Burns v. Ohio Dept. of Rehab. & Corr. , 2017 Ohio 7841 ( 2017 )


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  • [Cite as Burns v. Ohio Dept. of Rehab. & Corr., 
    2017-Ohio-7841
    .]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    David Burns,                                        :
    Plaintiff-Appellant,                :                   No. 17AP-167
    (Ct. of Cl. No. 2016-00590)
    v.                                                  :
    (REGULAR CALENDAR)
    Ohio Department of Rehabilitation                   :
    and Correction,
    :
    Defendant-Appellee.
    :
    D E C I S I O N
    Rendered on September 26, 2017
    On brief: David Burns, pro se.
    On brief: Michael DeWine, Attorney General, Emily
    Simmons Tapocsi, and Howard H. Harcha, IV, for appellee.
    APPEAL from the Court of Claims of Ohio
    BROWN, J.
    {¶ 1} David Burns, plaintiff-appellant, appeals from the judgment of the Court of
    Claims of Ohio, in which the court granted the motion to dismiss filed by the Ohio
    Department of Rehabilitation and Correction ("ODRC"), defendant-appellee.
    {¶ 2} Appellant is an inmate in the custody of the ODRC. In April 2015, he was
    removed from his welder position with Ohio Penal Industries ("OPI"). On August 4, 2016,
    appellant filed a complaint in the Court of Claims, alleging negligent firing, defamation,
    and constitutional violations.
    {¶ 3} On October 19, 2016, ODRC filed a motion to dismiss, pursuant to Civ.R.
    12(B)(1) and (6). On November 14, 2016, appellant filed an unsigned response with an
    No. 17AP-167                                                                               2
    unsigned certificate of service attached. In the response, appellant requested leave to
    amend his complaint, or, in the alternative, requested that the court dismiss the case,
    pursuant to Civ.R. 41(A)(1)(a).
    {¶ 4} On February 3, 2017, the Court of Claims granted ODRC's motion to
    dismiss. With regard to the negligent firing claim, the court found ODRC was entitled to
    immunity. With regard to the defamation claim, the court found it was not filed within
    the one-year statute of limitations. With regard to the constitutional claims, the court
    found that it lacked jurisdiction to address constitutional claims. The court also indicated
    that it did not consider appellant's response because he failed to sign the certificate of
    service.
    {¶ 5} Subsequent to the final appealable order, on February 16, 2017, appellant
    filed a motion for reconsideration, arguing that he did, in fact, sign the response and
    certificate of service. Appellant attached to his motion a signed response and certificate of
    service that he claimed demonstrated he actually signed the originally filed response and
    certificate of service. Appellant appeals the judgment of the Court of Claims, asserting the
    following assignments of error:
    [I.] THE TRIAL COURT ERRED BY FAILING TO ALLOW
    DEFENDANT'S DISMISSAL PURSUANT TO CIV.R.
    41(A)(1)(a), IN VIOLATION OF APPELLATE CIVIL RULES
    AND OHIO CONSTITUTIONAL LAW.
    [II.] DEFENDANT COMMITTED NEGLIGENCE, FRAUD
    AND MISREPRESENTATION UNDER R.C. 2305.09, BY
    IMPROPERLY FIRING THE PLAINTIFF WITHOUT USING
    PROPER ODRC PROCEDURES, INVENTING FALSE JOB
    EVALUATIONS IN VIOLATION OF DRC POLICY AND
    STATE LAW.
    {¶ 6} Appellant argues in his first assignment of error that the court erred when it
    refused to address appellant's request for dismissal contained in his response to ODRC's
    motion to dismiss. Appellant claims that the response and certificate of service were
    signed, as demonstrated by the attached signed versions of the response and certificate of
    service attached to his motion for reconsideration.
    {¶ 7} ODRC counters the court properly refused to consider appellant's response
    because he failed to sign the response and certificate of service, in violation of Civ.R.
    No. 17AP-167                                                                               3
    5(B)(4) and (11). Furthermore, ODRC asserts that the allegedly signed response and
    certificate attached to appellant's motion for reconsideration did not remedy the issue, as
    the court's online docket shows that, in fact, the response and certificate that were
    originally filed with the court were not signed.
    {¶ 8} In determining that it would not consider appellant's response and request
    for leave, the court cited Civ.R. 5(B)(4), which outlines how service is made and provides:
    Proof of service. The served document shall be
    accompanied by a completed proof of service which shall state
    the date and manner of service, specifically identify the
    division of Civ.R. 5(B)(2) by which the service was made, and
    be signed in accordance with Civ.R. 11. Documents filed with
    the court shall not be considered until proof of service is
    endorsed thereon or separately filed.
