State ex rel. Meros v. Munson

1

2024-Ohio-172

State ex rel. Thomas L. Meros, Relator, v. [Honorable] Sheryl K. Munson, Judge Franklin County Common Pleas Court, Respondent.

No. 23AP-366

Court of Appeals of Ohio, Tenth District

January 18, 2024

In Procedendo

On brief:

Thomas L. Meros, pro se.

G Gary Tyack, Prosecuting Attorney, and Thomas W. Ellis, for respondent.

DECISION

LELAND, J.

{¶ 1} Relator, Thomas L. Meros, has filed an original action seeking a writ of procedendo ordering respondent, the Honorable Sheryl K. Munson, to issue a ruling on his motion for relief from judgment. Respondent has filed a motion to dismiss, pursuant to Civ.R. 12(B)(6), asserting the matter is moot because respondent issued a decision and entry on July 19, 2023 denying relator's motion for relief from judgment.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. In that decision, the magistrate recommended this court grant respondent's motion to dismiss on the ground that respondent has already performed the action sought in relator's complaint.

{¶ 3} No party has filed objections to the magistrate's decision. The case is now before this court for review.

{¶ 4} Finding no error of law or other defect on the face of the magistrate's decision, this court adopts the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's recommendation, we grant respondent's motion to dismiss and dismiss relator's action.

Respondent's motion to dismiss granted; action dismissed.

DORRIAN and LUPER SCHUSTER, JJ., concur.

Rendered on August 17, 2023

IN PROCEDENDO ON RESPONDENT'S MOTION TO DISMISS

MAGISTRATE'S DECISION

JOSEPH E. WENGER IV MAGISTRATE

{¶ 5} Relator, Thomas L. Meros, has filed this action in procedendo seeking a writ ordering respondent, the Honorable Sheryl K. Munson, to issue a ruling on relator's motion for relief from judgment.

I. Findings of Fact

{¶ 6} 1. Relator is the plaintiff in Meros v. Dimon, Franklin C.P. No. 18CV-3389 ("Case No. 18CV-3389").

{¶ 7} 2. Respondent, who is a public official serving as a judge of the Franklin County Court of Common Pleas, is presiding over Case No. 18CV-3389.

A. Proceedings Related to the Underlying Matter

{¶ 8} 3. Relator filed his complaint in Case No. 18CV-3389 on April 23, 2018.

{¶ 9} 4. On May 23, 2018, a defendant in Case No. 18CV-3389 filed a notice of removal of the case to United States District Court for the Southern District of Ohio pursuant to 28 U.S.C. 1446.^[1]

{¶ 10} 5. Following the notice of removal to federal court, relator continued to file documents and motions in the common pleas court. In multiple decisions and entries, including on August 5 and October 2, 2019, and February 21, 2020, a judge previously assigned to preside over Case No. 18CV-3389 denied relator's motions, finding the court lacked jurisdiction due to the removal to federal court. After respondent began presiding over the matter, relator continued to file motions and documents. These were denied by additional decisions and entries, including on December 8, 2020 and May 21, 2021.

{¶ 11} 6. Relator filed a 316-page motion for relief from judgment under Civ.R. 60(B) on June 21, 2021. Thereafter, relator continued to file a variety of other motions and documents.

{¶ 12} 7. On July 19, 2023, the court issued a decision and entry denying relator's June 21, 2021 motion for relief from judgment. In a separate decision and entry filed the same day, the court denied all other outstanding motions filed by relator.

{¶ 13} 8. On August 4, 2023, relator filed a notice of appeal from the July 19, 2023 order denying his motion for relief from judgment. Relator also included in his notice the other denials of previously filed motions. At this time, relator's appeal remains pending before this court in Case No. 23AP-476.

B. Proceedings in this Action in Procedendo

{¶ 14} 9. On June 16, 2023, prior to the issuance of the decision and entry denying relator's motion for relief from judgment in Case No. 18CV-3389, relator filed in this court a complaint for writ of procedendo.

{¶ 15} 10. On June 22, 2023, a magistrate's order was issued setting requirements for future filings in the case. In particular, the magistrate's order required all subsequent pleadings, briefs, and other papers submitted for consideration to comply with this court's local rules, specifically including Loc.R. 2(D). The order also set the following page limitations: briefs and motions, including memoranda in opposition to the same, were not to exceed 30 pages; reply briefs and memoranda were limited to 20 pages. The parties were advised that filings in excess of those page limitations would not be considered without prior leave.

