Mаtthew J. Dunlop, Plaintiff-Appellant, v. Ohio Department of Job and Family Services, Defendant-Appellee.
No. 19AP-58 (C.P.C. No. 12CV-6052)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on September 10, 2019
[Cite as Dunlop v. Ohio Dept. of Job & Family Servs., 2019-Ohio-3632.]
SADLER, J.
(REGULAR CALENDAR)
On brief: The Tyack Law Firm Co., L.P.A., Jonathan T. Tyack, and Holly B. Cline, for appellant. Argued: Holly B. Cline.
On brief: Carpenter Lipps & Leland LLP, Michael H. Carpenter, and Jennifer A.L. Battle, for appellee.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, Matthew J. Dunlop, appeals from the judgment of the Franklin County Court of Common Pleas denying appellant‘s motion for summary judgment and granting the motion for summary judgment filed by defendant-appellee, Ohio Department of Job and Family Services (“ODJFS“). For the following reasons, we affirm the decision of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This is the third appeal before this court arising from appellant‘s complaint against ODJFS in regard to child support payments that were withheld by his employer in
In May 2011, appellant sued ODJFS in the Court of Claims of Ohio with a complaint nearly identical to the one here. The Court of Claims dismissed the complaint for lack of jurisdiction, finding appellant‘s clаims equitable in nature. This court affirmed that decision in Dunlop v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 11AP-929, 2012-Ohio-1378 [”Dunlop I“], and the Supreme Court of Ohio declined to take further review of the matter.
Just after filing his complaint in the Court of Claims, appellant filed the instant class action complaint, on behalf of himself and similarly situated individuals he estimates to number in excess of 100,000, alleging claims of conversion, equitable restitution, constructive trust, breach of fiduciary duty and wrongful disposition against ODJFS and 300 John Doe defendants, and seeking actual money damages, equitable restitution and/or disgorgement of improperly obtained funds, a “constructive trust over all funds improperly obtained by ODJFS,” injunction, and declaratory relief. (Compl. at 3.) Appellant alleges that each John Doe defendant “is a joint venture, partner, subsidiary, parent, agent, representative, franchisee or alter ego” of ODJFS, has a “unity of interest” with ODJFS, and “is legally, equitably or otherwise responsible in some manner for the damages” alleged. (Compl. at 3, 4.)
The complaint alleges that ODJFS knowingly collects more money than he, and persons like him, have been ordered to pay in child support and then passes that money on to others (such as ex-spouses and/or the federal government in certain public assistance cases) and/or retains the over-collected funds. The complaint states under current ODJFS policies, overpaid child support may not be recouped while an active child support order is in place and that greater than 114,000 open child support accounts with ODJFS show a credit balance. Appellant alleges that Ohio‘s system of recoupment does not compоrt with federal regulations requiring prompt refund of amounts improperly withheld.
Specific to his personal situation, appellant alleges in his complaint that after his divorce in 2007, the court of common pleas ordered him to pay $691.72 per month beginning January 1, 2008. He alleges that the Franklin County Child Support Enforcement Agency (“CSEA“) sent his employer a garnishment order that specified the amount of the monthly
support, provided a calculation to determine how much money should be withheld from his compensation based on the compаny‘s pay cycle, and included a handwritten withholding amount on the instructions. On later suspecting that he was paying in excess of the order and contacting the CSEA, appellant alleges that the CSEA told him he was building a credit balance as a result of his employer‘s error in setting up the garnishment and that he would have to wait until the child support order was near expiration to recoup the overpayment. When appellant then spoke to his employer about the issue, appellant alleges that his employer told him the garnishment amount was based on the order from the CSEA and that they could not take instructions from appellant. Appellant alleges that he continues to carry a credit balance. In the complaint, under his claim for conversion, appellant asserts that ODJFS had no legal right to collect funds in excess of the court-ordered child support payment or charge percentage fees, if any, thereon without his consent. To appellant, he is effectively permanently deprived of his use of those funds and, “even to the extent that there is a mechanism to recoup funds at the conclusion of the child support term, no interest is paid on those funds.” (Compl. at 15.) As such, appellant asks for actual damages for each class member into a fluid recovery fund, plus interest. Under his claim for equitable restitution, appellant alleges that ODJFS knowingly received and held or distributed money above the ordered child support belonging to him and that this constitutes a wrongful action. As such, appellant asks for restitution of all funds collected over the ordered child support to each class member into a fluid recovery fund, plus interest.
