Thompson v. Cuyahoga Cty. Clerk of Courts , 2020 Ohio 382 ( 2020 )

[Cite as Thompson v. Cuyahoga Cty. Clerk of Courts, 2020-Ohio-382.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOHNNY THOMPSON, :
Plaintiff-Appellant, :
No. 108806
v. :
CUYAHOGA COUNTY
CLERK OF COURTS, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 6, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-914989
Appearances:
Johnny Thompson, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brian R. Gutkoski, Assistant Prosecuting
Attorney, for appellee.
MARY EILEEN KILBANE, J.:
Plaintiff-appellant Johnny Thompson appeals the trial court’s
decision to grant defendant-appellee’s Civ.R. 12(B)(6) motion to dismiss. For the
reasons that follow, we affirm.
Facts
On September 21, 2017, appellant Johnny Thompson mailed an
“Accusation by Affidavit,” pursuant to R.C. 2935.09 and 2935.10, to the Cuyahoga
County Clerk of Courts. His affidavit alleged that a key witness in his 2012 trial had
perjured himself. Upon receipt, Thompson alleges that the clerk’s office deliberately
misfiled his affidavit as a civil complaint and that he was subsequently charged $118
for the filing fee. Thompson then filed motions with the trial court on November 15,
2017, December 7, 2017, and January 22, 2018, in an attempt to notify the judge of
the alleged violation. The judge found that each motion failed to meet the
requirements of Evid.R. 201(B) and declined to rule. Thompson elected to file a civil
suit at that time.
Thompson’s complaint, filed May 8, 2019, alleges that he suffered
damages as a result of the clerk of courts’ deliberate misfiling of his affidavit.
Thompson requested $100,000 dollars in damages — including punitive damages
— for the alleged misfiling. Cuyahoga County filed a motion to dismiss on Civ.R.
12(B)(6) grounds on June 20, 2019.
The county cited five reasons why the trial court should dismiss the
action including that “the County-Entity Defendant is immune under R.C. 2744.02.”
The trial judge waited only four days before ruling on the motion on June 24, 2019.
Thompson did not have an opportunity to object to the county’s motion to dismiss
because of the trial court’s untimely grant of the dismissal; nevertheless Thompson
did not file an objection to the motion to dismiss nor appeal the court’s untimely
approval. The trial court granted the motion to dismiss for failure to state a claim
for which relief could be granted.
Thompson filed a notice of appeal on July 17, 2019.
Law and Analysis
Thompson’s initial affidavit was submitted correctly pursuant to R.C.
2935.09 and 2935.10; however there is nothing in this record that suggests his
complaint was misfiled. Thompson did not file an appeal on that issue, instead
chose to pursue a civil complaint against Cuyahoga County. It is from that suit that
this appeal arises. He has raised two assignments of error for our review.
Assignment of Error 1
Appellant contends that he was denied procedural and substantive due
process and equal protection of law under the 1st, 5th, and 14th
Amendments to the United States Constitutions where the trial court
misapplied R.C. 2935.09 and 2935.10 standard of review for probable
cause determination, and abused its discretion when it dismissed the
complaint, which was contrary to procedures.
Assignment of Error 2
Appellant contends that the trial court denied him due process and
equal protection of law under the 1st, 5th, 14th amendments to the
United States Constitutions where it imposed upon the appellant-
victim of a crime, an illegal court cost, filing fees for attempting to file
and report a crime.
Standard of Review
This court applies a de novo standard of review of a trial court’s ruling
on a Civ.R. 12(B)(6) motion to dismiss. Perrysburg Twp. v. Rossford, 103 Ohio
St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta U.S.A.
Corp., 95 Ohio St. 3d 416, 2002-Ohio-2480, 768 N.E.2d 1136.
A trial court may grant a motion to dismiss for failure to state a claim
upon which relief can be granted where it appears “beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling [him] to relief.” Grey
v. Walgreen Co., 197 Ohio App. 3d 418, 2011-Ohio-6167, 967 N.E.2d 1249, ¶ 3 (8th
Dist.).
Political Subdivision Immunity
At the outset, it must be noted that only Thompson’s first assignment
of error in any way addresses the question of whether the trial court erred in
granting the motion to dismiss. The second assignment of error serves only as an
attempt to bolster his underlying suit. Therefore, we will address only the first
assignment of error.
The sole question then for this court is whether the Cuyahoga County
Clerk of Courts — while performing governmental functions — is a political
subdivision immune from liability under R.C. Chapter 2744. We find that it is
immune and that the motion to dismiss was properly granted.
In Ohio, political subdivision immunity is governed by R.C. Chapter
2744. This chapter sets forth a three-tiered analysis for determining whether a
political subdivision is immune from liability for injury or loss of property. See
Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St. 3d 392,
2008-Ohio-2567, 889 N.E.2d 521.
The first tier, pursuant to R.C. 2744.02(A)(1), states in relevant part
that
[e]xcept as provided in division (B) of this section, a political
subdivision is not liable in damages in a civil action for injury, death or
loss to person or property allegedly caused by an act or omission of the
political subdivision or an employee of the political subdivision in
connection with a governmental or proprietary function.
The second tier of the analysis then, requires a court to consider
whether any exceptions to immunity apply as set forth in R.C. 2744.02(B). Barton
v. Cty. of Cuyahoga, 8th Dist. Cuyahoga No. 105008, 2017-Ohio-7171. If an
exception applies, then under the third tier of analysis immunity may be reinstated
if the political subdivision can demonstrate the applicability of any of the defenses
set forth in R.C. 2744.03.
Here, appellant’s suit concerned the governmental functions of the
employees of the Cuyahoga County Clerk of Courts. A county is a political
subdivision and the “operation of a clerk of courts’ office is a governmental
function.” Lambert v. Clancy, 125 Ohio St. 3d 231, 2010-Ohio-1483, 927 N.E.2d 585.
The clerk of courts and its employees, performing their government functions, are
not liable under these facts in a civil action stemming from the performance of their
government functions. Defendant would only be liable if any exceptions to
immunity apply per R.C. 2744.02(B). None do.
Appellant argues that the trial court erred but offers no relevant
authority to support that defendant-appellee is not immune from suit. As a result,
we find that his arguments lack merit.
Based on the foregoing, we find the trial court did not err in granting
the county’s Civ.R. 12(B)(6) motion to dismiss on the basis that it is immune from
liability in this case.
Finally, we must consider the state’s motion for sanctions filed
pursuant to App.R. 23 on grounds that the appeal presents no reasonable question
for review.
App.R. 23 states, “If a court of appeals shall determine that an appeal
is frivolous, it may require the appellant to pay reasonable expenses of the appellee
including attorney fees and costs.” A frivolous appeal is one that presents no
reasonable question for review. Talbott v. Fountas, 16 Ohio App. 3d 226, 475 N.E.2d
187 (10th Dist.1984). We find Thompson’s arguments regarding immunity provided
a reasonable question for our review; therefore we overrule the state’s request.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR