McLemore v. Clinton Cty. Sheiff's Office ( 2023 )

[Cite as McLemore v. Clinton Cty. Sheiff's Office, 2023-Ohio-1604.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
FAITH McLEMORE, et al., :
Appellant, : CASE NO. CA2022-07-019
: OPINION
- vs - 5/15/2023
:
CLINTON COUNTY SHERIFF'S OFFICE, :
et al.,
:
Appellees.
CIVIL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case No. CVH20210332
Faith McLemore, pro se.
Rohrbachers Cron Manahan Trimble & Zimmerman Co., L.P.A., and J. Mark Trimble and
Tracy B. Selis, for appellees, Ohio Crime Victim Justice Center, Morgan Keilhoz, Brianna
Schultz, and Alexandra Fehder.
Isaac Wiles & Burkholder, LLC, and Jeffrey A. Stankunas, for appellees, Clinton County
Sheriff's Office, Ralph Fizer Jr., Brian Prickett, Doug Eastes, Brett Prickett, Terence
Meehan, Thomas Crouch, Robert Gates, Morgan Wages, Elliott Sylvester, the Clinton
County Board of Commissioners, Kerry Steed, Brenda Woods, Mike McCarty, the Clinton
County Prosecuting Attorney's Office, Andrew McCoy, John Kaspar, Stephen Payne, Gary
Garrison, Marvin Corbin, and Arlene Soto.
Dinsmore & Shohl LLP, and Justin M. Burns and Gary E. Becker, for appellees, City of
Wilmington, City of Wilmington Police Department, City of Wilmington Police Chief Ron
Cravens, City of Wilmington Fire Department, City of Wilmington Prosecutor David Henry,
City of Wilmington Law Director Brett Rudduck, City of Wilmington Mayor John Stanforth,
City of Wilmington City Council Members (Jonathan McKay, Michael Snarr, Kristi Fickert,
Matt Purkey, Kelsey Swindler, Bill Liermann, Nick Eveland, and Mark McKay), and City of
Wilmington Fire Department/EMTs Brett Terrell and Mark Duncan.
Clinton CA2022-07-019
BYRNE, J.
{¶1} Faith McLemore appeals the decision of the Clinton County Court of Common
Pleas striking her pleadings and dismissing her claims. For the reasons described below,
we affirm the decision of the trial court.
I. Facts and Procedural Posture
A. The Complaint
{¶2} On or about November 25, 2019, Marvin "Andy" Napier, Jr. ("Andy") died while
he was in the custody of the Clinton County Sheriff's Office. Nearly two years later, on
November 24, 2021, a complaint bringing claims concerning the circumstances of Andy's
death was filed in the Clinton County Court of Common Pleas. The complaint purported to
be brought on behalf of four individual plaintiffs: (1) Faith McLemore, who is Andy's
daughter; (2) Mary Napier, who is Andy's daughter and McLemore's sister; (3) Devin Napier,
who is Andy's son and McLemore's brother; and (4) their deceased father, Andy. The
complaint purported to be brought by these Plaintiffs pro se—that is, with the Plaintiffs
representing themselves, rather than being represented by a lawyer.1
{¶3} The complaint asserted claims under 42 U.S.C. 1983, a federal statute
providing that "[e]very person who, under color of [state law], subjects, or causes to be
subjected, any citizen of the United States * * * to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in an
1. There are serious questions about whether Mary Napier and Devin Napier were or are aware that they
were named as plaintiffs in the lawsuit, and whether they appeared pro se in this lawsuit. There are also
serious questions about Andy's appearance as a plaintiff when Andy (1) was deceased at the time the
complaint was filed, and (2) was named individually as a plaintiff, rather than his estate. Because we find (as
explained below) that the trial court's decision should be affirmed for reasons unrelated to these questions,
we need not examine these questions further. For purposes of readability, we will simply refer to the
"Plaintiffs," rather than the "putative" Plaintiffs.
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action at law* * *." In support of this claim, the complaint alleged that the defendants violated
Andy's rights and covered up the true cause of his death.
{¶4} The complaint identified ten government entities, one non-profit organization,
and 37 individuals associated with those entities as defendants. Specifically, the complaint
identified the following defendants:
• The Clinton County Sheriff's Office, and the following
individuals allegedly associated, either then or
previously, with that office: (1) Sheriff Ralph D. Fizer Jr.;
(2) Brian Prickett; (3) Brett Prickett; (4) Doug Eastes; (5)
Morgan Wages; (6) Elliott Sylvester; (7) Terrence
Meehan; (8) Thomas [Crouch]; and (9) Robert Gates;2
• The Clinton County Prosecuting Attorney's Office, and
the following individuals associated with that office: (10)
Prosecuting Attorney Andrew McCoy; (11) Assistant
Prosecuting Attorney John [Kaspar]; and (12)
Investigator Stephen Payne;
• The "Wilmington City Prosecutor," which appears to have
been a reference to the City of Wilmington's Office of Law
Director, and the following individuals then-associated
with that office: (13) Law Director Brett Rudduck; and (14)
Prosecutor David Henry;
• The "Wilmington Coroner's Office," which appears to
have been a reference to the Clinton County Coroner's
Office, and the following individuals associated with that
office: (15) Gary Garrison; (16) Marvin Corbin; and (17)
Arlene Soto;
• The City of Wilmington Police Department, and (18)
Police Chief Ron Cravens;
• The City of Wilmington Fire Department, and the
following individuals associated with that department:
(19) Brett Terrell, and (20) Mark Duncan;
• The Montgomery County Coroner's Office/Miami Valley
Crime Lab, and the following individuals associated with
2. The complaint misspells the last names of two defendants. We have corrected those misspellings where
indicated with brackets. The complaint also named "all other investigators/officers who were on scene and or
involved with [Andy's] death in custody case" as defendants.
