Barr v. Ohio Environmental Protection Agency , 2013 Ohio 5717 ( 2013 )

[Cite as Barr v. Ohio Environmental Protection Agency, 2013-Ohio-5717.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Roy E. Barr, :
Plaintiff-Appellant, :
v. : No. 13AP-553
(C.C. No. 2013-00209)
Ohio Environmental Protection Agency :
et al., (REGULAR CALENDAR)
:
Defendants-Appellees.
:
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D E C I S I O N
Rendered on December 24, 2013
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Roy E. Barr, pro se.
Michael DeWine, Attorney General, Kristin S. Boggs, Molly
Patterson, and Lawrence Helkowski, for appellees.
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APPEAL from the Court of Claims of Ohio
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Roy E. Barr ("appellant"), appeals from a June 6, 2013
judgment of the Court of Claims of Ohio dismissing his complaint for compensation for
the fair market value for services rendered, proprietary knowledge, and plans of appellant.
For the following reasons, we affirm.
{¶ 2} The complaint was filed on April 2, 2013 by appellant on behalf of himself
individually, on behalf of The Roy E. Barr Living Trust, Roy E. Barr, Trustee, and on
behalf of the Meadowlake Corporation. The facts outlined in the complaint describe a
long history of administrative and legal disputes between appellant and defendant-
appellee, Ohio Environmental Protection Agency ("EPA"), regarding the designation of
well water at 1211 39th St. N.E., Canton Ohio, to be "surface water," rather than "ground
No. 13AP-553 2
water," and the quality testing of that water. Appellant alleges that, on July 12, 2010, he
submitted a bill to the EPA director for the fair market value of proprietary knowledge
and plans that were allegedly seized by EPA agents. Appellant's plans allegedly corrected
defects in the EPA's plans to replace a Deming Mini-Turbine with a submersible pump in
order to conduct bacteriological tests on the water. Appellant states that he has never
been compensated for the plans, proprietary knowledge, and hours and years necessary to
"isolat[e] and correct the defects in the Ohio EPA Director and Engineers approved
plans." (Complaint, ¶ 59.) The complaint was filed against the then director of the EPA,
the Attorney General of Ohio, and the Revenue Recovery Group. The court, in accordance
with Loc.R. 15(B) of the Court of Claims of Ohio, deleted Revenue Recovery Group from
the caption as surplusage.
{¶ 3} On April 25, 2013, the EPA and the Attorney General (collectively
"appellees") moved the court to dismiss the claims pursuant to Civ.R. 12(B)(6), arguing
that the claims are barred by the applicable statute of limitations and fail to state a
cognizable claim for relief. Appellees further argued that appellant, a non-attorney, was
not permitted to represent Meadowlake Corporation. Appellant moved the court to deny
the motion to dismiss and further moved for summary judgment in the amount of
$500,000 for the seizure of his private intellectual personal property.
{¶ 4} On June 6, 2013, the Court of Claims granted appellees' motion to dismiss,
pursuant to Civ.R. 12(B)(6), finding that: (1) appellant, a non-attorney, could not
represent the Meadowlake Corporation and The Roy E. Barr Living Trust; and (2) the
claims, even those asserted by appellant in his individual capacity, are barred by the
applicable statute of limitations outlined in R.C. 2743.16(A). The court also dismissed all
other pending motions as moot.
{¶ 5} Appellant timely filed a notice of appeal. Along with the notice of appeal
which he filed in the Court of Claims, he filed a document entitled "Assignment of Errors
for Judge Patrick M. McGrath and Magistrate Robert Van Schoyck 'Entry of Dismissal,'
Conclusions and Motions for Relief Sought." In this document, he outlined four
assignments of error:
[1.] OHIO LAW REQUIRING AN ATTTORNEY TO REPRE-
SENT A CORPORATION IS UNCONSTITUTIONAL AND/OR
NEEDS TO BE MODIFIED.
No. 13AP-553 3
[2.] THE REVENUE RECOVERY GROUP AS AGENTS FOR
THE ATTORNEY GENERAL OF OHIO CANNOT BE
DISMISS[ED] FROM THIS CASE.
[3.] IF MEADOWLAKE CORPORATION AND THE ROY E.
BARR LIVING TRUST MUST BE REPRESENTED BY AN
ATTORNEY THIS COURT NEEDS TO APPOINT A PUBLIC
DEFENDER OR A CORPORATE ATTORNEY.
