Burge v. Ohio Atty. Gen.Burge v. Ohio Atty. Gen.
Rendered on August 11, 2011
Stephen P. Ames, for appellant.
Michael DeWine, Attorney General, Robert Byrne, and Melanie Cornelius, for appellees Ohio Attorney General and Ohio Department of Health.
Michael DeWine, Attorney General, and Dennis P. Smith, Jr., for appellee Ohio Public Employees Retirement System.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Plaintiff-appellant, Frank Burge, appeals from the judgment of the Franklin County Court of Common Pleas dismissing his declaratory judgment аction filed against
{¶2} Appellant filed a complaint for declaratory judgment on July 7, 2010, seeking a declaration regarding appellees’ interest in appellant‘s OPERS account. According to the complaint, appellant was convicted of theft in office on or about November 3, 1992, in case No. 91CR-2259. In addition to being sentenced to a term of incarceration, appellant was ordered to pay restitution. Attached to the complaint as Exhibit A is an amended order of the trial court issued in case No. 91CR-2259 on September 21, 2009. The amended order requires that OPERS withhold all funds held on behalf of appellant for payment to ODH pursuant to
{¶3} In the complaint, appellant allеges he did not receive notice of the forfeiture hearing, the hearing was untimely, the state waived its interest in the OPERS account, and that the state is barred from attaching his OPERS account on the basis of unjust enrichment, estoppel, and unclean hands. Additionally, aрpellant alleges that the state‘s interest is dormant, constitutes cruel and unusual punishment, is against public policy, infringes upon his Medicare benefits, and that he has incurred tax liability as a result of a check issued to him by OPERS. Appellant states in his complaint that for thеse reasons,
{¶4} On July 8, 2010, OAG and ODH filed a motion to dismiss the complaint arguing that this declaratory judgment action constitutes an attemрt to impermissibly raise a collateral attack on the forfeiture order issued by the trial court in appellant‘s criminal case. On July 12, 2010, OPERS filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted on the basis that nо justiciable controversy exists because not only was OPERS not a party to the criminal proceedings, but, also, it has no pecuniary interest in the outcome of this matter. Appellant did not file a response to either motion. Agreeing with the contentions of appellees, the trial court granted both motions to dismiss via a decision and entry filed on August 11, 2010.
{¶5} This appeal followed and appellant brings three assignments of error for our review:
FIRST ASSIGNMENT OF ERROR
The Trial Court erred in finding that no justifiable controversy existed between the parties.
SECOND ASSIGNMENT OF ERROR
The Trial Court erred in not addressing the issue of the State‘s unlawful taking of Plaintiff‘s Medicare Benefits.
THIRD ASSIGNMENT OF ERROR
The Trial Court erred in finding Mr. Burge had notice of the Forfeiture hearing.
{¶6} Prior to addressing the merits of appellant‘s assignments of error, we will first address the motion to dismiss this appeal filed by OAG and ODH. In their motion,
{¶7} We now address appellant‘s assignments of error challenging the trial court‘s decision to dismiss his declaratory judgment action.1 A declaratory judgment action is a civil action and provides a remedy in addition to other legal and equitable remedies available. Victory Academy of Toledo v. Zelman, 10th Dist. No. 07AP-1067, 2008-Ohio-3561, ¶8, citing Aust v. Ohio State Dental Bd. (2000), 136 Ohio App.3d 677, 681. “The essential elements for declaratory relief are (1) a real controversy exists between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary to preserve the rights of the parties.” Walker v. Ghee, 10th Dist. No. 01AP-960, 2002-Ohio-297, quoting Aust at 681. “A trial court properly dismisses a declaratory judgment action when no real controversy or justiciable issue exists between the parties.” State v. Brooks (1999), 133 Ohio App.3d 521, 525, citing Weyandt v. Davis (1996), 112 Ohio App.3d 717, 721.