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that office: (21) Dr. Susan Brown; and (22) Dr. Kent
Harshbarger;
• The Clinton County Board of Commissioners, and the
following three county commissioners: (23) Kerry Steed;
(24) Brenda Woods; and (25) Mike McCarty;
• The City of Wilmington's Mayor's Office, and (26) Mayor
John Stanforth;
• The City of Wilmington's City Council, and city council
members (27) Jonathan McKay; (28) Michael Snarr; (29)
Kristi Fickert; (30) Matt Purkey; (31) Kelsey Swindler;
(32) Bill Liermann; (33) Nick Eveland; and (34) Mark
McKay;
• The Ohio Crime Victim Justice Center ("OCVJC"), a non-
profit organization based in Powell, Ohio, and the
following individuals associated with that organization:
(35) Morgan Keilholz; (36) Brianna Schultz; and (37) Alex
Fehder.
{¶5} The complaint was not signed by any of the Plaintiffs and did not list any of
the Plaintiffs' addresses. A certificate of service appearing at the end of the complaint
stated, "I hereby certify that a copy of the for[e]going has been sent via email to the following
email addresses," followed by a list of 31 of the 37 individual defendants and email
addresses for each of those 31 individuals. The certificate of service then stated that three
of the individual defendants—David Henry, Brett Terrell, and Mark Duncan—were "[s]erved
in person" at their places of employment. Though the certificate of service stated that "I"
served the 31 individuals by email, it is not clear to whom "I" references. Likewise, it is not
clear what person served Henry, Terrell, and Duncan in person. The certificate of service
did not indicate that any effort whatsoever was made to serve three of the individual
defendants: Terrence Meehan and Thomas Crouch with the Clinton County Sheriff's Office,
and Dr. Susan Brown with the Montgomery County Coroner's Office. In place of a signature
block, the complaint simply listed the names of the four Plaintiffs after the certificate of
service—one of whom, Andy, was deceased, and so he could not have participated in
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serving anyone. The names were typed, not signed, and were not preceded by the standard
"/s/" designation for electronic signatures.
B. The Amended Complaint
{¶6} On December 21, 2021, a 167-page amended complaint was filed,
purportedly by the same four Plaintiffs identified in the initial complaint. The amended
complaint named the same defendants as the initial complaint. As with the initial complaint,
the certificate of service stated that the same 31 of 37 individual defendants who were
served the original complaint by email had again been served with the amended complaint
by email, and that Henry, Terrell, and Duncan were again served with the amended
complaint by in-person service. The amended complaint was not signed, but concluded
with the typed names of McLemore, Devin Napier, and Mary Napier (but not Andy). The
certificate of service was also unsigned, and lacked even any typed names that might
indicate who performed the attempts at service described in the certificate.
C. The Motions to Dismiss and Motions to Strike
{¶7} The defendants associated with the City of Wilmington, i.e., those
departments and offices, elected and appointed officials, and employees listed above
(collectively "the Wilmington Defendants"), moved to dismiss the initial complaint. The
Wilmington Defendants moved to dismiss pursuant to Civ.R. 12(B)(2) for lack of personal
jurisdiction, pursuant to Civ.R. 12(B)(4) for insufficiency of process, pursuant to Civ.R.
12(B)(5) for insufficiency of service of process, and pursuant to Civ.R. 12(B)(6) for failure to
state a claim upon which relief can be granted. Among other arguments, the Wilmington
Defendants also argued that the complaint was not compliant with Civ.R. 10(A) because
the Plaintiffs' addresses were not listed, that the complaint violated Civ.R. 10(B) because it
did not state its allegations and claims in separately-numbered paragraphs, and that,
because the Plaintiffs did not sign the complaint, the complaint violated Civ.R. 11. After the
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filing of the amended complaint, the Wilmington Defendants filed a new motion to dismiss
seeking dismissal of the amended complaint for the same reasons they had requested
dismissal of the initial complaint, and for additional reasons, such as qualified immunity and
lack of standing.
{¶8} Next, the defendants associated with Clinton County, i.e., those departments
and offices, elected and appointed officials, and employees listed above, but not including
the two employees of the Clinton County Coroner's Office who were named as defendants
(collectively "the Clinton County Defendants"), moved to strike both the complaint and the
amended complaint because those pleadings, in violation of the requirements of Civ.R. 11,
were not signed by any of the Plaintiffs.
{¶9} McLemore then individually filed a memorandum opposing "the defendant's
motion to dismiss," without specifically identifying the motion or motions she was opposing.
Notably, the other Plaintiffs were not identified as joining McLemore's memorandum.
{¶10} Next, OCVJC and its employees named as defendants (collectively, "OCVJC
Defendants") moved to dismiss all claims against them pursuant to Civ.R. 12(B)(2),
12(B)(5), and 12(B)(6), as well as Civ.R. 11 and Civ.R. 10(A). The OCVJC Defendants
argued that all claims against them should be dismissed because the Plaintiffs failed to
properly serve them with the summons and complaint, so the trial court lacked personal
jurisdiction over them. They also argued the amended complaint violated the requirements
of Civ.R. 10(A) and 11, and that the Plaintiffs failed to state a claim for which relief may be
granted.
{¶11} Finally, the Clinton County Coroner's Office and its employees named as
defendants ("Clinton County Coroner Defendants") moved to strike both the initial complaint
and the amended complaint pursuant to Civ.R. 11. The Clinton County Coroner Defendants
adopted, pursuant to Civ.R. 10(C), the same arguments the Clinton County Defendants
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made in their motion to strike.
{¶12} Neither McLemore individually nor the Plaintiffs collectively ever filed any
memoranda opposing the motions filed by the OCVJC Defendants and the Clinton County
Coroners Defendants.
{¶13} The Montgomery County Coroner's Office and the individual defendants
associated with that office ("Montgomery County Coroner Defendants") never filed any form
of responsive pleading or motion, and in fact never appeared in the case.
