2023 Ohio 496
Ohio Ct. App.2023Background
- Relator Antonio Jones, an inmate, filed an affidavit of accusation in Franklin C.P. No. 20CV-1621; an earlier filing was dismissed for failure to obtain service. He filed a subsequent affidavit on February 19, 2021 and sought a writ of procedendo to compel Judge Stephen McIntosh to rule.
- Jones filed an earlier procedendo action (Jones II) about the same delay; that action was dismissed for failure to comply with R.C. 2969.25(A).
- In this original action (filed May 2, 2022) Jones included an affidavit but omitted required details (case names, numbers, courts, parties) and omitted several civil actions he had filed within the prior five years.
- Respondent moved to dismiss under Civ.R. 12(B)(6) for failure to comply with R.C. 2969.25(A); Jones moved to strike respondent’s reply.
- The magistrate recommended dismissal for noncompliance with the mandatory R.C. 2969.25(A) filing requirements; the court adopted the magistrate’s decision (correcting two typographical errors), granted the motion to dismiss, denied the motion to strike, and dismissed the action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relator complied with R.C. 2969.25(A) when commencing this action | Jones asserted he listed prior proceedings and had not sued state employees for monetary damages; relied on his attached affidavit | McIntosh argued the affidavit omitted required information and omitted several civil actions filed within the past five years | Held: Jones failed to strictly comply; affidavit missing required case/court/party identifiers and omitted prior actions, so noncompliant |
| Whether noncompliance with R.C. 2969.25(A) mandates dismissal | Jones contended his submissions were sufficient and failure should be curable | McIntosh argued strict compliance is mandatory and failure requires dismissal under precedent | Held: Statutory requirement is strict and mandatory; failure to comply warrants dismissal under Civ.R. 12(B)(6) |
| Whether a writ of procedendo was appropriate on the merits given alleged delay | Jones argued the court unreasonably delayed ruling on his affidavit and procedendo is the proper remedy | McIntosh argued procedural defects (noncompliance) bar relief; also dispute over whether underlying actions were civil for R.C. 2969.25 purposes | Held: Court did not reach merits because dismissal for statutory noncompliance was warranted; writ denied |
Key Cases Cited
- State ex rel. Miley v. Parrott, 77 Ohio St.3d 64 (1996) (defines elements and purpose of writ of procedendo)
- State ex rel. Dehler v. Sutula, 74 Ohio St.3d 33 (1995) (procedendo remedies refusal or undue delay by inferior court)
- Levin v. Sheffield, 70 Ohio St.3d 104 (1994) (procedendo context and remedial scope)
- O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975) (standard for dismissal under Civ.R. 12(B)(6))
- LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323 (2007) (construing complaint on motion to dismiss; presume facts true)
- State ex rel. Swanson v. Ohio Dept. of Rehab. & Corr., 156 Ohio St.3d 408 (2019) (R.C. 2969.25 requires strict compliance)
- Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258 (1999) (failure to comply with R.C. 2969.25 is grounds for dismissal)
- Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421 (1998) (same: mandatory compliance with R.C. 2969.25)
- Manns v. Henson, 119 Ohio St.3d 348 (2008) (no substantial compliance allowed for R.C. 2969.25)
- Young v. Clipper, 142 Ohio St.3d 318 (2015) (missing affidavit cannot be cured by belated filing)
- Everhart v. McIntosh, 115 Ohio St.3d 195 (2007) (judicial notice of internet-accessible public records is permissible)
- Fitzgerald, State ex rel. Ohio Republican Party v., 145 Ohio St.3d 92 (2015) (judicial notice principles for related records)
- Womack v. Marsh, 128 Ohio St.3d 303 (2011) (judicial notice of related pleadings and orders)