On June 25, 2012, ODJFS filed a motion to dismiss for failure to state a claim, pursuant to
Civ.R. 12(B)(6) , which the trial court initially denied on April 15, 2014. On April 20, 2016, ODJFS asked the trial court to reconsider its decision based on new authority, Cullinan v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 15AP-390, 2016-Ohio-1083. Appellant filed a memorandum contra and ODJFS replied.
(Footnote omitted.) Dunlop v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 16AP-550, 2017-Ohio-5531, ¶ 2-7 [”Dunlop II“]. On July 13, 2016, the trial court granted ODJFS‘s motion for reconsideration and dismissed the complaint pursuant to
{¶ 3} On remand, the parties each filed motions for summary judgment on all claims. On December 31, 2018, the trial court granted ODJFS‘s motion for summary judgment and denied appellant‘s motion for summary judgment. In doing so, the trial court found that similarly to Cullinan, ODJFS did not act wrongfully in receiving and remitting appellant‘s child support payments, and, therefore, appellant could not establish a claim for equitable restitution. The trial court emphasized the evidence showed, and the parties agreed, that appellant‘s employer did not comply with the court order and is solely responsible for the excess withholding and that appellant failed to point to any rule or law that requires ODJFS to correct a withholding in the manner argued by appellant. Finally, the trial court noted appellant‘s constitutional claims were not raised in his complaint, and, regardless, his attempt to appeal the constitutional issues posed only conclusory assertions unsupported by legal authority.
{¶ 4} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 5} Appellant assigns the following as trial court error:
- [1.] The Court of Common Pleas does not have original subject matter jurisdiction over Plaintiff-Appellant Matthew Dunlop‘s claims against Defendant-Appellee Ohio Department of Job and Family Services. Thus, the trial court‘s ruling on the parties’ summary judgment motions are void.
- [2.] Assuming arguendo the common pleas court has subject matter jurisdiction over Mr. Dunlop‘s claims, the trial court erred by denying Plaintiff-Appellant‘s Motion for Summary Judgment.
- [3.] Assuming arguendo the common pleas court has subject matter jurisdiction over Mr. Dunlop‘s claims, the trial court erred by granting Defendant-Appellee‘s Motion for Summary Judgment.
{¶ 6} Pursuant to
{¶ 7} Appellate review of summary judgment is de novo. Gabriel v. Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E. Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. “When an appellatе court reviews a trial court‘s disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court‘s determination.” Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992).
IV. LEGAL ANALYSIS
A. Appellant‘s First Assignment of Error
{¶ 8} In his first assignment of error, appellant contends the trial court lacked subject-matter jurisdiction over his claims against ODJFS and, therefore, erred in ruling on the parties’ motions for summary judgment. Because res judicata bars relitigation of this issue within the procedural posture of this case, we find appellant‘s assignment of error is without mеrit.
{¶ 9} To support his assignment of error, appellant specifically argues his claims include a legal claim, and, therefore, the trial court lacked jurisdiction based on the Supreme Court of Ohio ruling in Cirino v. Ohio Bur. of Workers’ Comp., 153 Ohio St.3d 333, 2018-Ohio-2665 (O‘Donnell, J., dissenting), which was decided five months prior to the trial court‘s decision on summary judgment.1 As a result, appellant maintains the judgment of the trial court is void, res judicata does not apply since subject-matter jurisdiction may be raised at any time, the law of the case doctrine does not apply since an intervening court decision (Cirino) constitutes an exception to the doctrine, and the case should have been dismissed to avoid injustice.
{¶ 10} ODJFS responds that appellant is barred from relitigating jurisdiction by the doctrine of res judicata since the question of whether his claims belonged in the Court of Claims or the court of common pleas was already litigated in this case by courts of competent jurisdiction. ODJFS asserts that although subject-matter jurisdiction may be raised at any time, once it is litigated, such determination is subject to res judicata and a change in decisional law does not bar the application of the doctrine of res judicata.
{¶ 11} Collateral estoppel, “an aspect of res judicata,” prohibits “relitigation, in a second action, of an issue that has been actually and necessarily litigated and determined in a prior action.” (Internal citations omitted.) Lowe‘s Home Ctr., Inc. v. Washington Cty. Bd. of Revision, 154 Ohio St.3d 463, 2018-Ohio-1974, ¶ 33. Generally, “[t]he bar of res judicata does not apply where the prior action was void for lack of subject matter jurisdiction.” Bakhtiar v. Saghafi, 8th Dist. No. 106587, 2018-Ohio-3796, ¶ 21, discretionary appeal not allowed by 2019-Ohio-173.