D. Hearing and Written Decision on Motions to Dismiss and Motions to Strike
{¶14} On May 19, 2022, the trial court held a hearing on the various motions to
dismiss and motions to strike. On June 6, 2022, the trial court issued a decision and
judgment entry in which it addressed all the pending motions. The trial court granted the
motions to dismiss filed by the Wilmington Defendants and the OCVJC Defendants,
dismissing all pending claims against them based on the Plaintiffs' failure to serve them with
a summons and the complaint. The court also dismissed all claims against the Montgomery
County Coroner for the same reasons. The trial court also struck the complaint and the
amended complaint with respect to all defendants because those pleadings, in violation of
Civ.R. 11, were not signed by any of the Plaintiffs. Immediately after striking the complaint
and amended complaint with regard to the Clinton County Defendants and the Clinton
County Coroner Defendants on the basis of Civ.R. 11, the trial court stated that the Clinton
County Defendants and the Clinton County Coroner Defendants had also argued—like the
Wilmington Defendants and the OCVJC Defendants—that the Plaintiffs failed to serve them
with a summons and the complaint. The trial court then stated, "If the complaint and/or
amended complaint is subsequently reinstated," the trial court "hereby rules" that the
complaint and/or amended complaint would be dismissed against the Clinton County
Defendants and the Clinton County Coroner Defendants. However, we are unable to locate
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anything in the record indicating that the Clinton County Defendants and the Clinton County
Coroner Defendants argued the complaint or amended complaint should be dismissed for
the plaintiffs' failure to serve them with a summons and the complaint.
{¶15} The trial court also addressed the Civ.R. 12(B)(6) arguments raised by the
Wilmington Defendants and the OCVJC Defendants, the arguments regarding the
complaint and amended complaint's alleged noncompliance with Civ.R. 10, arguments
regarding the potential unauthorized practice of law by McLemore, and other arguments.
For reasons explained further below, we need not address the trial court's analysis with
respect to these issues in detail.
{¶16} No claims remained pending against any party after the trial court's decision
and judgment entry. Finally, we note that in its decision and judgment entry, the trial court
denied a request made by McLemore for the appointment of legal counsel. McLemore
timely appealed.
II. Law and Analysis
{¶17} App.R. 16(A)(3) and Loc.App.R. 11(A)(2)(a) of the Twelfth Appellate Judicial
District require appellants to set forth assignments of error in their briefs. Contrary to this
requirement, McLemore did not list assignments of error in her brief, but rather five "issues
presented for review" and five "arguments." We will construe McLemore's five "issues
presented for review" as Assignments of Error Nos. 1 through 5, and McLemore's five
"arguments" as Assignments of Error Nos. 6 through 10. Mallikarjunaiah v. Shankar, 12th
Dist. Warren Nos. CA2019-11-122 and CA2019-11-123, 2020-Ohio-4508, ¶ 20, fn.2.
Because McLemore sometimes addresses multiple, unrelated factual and legal issues
under single assignments of error, and sometimes addresses the same factual and legal
issues under multiple assignments of error, we will simply list all her assignments of error
and then separately address the specific issues raised by McLemore.
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{¶18} McLemore's Assignment of Error No. 1 (originally McLemore's "Issue
Presented for Review No. 1") states:
WAS THE PLAINTIFF'S ABILITY AND CHANCES TO OBTAIN
PROPER LEGAL COUNSEL AND DISCOVERY EFFORTS
HINDERED AND CRITICALLY RESTRICTED BY THE
DEFENDANTS IN THIS CASE? DID THE PUBLIC OFFICIALS
AND SERVANTS WHO ARE ALSO DEFENDANTS IN THIS
CASE COMMIT AT A MINIMUM, A CRIME OF DERELICTION
OF DUTY AGAINST THE PLAINTIFFS?3
{¶19} McLemore's Assignment of Error No. 2 (originally McLemore's "Issue
Presented for Review No. 2") states:
DOES DISABLED AND FINANCIALLY LIMITED/RESTRICTED
PLAINTIFF MCLEMORE DESERVE THE APPOINTMENT OF
PROPER LEGAL REPRESENTATION WHEN CONSIDERING
THE FACTS AND THE ONE OF A KIND CIRCUMSTANCES
SURROUNDING THIS CASE?
{¶20} McLemore's Assignment of Error No. 3 (originally McLemore's "Issue
Presented for Review No. 3") states:
DO ALL OF THE ATTACHED DEFENDANTS WHO ARE ALL
PUBLIC OFFICIALS AND OR PUBLIC SERVANTS HAVE A
DUTY OR OBLIGATION TO PROVIDE TO THE PUBLIC?
SHOULD THE DEFENDANTS WHO ARE ALSO PUBLIC
OFFICIALS HAVE TO PROVIDE ANSWERS, ACCURATE
INFORMATION, REPORTS, FACTS, PUBLIC INFORMATION,
AND TRUTH TO FAMILIES WHO HAD A LOVED ONE DIE
WHILE IN CUSTODY OF LAW ENFORCEMENT?
{¶21} McLemore's Assignment of Error No. 4 (originally McLemore's "Issue
Presented for Review No. 4") states:
DID THE COURT ERR WHEN DISABLED PLAINTIFF FAITH
MCLEMORE'S LEGAL RIGHT TO USE A POA TO ASSIST
HER WITH PRESENTING AN ORAL ARGUMENT TO THE
TRIAL COURT WAS DENIED?
3. We present McLemore's assignments of error as written, with original typographical or grammatical errors,
but we have altered the capitalization of the assignments of error to match our court's standard formatting
practices.
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{¶22} McLemore's Assignment of Error No. 5 (originally McLemore's "Issue
Presented for Review No. 5") states:
SHOULD THE COURT DISMISS THIS CASE OVER MISSING
SIGNATURES, CLERGY AND PROCEDURAL ERRORS, OR
OTHER "NON ATTORNEY" MISTAKES? SHOULD THE
COURT GRANT LENIENCY CONSIDERING THE RARE
CIRCUMSTANCES AND SERIOUSNESS OF THE
ALLEGATIONS?
{¶23} McLemore's Assignment of Error No. 6 (originally McLemore's "Argument No.