{¶9} In dismissing appellant‘s complaint, the trial court concluded appellant‘s cоmplaint for declaratory judgment constituted an impermissible collateral attack on a forfeiture order issued by the trial court in appellant‘s criminal case. The “collateral attack” doctrine disfavors the authority of one court to rеvisit a judgment of another court in another proceeding in other than very limited circumstances. Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, ¶1. As described by the Supreme Court of Ohio, a collateral attack is an attempt to defeat the operation of a judgment in a proceeding where some new right derived from or through the judgment is
{¶10} It is well-settled that a declaratory judgment action cannot be used to collaterally attack a conviction or sentence in a criminal case. Wilson v. Collins, 10th Dist. No. 10AP-511, 2010-Ohio-6538, ¶9 (summary judgment in favor of defendants in a declaratory judgment action proper where action was merely an attempt to collaterally аttack prior conviction and sentence); Gotel v. Ganshiemer, 11th Dist. No. 2008-A-0070, 2009-Ohio-5423, ¶47 (affirming dismissal of declaratory judgment action that sought to invalidate prior conviction); Moore v. Mason, 8th Dist. No. 84821, 2005-Ohio-1188, ¶14 (affirming dismissal of declaratory judgment action where criminal defendant sought to void his sentence). As stated by the court in O‘Donnell v. State, 4th Dist. No. 05CA3022, 2006-Ohio-2696, ” ‘[a]n аction under declaratory judgment acts will not lie to determine whether rights theretofore adjudicated have been properly decided, nor will it lie to determine the propriety of judgments in prior actions between the same parties. An action for a declaratory judgment cannot be used as a subterfuge for, or for the veiled purpose of, relitigating questions as to which a former judgment is conclusive.’ ” Id. at ¶13, quoting Tootle v. Wood (1974), 40 Ohio App.2d 576, 578, quoting 26 Corpus Juris Secundum 93-94, Declaratory Judgments, Section 23. “Declaratory relief ‘does not provide а means whereby previous judgments by state or federal courts may be reexamined, nor is it a substitute for appeal or post conviction remedies.’ ” Wilson, quoting Moore.
{¶11} Appellant contends under his first assignment of error that because his complaint “alleges the State‘s аttachment of his PERS account deprives him of his
{¶12} In the first paragraph of appellant‘s complaint, appellant asserts he seeks a declaration regarding “thе interest that any of the Defendants may have in his PERS Retirement Account.” (Complaint at 1.) Appellant reiterates the relief he seeks in the concluding paragraph of his complaint wherein he states, “WHEREFORE, Plaintiff seeks an Order from the Court determining that the State оf Ohio has either waived or has no interest in Plaintiff‘s retirement account, and for any other relief that may be available pursuant to law.” (Complaint at 3.)
{¶13} Attached to his complaint is a September 21, 2009 amended order of the Franklin County Court of Common Pleas issued in appellant‘s criminal case No. 91CR-2259, which states, in toto:
The Court, having considered the Motion of the Ohio Department of Health to Execute on the Judgment of Forfeiture and, having conducted a hearing at the request of Frank R. Burge, and having found good cаuse to issue the requested order,
It is hereby ORDERED, ADJUDGED and DECREED that the Public Employee Retirement System shall withhold all funds held on behalf of Frank R. Burge for payment to the Ohio Department of Health pursuant to
Ohio Revised Code section 2921.41 . Payment shall be made to the Franklin CountyClerk of Courts, who will send payment to the Ohio Department of Health, c/о Robert J. Byrne, Principal Assistant Attorney General, Collections Enforcement Section, 150 E. Gay Street, 21st Floor, Columbus, Ohio 43215.
{¶14} After review of appellant‘s complaint, we find appellant is attempting to use a declaratory judgment to collaterally attack a prior valid order of a court in his criminal case, and, as such that appellant does not present a justiciable controversy capable of resolution by declaration under the declaratory judgment act. Rather, appellant‘s arguments would be properly raised on direct appeal of the judgment he challenges here. Jackson v. Bartec, Inc., 10th Dist. No. 10AP-173, 2010-Ohio-5558, ¶38; Moore; Carter v. Walters (Mar. 22, 1990), 3d Dist. No. 11-88-24 (“a declaratory judgment [action] is not part of the criminal appellate process” because neither the declaratory judgment act nоr
{¶15} Accordingly, appellant‘s first assignment of error is overruled.
{¶16} In his second assignment of error, appellant asserts the trial court erred in not addressing the “issue of the State‘s unlawful taking of Plaintiff‘s Medicare Benefits.” (Brief at 8.) A review of the complaint reveals that appellant‘s complaint does not contain such an allegation. Accordingly, appellant‘s second аssignment of error is overruled.
{¶17} In his third assignment of error, appellant states the trial court erred in finding that he had notice of the forfeiture hearing. Under this assigned error, appellant states, “this counsel has not been able to verify that [appellant] actuаlly received personal service of the Forfeiture hearing.” (Brief at 9.) Not only does this assignment of error fail to contain an argument that includes “the contentions of the appellant with respect to [the]
{¶18} For the foregoing reasons, appelleеs’ motion to dismiss is denied, appellant‘s three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Motion to dismiss denied; judgment affirmed.
KLATT and CONNOR, JJ., concur.
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