{¶ 12} However, “[r]es judicata applies to bar relitigation of the issue of subject-matter jurisdiction.” (Emphasis added.) In re A.R., 10th Dist. No. 16AP-482, 2017-Ohio-1575, ¶ 10. See Bakhtiar at ¶ 21 (“[W]here the question of subject mattеr jurisdiction has been fully litigated, res judicata applies to the final determination and it is not subject to
{¶ 13} Furthermore, “[g]enerally, a change in decisional law which might arguably reverse the оutcome in a prior civil action does not bar the application of the doctrine of res judicata. Since the doctrine of res judicata serves important public and private interests, exceptions to the doctrine‘s application should be narrowly construed.” (Emphasis sic.) Natl. Amusements v. Springdale, 53 Ohio St.3d 60 (1990), syllabus. “To hold otherwise would enable any unsuccessful litigant to attempt to reopen and relitigate a prior adverse final judgment simply because there has been a change in controlling case law. Such a result would undermine the stability of final judgments and, in effect, render their enforceability conditional upon there being no change in the law.” (Internal quotations omitted.) Id. at 63. A “few existing exceptions” have been recognized as an exception to the doctrine of res judicata based on a change in decisional law, such as “a major change in constitutional principles” as applied to certain specific areas of law. Id. However, the Natl. Amusements court warned “courts should be slow to broaden the few existing exceptions” and declined in that case to exempt from res judicata an allegedly “fundamental change in the controlling law” brought about by a new appellate decision. Id. at 62-63.
{¶ 14} Here, this court had authority in Dunlop I to pass on whether the Court of Claims erred in finding it lacked jurisdiction over appellant‘s claims. Appellant appealed our decision, and the Supreme Court declined jurisdictional review. Appellant does not dispute the present complaint contains essentially the same claims and the same parties as the case he brought in the Court of Claims. Pursuant to A.R., once a jurisdictional issue has been fully litigated and determined by a court that has authority to pass on the issue, such determination is res judicata in a collateral action. Moreover, appellant has not persuaded us Cirino presents “a change in decisional law” of the extraordinary sort described by Natl. Amusements to avoid the general rule that decisional law changes—even those that arguably reverse the outcome in a prior civil action—do not bar the application of the
{¶ 15} Accordingly, appellant‘s first assignment of error is overruled.
B. Appellant‘s Third Assignment of Error
{¶ 16} For clarity of analysis, we will address appellant‘s remaining two assignments of error, pertaining to the merits of summary judgment, out of order. In his third assignment of error, appellant contends the trial court erred in granting summary judgment in favor of ODJFS. We disagree.
{¶ 17} To support his assignment of error, appellant first cites to the concurring opinion in Cirino, 2018-Ohio-2665, and Montanile v. Bd. of Trustees of Natl. Elevator Industry Health Benefit Plan, 136 S.Ct. 651 (2016), in arguing he was not required to demonstrate ODJFS acted wrongfully beсause he sought legal rather than equitable relief. In essence, appellant argues the focus should not have been on ODJFS‘s “wrongfully obtained gain” but, rather, appellant‘s “loss at [ODJFS‘s] hands.” (Appellant‘s Brief at 45.)
