Lane v. U.S. Bank N.A. ( 2023 )

[Cite as Lane v. U.S. Bank N.A., 2023-Ohio-1552.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Thomas Lane, :
Plaintiff-Appellant, :
No. 22AP-358
v. : (C.P.C. No. 22CV-3051)
U.S. Bank N.A. as Trustee et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on May 9, 2023
On brief: Thomas Lane, pro se. Argued: Thomas Lane.
On brief: Blank Rome, LLP, Robert L. Dawson, and John R.
Wirthlin, for appellee U.S. Bank, N.A. Argued: Robert L.
Dawson.
APPEAL from the Franklin County Court of Common Pleas
PER CURIAM.
{¶ 1} Plaintiff-appellant, Thomas Lane, pro se, appeals from a June 9, 2022
judgment of the Franklin County Court of Common Pleas dismissing with prejudice his
action against defendants-appellees, U.S. Bank, N.A. as Trustee (“U.S. Bank”), and GMAC
Mortgage LLC (“GMAC”) (collectively “appellees”). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} The facts and procedural history summarized below are taken from this
court’s past decisions in Lane v. U.S. Bank, N.A., 10th Dist. No. 18AP-197, 2018-Ohio-3140(“Lane I”), and Lane v. U.S. Bank, N.A., 10th Dist. No. 20AP-335, 2021-Ohio-1891(“Lane II”), and relevant court filings in Franklin C.P. Nos. 08CV-7360, 17CV-354, 17CV-
11425, and 19CV-7293. The trial court filings are not part of the record in the case currently
No. 22AP-358 2
on appeal before this court. However, appellate courts may take judicial notice of public
court records readily accessible on the internet. Ltd. Invest. Group Corp. v. Huntington
Natl. Bank, 10th Dist. No. 21AP-61, 2022-Ohio-3657, ¶ 46, citing State v. Estridge, 2d Dist.
No. 2021-CA-25, 2022-Ohio-208, ¶ 12, fn. 1; State ex rel. Hillman v. Phipps, 10th Dist. No.
22AP-636, 2023-Ohio-635, ¶ 12; State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195,
2007-Ohio-4798, ¶ 8. As the trial court filings in case Nos. 08CV-7360, 17CV-354, 17CV-
11425, and 19CV-7293 are publicly available on the internet, we take judicial notice of them.
{¶ 3} In case No. 08CV-7360, on May 20, 2008, U.S. Bank filed a complaint in
foreclosure on Lane’s property at 2921 Wambli Drive, Columbus, Ohio (“the property”).
The trial court issued a judgment entry and decree in foreclosure in favor of U.S. Bank on
September 29, 2008. The property was sold to U.S. Bank at sheriff’s sale on May 22, 2009.
On June 9, 2009, Lane filed a “Notice of Objection to Confirmation of Sale, and Motion to
Set Aside Sheriff’s Sale of Property at Auction” (“Objection”). The Objection was filed on
behalf of Lane by Attorney Walter Mahon and the Nationwide Home Relief Law Group,
P.A. (“Nationwide Home Relief”). Mahon listed several grounds in support of the
Objection, including: “(2) [U.S. Bank] acted in bad faith, (3) [U.S. Bank] made false and
misleading representations to [Lane] that it would adjourn the sale while the parties were
negotiating a fair and equitable settlement, [and] (4) [U.S. Bank] defrauded [Lane]
regarding its commitment to provide a settlement opportunity to [Lane] that would
reasonably permit [Lane] to remain in [his] primary, owner-occupied residence.” (Obj. at
1.)
{¶ 4} Attached to the Objection was a document titled “Declaration of Walter
Mahon, Esq. in support of [Lane’s] Objection to Confirmation of Foreclosure Sale and
Motion to Set Aside Sheriff’s Sale of Property at Auction” (“Declaration”). (Obj. at 3.) In
the Declaration, Mahon detailed the efforts he and his colleagues at Nationwide Home
Relief made between January 8 and May 22, 2009 (when the property was sold) to
negotiate a loan modification agreement on behalf of Lane. According to Mahon, initial
negotiations were with Bill Pittman, the regional district manager of Homecomings
Financial (“Homecomings”), who indicated Lane was eligible for a loan modification.
