysis for a Civil Rule 60 (B) motion would have included such
items as the change of terms interest rate agreement between Appellant and Sky Bank, the 30
default notice provision contained in the referenced documents, as well as other conditional
agreements that provided Appellant a meritorious defense to Sky Banks complaint. But
Appellant was not provided an opportunity to present these documents by affidavit for
consideration as he was not given notice of the conversion by the Trial Court. Clearly an
injustice has been imposed upon Appellant by the Trial Court's ignoring the Civil Rules and
established law pertaining to Motions for Vacating Void Judgments or Orders. The Franklin
County Court of Appeals Judgment should be reversed .
Conclusion: For the reasons discussed above , this case involves matters of public and great
general interest and many substantial constitutional questions. Appellant requests that this
Court accept jurisdiction in this case so that all the important issues and propositions of law be
reviewed on their merits.
P.15
CERTIFICATE OF SERVICE
I hereby certify that a true copy of this Memorandum in Support of Jurisdiction was sent byordinary U.S. Mail to either counsel for Appeilee's or to the Appellee's on the November 8^'
2012 to:
Stephen A Santanangelo Esq.Weltman Weinberg & Reis Co.LPA175 South Third StreetColumbus Ohio 43215Attorney for Sky Bankssantanan^elo(a)weltn^an.com
Matthew G. Burg #0072556Weltrnan Weinburg & Reis, Co. L.P.A.323 West Lakeside Ave. Suite 200Cleveland , Ohio 44113(216)685-1111(216)685-4345 faxrnb^tr^ a weltman.coinAttorney for Appellee D.B. Midwest LLC,Huntington National Bank, Sky Bank
John R. Wirthlin Esq.Weltman , Weinberg & Reis Co. LPA
525 Vine Street Suite 800C^einnati Ohio 45202A^oney for Huntington National Bank,Sky Bank, D.B. Midwest LLC& Felex Melchor
Anthoney J. Cimperman Esq.3145 N. High StreetColumbus Ohio 43202Attorney for Michael F. Colley
Michael F. Colley Esq.4200 Dublin RoadColumbus Ohio
Michael Dewine Esq.Attorney General of Ohio30 E. Broad StreetColumbus Ohio 43215
Columbus Ohio 43209614-670-4396
QA001 - D38
iN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
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Sky Bank et al.,
Plaintiffs-Appellees,
v.
Michael F. Colley et al.,
Defendants-Appellees,
(James M. Ryan,
Defendant-Appellant).
, NO. 11Ap-1075(C.P.G No. o^CVH-o8-iob23 }
(REGLILAR CALENDAR)
JUDGMENT ENTRY
For the reasons stated in the decision of this court rendered herein on
September 2S; 2012, appellant's assignments of error are overruled and it is the judgment
and order of this court that the judgment of the Franklin County Court of Common Pleas
is affirmed. Sky Bank's motion to dismiss appeal is denied.
CONNOR, J., KLATT and FRENCH, JJ.
ByJudge John A. Connor
QA041 - D39
Date: 09-25-2012
Case Title: SKY BANK -VS- MICHAEL F COLLEY
Case Number: 11AP001075
Type: 7EJ TRIAL COURT JLIDGMENT AFFIRMED
So Ordered
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fs/ 3udge John A. Connor
Electronically signsd on 2012-Sep-25 page 2 of 2
OA001 - D40
Court Disposition
Case Number: 11 AP001075
Case Style: SKY BANK -VS- MIGHAEL F COLLEY
Motion Tie Off }nformation:
1. Motion CMS Document !d: 11AP0010752 970000
Document Title: 05-09-2012-MOTION TO DISMISS
Disposition: 3200
OA000 - W28
iN THE COURT OF APPEALS OF flHIO
TENTH APPELLA'I`E DISTRTCT
Plaintiffs-Appellees,
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Sky Bank et ai.,
v.
Michael F. Colley et al.,
Defendants-Appeilees,
(James M. Ryan,
Defendant-Appellant)
No. l^l?-1a75(C.P.C. No. o^CVH-o8-io623 )
(REGULAR CALENDAR)
D E C I S I O N
Rendered on September 25, 2oi2
Weltman, Weinberg & IZeis, Co., ^.P.A•^ ^a^h^ G• Burg,
and John R. Wzrthlin, for appellee Sky Bank.
James M. Ryan, pro se.
