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IN THE SUPREME COURT OF OHIO

Edward W. Franks, . ^

^ - ^ ^ ^ <Plaintiff-Appellee, . Case No.

^, . On appeal from the Franklin County: Court of Appeals, Tenth Appellate District

John A. Rankin, et al., .. Court of Appeals Case No. 12 AP-772

Defendant-Appellant. :

MEMORANDUM IN SUPPORT OF JURISDICTION OFAPPELLANT JOHN A. RANKIN

Todd H. Neuman (0059819) Michael Hrabcak, Esq.Rick L. Ashton (0077768) Heidi Smith, Esq.ALLEN KUEHNLE STOVALL & NEUMAN LLP Hrabcak & Company, LPA17 South High Street, Suite 1220 67 East Wilson Bridge RoadColumbus, Ohio 43215-4100 Worthington, OH 43085Telephone: (614) 221-8500Facsimile: (614) 221-5988 Counsel for Appellee, Edward W. Franks

E-mail: neuman@aksnlaw.comE-mail: ashton@aksnlaw.com Dwight I. Hurd, Esq. -Counsel for Appellant, Dwight I. Hurd Co. LPA^Tnhyr A, Rir^kin 4.235 Wectletnn ("n^trt

Columbus, OH 43221Co-Counsel for Appellee, Edward W.Franks

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TABLE OF CONTENTS...................................................................................................................... iiiTable Of Authorities ^ ^ ^

Explanation of Public and Great General Interest . .. . .. .. . .. . ... . .. .. . . .. .. . . . . .. ..... .. . .. . .. . . . .. . .. ... 1

Statement of the Case and Facts . . . . .. .. . .. ..... .. .. . .. . ... .. . .. . . .. .. . . . . .. . .. . . . . ... .. . . . . . .. . .. . .. ..... .. 3

Argument in Support of Propositions of Law ... . .. . .. . .. . .. . . . ... . . . .. . . ..... . .. ... ... .. . ... .. . . .. . .. . .. 5

Proposition of Law No. 1: A Trial Court's Determination of an Issue WhichWould Leave a Litigant Without Adequate Appellate Review is a FinalAppealable Order With or Without Civ.R. 54(B) Language . ... ..................... .......... 5

Proposition of Law No. 2: The Sua Sponte Dismissal by the Tenth DistrictViolated Rankin's Rights to Due Process Under the Federal and OhioConstitutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . 6

Conclusion ...................................................................................................................................... 7

Certificate Of Service ..................................................................................................................... 8

Appendix ............................................................................................. Attached

ii

TABLE OF AUTHORITIES

Ohio Case Law

In re Hua, 62 Ohio St.2d 227 (1980) ....................................... .............................. 7

Klayman v. Luck, 2008-Ohio-5876 (8th Dist.2008) ...... .................................... ........ 1, 6

State v. Edwards, 157 Ohio St 175, 178 (1952) .................................................:........ 7

State v. Muncie, 91 Ohio St.3d 440 (2001) ............. ................................................... 5

United Tel. Credit Union, Inc. v. Roberts, 115 Ohio St.3d 464 (2007) ............................... 7

United Statutes Constitution and Federal Statutes

^18 U.S.C. 1595 .............................................................................................

The Fourteenth Amendment to the U.S. Constitution ................................................... 7

The Thirteenth Amendment to the U.S. Constitution ..... . .............................. ......... ....... 3

Ohio Constitution and Statutes

imR.C. §2505.02 .............................................................:............................ Pass

R.C. §2505.02(A)(3) .............................:........................................................... 5

R.C. §2505.02(B)(4) ......................................................................................... 5

.-.,_:_ r.____.:4__,.:._ n..+;,.i,, r cv„+; ^ti 6_ 7VillU l.Ui1J61LU11V11, t-^1L1^:1v 1, i.7c^^ioii iv ......................................................""'__'-- -, -

Ohio Constitution, Article IV, Section 3(B)(2) .......................................................... 5

Rules

Civ.R. 54(B) ........................................................................................................................... Passim

iii

EXPLANATION OF PUBLIC AND GREAT GENERAL INTEREST

The Tenth District Court of Appeal's journal entry below - which sua sponte dismissed

Appellant John A. Rankin's ("Rankin") appeal for lack of a final, appealable order - highlights

an Ohio district court divide over R.C. 2505.02 and Civ.R. 54(B). The Tenth District took the

position that Civ.R. 54(B) language must be included on the order appealed from in order to

establish appellate jurisdiction. In doing so, the Tenth District effectively left Rankin without

adequate recourse to correct the trial court's order, violated his rights to Due Process under the

Federal and Ohio Constitutions, and utilized a basis of dismissal in direct conflict with the Eight

District Court of Appeal's decision in Klayman v. Luck, 2008-Ohio-5876 (8th Dist.2008).