1") states:
IT IS A FACT ACCORDING TO THE SLEW OF EVIDENCE
THE PLAINTIFFS HAVE OBTAINED AND CAN PROVIDE TO
THE COURT THAT ALL THE DEFENDANTS IN SOME WAY
DID HINDER THE PLAINTIFF'S DISCOVERY EFFORTS AND
DID IN FACT CRITICALLY RESTRICT THE PLAINTIFF'S
ABILITY AND CHANCES OF EVER OBTAINING PROPER
LEGAL COUNSEL.
{¶24} McLemore's Assignment of Error No. 7 (originally McLemore's "Argument No.
2") states:
THE TRIAL COURT ERRED WHEN BAILIFF KELLY HOKINS
DENIED THE RIGHT TO FAITH MCLEMORE'S POWER OF
ATTORNEY AGENTS DARRELL PETREY AND TONY
THOMAS TO SPEAK ON DISABLED PLAINTIFF FAITH
MCLEMORE'S BEHALF, BEFORE THE COURT.
{¶25} McLemore's Assignment of Error No. 8 (originally McLemore's "Argument No.
3") states:
ALL PUBLIC OFFICIALS AND SERVANTS DO HAVE AN
OBLIGATION TO PROVIDE THE PUBLIC.
{¶26} McLemore's Assignment of Error No. 9 (originally McLemore's "Argument No.
4") states:
ACCORDING TO THE UNIFORM POWER OF ATTORNEY
ACT ORC, THE TRIAL COURT DID ERR IN DENYING THE
RIGHT FOR DISABLED PLAINTIFF MCLEMORE TO USE
"BEFORE A COURT" AND FOR HER "OTHER RELIEF" TO
ASSIST WITH HER ORAL ARGUMENT.
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{¶27} McLemore's Assignment of Error No. 10 (originally McLemore's "Argument
No. 5") states:
ACCORDING TO SEVERAL CASES AROUND THE US SOME
COURTS HAVE GRANTED LENIENCY TO PRO SE
LITIGANTS AND HAVE HELD THEM TO A LESSER
STANDARD THAN ATTORNEYS.
A. Preliminary Issues
{¶28} Before addressing the key procedural issues before us in this appeal, we will
address three preliminary issues raised by McLemore.
1. McLemore's Request for Appointed Counsel
{¶29} First, McLemore argues that the trial court erred in denying her request for
appointment of counsel. Unlike in criminal proceedings, there is no general right to counsel
in civil litigation. State, ex rel. Jenkins v. Stern, 33 Ohio St.3d 108, 110 (1987); Mootispaw
v. Wenninger, 12th Dist. Brown No. CA2015-08-024, 2016-Ohio-1287, ¶ 13. McLemore has
not specified any relevant statute or rule entitling her to appointed counsel in a civil case.
State ex rel. Burnes v. Athens Cty. Clerk of Courts, 83 Ohio St.3d 523, 524 (1998). Nor has
she identified any legal basis for her argument that the trial court should have appointed
counsel because she is disabled, and we are aware of none. McLemore cites Ohio
Adm.Code 120-1-03 in support of her argument that the trial court should have appointed
counsel because she is "financially limited/restricted," but that regulation pertains to the
appointment of counsel in criminal cases, not civil cases like this one. For these reasons,
we find that the trial court did not err in denying McLemore's request for appointment of
counsel.
2. McLemore's Request for Power of Attorney Participation
{¶30} Second, McLemore argues that the trial court erred in not allowing her "Power
of Attorney Agent" to participate in the case, on her behalf, at a hearing on the pending
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motions to dismiss. McLemore attached a notarized Power of Attorney form to her original
complaint. In the "special instructions" section of the form, the following language appears:
I, Faith McClemore [sic] as the next of Kin to Marvin "Andy"
Napier, give William Darrell Petrey and Co-Agent Tony Thomas,
permission to * * * submit any court filings, lawsuits, and any
paperwork on my behalf. I give them permission to represent
my interests on my behalf in any court proceedings or hearings.
I give them permission to legally represent myself, Faith
McClemore [sic].
{¶31} In May 2022, the trial court held a hearing on the various motions to dismiss.
McLemore appeared pro se. There is nothing in the record to support the assertion, but
McLemore suggests that prior to the hearing, the court denied her request to have her "legal
Power of Attorney Agents" "participate in litigation." Specifically, McLemore indicates that
she wanted her "Power of Attorney Agents" to assist her with "reading a pre-written 6 page
document." There is no reference in the transcript of the hearing to any request by
McLemore to have a power of attorney assist her in the proceedings. Nor is there any
indication that the court denied that request.
{¶32} Following the hearing, McLemore filed a document styled "Motion to Move
Directly to Discovery and Additional Requests of the Court." In it, McLemore stated that
she has "two POA agents" who she worked with on preparing her statement. Furthermore,
McLemore states that "POA Darrell Petrey" had requested to speak on McLemore's behalf,
but was denied. McLemore requested that the court recognize her "legal power of attorney
agents."
{¶33} Ohio courts have consistently held that a power of attorney designation does
not allow a person not admitted to the practice of law to represent a principal as an attorney
at law. Office of Disciplinary Counsel v. Coleman, 88 Ohio St.3d 155, 157-58 (2000). A
power of attorney document designates an individual as an attorney in fact, a role that is
distinct and different from an attorney at law. The Ohio Supreme court has explained:
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* * * [P]ersons holding powers of attorney have historically not
been considered attorneys who can appear in the courts. When
a principal through the execution of a "power of attorney"
designates another to transact some business that could have
been transacted by the principal, he appoints an agent to act for
him as an "attorney in fact" or "private attorney." 2A Corpus
Juris Secundum (1972) 771, Agency, Section 150; 3 American
Jurisprudence 2d (1986) 529, Agency, Section 23. An "attorney
in fact" has been consistently distinguished from an "attorney at
law" or "public attorney" since at least 1402 when certain
attorneys in England were examined by Justices and "their
names be entered on the roll" of those permitted to practice in
the courts. 1 The Oxford English Dictionary (2 Ed. 1989) 772.