However, over the next several months, Pittman ceased responding to Nationwide Home
No. 22AP-358 3
Relief’s requests for updates on the loan modification process. Homecomings eventually
refused to speak with Nationwide Home Relief, alleging that its files contained no third-
party authorization. In the Declaration’s conclusory paragraph, Mahon averred:
[Lane] hereby asserts that [U.S. Bank], by and through its
agents and/or employees, repeatedly made false and
misleading statements to [Lane], stating that it would adjourn
the sale while parties negotiated a[n] equitable settlement,
when in fact [U.S. Bank] never intended to reach an
agreement. [U.S. Bank] acted in bad faith during
modifications [sic] negotiations. [U.S. Bank] failed to respond
despite numerous attempts by Nationwide to contact [U.S.
Bank]. As such [Lane] is hereby entitled to have the * * * Court
deny the Confirmation of the Sale, and thereby have said sale
set aside in accordance with the mandates of Ohio law.
(Declaration at ¶ 31.)
{¶ 5} On July 21, 2009, the parties filed a joint motion to stay a ruling on the
pending Objection. The parties indicated they were actively engaging in settlement
negotiations that would allow Lane to retain the property. However, on January 25, 2010,
U.S. Bank requested the trial court rule on Lane’s Objection despite the previous joint
request for a stay. In that filing, U.S. Bank asserted Mahon passed away in early October
2009, after which it unsuccessfully continued negotiations with Lane until December 18,
2009.
{¶ 6} On February 10, 2010, the trial court filed a journal entry denying the parties’
joint motion to stay as moot and denying Lane’s Objection to the confirmation of sale. In
so doing, the trial court noted the Objection was supported by Mahon’s Declaration as
counsel for Lane. As to the substance of the Declaration, the court observed:
In essence, Mr. Mahon’s “declaration” contends that a
modification was dangled in front of Mr. Lane, and that despite
Mr. Lane doing everything that was asked (such as submitting
authorizations and the appropriate paperwork), [U.S. Bank]
never followed through with providing a modification. * * *
Moreover, it is claimed that [U.S. Bank’s] agent said that if the
appropriate paperwork was sent to [U.S. Bank], the May 22,
2009 sheriff’s sale would be withdrawn. * * * As such, it is
alleged that [U.S. Bank] acted in bad faith during modification
negotiations and committed fraud.
No. 22AP-358 4
(Case No. 08CV-7360 Feb. 10, 2010 Journal Entry at 2.) The court denied the Objection,
finding: (1) a valid modification was never executed (as barred by the Statute of Frauds
because the requested modification was never reduced to writing signed by all parties), and
(2) Lane did not allege (other than perhaps sending U.S. Bank paperwork), that he
reasonably relied to his detriment on U.S. Bank’s assurances that the May 22, 2009 sheriff’s
sale would be withdrawn.
{¶ 7} Lane appealed the trial court’s February 10, 2010 judgment to this court.
However, on September 15, 2011, we sua sponte dismissed the appeal, Lane having failed
to file a brief within the time required by App.R. 18(C). U.S. Bank N.A. v. Lane, 10th Dist.
No. 11AP-520 (Sept. 15, 2011 Journal Entry of Dismissal).
{¶ 8} Thereafter, on January 12, 2017, Lane filed a pro se complaint against
appellees in case No. 17CV-354 alleging he had entered into a loan modification agreement
with appellees on October 1, 2009 which was signed and notarized and returned to
Richard A. Freshwater (appellees’ counsel) by Robin Kissin of Nationwide Home Relief.
Lane asserted appellees received three payments from him and then breached the
agreement. Lane further alleged appellees made fraudulent statements in an August 2012
telephone conversation regarding the inability to reinstate the loan due to an acceleration
clause. Lane alleged that in breaching the agreement, appellees committed fraud.
{¶ 9} On March 27, 2017, appellees filed a motion to dismiss Lane’s complaint
pursuant to Civ.R. 12(B)(6). The trial court granted the motion to dismiss in a decision and
entry filed June 7, 2017. Lane appealed the trial court’s judgment to this court. However,
we sua sponte dismissed the appeal on October 5, 2017, Lane having failed to file a brief
within the time required by App.R. 18(C). Lane v. U.S. Bancorp., 10th Dist. No. 17AP-472
(Oct. 5, 2017 Journal Entry of Dismissal).