    {¶ 9} In the present case, the certificate of service included in appellant's response
    did not specifically identify the date or manner of service and was not signed. Pursuant to
    the explicit terms of Civ.R. 5(B)(4), a trial court is prohibited from considering a
    document that is not served consistent with the requirements contained in the rule.
    Therefore, the court here did not err when it found it could not consider appellant's
    response and request for leave.
    {¶ 10} We also note that, although it is not before us in this appeal, appellant's
    post-judgment motion for reconsideration filed February 16, 2017 did not remedy the
    Civ.R. 5(B)(4) deficiency. Initially, the Ohio Rules of Civil Procedure do not provide for
    motions for reconsideration after a final judgment in a trial court. Pitts v. Ohio Dept. of
    Transp., 
    67 Ohio St.2d 378
     (1981), paragraph one of the syllabus. Such motions are
    considered a nullity. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 
    40 Ohio St.3d 58
    , 60 (1988); McCualsky v. Appalachian Behavioral Healthcare, 10th Dist. No. 16AP-
    442, 
    2017-Ohio-1064
    , ¶ 11, citing BAC Home Loans Servicing, L.P. v. Ferguson, 10th Dist.
    No. 12AP-350, 
    2012-Ohio-5670
    , ¶ 13. Notwithstanding, appellant claimed in the motion
    for reconsideration that he signed his response and certificate of service, and attached
    signed copies to the motion. However, the online filing system for the clerk of courts for
    the Court of Claims confirms that the original response and certificate of service he filed
    with the court were not signed. Thus, these arguments are unavailing. For these reasons,
    we overrule appellant's first assignment of error.
    No. 17AP-167                                                                              4
    {¶ 11} Appellant argues in his second assignment of error that ODRC committed
    negligence, fraud, and misrepresentation under R.C. 2305.09, by terminating him
    without using proper ODRC procedures and inventing false job evaluations. Appellant
    argues ODRC fired him from his welding position and then created false job evaluations
    to support the improper filing. He also claims ODRC did not hold a hearing on his firing
    as required by all OPI employees, pursuant to ODRC's inmate work assignment policy 54-
    WRK-02. He claims ODRC's behavior was negligent, and ODRC failed to properly train
    and supervise OPI staff to ensure that ODRC policies were followed.
    {¶ 12} ODRC counters the Court of Claims properly granted its motion to dismiss.
    With regard to appellant's termination from his position, ODRC contends that decision
    relating to an inmate's placement within the OPI program involves a high degree of
    official judgment and discretion; thus, ODRC is immune from the negligence claim. With
    regard to appellant's defamation claim, ODRC contends that defamation claims brought
    in the Court of Claims are subject to a one-year statute of limitations, and appellant
    learned of the allegedly defamatory statements in April and May 2015 but did not file his
    action until August 4, 2016. With regard to appellant's constitutional claims, ODRC
    asserts the court lacks jurisdiction to consider alleged violations of an individual's
    constitutional rights.
    {¶ 13} Appellant does not address or contest the court's reasons for dismissal
    anywhere in his assignment of error but only argues the underlying merits of his legal
    claims. Appellant fails to mention the court's findings related to immunity for his
    negligent-firing claim, the statute of limitations for his defamation claim, or the court's
    lack of jurisdiction to address constitutional claims. "The burden of affirmatively
    demonstrating error on appeal rests with the party asserting error." Lundeen v. State
    Med. Bd. of Ohio, 10th Dist. No. 12AP-629, 
    2013-Ohio-112
    , ¶ 16, citing State ex rel. Petro
    v. Gold, 
    166 Ohio App.3d 371
    , 
    2006-Ohio-943
    , ¶ 51 (10th Dist.), citing App.R. 9 and
    16(A)(7). It is inappropriate for us to formulate legal arguments in support of his appeal.
    See State v. Tuck, 
    146 Ohio App.3d 505
    , 510 (9th Dist.2001). It is also not the duty of this
    court to search the record for evidence to support any alleged error. Petro at ¶ 94.
    Therefore, this court will not assume appellant's duty to formulate arguments that contest
    No. 17AP-167                                                                          5
    the court's determinations. For these reasons, we overrule appellant's second assignment
    of error.
    {¶ 14} Accordingly, appellant's two assignments of error are overruled, and the
    judgment of the Court of Claims of Ohio is affirmed.
    Judgment affirmed.
    KLATT and SADLER, JJ., concur.
    ____________________
    

Document Info

Docket Number: 17AP-167

Citation Numbers: 2017 Ohio 7841

Judges: Brown

Filed Date: 9/26/2017

Precedential Status: Precedential

Modified Date: 9/26/2017