{¶ 18} Appellant‘s argument is based on the characterization of the claim as seeking legal relief. In Dunlop I, this court addressed this issue and disagreed with appellant. Id. at ¶ 16 (“It is clear that, in the present case, appellant is seeking recovery of specific monies and not compensation * * *. Appellant‘s claim in his complaint is that he seeks reimbursement of funds that ODJFS allegedly wrongly collected for child support. * * * As made clear by Santos [v. Ohio Bur. of Workers’ Comp., 101 Ohio St.3d 74, 2004-Ohio-28] and Interim HealthCare [of Columbus, Inc. v. Dept. of Adm. Servs., 10th Dist. No. 07AP-747, 2008-Ohio-2286], this type of claim is one for equitable restitution.“). The Supreme Court declined jurisdictional review of the matter, and this case proceeded as a Santos equitable restitution claim in the court of common pleas, through the
{¶ 19} To this end, appellant next argues, assuming arguendo appellant was required to demonstrate ODJFS acted wrongfully in receiving and remitting his child support payments, at minimum, a genuine issue of material fact exists as to whether ODJFS‘s conduct was “wrongful.” (Appellant‘s Brief at 46.) Specifically, appellant argues: ODJFS‘s “knowledge of the over-collection issue * * * and four-year failure to correct said issue when ODJFS had a duty to collect and remit the correct court-ordered amount was wrongful“; and ODJFS‘s “excessive garnishment” which “took money from [appellant] without statutory or regulatory authority” constituted wrongful collection and/or retention of funds under Santos.3 (Emphasis sic.) (Appellant‘s Brief at 46, 47.) Appellant also mentions a government entity may not take another‘s property without due process of law and discusses how this concept spans criminal law, tax law, intellectual property law, consumer law, and the applicable refund prоvisions therein.4
{¶ 20} ODJFS counters that appellant cannot establish, under any theory, ODJFS engaged in a wrongful act. According to ODJFS, all the evidence shows ODJFS acted as statutorily mandated, and the evidence demonstrates someone other than ODJFS (or Franklin County Child Support Enforcement Agency (“FCCSEA“)) was responsible for the initial error in appellant‘s child support withholding. ODJFS contends that nothing in the statutory framework prevents ODJFS from accepting payments in excess of the court-ordered child support amount or imposes a duty on ODJFS to investigatе whether an obligor‘s overpayments were intentional or not and that disbursing the payments was
{¶ 21} We agree with ODJFS that, similar to Cullinan, the lack of wrongful conduct on the part of ODJFS supports judgment in its favor as a matter of law. In Cullinan, a plaintiff who double paid child support each month by mistakenly continuing to issue personal checks despite the payment already being withheld from his income filed a complaint against ODJFS similar to the case at hand. There, Cullinan asserted ODJFS “has in the past, and continues to wrongfully exercise dominion over Plaintiff‘s personal property, namely that portion of Plaintiff‘s funds over collected above the court ordered child support, to the exclusion of the rights of Plaintiff” and claimed ODJFS “had absolutely no legal authority to collect double child support payments from 2004 through the first half of 2010, nor did [ODJFS] have the authority to charge an extra 2% on that amount as a processing charge.” Id. at ¶ 16. Cullinan did not argue that ODJFS acted improperly by issuing a wage withholding order. Instead, Cullinan contended that “[n]otwithstanding the awareness by ODJFS that the double payments were being collected, ODJFS took no action to halt the double payments, impound the double payments or otherwise return the double payments to [appellant].” Id. at ¶ 17.
{¶ 22} In rejecting Cullinan‘s argument, we emphasized that
{¶ 24} Here, like in Cullinan, appellant fails to cite to any statute or code provision that demonstrates ODJFS had a duty to refuse to collect and remit the overpayments. Contrary to appellant‘s contentions,
{¶ 26} Accordingly, appellant‘s third assignment of error is overruled.
C. Appellant‘s Second Assignment of Error
{¶ 27} In his second assignment of error, appellant contends the trial court erred in denying his motion for summary judgment. We disagree.
{¶ 28} Appellant argues the facts uncontrovertibly establish that ODJFS collected an amount in excess of the court-ordered child support amount from appellant‘s paycheck that it never had a right to take and transferred those funds to his ex-wife over four years. According to appеllant, this establishes ODJFS converted funds excessively garnished from his wages without permission or consent. Appellant additionally contends ODJFS‘s collection of funds in an amount exceeding the order was wrongful under Santos, 2004-Ohio-28.
{¶ 29} We initially note appellant has not provided authority that collecting payments in excess of the court-ordered child support amount and providing those funds to the obligee is a wrongful act under the statutory and administrative scheme. Therefore, appellant has not met his burden of demonstrating error on appeal. State v. Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating gеneral rule that an appellant bears the burden of affirmatively demonstrating error on appeal); State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 34, citing App.R. 16(A)(7) and 12(A)(2) (“An appellant must support their assignments of error with an argument, which includes citation to legal authority.“); State v. Smith, 9th Dist. No. 15AP0001n, 2017-Ohio-359, ¶ 22 (noting it is not the duty of an appellate court to create an argument on an appellant‘s behalf).
{¶ 30} Regardless, appellant‘s assignment of error lacks merit. As provided in addressing the third assignment of error, ODJFS is required to distribute “any amount” within two business days of its receipt. Cullinan at ¶ 23;
{¶ 31} Considering all the above, we find appellant did not meet his burden in moving for summary judgment pursuant to
{¶ 32} Accordingly, appellant‘s second assignment of error is overruled.
V. CONCLUSION
{¶ 33} Having overruled appellant‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, P.J., and DORRIAN, J., concur.