THE STATE EX REL. FRANKS, APPELLANT, v. OHIO ADULT PAROLE AUTHORITY ET AL., APPELLEES.
No. 2019-0603
Supreme Court of Ohio
Decided March 4, 2020
Slip Opinion No. 2020-Ohio-711
Submitted October 22, 2019
NOTICE
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SLIP OPINION NO. 2020-OHIO-711
THE STATE EX REL. FRANKS, APPELLANT, v. OHIO ADULT PAROLE AUTHORITY ET AL., APPELLEES.
Mandamus—A motion for relief from judgment may not be used as a means to litigate an argument that has been waived—Court of appeals’ judgment affirmed.
(No. 2019-0603—Submitted October 22, 2019—Decided March 4, 2020.)
APPEAL from the Court of Appeals for Franklin County, No. 18AP-390.
{¶ 1} Appellant, Jerry Franks, appeals the Tenth District Court of Appeals’ denial of his motion for relief from the judgment dismissing his mandamus action against appellees the Ohio Adult Parole Authority and the Bureau of Sentence Computation (collectively, “the APA“). We affirm.
Background
{¶ 2} On May 31, 2018, Franks, an inmate at the Pickaway Correctional Institution, filed a complaint for a writ of mandamus against the APA in the Tenth District Court of Appeals. Franks alleged that he had been convicted of aggravated murder with a firearm specification and had been sentenced in 1999 to an aggregate prison sentence of 23 years to life. According to Franks, he should have been eligible for parole in 2019, but the APA has his first hearing scheduled for 2024. The merits of Franks‘s mandamus case are not before this court.
{¶ 3} Franks did not pay the filing fee when he filed his complaint, and he did not seek a waiver of that fee. See
{¶ 4} Five days before the magistrate‘s recommendation, on June 14, 2018, Franks executed an affidavit attesting that he was “void of assets and funds” and that “as a result, [he] c[ould] not give security for the filing fee[] nor costs * * * by such prepayment or otherwise.” Franks failed to attach a statement setting forth the balance of his inmate account from the previous six months. While Franks claims to have submitted the affidavit in response to the magistrate‘s recommendation, the affidavit actually predates the recommendation.
{¶ 5} On September 20, 2018, the Tenth District Court of Appeals adopted the recommendation of the magistrate and dismissed the complaint. The court of appeals specifically noted that no party had filed objections to the magistrate‘s decision.
{¶ 6} Four months later, on January 23, 2019, Franks filed a motion for relief from judgment, pursuant to
{¶ 7} The court of appeals denied Franks‘s motion for relief from judgment on March 26, 2019. The court held that Franks‘s failure to file objections to the magistrate‘s decision barred him from asserting that the court of appeals committed any error when it adopted the magistrate‘s recommendation. Franks timely appealed.
Analysis
{¶ 8} The issue in this appeal is not whether Franks is entitled to a writ of mandamus. Nor is the issue whether the court of appeals properly dismissed Franks‘s complaint in the first instance. Rather, the only issue in this case is whether the court of appeals properly denied Franks‘s motion for relief from judgment.
{¶ 9}
Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law * * *, unless the party has objected to that finding or conclusion as required by
Civ.R. 53(D)(3)(b) .
{¶ 10} This rule also applies in cases that commence as original actions in the courts of appeals and proceed to this court as appeals of right. State ex rel. Sautter v. Grey, 117 Ohio St.3d 465, 2008-Ohio-1444, 884 N.E.2d 1062, ¶ 11 (“The Rules of Civil Procedure are generally applicable in original actions for extraordinary writs“). The Tenth District Court of Appeals, for example, has expressly incorporated the terms of
{¶ 11} As Franks correctly notes in his first proposition of law, the application of
{¶ 12} We therefore reject Franks‘s suggestion, in his first proposition of law, that he may use
{¶ 13} Franks‘s second proposition of law raises his argument on the merits, namely that the court of appeals erred when it dismissed his complaint because he was not seeking to waive the filing fees, and therefore the court of appeals should have given him an opportunity to pay the fees before dismissing his complaint for a writ of mandamus. As noted, Franks has waived this argument, and we reject his second proposition of law on that basis.
{¶ 14} In his third proposition of law, Franks asserts that
Judgment affirmed.
O‘CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
FRENCH, J., not participating.
Jerry Franks, pro se.
Dave Yost, Attorney General, and George Horvath, Assistant Attorney General, for appellees.