Thus, a person holding a power of attorney, but whose name is
not entered on the roll, is an attorney in fact, but not an attorney
at law permitted to practice in the courts.
Id. at 157. The Ohio Supreme Court further explained that the argument that a power of
attorney designation enables a person who is not an attorney at law to practice law "would
render meaningless the supervisory control of the practice of law" given to the Ohio
Supreme Court by Section 2(B)(1)(g), Article IV the Ohio Constitution. Id. That provision
of the Ohio Constitution authorizes the Ohio Supreme Court to regulate "[a]dmission to the
practice of law, the discipline of persons so admitted, and all other matters relating to the
practice of law." Ohio Constitution, Article IV, Section 2(B)(1)(g). The court further
explained that "[w]hen a person not admitted to the bar attempts to represent another in
court on the basis of a power of attorney assigning pro se rights," that person violates R.C.
4705.01. (Emphasis sic.) Coleman at 158. R.C. 4705.01 provides:
No person shall be permitted to practice as an attorney and
counselor at law, or to commence, conduct, or defend any
action or proceeding in which the person is not a party
concerned, either by using or subscribing the person's own
name, or the name of another person, unless the person has
been admitted to the bar by order of the supreme court in
compliance with its prescribed and published rules.
R.C. 4705.01. There are numerous Ohio cases applying Coleman or reaching the same
conclusion as Coleman. Savage v. Savage, 11th Dist. Lake Nos. 2004-L-024 and 2004-L-
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040, 2004-Ohio-6341, ¶ 45 ("[T]he well-established law * * * generally permits only a
licensed attorney to represent another party in a legal proceeding * * * [A] power of attorney
does not give an unlicensed individual the authority to act as an attorney on the behalf of
another party"); State v. Hartman, 9th Dist. Medina No. 13CA0018-M, 2014-Ohio-2226, ¶
7, quoting Coleman at 157. ("The Supreme Court has promulgated rules with respect to the
practice of law in Ohio, and allowing a person holding a power of attorney to essentially act
as an attorney at law would 'render meaningless the supervisory control of the practice of
law given to [the Supreme Court] by the Ohio Constitution'"); Ohio State Bar Assn. v.
Jackim, 121 Ohio St.3d 33, 2009-Ohio-309, ¶ 5-9 (non-attorney holding a durable power
of attorney filed court papers on principal's behalf; found to be engaged in the unauthorized
practice of law).
{¶34} Undaunted by these precedents, McLemore argues that a statute, R.C.
1337.53, supports her power of attorney argument. Indeed, R.C. 1337.53 was enacted in
2012, years after the Ohio Supreme Court decided Coleman, so we must determine
whether the enactment of R.C. 1337.53 rendered Coleman and similar cases inapplicable.
{¶35} The portion of R.C. 1337.53 cited by McLemore states:
Unless the power of attorney otherwise provides, language in a
power of attorney granting general authority with respect to
claims and litigation authorizes the agent to do all of the
following:
(A) Assert and maintain before a court or administrative agency
a claim, claim for relief, cause of action, counterclaim, offset,
recoupment, or defense, including an action to recover property
or other thing of value, recover damages sustained by the
principal, eliminate or modify tax liability, or seek an injunction,
specific performance, or other relief;
(B) Bring an action to determine adverse claims or intervene or
otherwise participate in litigation * * *.
McLemore misunderstands the meaning of R.C. 1337.53(A) and (B). Those subsections,
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when read in context of the whole statute, refer to the ability of a person with power of
attorney to stand in the place of the principal (that is, the person who granted the power of
attorney) as a plaintiff, and do not state or suggest that the person with power of attorney
can represent the principal as an attorney at law. In authorizing a person with power of
attorney to "[a]ssert and maintain before a court or administrative agency a claim* * *," R.C.
1337.53(A) authorizes a person with power of attorney to pursue claims on behalf of a
principal. This occurs, for example, when a person with power of attorney for her comatose
mother, standing in the place of her mother as a plaintiff and acting on her behalf, brings a
negligence lawsuit against the driver who caused the car accident that placed her mother
in the coma. But R.C. 1337.53(A) says nothing about a person with power of attorney acting
in the capacity of an attorney at law.
{¶36} The same is true with regard to R.C. 1337.53(B)'s authorization of a person
with power of attorney to "[b]ring an action to determine adverse claims or intervene or
otherwise participate in litigation* * *." This occurs, for example, when a person with power
of attorney for her comatose mother, standing in the place of her mother as an intervenor
and acting on her behalf, intervenes in a preexisting lawsuit between the mother's business
partners regarding ownership shares in a business. Like R.C. 1337.53(A), R.C. 1337.53(B)
says nothing about a person with power of attorney acting in the capacity of an attorney at
law.
{¶37} Looking even more closely at the language of the statute, R.C. 1337.53(B)'s
authorization of a person with power of attorney to "otherwise participate in litigation" does
not authorize a person with power of attorney to act as an attorney at law. To read
"otherwise participate in litigation" as authorizing an attorney in fact (that is, a person with
power of attorney) to act as an attorney at law would conflict with Section 2(B)(1)(g) of
Article IV of the Ohio Constitution, which (as explained in Coleman) authorizes the Ohio
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Supreme Court to regulate "[a]dmission to the practice of law, the discipline of persons so
admitted, and all other matters relating to the practice of law." But when reviewing the
constitutionality of legislation, this court must presume statutes are constitutional. Desenco,
Inc. v. Akron, 84 Ohio St.3d 535, 538 (1999), citing Hughes v. Ohio Bur. of Motor Vehicles,
79 Ohio St.3d 305, 307 (1997). All reasonable doubts must be resolved in favor of a
construction that preserves constitutionality. Id. Here, there is no doubt that R.C. 1337.53
should not be understood as conflicting with Section 2(B)(1)(g) of Article IV of the Ohio
Constitution because McLemore's interpretation of that statute is erroneous.
