Plaza v. RobertsPlaza v. Roberts
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: August 8, 2024
Appearances:
Robert Plaza, pro se.
EILEEN A. GALLAGHER, P.J.:
{¶ 1} Plaintiff-appellant, Robert Plaza, appeals (1) an order dismissing his complaint against the defendants-appellees Nikita Roberts (“Roberts“) and K.B. (a minor at the time рeriod relevant to Plaza‘s allegations) and (2) an order denying his
I. Factual Background and Procedural History
{¶ 3} Plaza, acting pro se, filed a complaint against Roberts and K.B. on June 29, 2023, asserting “fraud.”
{¶ 4} Plaza alleged that he was on parole with a parole condition that prohibited him from having contact with minors. He claimed that K.B. misrepresented himself as an adult on a social-networking application designed to facilitate communications and connections between adults. Plaza further alleged that Roberts (as K.B.‘s mother) facilitated and encourаged K.B.‘s use of the adult application.
{¶ 5} Plaza allegedly communicated with K.B. over the application and ultimаtely met face-to-face with K.B. several times. Plaza alleged that these encounters, in turn, caused him to be found in violation of his parole. He says he was sentenced to serve a prison term based on this parole violatiоn. Plaza asked for an award of “general damages, punitive damages, and special damages.”
{¶ 6} On October 31, 2023, thе trial court filed a notice of its intent to dismiss the complaint, sua sponte, under
{¶ 7} On November 16, 2023, Plaza filed a document styled as a “motion showing cause against dismissal,” in which he argued that his complaint stated a claim for fraud and that he suffered cognizable damages for (1) violating his parole
{¶ 8} On December 14, 2023, the trial court issued an order dismissing the complaint with prejudice for failure to state a claim. The court reasoned, among other things, that a parent is not vicariously liable for a child‘s fraud and that Plаza did not plead with particularity “the circumstances that would lead him to a justifiable reliance on [K.B.‘s] represеntations about his age.” The docket notes that the judgment entry was sent by regular mail service to Plaza.
{¶ 9} Initially, Plaza did not appeal the judgment. He instead filed a motion for relief from judgment pursuant to
{¶ 10} On February 7, 2024, the trial court denied the motion. Plаza filed his notice of appeal on March 1, 2024. His notice identified that he is appealing both the December 2023 dismissal order and the February 2024 denial of his
First Assignment of Error: The triаl court erred and abused its discretion by dismissing the case on the basis of determining that Plaintiff did not “allege with particularity sufficient surrounding circumstances that his reliance on the misrepresentation of Defendant [K.B.] is justifiable,” in violation of Plaintiff‘s right to duе process of law.
Second Assignment of Error: The trial court erred and abused its discretion by dismissing the complaint in this case while failing to
address the liability incurred by negligent supervision, pled within the complaint.
II. Law and Analysis
{¶ 11} Before we can review the merits оf the assignments of error, we must first consider whether we have jurisdiction to hear this appeal. See, e.g., Scheel v. Rock Ohio Caesars Cleveland, L.L.C., 2017-Ohio-7174, ¶ 7 (8th Dist.) (noting that the court has a duty to examine, sua sponte, potential deficiencies in its jurisdiction).
{¶ 12} Pursuant to
{¶ 13} Here, Plaza is attempting to appeal from the trial court‘s December 2023 final order dismissing his complaint for fаilure to state a claim. Plaza did not appeal from that order until March 2024, well outside the window prescribed by
{¶ 14} While Plaza sought to set the order aside through a
{¶ 15} Plaza‘s appeal is timely from the denial of his
{¶ 16} This is an example of “bootstrapping,” that is, assigning error “from a final order that was not the subject of a timely notice of appeal” in an “otherwise timely appeal.” E.g., Basit v. Chapman, 2016-Ohio-4562 (8th Dist.). This court has consistently refused to address “bootstrapped” assignments of error. Id. (collecting cases); see also Chapon v. Std. Contracting & Eng., 2007-Ohio-4306, ¶ 3 (8th Dist.). “Bootstrapping” “‘is рrocedurally anomalous and inconsistent with the appellate rules which contemplate a direct relationship between the order from which the appeal is taken and the error assigned as a result of that order.‘” Chapon at ¶ 3, quoting State v. Church, 1995 Ohio App. LEXIS 4838 (8th Dist. Nov. 2, 1995).
{¶ 17} Plаza had 30 days to appeal the dismissal of his complaint. We are mindful that Plaza is not an attorney. But, pro se or not, because he failed to timely appeal, we lack jurisdiction to consider his appeal. See, e.g., Chase Home Fin. LLC v. Oliver, 2008-Ohio-235, ¶ 8 (8th Dist.) (“Because [appellant] failed to appeal the trial court‘s judgment entry . . . we lack jurisdiction to consider this appeal.“).
{¶ 18} Because (1) Plaza‘s appeal from the trial court‘s December 14, 2023 dismissal order was untimely and (2) he failed to articulate any alleged error with respect to the trial court‘s February 7, 2024 judgment dismissing his
It is ordered that the appellant bear the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
MARY J. BOYLE, J., CONCUR