APPEAL from the Franklin County Caurt of Common Pleas
CONNOR., J.{q 1} Defendant-appellant, James M. Ryan, appeals from a judgment of the
Franklin County Court of Common Pleas denying appellant's mation to vacate judgment,
which the triai court sua sponte converted to a mation for relief from judgment under
Civ.R. 6o(B}. The court's judgment also denied appellant's motion to dismiss the case for
lack of personal jurisdiction and granted motions by other parties to strike appeilant's
counterclaim, answer, and amended complaint. Plaintiff-appellee, Sky Bank, has not filed
an appellee's brief in this case, but has f^led a motion to dismiss the appeal on the grounds
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that issues presented here have been previously decided by this caurt and are therefore
res judicata.{¶ 2} Sky Bank abtained, on August z7, 200^, a judgment on a cagnovit nate
against appellant and other parties. This court affirmed the judgment on appeal. Sky
Bank u. Coitey, ioth Dist No. o^AP-^5^, 2oo8-Ohio-121^. Some three and one-half years
after our decision, appellant attempted ta revive the case with a series of filings in the trial
court. On August i, 2oZ^t, appellant filed a"Nlotion ta Vacate Void Judgment." At that
time he also filed an answer to the ariginal cornplaint. On August 15, 2oi^, appellant filed
an amended answer and counterclaim. Sky Bank and other parties responded with
various motions to strike and motions to dismiss these additional filings. On October 1^,
2011, appellant filed a motion ta dismiss the ariginal eamplaint by Sky Bank that
commenced the matter, asserting that he was never served with the complaint.
{¶ 3} The trial court collectively treated appeIlant's motion to vacate vaid
judgment and motion to dismiss as a motion for relief from judgment pursuant to Civ.R.
6a(B). The trial court denied relief from judgment in part on the basis that the issues
raised in appellant's motions had been considered by this eourt upon appeal, and that our
appellate judgment precluded further litigatian on all issues that were raised or could
have been raised in the initial appeal.{¶ 4} Appellant has timely appealed and brings the following four assignments of
error:[I.] The Franklin County Clerk of Court's failure to notifyJames M. Ryan of the Judgment Entry that constituted a FinalAppealable Order issued on August i^, 2007 tolls the time forAppellant's appeal. The Trial Court erred in not includingcivil Rule 58 (B) language in its November 15, 2011 JaurnalEntry and its Judgment Entry dated August 1^, 200'7 whichalso was without directions to serve counsel with the Entry.
[iI.] The Trial Court Erred in its sua sponte conversion of theMation to Vacate Void Judg,ment ta a Civil Rule 60 (B)Motion and Erred in its denying Defendant Ryan's Motion toVacate Void Judgment.
[III.] The Trial Court Erred in Denying Defendant Ryan'sMotion to Dismiss Plaintiff Sky Bank's Complaint.
>
OA000 - W30
No. 11AP-10753
[I^-] The Trial Court Erred in Granting PlaintifFs Niotions toStrike and Motion to Dismiss filed September 12, 2011 &Plaintiff's Motion to Strik^: and Motion to Dismiss withPrejudice dated October 3, 2o^r.
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{¶ 5} ^e first consider Sky Bank's motion to dismiss this appeal on grounds of res
judicata. While res judicata may provide us with a basis for afi:irming the trial court's
denial of Civ.R. 6o{Bj relief, it does not bar this aPPeal entirely This is n°t a repetitive
appeal, but an initial appeal from the trial court's denial of relief from judgment. Sky
Bank's motion to dismiss the agpeal is denied.
{^i g} Appe'dar^t's first assignn^ent of error asserts that the cierk of court failed to
notify appellant of the initial judgment in ^oo^. Appellant asserts that this tolls the time
for appeal from that judgment. Because appellant did in fact timely appeal to this eourt
from the ^007 judgment, the need for tolling in this case is difficult to discern, as is the
object of this assignment of error enti^'elY. APPellant's first assignment of error is
overruled.{¶ 7} Appellant's second assignment of error asserts the trial court erred in both
denying appellant's motion t° vacate a void judgment and in sua sponte converting thatellant ar esmotion to a motion for relief from judgment pursuant to Civ.R. 6o(B). App gu
that a court's judgment that is void ab initi-o represents a nullity that may be vacated by
the trial court without undergoing a Civ.R. 6o(B} analysis. This basic proposition is
corre^t. The authority to vacate a void judgment "is not derived from CivR. 6o(B}, but
rather constitutes an inherent power possessed by the court•"^IQPIe Dell ^lanor v.