{¶38} Interpreting R.C. 1337.53 to permit a non-attorney to practice law would also
conflict with R.C. 4705.01, which provides that "No person shall be permitted to practice as
an attorney and counselor at law * * * unless the person has been admitted to the bar by
order of the supreme court in compliance with its prescribed and published rules."
{¶39} In other words, nothing in R.C. 1337.53 modifies Coleman's explanation of
the difference between an attorney in fact and an attorney at law, nor the court's conclusion
that a person with power of attorney, who is not admitted to the practice of law, may not
represent a principal as an attorney at law. For all of these reasons, we find that the trial
court did not err to the extent it refused to permit "Mr. Darrell Petrey and Mr. Tony Thomas"
to act as McLemore's attorneys at law, which decision avoided placing Mr. Petrey and Mr.
Thomas in a situation where he/they could have engaged in the unauthorized practice of
law.
{¶40} McLemore also specifically argues that Petrey and Thomas, as her powers of
attorney, should have been permitted to read a prepared statement at the motion to dismiss
hearing on her behalf. We need not consider whether simply reading a statement that
McLemore prepared would have constituted the unauthorized practice of law because
McLemore has not identified any manner in which she was prejudiced by the trial court's
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decision. The record reflects that McLemore was able to speak and express herself during
the hearing without any difficulty. Nor has McLemore identified any possible manner in
which the trial court's ultimate decision to dismiss the claims or strike her complaint with
regard to all parties would have been affected by McLemore's powers of attorney reading
a prepared statement. Smith v. Flesher, 12 Ohio St.2d 107 (1967), paragraph one of the
syllabus ("In order to support reversal of a judgment, the record must show affirmatively not
only that error intervened but that such error was to the prejudice of the party seeking such
reversal") For all of these reasons, McLemore's arguments regarding the individual(s) she
allegedly designated as having power of attorney are without merit.
3. McLemore's Request for Pro Se Leniency
{¶41} Third, McLemore argues—in the context of her discussion regarding the
procedural issues presented to us in this appeal—that we should grant "leniency" to her as
a pro se party. McLemore's request for leniency as a pro se party is not supported by law.
"It is well established that pro se litigants are expected, as attorneys are, to abide by the
relevant rules of procedure and substantive laws, regardless of their familiarity with the law."
Fontain v. H&R Cincy Properties, L.L.C., 12th Dist. Warren No. CA2021-02-015, 2022-Ohio-
1000, ¶ 26. "As a result, pro se litigants are presumed to have knowledge of the law and
correct legal procedures so that they remain subject to the same rules and procedures to
which represented litigants are bound." Havens v. Havens, 12th Dist. Fayette No. CA2022-
01-002, 2022-Ohio-3103, ¶ 18. "In other words, '[p]ro se litigants are not to be accorded
greater rights and must accept the results of their own mistakes and errors, including those
related to correct legal procedure.'" Perelman v. Meade, 12th Dist. Warren No. CA2021-
06-054, 2021-Ohio-4247, ¶ 22, quoting Cox v. Zimmerman, 12th Dist. Clermont No.
CA2011-03-022, 2012-Ohio-226, ¶ 21.
{¶42} McLemore argues that we should disregard Ohio law regarding the
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expectations of pro se litigants. She points to two cases. First, McLemore points to Breck
v. Ulmer, 745 P.2d 66 (Alaska 1987), a decision of the Supreme Court of Alaska. Breck is
not controlling in this state and is inconsistent with Ohio controlling authority. It is not
applicable here. Second, McLemore points to Haines v. Kerner, 404 U.S. 519, 404 U.S.
519 (1972). In Haines, a per curiam opinion, the United States Supreme Court stated,
We cannot say with assurance that under the allegations of the
pro se complaint, which we hold to less stringent standards than
formal pleadings drafted by lawyers, it appears "beyond doubt
that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief."
Id. at 520-21. Haines is not applicable here because it merely pertains to the standard
applied in interpreting a pro se plaintiff's pleading. Haines says nothing about pro se
plaintiffs being exempt from complying with the rules of civil procedure.
{¶43} McLemore's arguments are without merit. McLemore must "abide by the
relevant rules of procedure and substantive laws, regardless of [her] familiarity with the law."
Fontain at ¶ 26. "The Ohio Rules of Civil Procedure govern the conduct of all parties equally,
and 'we cannot disregard [the] rules to assist a party who has failed to abide by them.'"
Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, ¶ 16,
quoting Bell v. Midwestern Educational Servs., Inc., 89 Ohio App.3d 193, 204 (2d
Dist.1993).
{¶44} Having addressed the preliminary issues concerning representation and pro
se status raised by McLemore, we turn now to the key procedural and jurisdictional issues
that were decided by the trial court in the decision and judgment entry from which McLemore
appeals.
B. Personal Jurisdiction: Failure of Service of Process
{¶45} "It is rudimentary that in order to render a valid judgment, the court must have
personal jurisdiction over the defendant." Maryhew v. Yova, 11 Ohio St.3d 154, 156 (1984);
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Ata Logistics, Inc. v. Empire Container Freight Station, Inc., 12th Dist. Clermont No.
CA2020-01-006, 2020-Ohio-4183, ¶ 13. "'Proper service of process is a prerequisite for
personal jurisdiction.'" Fifth Third Bank v. Bolera, 12th Dist. Butler No. CA2017-03-039,
2017-Ohio-9091, ¶ 15, quoting Williams v. Gray Guy Group., 10th Dist. Franklin No. 16AP-
321, 2016-Ohio-8499, ¶ 18. Service of a summons—along with the complaint—is the
procedure by which "'a court having venue and jurisdiction of the subject matter of the suit
asserts jurisdiction over the person of the party served.'" Omni Capital Internatl., Ltd. v.
Rudolf Wolff & Co., Ltd. 484 U.S. 97, 104, 108 S.Ct. 404 (1987), quoting Mississippi
Publishing Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242 (1946). The rules
regarding issuance and service of the summons are set forth in Civ.R. 4, and 4.1 through
4.7. Rule 4.1(A)(2) requires that a "return of service" documenting that service was
completed in the required manner be filed on the court's docket. Another rule, Civ.R. 4.7,
provides for a procedure by which a plaintiff may request that a defendant waive service of
the summons; the defendant, in exchange for this waiver, receives additional time to file an
answer to the complaint.