{¶ 10} Lane then filed a pro se complaint on December 29, 2017 in case No. 17CV-
11425 alleging he had entered into a loan modification agreement with appellees which was
“ ‘signed and notarized’ before being returned to a representative at Nationwide Home
Relief Group, who then sent the agreement to attorneys for U.S. Bank and GMAC Mortgage,
LLC.” Lane I at ¶ 2. Lane alleged appellees received three payments from him and then
breached the agreement. Id. Lane attached to his complaint a letter dated November 16,
No. 22AP-358 5
2009 from an attorney representing U.S. Bank that appeared to be a cover letter sent with
the loan modification agreement. Id. Lane filed a motion for default judgment on
February 8, 2018 on grounds appellees had neither responded to the complaint nor
appeared in the action. Id. On February 12, 2018, the trial court denied the motion and
dismissed the complaint under principles of res judicata, finding the issues raised by Lane
had been “ ‘actually and necessarily litigated and determined in a prior action.’ ” Id. at ¶ 3,
quoting case No. 17CV-11425 Decision & Entry at 2.
{¶ 11} On February 21, 2018, Lane filed a pro se motion captioned “Motion for New
Trial,” in which he referenced Civ.R. 60(B) and argued the clerk had failed to attach the
entire loan modification agreement to his complaint. Lane I at ¶ 4. The trial court denied
Lane’s motion on March 14, 2018, noting the additional exhibits he sought to include with
his complaint, including an unsigned loan modification agreement, had appeared in the
record since the entry of its previous decision. Id. at ¶ 5. The trial court further noted the
exhibits did not change the fact that res judicata applied and in a footnote noted Lane had
filed “ ‘a nearly identical Complaint’ in Franklin C.P. No. 17CVH-354, which had been
dismissed by the trial court and the appellate court.” Id., quoting case No. 17CV-11425
Decision & Entry at 2.
{¶ 12} On appeal, this court affirmed the trial court’s dismissal of the complaint on
res judicata grounds. Lane I at ¶ 10-12. We also affirmed the trial court’s denial of the
motion for new trial (which we noted the trial court had treated as a motion for
reconsideration and relief from judgment under Civ.R. 60(B)), finding that “[a]ny ‘mistake’
responsible for the initial absence of the loan modification document was immaterial to the
trial court’s ultimate finding that res judicata barred Lane’s claims.” Id. at ¶ 13.
{¶ 13} Thereafter, on September 9, 2019 in case No. 19CV-7293, Lane filed a pro se
complaint asserting a single claim of fraud against appellees. Lane II at ¶ 2. Specifically,
Lane alleged that on May 4, 2018 appellees “ ‘entered false and misleading statements into
their [appellate] brief.’ ” Id. at ¶ 2, quoting case No. 19CV-7293 Compl. at 1. In his
complaint, Lane asserted appellees “referenced the statement that they had a declaration
from attorney Walter Mahone [sic] [Lane’s] agent stating that a modification was dangled
in front of Thomas Lane and he never did anything to accept the agreement such as signing
No. 22AP-358 6
the necessary documents and that the document would be attached to the motion as sole
exhibit.” (Sic passim.) (Case No. 19CV-7293 Compl. at ¶ 4.) Lane further asserted “[a]
declaration is not attached to [appellees’] motion [and appellees] do not possess a
declaration from Walter Mahon.” (Case No. 19CV-7293 Compl. at ¶ 5, 6.) Lane alleged the
statements appellees included in their appellate brief “ ‘caused the trial court and the
appeals court to decide without having a formal trial,’ ” and that this fraudulent conduct
caused significant injury to him. Lane II at ¶ 2, quoting case No. 19CV-7293 Compl. at 2.
Service on appellees was completed via certified mail, but neither appellee responded. Id.
Lane then filed two motions for default judgment. Id. The trial court referred the matter
to a magistrate, who conducted an evidentiary hearing. Id. The magistrate found Lane had
failed to satisfy the elements of a fraud claim, recommended the motions for default
judgment be denied and the complaint dismissed with prejudice. Id.
{¶ 14} Lane filed a motion for reconsideration which the trial court construed as
objections to the magistrate’s decision. Lane II at ¶ 3. In reviewing the objections, the trial
court noted Lane failed to file a transcript of the evidentiary hearing before the magistrate.
Id. Finding no error of law or other defect in the magistrate’s decision, the trial court
adopted the magistrate’s decision to deny the motions for default judgment and dismiss the
complaint with prejudice. Id. On appeal, this court affirmed, finding the trial court was
not automatically required to enter default judgment for Lane, acted within its discretion
in holding an evidentiary hearing on the motions for default judgment, and did not err in
denying Lane’s motions for default judgment. Id. at ¶ 8-11.