The Appellee here - a non-voting minority shareholder in Connectivity Systems, Inc. -

filed a complaint against the majority shareholder, Rankin, with several claims stemming from

alleged breaches of fiduciary duty. Appellee obtained a preliminary injunction. Rankin

appealed the preliminary injunction, and was successful with various parts of his appeal (the

"First Appeal"). Of particular relevance here is the portion of the First Appeal which held that

the portion of the preliminary injunction which required Rankin to continue as CSI's president,

without compensation from any source, or face legal sanction for contempt of court was an

unconstitutional violation of the Thirteenth Amendment's prohibition against involuntary

servitude. Based on that finding, Rankin, pro se, attempted to bring a counterclaim against

Appellee for several causes of action, such as Forced Labor Violations under 18 U.S.C. 1595

(the "Counterclaim").

The problem, however, was that while the First Appeal was being heard, the trial court

had also entered an Entry Modifying Preliminary Injunction which restricted Rankin from filing

his claims in any other court except for the trial court. T hus, although being otherwise permitted

1

g

to file his claims, pro se, in the appropriate district court, Rankin was required to file his claims

with the trial court or face possible contempt. Rankin filed his claims in the trial court, and the

trial court struck Rankin's Counterclaim from the record (the "Entry Striking Counterclaim").

Rankin then appealed the trial court's Entry Striking Counterclaim (the "Second

Appeal"). Without notice, the Tenth District, sua sponte, dismissed the appeal (the "Dismissal")

(attached as Appendix A). The Dismissal requires this Court's attention in two respects which

are of "public or great general interest."

The first issue is whether Civ.R. 54(B) language must be present on an order appealed

from to establish appellate jurisdiction, even if that order leaves a litigant without adequate

appellate recourse. The second issue is whether the Dismissal violated Rankin's rights to Due

Process under the Federal and Ohio constitutions as it left Rankin without adequate recourse to

correct the Entry Striking Counterclaim.

The above issues, and this case, meet the definition of a case which is of both "public

interest" and of "great general interest," even though satisfying only one of those alternatives is

sufficient for jurisdictional purposes. First, the Dismissal is at odds with other district courts in

Ohio and creates confusion in the minds of citizens of the state of Ohio as well as attorneys

practicing in Ohio. Second, constitutional provisions and rights under the Due Process clauses of

the Federal and Ohio Constitutions are implicated in this dispute. The Dismissal has denied

Rankin access to meaningful relief by its incorrect interpretation that it was not presented with a

final order and, until it is definitively answered by this Court that such orders are final appealable

orders under R.C. 2505.02, this question is likely to recur.

Rankin has met the requisite jurisdictional standards and, therefore, this Court should

review the Dismissal.

2

^

STATEMENT OF THE CASE AND FACTS

Rankin is the defendant in a civil action captioned Edward W. Franks v. John A. Rankin,

et al., Franklin County Court of Common Pleas Case No. 11CVH-O1-1252 (the "Civil Action").

On October 28, 2011, the trial court issued an Opinion and Preliminary Injunction Order

("Preliminary Injunction"). On November 3, 2011, Rankin timely appealed to the Court of

Appeals of Ohio, Tenth Appellate District ("Tenth District"), from the Preliminary Injunction,

being assigned case no. 11APE11-962 - the First Appeal.

During the pendency of the First Appeal, on December 19, 2011, the trial court entered

an Entry Modifying Preliminary Injunction. Paragraph 14 of the Entry Modifying Preliminary

Injunction stated as follows:

Restrictions on litigation in another forum. So long as this case remains before

this court, any new litigation by or in behalf of any party to this existing case (thatis, which names CSI, any individual officer or Board member, or which arisesfrom or challenges action(s) taken (or not taken) by CSI or the interim Board)may only be filed in this Court. Plaintiff Franks, defendant Rankin, and all otherparties to this case are hereby enjoined from instituting any such litigation beforeany other court or in any other jurisdiction.