{¶46} In this case, the record does not reflect that any summons was ever issued
with respect to any defendant, and does not reflect that the Plaintiffs ever requested the
issuance of any summons. Likewise, the record does not reflect any return of service
documenting completion of service of any summons or complaint by any of the methods of
service provided for in Civ.R. 4.1 through 4.6. Nor does the record indicate that Plaintiffs
took any steps to utilize the process for waiver of service set forth in Civ.R. 4.7. In other
words, the record demonstrates that Plaintiffs completely failed to comply with the
mandatory rules applicable to issuance and service of process.
{¶47} The only suggestions in the record that Plaintiffs made any attempt at service
were the certificates of service attached to the complaint and the amended complaint. Both
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stated that some unidentified person had attempted to serve 31 of the 37 individual
defendants by emailing them a copy of the complaint, and later, the amended complaint.
The certificates also stated that someone had served three of the individual defendants in
person at their places of business. But none of this indicates that the Plaintiffs complied
with the applicable rules regarding service. First, the certificates only indicate that someone
attempted to serve the complaint and the amended complaint by email or in-person delivery.
Even if these methods of service were valid, the Plaintiffs were required to serve the
summons as well, and the certificates of service do not indicate that Plaintiffs made any
such attempt. Second, email is not a permissible method of service under Civ.R. 4.1 (which
provides that the methods of service are certified mail, personal service, or residential
service). Third, while Civ.R. 4.1(B) allows for personal service in certain situations, the rule
specifically excludes parties to the proceedings from the class of persons who may
personally serve defendants. ("[P]rocess * * * may be delivered by the clerk to any person
not less than eighteen years of age, who is not a party and who has been designated by
order of the court to make personal service of process under this division.") Therefore,
neither the attempted service by email nor the attempted service by personal delivery
described in the certificates of service were proper methods of service (even if a summons
had also been issued).
{¶48} McLemore argues that we should overlook the procedural and jurisdictional
deficiencies in this case because of the "seriousness of the allegations of homicide/murder,
public corruption, conspiracy, tampering with evidence, forgery, dereliction of duty, [and]
deception" that she raises. But we do not have the power to declare that the rules of civil
procedure do not apply in a particular case merely because of the nature of the allegations
in that case. We do not have the power to rewrite the law. State ex rel. Schwaben v.
School Emps. Retirement Sys., 76 Ohio St.3d 280, 285 (1996) ("while it may be tempting
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to decide [a] case on subjective principles of equity and fundamental fairness, [a] court has
a greater obligation to follow the law"); Caldwell v. Caldwell, 12th Dist. Clermont Nos.
CA2008-02-019 and CA2008-03-021, 2009-Ohio-2201, ¶ 80, (noting that this court is not
in a position to rewrite the law in order to permit an arguably more equitable result).
{¶49} In the absence of service of process or the waiver of service by the defendant,
a court ordinarily may not exercise jurisdiction over a party the complaint names as a
defendant. Williams, 2016-Ohio-8499 at ¶ 18, citing Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322 (1999). However, a defendant waives
any defects in service—and the trial court has personal jurisdiction over the defendant—if
the defendant voluntarily appears in the case and fails to move to dismiss for lack of proper
service. Hunt v. Arboretum Home Owners Assn., 12th Dist. Butler No. CA2020-02-025,
2020-Ohio-4947, ¶ 11 ("A trial court lacks personal jurisdiction over a defendant if effective
service of process has not been made on the defendant and the defendant has not
voluntarily appeared in the case or waived service"); Lauver v. Ohio Valley Selective
Harvesting, L.L.C., 12th Dist. Clermont No. CA2016-11-076, 2017-Ohio-5777, ¶ 15 (similar);
Williams, 2016-Ohio-8499 at ¶ 19 (holding that a plaintiff's failure to perfect service of its
original complaint is waived when the defendant appears for any other purpose than to
object to jurisdiction); Maryhew, 11 Ohio St.3d at 156 (personal jurisdiction may be obtained
by service of process, voluntary appearance, or waiver).
{¶50} The Wilmington Defendants moved to dismiss Plaintiffs' claims pursuant to
Civ.R. 12(B)(2), 12(B)(4), and 12(B)(5) in their first appearance in this case, arguing that
the trial court lacked personal jurisdiction over the Wilmington Defendants because of
insufficient process and insufficient service of process. Likewise, the OCVJC Defendants
moved to dismiss Plaintiffs' claims against the OCVJC Defendants for the same reasons in
their first appearance in this case. In other words, the Wilmington Defendants and the
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OCVJC Defendants did not waive defects with service. The Montgomery County Coroner's
Office Defendants never appeared in this case, so they also did not waive defects with
service. Because McLemore failed to serve the Wilmington Defendants, the OCVJC
Defendants, and the Montgomery County Coroner's Office Defendants with a summons and
the complaint in the manner required by the Rules of Civil Procedure, and because those
defendants did not waive defects with service, we find that the trial court did not abuse its
discretion when it dismissed McLemore's claims against those defendants for lack of
personal jurisdiction.
{¶51} The same is not the case with regard to the Clinton County Defendants and
the Clinton County Coroner's Office Defendants. Those entities, upon first appearing in this
case, did not move to dismiss for lack of personal jurisdiction based on failing to serve them
with service of a summons and the complaint and did not identify any deficiencies with
summons or service. Instead, they moved to strike the complaint for reasons unrelated to
personal jurisdiction. Therefore, those defendants waived deficiencies with service. Hunt,
2020-Ohio-4947 at ¶ 11; Lauver, 2017-Ohio-5777 at ¶ 15. As a result, we find that the trial
court erred to the extent it dismissed Plaintiffs' claims against the Clinton County
Defendants and the Clinton County Coroner's Office for failure of service and lack of
personal jurisdiction.