{¶ 15} On May 6, 2022, Lane filed a pro se complaint in case No. 22CV-3051, the
case currently on appeal before this court. Lane asserted appellees committed a “[f]raud
on the court” by making a false statement to this court in their October 12, 2020 appellees’
brief filed in Lane II. (May 6, 2022 Compl. at ¶ 4-6, 9, 11, 15, 18-20.) Specifically, Lane
argued appellees referenced Mahon’s Declaration “stating that a modification was dangled
in front of Thomas Lane and he never did anything to accept the agreement such as signing
the necessary documents and that the document would be attached to the motion as sole
exhibit.” (Compl. at ¶ 4.) Lane maintained appellees failed to attach the Declaration to
their brief and did not possess Mahon’s Declaration. Lane asserted appellees committed
No. 22AP-358 7
fraud on the court in that they “submitted this evidence as facts in their appellee brief
knowing that there is no document in their possession from Walter Mahone [sic].” (Compl.
at ¶ 11.) Lane also asserted [appellees] made this statement knowing that this document
they referred to does not exist.” (Compl. at ¶ 20.) Lane alleged appellees’ statement “caused
the trial court and the appeals court to decide without having a formal trial.” (Compl. at
¶ 7.) Lane further asserted “[appellees] do not have an affidavit from Walter Mahone [sic]
signed by Thomas Lane.” (Compl. at ¶ 15.) Lane attached to his complaint a copy of the
appellate brief filed by appellees in Lane II.
{¶ 16} Lane also attached to his complaint a document captioned “[Lane’s] First Set
of Interogatories and Request for Production of Documents” and specifically requested “a
copy of the affidavit from Walter Mahon [appellees] are alleging that is in their possession.”
(Sic passim.) (First Set of Interrogs.)
{¶ 17} Service of the complaint on appellees was completed on May 13, 2022 via
certified mail. On May 10, 2022, Lane moved to change the case category from personal
injury (Category C) to Foreclosure (Category E). On June 7, 2022, appellees filed a motion
seeking a 28-day extension to respond to the complaint. Two days later, on June 9, 2022,
the trial court entered a decision and final judgment denying Lane’s motion to change case
category as moot, denying appellees’ motion for extension of time as moot, and sua sponte
dismissing Lane’s complaint with prejudice.
{¶ 18} The trial court based its sua sponte dismissal of the complaint on two
grounds. The court first determined: “There is no genuine dispute about one key point:
[Lane’s] sole allegation of fraud is premised upon a statement made in a formal legal brief
within a judicial proceeding. As such, the statement is protected by the doctrine of absolute
privilege applicable to judicial proceedings. * * * So, privilege for statements in judicial
proceedings about an alleged piece of evidence – ‘a declaration from attorney Walter
Mahone [sic]’ – is dispositive and requires [Lane’s] case to be dismissed.” (June 9, 2022
Decision & Jgmt. Entry at 3, 4.)
{¶ 19} Secondly, the trial court determined because Lane’s claim “appears to be
identical to a previously decided cause of action,” it was barred by res judicata. (Decision
& Jgmt. Entry at 4-5.) The court specifically stated:
No. 22AP-358 8
This newly filed case includes the same three parties as the
case decided last year in the Tenth District. [Lane’s] attempt
to fold-in a reference to the offending declaration, made while
briefing the case on appeal, does not constitute a new, distinct
harm given the prior history reviewed above. This new case –
purportedly making a fraud claim – is therefore subject to
dismissal under Civ.R. 9(B) for failure to allege with
particularity a “fraud” which is new and not barred by the res
judicata doctrine.
(Decision & Jgmt. Entry at 5.)
II. Assignments of Error
{¶ 20} Lane appeals and assigns the following three assignments of error for our
review:
[I.] The trial court errored by stating that Briefs are not
permissible as evidence in Trial Court. Ohio Rules of evidence
401. Briefs can also be used as new evidence in a new Trial.
"Relevant evidence" means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable than it would be
without the evidence Spizak vs Koyl, Bennet vs Dyers Cleaners
Inc.
[II.] Civil Rule 55: When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend as provided by these rules, the party entitled to a
judgment by default shall apply in writing or orally to the
court therefor. Spisak v. Coyle Case No.: 1:95 CV 2675 (N.D.