On May 1, 2012, the Tenth District entered its decision in the First Appeal (the

"Decision"). Relevant hereto is the portion of the Decision wherein the Tenth District held that

the portion of the Preliminary Injunction that required Rankin to continue as CSI president or

face legal sanction for contempt of court was an unconstitutional violation of the Thirteenth

Amendment's prohibition of involuntary servitude.

Edward Franks ("Appellee"), the plaintiff in the Civil Action, filed a motion for leave to

file an amended complaint on April 26, 2012, which was granted by the trial court on June 15,

2012. Appellee did not file his Amended Complaint until July 2, 2012.

3

Rankin, pro se, filed his Counterclaim against Appellee on July 13, 2012, with a

supplemental errata sheet on July 16, 2012. Rankin's Counterclaim contained the following

claims against Appellee; Forced Labor Violation, Involuntary Servitude; Tortious Interference

with a Contract; Abuse of Process; and Malicious Civil Prosecution (the "Counterclaim").

Rankin's Forced Labor Violation claim arises from a federal statute - 18 U.S.C. 1595 - which

contains a venue provision that claims arising under the statute may be brought "in an

appropriate district court of the United States .. .."

Despite being permitted to file his Counterclaim, pro se, in the appropriate federal district

court, Rankin was required, by virtue of the Entry Modifying Preliminary Injunction, to file his

claims in the Civil Action or face possible contempt. On July 19, 2012, Appellee filed a motion

to strike the Counterclaim. The trial court granted Appellee's motion to strike on August 7,

2012, on the basis of "hybrid representation" and entered its Entry Striking Counterclaim

(attached as Appendix B).

Rankin appealed the trial court's Entry Striking Counterclaim on September 5, 2012. On

September 19, 2012, the Tenth District, sua sponte, dismissed the appeal, stating:

A review of the order appealed from reveals that the order does notcontain Civ.R. 54(B) language and matters clearly remain pending in thetrial court. Accordingly, this appeal is sua sponte dismissed for lack of afinal, appealable order. Appellee's September 12, 2012 motion toexpedite is denied as moot.

Appendix A.

4

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition Of Law No. 1: A Trial Court's Determination Of An Issue Which WouldLeave A Litigant Without Adequate Appellate Review Is A Final Appealable Order WithOr Without Civ.R. 54(B) Language.

The Tenth District erred in entering its Dismissal on the basis that it failed to contain

Civ.R. 54(B) language. Article IV, Section 3(B)(2) of the Ohio Constitution provides that

courts of appeals "shall have such jurisdiction as may be provided by law to review ...

judgments or final orders ...." An order is final under Section 2505.02 of the Ohio Revised

Code if it satisfies the following three-prong test: "(1) the order must either grant or deny ... a

`provisional remedy,' (2) the order must both determine the action with respect to the provisional

remedy and prevent a judgment in favor of the appealing party with respect to the provisional

remedy, and (3) the reviewing court must decide that the party appealing from the order 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." State v. Muncie, 91 Ohio St.3d 440

(2001), quoting R.C. §2505.02(B)(4). The statute defines a"[p]rovisional remedy" as "a

proceeding ancillary to an action." R.C. §2505.02(A)(3).

The trial court entry striking Rankin's Counterclaim on the basis of hybrid representation

is a"final" order. First, the Entry Striking is a provisional remedy - it involved Rankin's ability

to proceed pro se, which pro se representation was the direct result of the Order Modifying

Preliminary Injunction. As this proceeding was ancillary to the action, the first prong is met.

The second prong is also met - the Entry Striking determined the action and prevents a judgment

in favor of Rankin as it forecloses Rankin's ability to proceed pre se with respect to his

Counterclaim, particularly if this case goes to trial without the Counterclaim and any subsequent

action possible being barred based on issue and/or claim preclusion. Lastly, the third prong is

5

met, as Rankin will be deprived of a meaningful and effective remedy if he cannot appeal now.

Specifically, Rankin will lose his ability to conduct both written and oral discovery, identify

experts, and participate in the trial if the case moves forward. Again, if the claims are deemed

compulsory, the trial on the merits without permitting Rankin to litigate the stricken

Counterclaim could render them moot or subject them to rules of preclusion, or the applicable

statutes of limitation, applicable to the Counterclaim, could run which would deny him claims

and remedies allowable under law.

