Diebert v. N. Baltimore Police Dept. ( 2022 )

[Cite as Diebert v. N. Baltimore Police Dept., 2022-Ohio-3052.]
CHERYL AND CARA DIEBERT Case No. 2021-00699PQ
Requesters Judge Patrick E. Sheeran
v. NUNC PRO TUNC JUDGMENT ENTRY1
CHIEF LAFFERTY, VILLAGE OF
NORTH BALTIMORE POLICE
DEPARTMENT, et al
Respondents
{¶1} On July 26, 2022, a Special Master issued a Report and Recommendation in
this public-records case. Neither party has timely objected to the Special Master’s Report
and Recommendation.
{¶2} Pursuant to R.C. 2743.75(F)(2), if neither party timely objects, this Court is
required to “promptly issue a final order adopting the report and recommendation, unless
it determines that there is an error of law or other defect evident on the face of the report
and recommendation.”
{¶3} In the Report and Recommendation (R&R), the Special Master “recommends
the court grant [Respondents’] motion to dismiss as to the October 20 and 25, 2021
requests.” (Footnote omitted.) (R&R, 4.) The Special Master states, “With respect to the
1 “‘Nunc pro tunc’ means ‘now for then’ and is commonly defined as ‘Having retroactive legal effect
through a court’s inherent power.’ Black’s Law Dictionary (9th Ed.2009) 1174. Therefore, a nunc pro
tunc entry by its very nature applies retrospectively to the judgment it corrects.” State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 19.
In the Court’s previous judgment entry, the Court did not direct the Clerk to journalize the entry and
serve notice of the judgment. This clerical omission is corrected in this entry and is the sole reason for this
entry.
Case No. 2021-00699PQ -2- JUDGMENT ENTRY
other requests, the Special Master finds that the defenses of mootness and the non-
existence of additional records are not conclusively shown on the face of the complaint.
Moreover, as the matter is now fully briefed these grounds are subsumed in the
arguments to deny the claim on the merits. It is therefore recommended the motion to
dismiss be denied with respect to all other claims.” (R&R, 4.) The Special Master
concludes:
Based on the pleadings, affidavits, and documents submitted in this
action, the Special Master recommends the court find the claims for
production of records are now moot, and that requesters have not shown
by clear and convincing evidence that any additional responsive records
exist, with one exception. The Special Master recommends the court find
that respondents failed to produce several existing records responsive to
the request for procedures on handling complaints against [North Baltimore
Police Department] officers. The Special Master further recommends the
court find respondent violated R.C. 149.43(B)(1) by not producing the
records that it did provide within a reasonable period of time. It is
recommended requesters be entitled to recover from respondent the
amount of the filing fee of twenty-five dollars and any other costs associated
with the action that were incurred by requesters, and that court costs be
assessed to respondent.
(R&R at 14.)
{¶4} Upon review, the Court finds no error of law or other defect is evident on the
face of the Special Master’s Report and Recommendation. The Court therefore adopts
the Report and Recommendation. In accordance with the Report and Recommendation,
the Court grants, in part, Respondents’ motion to dismiss as to the requests of October 20
and 25, 2021. The Court finds that (1) the claims for production of records are moot, (2)
Requesters have not shown by clear and convincing evidence that any additional
Case No. 2021-00699PQ -3- JUDGMENT ENTRY
responsive records exist, with one exception as stated in the Report and
Recommendation, (3) Respondents failed to produce several existing records responsive
to the request for procedures on handling complaints against North Baltimore Police
Department officers, and (4) Respondents violated R.C. 149.43(B)(1) by not producing
the records within a reasonable period of time. Because Requesters are aggrieved
persons under R.C. 2743.75, Requesters are entitled to recover from Respondents the
amount of the filing fee of twenty-five dollars and any other costs associated with the
action that are incurred by Requesters, but Requesters are not entitled to recover attorney
fees. See R.C. 2743.75(F)(3). Court costs are assessed equally against Respondents.
The Clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.
PATRICK E. SHEERAN
Judge
Filed August 17, 2022
Sent to S.C. Reporter 9/1/22