[4.] PLAINTIFF[']S CLAIM CANNOT BE TIME BARRED.
{¶ 6} In the same document, appellant notes that the documents and exhibits
filed with the Court of Claims will serve as plaintiff's brief in this appeal. This document
was not filed with this court of appeals. Furthermore, although in his motion to deny
appellee's motion to dismiss appellant did request that the court appoint an attorney for
Meadowlake Corporation, he did not raise the constitutionality of R.C. 1925.17, which
requires that corporations be represented by an attorney.
{¶ 7} In his brief filed with this court, appellant identified one assignment of
error:
OHIO LAW REQUIRING AN ATTORNEY TO REPRESENT A
CORPORATION IS UNCONSTITUTIONAL AND/OR NEEDS
TO BE MODIFIED.
{¶ 8} We decline to address appellant's first assignment of error, as he did not
raise the constitutionality of R.C. 1925.17, in the court below. Generally, " '[f]ailure to
raise at the trial court level the issue of the constitutionality of a statute or its application,
which issue is apparent at the time of trial, constitutes a waiver of such issue and a
deviation from this state's orderly procedure, and therefore need not be heard for the first
time on appeal.' " (Emphasis sic.) In re M.D., 38 Ohio St.3d 149, 150 (1988), quoting
State v. Awan, 22 Ohio St.3d 120 (1986), syllabus.
{¶ 9} In his brief filed with this court, appellant also referred to "Assignments of
Errors # 2, 3 and 4," but did not state or identify the assignments of error except to say
that they "speak for themselves and need no further explanation" and that he would let
"appointed Counsel submit additional data to this Court if this Court so chooses to
appoint counsel for the Plaintiff."
{¶ 10} App.R. 16(A) states:
No. 13AP-553 4
The appellant shall include in its brief, under the headings
and in the order indicated, all of the following:
***
(3) A statement of the assignments of error presented for
review, with reference to the place in the record where each
error is reflected.
(4) A statement of the issues presented for review, with
references to the assignments of error to which each issue
relates.
***
(6) A statement of facts relevant to the assignments of error
presented for review, with appropriate references to the
record in accordance with division (D) of this rule.
(7) An argument containing the contentions of the appellant
with respect to each assignment of error presented for review
and the reasons in support of the contentions, with citations
to the authorities, statutes, and parts of the record on which
appellant relies. The argument may be preceded by a
summary.
{¶ 11} With respect to the second, third, and fourth assignments of error, appellant
did not comply with App.R. 16(A) because he neither identified, nor presented arguments
in support of those assignments of error. App.R. 12(A)(2) states: "The court may
disregard an assignment of error presented for review if the party raising it fails to identify
in the record the error on which the assignment of error is based or fails to argue the
assignment separately in the brief, as required under App.R. 16(A)." Accordingly, we
disregard appellant's second, third, and fourth assignments of error.
{¶ 12} We will note, however, that if, by way of the fourth assignment of error
appellant filed in the trial court, appellant intended to assign error to the trial court's
dismissal of the claims for being time barred, the trial court applied the statute of
limitations correctly. R.C. 2743.16(A) states that "civil actions against the state * * * shall
be commenced no later than two years after the date of accrual of the cause of action or
within any shorter period that is applicable to similar suits between private parties." In
the complaint, appellant averred: "July 12, 2010, Plaintiff, Roy E. Barr, submits a bill to
No. 13AP-553 5
Ohio EPA Director Chris Korleski for the fair market value of the propriety knowledge and
plans." (Complaint, ¶ 57.) In his motion to deny appellees' motion to dismiss, appellant
reiterated that the alleged seizure of his intellectual property took place on July 12, 2010.
Finally, in his motion for summary judgment, appellant stated: "The facts in this case are
not in dispute, [agents of the Ohio EPA] seized and acquired the private intellectual
personal property of Plaintiff Roy E. Barr on July 12, 2010." Thus, July 12, 2010 is the
date the statute of limitations began to accrue. The complaint was filed April 2, 2013,
more than two years later. Therefore, the Court of Claims did not err in dismissing the
complaint for being barred by the statute of limitations set forth in R.C. 2743.16(A).
{¶ 13} For the reasons outlined above, we decline to address appellant's four
assignments of error, and we affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
SADLER and O'GRADY, JJ., concur
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