Howard v. Mgmt. & Training Corp.

200 N.E.3d 1199

Jeffery L. HOWARD, Plaintiff-Appellant,

v.MANAGEMENT & TRAINING CORP. et al., Defendants-Appellees.

No. 21AP-283

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on November 15, 2022

On brief: Jeffery L. Howard, pro se.

On brief: Mansour Gavin, LPA, Edward O. Patton, and Michael P. Quinlan, Cleveland, for appellees.

DECISION

MENTEL, J.

{¶ 1} Jeffery L. Howard appeals from the judgment of the Franklin County Court of Common Pleas dismissing the civil action he filed against Management & Training Corp. ("MTC") and its employees. The trial court ruled that the affidavit Mr. Howard had filed disclosing his litigation history did not conform to the requirements of R.C. 2969.25(A), which applies when an inmate commences litigation against "a government entity or employee." MTC is a private, for-profit corporation, not a government entity. The trial court erred by applying the statute, so we reverse and remand.

{¶ 2} On April 21, 2020, Mr. Howard filed a complaint against MTC and ten of its employees who worked at the Northern Central Correctional Institution ("NCCI"), the facility owned and operated by MTC where he was incarcerated. Mr. Howard alleged that MTC's employees had conspired and retaliated against him by writing false negative conduct reports after he filed complaints. He also alleged that employees had committed fraud, falsified government documents, and violated his equal protection rights. Mr. Howard sought a declaratory judgment, injunctive relief, and monetary damages. He also attached an affidavit disclosing six previous lawsuits he had filed in the last five years, as R.C. 2969.25(A) requires of an inmate commencing "a civil action or appeal against a government entity or employee * * * in any state or federal court."

{¶ 3} On June 11, 2020, MTC filed a motion to dismiss for failure to state a claim or, in the alternative, to transfer venue. MTC pointed out that Mr. Howard had voluntarily dismissed an identical action filed in the Court of Common Pleas of Marion County. Additionally, MTC argued that Mr. Howard's "bare bones" and "inadequate" affidavit did not satisfy R.C. 2969.25(A) ’s requirement to provide a "brief description of the nature of his civil actions." (June 11, 2020 Mot. to Dismiss at 4.) Alternatively, MTC sought a motion to transfer the case to the Court of Common Pleas of Marion County, Ohio.

{¶ 4} In Mr. Howard's response, he accused the Marion County court of being "incapable of being fair and impartial towards" him and defended refiling the lawsuit in Franklin County because its "fairer and impartial" court did not lack jurisdiction over his claims. (July 2, 2020 Req. to Reply at 2-3.) He also argued that MTC was not a "government entity" or "employee" under R.C. 2969.25(A) and that his affidavit complied with the descriptive requirements of the statute.

{¶ 5} The trial court granted the motion to dismiss on May 3, 2021, ruling that Mr. Howard's affidavit did not comply with R.C. 2969.25(A). The trial court found that Mr. Howard's affidavit had "failed to list the names of each party to the civil action in any of the six civil actions he initiated within the last five years." (May 3, 2021 Journal Entry at 2.) The trial court also found that "overly general descriptors such as ‘Declaratory Judgment and Injunctive Relief,’ " failed to satisfy the R.C. 2969.25(A)(1) requirement to provide "[a] brief description of the nature of the civil action or appeal."

{¶ 6} Mr. Howard filed a notice of appeal on June 4, 2021, and asserts the following assignments of error:

[1.] THE TRIAL COURT COMMITTED ERROR DISMISSING PLAINTIFF'S-APPELLANT'S CASE BASED ON THE OHIO REVISED CODE (O.R.C.) 2969.25(A)

[2.] THE TRIAL COURT COMMITTED PLAIN ERROR BY DEFINING A PRIVATE FOR PROFIT CORPORATION

AS A "GOVERNMENT ENTITY" OR "EMPLOYEE" UNDER O.R.C. 2969.25(A)

{¶ 7} According to MTC, Mr. Howard's appeal should be dismissed because he untimely filed the notice of appeal. MTC argues that under App.R. 4, Mr. Howard had thirty days from May 3, 2021, the date the clerk entered the dismissal entry on the docket, to file the notice of appeal. Because he did not file the notice of appeal until June 4, 2021, thirty-two days later, MTC argues that the notice was untimely and we must dismiss Mr. Howard's appeal. As this argument challenges our jurisdiction, "we must, as a preliminary matter, address our subject-matter jurisdiction in this appeal." Oakley v. Ohio State Univ. Wexner Med. Ctr. , 10th Dist. No. 18AP-843, 2019-Ohio-3557, 2019 WL 4165073, ¶ 9.