{¶52} Because we have affirmed the trial court's dismissal of the complaint and
amended complaint with respect to the Wilmington Defendants, the OCVJC Defendants,
and the Montgomery County Coroner Defendants, the only remaining defendants whom we
must consider are the Clinton County Defendants and the Clinton County Coroner
Defendants. We therefore turn to examine the trial court's decision granting those
defendants' motions to strike the complaint and amended complaint.
C. Civ.R. 11: Failure to Sign Complaint and Amended Complaint
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{¶53} Civ.R. 11 addresses the signing of pleadings, motions, and other documents.
The rule states: "A party who is not represented by an attorney shall sign, by electronic
signature or by hand, the pleading, motion, or other document * * *." Civ.R. 11 further
provides: "If a document is not signed * * *, it may be stricken as sham and false and the
action may proceed as though the document had not been served." Civ.R. 11.
{¶54} As stated above, neither the complaint nor the amended complaint was
signed by any of the Plaintiffs, including McLemore. The names of all four Plaintiffs were
typed at the end of the complaint after the closing word, "Respectfully," and three of their
names were typed at the end of the amended complaint after "Respectfully." But merely
typing one's name on a pleading fails to satisfy the signature requirement of Civ.R. 11.
Robinson v. Lorain Cty. Printing & Publishing Co., 9th Dist. Lorain No. 21CA011711, 2023-
Ohio-3, ¶ 12 (rejecting argument that typing one's name on a pleading satisfies the
signature requirement of Civ.R. 11). Nor does the fact that Civ.R. 5(E) permits courts to
adopt local rules allowing electronic signatures in any way apply to the names typed on the
complaint and the amended complaint in this case. This is the case because the Clinton
County Court of Common Pleas has not adopted any local rule permitting the filing of
documents by electronic means, other than by fax machine. Even then, the court's rule
does not permit the filing of complaints by fax machine. Loc.R. 8(B)(a) of the Court of
Common Pleas of Clinton County, General Division. And even when electronic signatures
are permitted, they must be preceded by the notation "/s/." Loc.R. 8(G)(1)(b). The notation
"/s/" is not present in either the complaint or amended complaint. There is therefore no
local rule that would permit the typed names of the Plaintiffs in the complaint and amended
complaint to constitute valid signatures under Civ.R. 5(E).
{¶55} The record reflects that, in violation of Civ.R. 11, the pleadings were not signed
by any of the four named Plaintiffs (or a representative of Andy's estate). Based on this
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failure to sign, Civ.R. 11 expressly authorized the trial court to strike the complaint and the
amended complaint "and proceed as though the document[s] had not been served." Based
on the Civ.R. 11 violation, we find that the trial court did not err in granting the motions to
strike filed by the Clinton County Defendants and the Clinton County Coroner Defendants.4
{¶56} With no complaints pending before the court, the court was justified in
dismissing the action in its entirety as to all defendants.
D. McLemore's Remaining Arguments
{¶57} Most of the arguments in McLemore's brief concern the merits of her 42
U.S.C. 1983 claim. For example, McLemore argues that the defendants "withheld
information, facts, evidence, and answers from Plaintiffs during the Plaintiff's discovery
efforts," that one of the defendants requested that Plaintiff obtain a forensic expert report
and then "discredited" the "over-qualified" expert's report, that one of the defendants lied to
"the Plaintiff's and the Plaintiff's POA Agents" about obtaining permission to obtain Andy's
autopsy records, that another individual defendant called the "POA Agent" "mental" and
hung up on him, that various defendants failed to investigate or communicate about
Plaintiffs' allegations, and many other such allegations. All these allegations are, at this
point in the case, mere allegations. No discovery was conducted in this case prior to the
appeal. Nor has a trial been held to evaluate Plaintiffs' allegations. In fact, because we
have held that the trial court did not err in dismissing all of Plaintiffs' claims with regard to
all named defendants, all of McLemore's arguments concerning the merits of the 42 U.S.C.
1983 claim are moot. We therefore do not need to address any of McLemore's arguments
4. If we had not already determined that the trial court did not err in dismissing all claims against the
Wilmington Defendants, the OCVJC Defendants, and the Montgomery County Coroner Defendants for failure
to serve them with a summons and the complaint, our analysis regarding the trial court's decision to strike the
pleadings with respect to the Clinton County Defendants and the Clinton County Coroner Defendants would
apply equally to the Wilmington Defendants, the OCVJC Defendants, and the Montgomery County Coroner
Defendants.
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concerning the merits of her case.5
III. Conclusion
{¶58} The trial court properly dismissed all claims against the Wilmington
Defendants, the OCVJC Defendants, and the Montgomery County Coroner Defendants
pursuant to Civ.R. 12(B)(2) and (5) because Plaintiffs failed to serve summons and the
complaint on those defendants, and because those defendants did not waive defects with
service. The trial court lacked personal jurisdiction with respect to those defendants.
Likewise, the trial court did not err when it struck the complaint and amended complaint with
respect to the Clinton County Defendants and the Clinton County Coroner Defendants (and
with regard to the other defendants as well) because Plaintiffs failed to sign the pleadings
as required by Civ.R. 11.
{¶59} We have reviewed all of McLemore's arguments below and on appeal. Given
our resolution of the service of process and Civ.R. 11 issues, none of McLemore's remaining
arguments need to be addressed in this opinion. We overrule all of McLemore's issues and
arguments, recast as her ten assignments of error.
{¶60} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
5. After discussing many of her arguments concerning the merits of her 42 U.S.C. 1983 claim in her appellate
brief, McLemore stated that:
There are many other examples for each defendant that we the Plaintiffs would love to
discuss, go into depth, and share with the court that prove ALL of our allegations true. We
can prove the defendants conspired together and or were coerced into whitewashing the
heinous crimes committed against our father and with the motive to escape all legal
responsibility and accountability.
(Emphasis added.) McLemore appears to have acknowledged that many of the arguments in her brief
concern issues that are not currently before this court.
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