Ohio Apr. 18, 2003) Cited 1 times 6 more... Ohio civil rule
33,34
[III.] The Fifth, Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Sections 10 and 16 of
the Ohio Constitution guarantees an accused the right to due
process of law and a fair trial.
(Sic passim.)
III. Analysis
{¶ 21} Collectively, Lane’s assignments of error contend the trial court erred in sua
sponte dismissing his complaint. We disagree.
No. 22AP-358 9
{¶ 22} Proceedings under Civ.R. 12(B)(6) to dismiss a complaint for failure to state
a claim upon which relief can be granted test the sufficiency of the complaint on its face and
the sufficiency of the attached documents. State ex rel. Hanson v. Guernsey Cty. Bd. of
Commrs., 65 Ohio St.3d 545, 548 (1992), citing Assn. for the Defense of the Washington
Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). For a court to dismiss for failure
to state a claim upon which relief can be granted, it must appear beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling him to relief. LeRoy v. Allen,
Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14; O’Brien v. Univ.
Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus.
{¶ 23} The court must presume all factual allegations contained in the complaint to
be true and must make all reasonable inferences in favor of the non-moving party. Mitchell
v. Lawson Milk Co., 40 Ohio St.3d 190 (1988). “[A]s long as there is a set of facts, consistent
with the plaintiff’s complaint, which would allow the plaintiff to recover, the court may not
grant a defendant’s motion to dismiss.” York, Adm. v. Ohio State Hwy. Patrol, 60 Ohio
St.3d 143, 145 (1991). The court need not, however, accept as true any unsupported and
conclusory legal propositions advanced in the complaint. Morrow v. Reminger &
Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 7 (10th Dist.).
{¶ 24} The Supreme Court of Ohio has stated the rules of civil procedure neither
expressly permit nor forbid courts to sua sponte dismiss a complaint. State ex rel. Edwards
v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 108 (1995). Generally, a court
may dismiss a complaint on its own motion only after the parties are given notice of the
court’s intention to dismiss and an opportunity to respond. Id. However, this court has
recognized exceptions to that general rule, allowing sua sponte dismissal without notice
where a complaint is frivolous or a claimant obviously cannot possibly prevail on the facts
No. 22AP-358 10
alleged in the complaint. Bullard v. McDonald’s,1 10th Dist. No. 20AP-374, 2021-Ohio-
1505, ¶ 10, citing State ex rel. Bunting v. Styer, Pros. Atty., 147 Ohio St.3d 462, 2016-Ohio-
5781, ¶ 12.
{¶ 25} The trial court’s first basis for dismissing Lane’s complaint was that his claim
of fraud on the court, based solely on appellees’ assertion about Mahon’s Declaration in
their appellate brief in Lane II constituted a statement made during a judicial proceeding
and was therefore protected by the doctrine of absolute immunity.
{¶ 26} Initially, we note the statement Lane claims was fraudulent, i.e., that
“[appellees] had a declaration from Attorney Walter Mahone [sic] [Lane’s] agent stating
that a modification was dangled in front of Thomas Lane and he never did anything to
accept the agreement such as signing the necessary documents” does not appear in
appellees’ brief in the manner described by Lane. (Case No. 19CV-7293 Compl. at 4.) To
be sure, appellees referenced the Mahon Declaration in their brief; however, appellees did
not set forth the specific statement claimed by Lane. Lane appears to have appropriated
the statement from the trial court’s February 10, 2010 entry denying his Objection to the
confirmation of sale and attributed it to appellees.
{¶ 27} Moreover, even if appellees’ Lane brief included the statement as alleged by
Lane, “ ‘[s]tatements made “in a written pleading or brief, or in an oral statement to a judge
or jury in open court, is absolutely privileged if it has some reasonable relation to the
judicial proceeding in which it appears.” ’ ” Schmidt v. Grossman Law Office, 10th Dist.
No. 14AP-127, 2014-Ohio-4227, ¶ 14, quoting Morrison v. Gugle, 142 Ohio App.3d 244, 259
(10th Dist.2001), quoting Michaels v. Berliner, 119 Ohio App.3d 82, 87 (9th Dist.1997); Am.