Peterson,lith Dist. No. g^-P-oo3g CFeb.11,1994)^ citing Patton v. I3iemer, 35 Ohio St.3d
68, 70 (i988). The accuracy of this legal proposition, however, does not alter the result in
this case because no prejudicial error resulted fram the trial court's applica.tion of Civ.R
C^o(B) analysis to appellant's motion.
{¶ &} Appellant argues that the initial trial court judgment in this matter was void
because he wa.s never served with the initial complaint and the court thus never acquired
personal jurisdiction over him. The judgment against appellant is based upon a cognovit
note, "By its very terms, a cognovit note allows for judgment to be taken against the
debtor-party without notice or hearing[,]" and invokes a waiver af personal jurisdiction.
Dollar Bank v. The ^err^stein Group, Fnc., ^i ^l•^io App.3d 53©^ 533 (*-o^ Dist.^99i).
oAaoo - w31
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There is na issue of personal jurisdiction in this case. While a defendant may still argue
lack of subject-matter jurisdictian in a cognovit note actian,see generalIy, Ardingtan
Bank u. BEE,Inc.,loth Dist. No. loAP-4^., 2oi©-Ohio-6o40, that aspect of the matter was
fully addressed in our 2flo8 decision on direct appeal and our' disposition of that issue
stands as the law of the case and may not be revisited• 'I'he trial court did nat err in
denying appellant's motion to vacate a void judgment. Appellant`s seeond assignment of
error is averruled.{¶ 9} Appellant's third assignrnent of errar asserts vanaus pracedural defects in
the proceedings leading to judgment on a cognovit note. All of these issues vvere raised in
the priar appeal to this courk from that judgment, were addressed by this eaurt and faund
without merit, and could not have provided grounds far relief from judgment in the trial
caurt. Appellant's third assignment flf error is averruled.
{¶ i0} Finally we turn ta appellant's faurth assignment af error, which asserts that
the trial court erred in striking his amended complaint and counterclaim. Qn October 3,
2o^i, IDB Midwest, LLC, an assignee of the original judgment in this case, filed a motian to
strike app,ellant's answer, amended answer, and counterclaim. an September i2, 2011,
tv^,o parties nat parkicipating in this appeal, Felex Melchor and Huntington Natianal Bank,
filed motians to strike appellant's answer, amended answer, and counterclaim.
}¶ ii} The trial caurt granted these motions as part of its judgment denying relief
from judgment to appellant, Based upon the status of the case and the fact that
appellant's pleadings were filed after the trial caurt had rendered judgment in t't'le n^atter
some three years before, these pleadings were well out of rule and properly struck by the
trial court. Appellant's fourth assignment of errar is accordingly overruled.
{^ 12} 3n accardance with the faregaing, appellant's four assignments of error are
overruled and the judgment of the Franklin County Court of Common Pleas denying his, ^ • .c^.,.^. .a Cln Ba zr,lr'.g
motions to vacate vaid judgment and motion to dismiss comp^airi^ ^s a^^ulileu• ^^-,^
motion to dismiss appeal is denied.Judgment a, ffzrmed;
motion to dismzss appeal denied.
KLATT and FRENCH, JJ., concur.
OA002 - M75
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Sky Bank et al.,
Plaintiffs-Appellees,
v.
Michael F. Colle^r et al.,
Defendants-Appellees,
(James M. Ryan,
Defendant Appellant).
. No. lu1P-io75
. {REGULAR CALENDAR}
JOURNAL ENTRY
Appellant's October 5, 20^2 application for leave to proceed with the filing
of a motion for reconsideration and motion to certify are denied.
/S^ JUDGEJudge John A. Connor
aAao2 - r^^ 6
Date: 10-09-2012
Case Title: SKY BANK -VS- MICHAEL F COLLEY
Case Number: 11AP001075 `
Type: 70URNAL ENTRY
So Ordered
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!sJ Judge 3ohn A. Connor
Electronically signed on 2012-Qct-09 page 2 of 2
oAOa2 - M^^
Court Disposition
Case Number: 11 AP001075
Case Style: SKY BANK -VS- MICHAEL F COLLEY
Motion Tie Off Information:
1. Motion CMS Document Id: 11AP0010752 980000
Document Titie: 10-05-2012-MOT10N
Disposition: 3200