{¶ 16} 11. On July 19, 2023, the same day as the decision denying relator's motion for relief from judgment was filed in Case No. 18CV-3389, respondent filed a motion to dismiss pursuant to Civ.R. 12(B)(6).

{¶ 17} 12. Relator filed a memorandum in opposition to the motion to dismiss on July 31, 2023. On August 1, 2023, a magistrate's order was issued finding relator's memorandum in opposition failed to comply with the requirements set forth in the June 22, 2023 magistrate's order. On August 11, 2023, relator filed a motion for extension of time to oppose respondent's motion to dismiss in which relator sought leave to file his memorandum in opposition to the motion to dismiss. On the same day, relator filed an amended memorandum in opposition.

II. Discussion and Conclusions of Law

{¶ 18} Before turning to the merits of respondent's motion to dismiss, it is necessary to address relator's filings in response to the motion to dismiss. By way of the August 1, 2023 magistrate's order, relator was informed that his original memorandum in opposition was not in compliance with the requirements set forth in the June 22, 2023 magistrate's order, particularly the requirement to comply with Loc.R. 2(D), which mandates written documents to be produced in 16-point type. As a result, relator was ordered to file a corrected memorandum "in 16-point type and otherwise complying with the June 22, 2023 magistrate'[s] order." (Aug. 1, 2023 Magistrate's Order.) Relator was advised that failure to comply with this order would result in "relator's memorandum [being] sua sponte stricken from the file." (Aug. 1, 2023 Magistrate's Order.) The magistrate sua sponte granted relator an extension of time until August 4, 2023 to file a memorandum that complied with the filing requirements.

{¶ 19} On August 11, 2023, relator filed a motion for extension of time and leave to file instanter his memorandum in opposition. As explanation for the untimely filing, relator stated he was out of state when the common pleas court issued its decision denying relator's motion for relief from judgment. Relator stated that his attention was focused on preparing his appeal from the denial of the motion for relief from judgment and, consequently, he overlooked the deadline imposed by the magistrate to resubmit his memorandum in opposition. Relator's amended memorandum also included a motion for the court to grant an oral hearing on the writ and relator's opposition to the motion to dismiss.

{¶ 20} On review, relator's amended memorandum in opposition still does not comply with the filing requirements set forth in the June 22, 2023 magistrate's order. Relator's amended memorandum is 44 pages long. This is well in excess of the 30-page limitation on such a filing.

{¶ 21} The parties were informed of the filing requirements prior to any motions or memoranda being filed. Relator was reminded of the requirements when his initial memorandum in opposition was found to not be in compliance with the same. Additionally, relator filed the amended memorandum after the original deadline for responding to the motion to dismiss and the sua sponte extension granted by the magistrate.

{¶ 22} Because relator's July 31, 2023 amended memorandum in opposition is in excess of the page limitations, it would be proper and consistent with the June 22, 2023 magistrate's order to refuse to consider it. Nevertheless, it is" 'a basic tenet of Ohio jurisprudence that cases should be determined on their merits and not on mere procedural technicalities.'" Wolf-Sabatino v. Sabatino, 10th Dist. No. 12AP-307, 2012-Ohio-6232, ¶ 26, quoting Barksdale v. Van's Auto Sales, Inc., 38 Ohio St.3d 127, 128 (1988). With this important principle in mind, relator's motion for extension of time and leave to file his amended memorandum is granted. Relator's arguments in his amended memorandum in opposition will be considered despite the lack of compliance with the page limitations. Relator is cautioned that future filings with this court must comply with the Local Rules of the Tenth District Court of Appeals and this court's orders. Finally, relator's motion for an oral hearing on the writ and his memorandum in opposition is denied.

A. Review of a Motion to Dismiss for Failure to State a Claim

{¶ 23} A motion to dismiss for failure to state a claim is procedural and tests the sufficiency of the complaint itself and any attached documents. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992), citing Assn. for Defense of Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). Attachments to the complaint are considered part of the complaint for all purposes. Civ.R. 10(C). Generally, in ruling on a Civ.R. 12(B)(6) motion, a court" 'cannot resort to evidence outside the complaint to support dismissal [excep...