Chem. Soc. v. Leadscope, Inc., 10th Dist. No. 08AP-1026, 2010-Ohio-2725 (parties
1 In Bullard, this court recently considered the sua sponte dismissal of an amended complaint pursuant to
Civ.R. 12(B)(6). There, we noted that under Civ.R. 12(B)(6), a defendant may move to dismiss a complaint for
failure to state a claim upon which relief can be granted. We further noted that although Civ.R. 12(B)(6)
neither expressly permits or forbids a court from sua sponte dismissing a claim for failure to state a claim, a
court generally may dismiss a complaint on its own motion only after the parties are given notice of the court’s
intention to dismiss and an opportunity to respond. We further averred that a sua sponte dismissal without
notice may be warranted if the complaint is frivolous or the claimant obviously cannot prevail on the facts
alleged. We then set forth the standard governing Civ.R. 12(B)(6). In the present case, after citing to Bullard,
the trial court stated, “it is clear that no relief can be granted on the facts alleged in Mr. Lane’s complaint.”
(Decision & Jgmt. Entry at 3.) Although the trial court did not expressly reference Civ.R. 12(B)(6), we can
fairly construe the court’s language as implicitly employing the Civ.R. 12(B)(6) standard.
No. 22AP-358 11
immune from actions for defamatory remarks made during and relevant to judicial
proceedings).
{¶ 28} Lane does not argue the allegedly fraudulent statement made by appellees in
their brief was not made in a judicial proceeding or was not reasonably related to issues in
that proceeding. Rather, he alleges appellees were not in possession of the Mahon
Declaration. Lane’s assertion in this regard is without merit, as he filed Mahon’s
Declaration as an attachment to his June 9, 2009 Objection to the confirmation of sale in
the foreclosure action; as such, appellees undoubtedly had access to it. Thus, we find no
error in the trial court’s sua sponte dismissal of Lane’s claim on absolute immunity grounds.
{¶ 29} Because Lane’s action must be dismissed on the basis of absolute immunity,
we need not address the alternative basis for dismissal, i.e., res judicata.
{¶ 30} We also find unavailing Lane’s argument that the trial court could not dismiss
his complaint without allowing him time to file a motion for default judgment. Pursuant to
Civ.R. 55(A), when a party against whom judgment is sought fails to plead or otherwise
defend, the opposing party may apply to the court for default judgment. Lopez v. Quezada,
10th Dist. No. 13AP-389, 2014-Ohio-367, ¶ 11. Typically, default judgment is appropriate
against an unresponsive defendant because failure to appear or defend against a plaintiff’s
claims is deemed a confession of the veracity of the claims, and therefore, an admission of
liability. Id. at ¶ 12, citing Ohio Valley Radiology Assocs., Inc., v. Ohio Valley Hosp. Assn.,
28 Ohio St.3d 118, 121 (1986). Nonetheless, the claims asserted by the plaintiff must satisfy
Civ.R. 12(B)(6) as claims upon which relief may be granted to justify the grant of default
judgment. Id. at ¶ 13, citing Beach Body Tanning, Inc. v. Kovach, 8th Dist. No. 85142,
2005-Ohio-2629, ¶ 26. Thus, “where the plaintiff has failed to state a claim, default
judgment on that claim is improper.” Id., citing Vikoz Ents., L.L.C. v. Wizards of Plastic
Recycling, Inc., 9th Dist. No. 25759, 2011-Ohio-4486, ¶ 7.
{¶ 31} Here, we have already determined Lane’s complaint fails to state a claim
upon which relief can be granted under the doctrine of absolute immunity. Thus, even had
the trial court deferred dismissal of Lane’s complaint until after he filed a motion for default
judgment, default judgment would have been improper. Id.No. 22AP-358 12
{¶ 32} The remaining argument in Lane’s brief, i.e., that his propounding of
discovery on appellees prevented the trial court from dismissing the complaint, is
unsupported by any relevant authority and lacks any development warranting discussion.
“It is the duty of the appellant, not the appellate court, to construct the legal arguments
necessary to support the appellant’s assignments of error.” Bond v. Canal Winchester, 10th
Dist. No. 07AP-556, 2008-Ohio-945, ¶ 16, citing Whitehall v. Ruckman, 10th Dist. No.
07AP-445, 2007-Ohio-6780, ¶ 19-20. When an appellant merely lists an error in their
assignments of error but fails to argue it in their brief, we need not address it. See App.R.
12(A). See also App.R. 16(A)(7). Accordingly, we will not address Lane’s argument
regarding his propounding of discovery on appellees.
IV. Conclusion
{¶ 33} Because the trial court did not err when it applied principles of absolute
immunity to sua sponte dismiss Lane’s complaint, Lane’s three assignments of error are
overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN, LUPER SCHUSTER, and EDELSTEIN, JJ., concur.