In holding otherwise, the Tenth District stands in direct conflict with the decision of the

Court of Appeals, Eighth Appellate District (the "Eighth District") in Klayman. In Klayman, the

Eighth District was presented with whether a trial court could prohibit a litigant from

representing himself along with co-counsel. 2008-Ohio-5876 at *2. After reviewing the

language of R.C. §2502.02 cited above, the Eighth District then held that "...the trial court's

order disqualifying appellant from representing himself is a final, appealable order." Id. at **7-

8. The Eighth District did not discuss Civ.R. 54(B), yet held that appellate review was proper.

Thus, a district split in Ohio exists as to the status of appellate review in this regard.

For the foregoing reasons, the Tenth District had jurisdiction to hear Rankin's appeal of

the Entry Striking Counterclaim. As a result, the Tenth District erred in dismissing Rankin's

appeal and, indeed, Rankin's only adequate remedy at law. Rankin, therefore, respectfully

requests that the Tenth District's Dismissal be vacated and that Rankin's appeal be reinstated.

Proposition Of Law No. 2: The Sua Sponte Dismissal By The Tenth District Violated

Rankin's Rights To Due Process Under The Federal And Ohio Constitutions.

Article I, Section 16 of the Ohio Constitution states:

All courts shall be open, and every person, for an injury done him in hisland, goods, person, or reputation, shall have remedy by due course of

6

law, and shall have justice administered without denial or delay.

The Fourteenth Amendment to the United States Constitution provides that state

governments may not "deprive any person of life, liberty, or property, without due process of

law." The Ohio Constitution guarantees "due course of law," which is virtually the same as the

Due Process Clause of the Fourteenth Amendment. See In re Hua, 62 Ohio St.2d 227

(1980). These provisions guarantee due process of law. "The fundamental requirement of due

process is the opportunity to be heard." United Tel. Credit Union, Inc. v. Roberts, 115 Ohio St.3d

464, 468 (2007). Procedural due process of law "involves the essential rights of notice, hearing

and the opportunity to be heard before a competent tribunal." State v. Edwards, 157 Ohio St 175,

178 (1952). By dismissing Rankin's appeal sua sponte, without providing Rankin an opportunity

to be heard, the Tenth District denied Rankin his rights to Due Process under the Federal and

Ohio constitutions and left Rankin without adequate recourse to correct the trial court's Entry

Striking Counterclaim.

CONCLUSION

This Court should accept jurisdiction over this case, vacate the Tenth District's Dismissal

Entry, and reinstate the appeal.

Respectfully submitted,

^ ---''^^.To H. Neuman ( 0598'19)Riclc L. Ashton (00 7 7 7ti8)ALLEN KUEHNLE STOVALL & NEUMAN LLP17 South High Street, Suite 1220Columbus, Ohio 43215-4100Telephone: (614) 221-8500Facsimile: (614) 221-5988E-mail: neuman@aksnlaw.comE-mail: ashton@aksnlaw.comCounselfor Appellant, John A. Rankin

7

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served upon the following viaregular U.S. Mail, postage prepaid, this 5^' day of November, 2012:

Michael Hrabcak, Esq.Heidi Smith, Esq.Hrabcak & Company, LPA67 East Wilson Bridge RoadWorthington, OH 43085Counsel for Appellee, Edward W. Franks

Dwight I. Hurd, Esq.Dwight I. Hurd Co. LPA4235 Westleton CourtColumbus, OH 43221Co-Counsel for Appellee, EdwaNd W. Franks

Keith A. Yeazel5354 North High StreetColumbus, OH 43214Counsel for Connectivity Systems, Inc.,BI Moyle Associates Inc. andCSI Acquisition LLC

Bernard P. Wilburn210 South Court StreetP.O. Box 418Circleville, OH 43113Counsel foN Rankin EnteNp^ises LLC

rp^;.

^Toc^-H'" euman ( 59 19)Rick L. Ashton (0077768)

APPENDIX

Franklin County Ohio Clerk of Courts of the Common Pleas- 201 Z Sep 2012:51 PM-11 CV001252

APPENDIX A

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Edward W. Franlcs, .

Plaintiff-Appellee, .

v. . N^ ^ C^7 t ^

John A. Ranlcin, . (REGULA.R CALEN^

Defendant-Appellant, .