{¶ 8} "Jurisdiction in the court of appeals is based upon a timely filing of a notice of appeal." Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C. , 141 Ohio St.3d 542, 2015-Ohio-241, 26 N.E.3d 806, ¶ 7. "An appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4." App.R. 3(A). Under App.R. 4(A)(1), "a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry."

{¶ 9} The procedure for providing "[n]otice of filing" of an entry of judgment is set forth in Civ.R. 58(B), which states:

When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties * * * notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App.R. 4(A).

{¶ 10} In this case, the relevant "manner prescribed by Civ.R. 5(B)" of serving a judgment on a party referenced in the rule is by "mailing it to the person's last known address by United States mail, in which event service is complete upon mailing." Civ.R. 5(B)(2)(c). The exception to the thirty-day period triggered by "[t]he failure of the clerk to serve notice" mentioned in Civ.R. 58(B) arises under App.R. 4(A)(3), which tolls the deadline for filing an appeal: "In a civil case, if the clerk has not completed service of notice of the judgment within the three-day period prescribed in Civ.R. 58(B), the 30 -day periods referenced in App.R. 4(A)(1) and 4(A)(2) begin to run on the date when the clerk actually completes service."

{¶ 11} Mr. Howard asserts that he "signed for and received" the May 3, 2021 judgment entry on May 12, 2021, at which time he was "in segregation." (Appellant's Reply at 6.) He "immediately requested the required forms" to file the appeal from the institution's librarian, but, because of the librarian's schedule, did not receive them until "7-9 days later." Id. at 6-7. Nevertheless, he insists, because he placed the notice of appeal into "staff hands" to be mailed on May 24, 2021, it was "not [his] fault" that the notice of appeal arrived two days late. Id. at 7-8. Mr. Howard has also attached a number of documents, including his sworn affidavit, the prison mail log, and the relevant certificates of services attached to his filings to support his assertions.

{¶ 12} However, there is no " ‘actual knowledge’ exception to the service requirement of Civ.R. 58(B)" because the rule "requires that service be made by the clerk of courts; there is no stated exception." Clermont Cty. Transp. Improvement Dist. , 2015-Ohio-241, 26 N.E.3d 806, ¶ 2, 6. In other words, we are precluded from examining Mr. Howard's affidavit and accompanying papers to determine whether and when the clerk served him with the final judgment in this case. "If we open the door to an exception when the parties have actual knowledge of the judgment, we would be forcing the appellate courts into the murky area of deciding whether actual knowledge has been established. Appellate courts are not fact-finders, yet they would be forced into that role" by such an exception. Id. at ¶ 2. Thus, only the clerk's notation on the docket proves whether a final judgment was served under Civ.R. 58(B) and whether the thirty-day period for filing an appeal under App.R. 4(A) began to run. The interplay of these rules implicates "the very foundation for jurisdiction in the appellate court. It is simply too important to allow for notice in a casual manner. An office of a clerk of courts exists, if for no other reason, to keep an accurate and easily accessible record of what has happened in any given case." Id. ¶ 11.

{¶ 13} Examining the record created by the clerk, we conclude that the final judgment was not served on Mr. Howard in accordance with Civ.R. 58(B). The trial court signed the journal entry granting MTC's motion to dismiss on May 3, 2021, and the clerk entered the order on the docket the same day with the notation "notice of final appealable order." On May 5, 2021, the clerk noted "proof of service issued – ordinary mail" upon Mr. Howard. Under Civ.R. 58(B), "service is complete" if the clerk notes service on the docket within three days of the entry of judgment. "When the Civil Rules on service are followed, there is a presumption of proper service." Rogers v. United Presidential Life Ins. Co. , 36 Ohio App.3d 126, 128, 521 N.E.2d 845 (10th Dist.1987). However, on May 28, 2021, the clerk noted "notice returned – not served" with an accompanying image of the envelope containing the "final appealable order" returned by the U.S. Postal Service. This "positive statement of the record that no service was made," which MTC's briefing fails to acknowledge, rebuts the presumption of proper service of the final judgment. Moore v. Starks , 1 Ohio St. 369, 373 (1853). Notwithstanding Mr. Howard's affidavit and protestation that he received the judgment on May 12, 2021, we are bound by Clermont County Transp....