JOURNAL ENTRY OF DISMISSAL

A review of the order appealed reveals that the order does not contain

Civ.R, b4(B) language and matters clearly remain pending in the trial collrt.

Accordingly, this appeal is sua sponte dismissed for laclc of a final, appealable order.

Appellee's September 1^, zoi2 motion to expedite is denied as moot.

_ /,l^ ^ ^...Ju g illiam A. att

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Judge Judith L. ^'rench

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Jud e ulia ^ . Dorrian

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Franklin County Ohlo Clerk of Courts of the Common Pleas- 2012 Sep 2012:51 PM-11CV001252

Court Disposition

Case Number: 12AP000772

Case Style: EDWARD W FRANKS -VS- JOHN A RANKIN

Motion Tie Off Information:

1. Motion CMS Document Id: 12AP0007722012-09-1299980000

Document Title: 09-12-2012-MOTION

Disposition: 3204

Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Aug 07 4:07 PM-11 CV001252^

APPENDIX B

IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIOCIVIL DIVISION

EDWARD W. FRANKS, .

Plaintiff, . CASE NO. Y1CVH-oi-i252

Vs. . JUDGE FRYE

JOHN A. RANKIN, et al., ^ .

Defendants. .

JOURNAL ENTRYGRANTING MOTION TO STRIKE PRO SE COUNTERCLAIMS

OF JOHN RANKIN(Motion filed July 19, 2oi2)

Lawyers serve many purposes in civil litigation, including screening

purported claims and defenses of the parties to assure they can be advanced in

good faith. See Rule 3.i, Ohio Rules of Professional Conduct. Where a iawyer is

unable to advance a position in good faith, it would not be sensible to allow the

litigant to do so pro se.

State v. Martin, l03 Ohio St.3d 385, 2oo4-Ohio-g47r explains the

^7;^n^^l+;nc. ;r^^nrnn+ ;n ^^^^r;r^ rAr^rAeanta+inn ThneP [^iffin^^ltiPS are nresent inL11111VL11^L11iL7 llllllil^.rlll 111 11,'-Vll^l 1Vt/iVwsVa+^asaavaa• aaav.+v .-^^^^^^^^^-^^- ---- r------- ---

civil trials as well. Even assuming there is no total bar to hybrid representation in

all civil cases, this court exercises its discretion to prohibit it here. Confusion of

issues, and Mr. Rankin's ability to argue his own credibility as a witness, are two

obvious difficulties.

The memorandum of Mr. Rankin filed July 12, 20^2, argues he is asserting

compulsory counterclaims, and they may be lost if the motion to strike is granted.

The simple answer to that is that counsel can assert them, or Mr. Rankin can

proceed pro se as to everything. Similarly, the fact that Mr. Rankin has handled

1

Franklin County Ohio Clerk of CourEs of the Common Pleas- 2012 Aug 07 4:07 PM-11CV001252

the Chamber of Commerce case pro se does not justify ernbracing the confusion

inherent in pro se representation in this far more complicated case.

The motion to strike defendants pro se counterclaims is GRAN'rED.

IT IS SO ORDERED.

Copies sent to parties not registered on electronic filing:

Rankin Enterprises, LLC8Y2o State Route 138WWilliamsport, Ohio 43i64

Defendant ^

Tuscan Table, LLC^22 IV. Court StreetCircleville, Ohio 43ri3

Defendant ,

Distributed Programming Systems8i2o St. Route 13$Williamsport, Ohio 43164

^ Defendant

2

Franklin County Ohio Clerk of Courts of fhe Common Pleas- 2012 Aug 07 4:07 PM-11 CV001252

Frank(in County Court of Common Pleas

Date: 08-07-2012

Case Title: EDWARD W FRANKS -VS- JOHN A RANKIN

Case Number: 11CV001252

Type: JOURNAL ENTRY

It Is So Ordered.

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Electronically signed on 2012-Aug-07 page 3 of 3

Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Aug 07 4:07 PM-11CV001252

Court Disposition

Case Number: 11 CV001252

Case Style: EDWARD W FRANKS -VS- JOHN A RANKIN

Motion Tie Off Information:

1. Motion CMS Document Id: 11 CV0012522012-07-1999980000

Document Title: 07-19-2012-MOTION TO STRIKE

Disposition: MOTION GRANTED