Hillman v. Larrison

[Cite as Hillman v. Larrison, 2016-Ohio-7971.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Robert L. Hillman, :
Plaintiff-Appellant, :
No. 16AP-374
v. : (C.P.C. No. 15CV-2664)
David Larrison, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on December 1, 2016
On brief: Robert L. Hillman, pro se.
On brief: Richard C. Pfeiffer, Jr., City Attorney, and
Timothy J. Mangan.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Plaintiff-appellant, Robert L. Hillman, a pro se inmate, appeals the April 25,
2016 ruling of the Franklin County Court of Common Pleas which dismissed for a second
time Hillman's case without following the instructions by this superior Court. For the
following reasons, we reverse and remand the instant case with instructions for the trial
court to follow this Court's initial instructions as set forth in our February 23, 2016
decision.
{¶ 2} Hillman appeals the following assignments of error for our consideration:
[I.] APPELLANT CONTENDS THAT THE TRIAL COURT
DENIED HIM DUE PROCESS AND EQUAL PROTECTION
OF THE LAW UNDER THE 1ST, 5TH, AND 14TH
AMENDMENTS TO THE UNITED STATES
CONSTITUTIONS [SIC] WHERE IT SHOWED BIAS, AND
PREJUDICE, BY REVISITING THE TENTH DISTRICT
COURT[']S REMAND ORDER, AND ACTING CONTRARY
TO IT, VIOLATING THE LAW OF THE CASE DOCTRINE.
No. 16AP-374 2
[II.] APPELLANT CONTENDS THAT THE TRIAL COURT
DENIED HIM DUE PROCESS AND EQUAL: PROTECTION
OF THE LAW UNDER THE 1ST, FIFTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTIONS [SIC] WHERE THE TRIAL COURT
ABUSED IT'S [SIC] DISCRETION BY SHOWING BIAS AND
PREJUDICE AGAINST HIM IN DISMISSING THE
COMPLAINT, VIOLATING THE REMAND ORDER TENTH
DISTRICT APPELLATE COURT.
[III.] APPELLANT CONTENDS THAT HE WAS DENIED
DUE PROCESS AND EQUAL PROTECTION OF THE LAW
UNDER THE 1ST, 5TH, AND 14TH AMENDMENTS TO THE
UNITED STATES CONSTITUTIONS [SIC] WHERE THE
TRIAL COURT VIOLATED THE PLAINTIFF'S-
APPELLANT'S RIGHTS AGAINST DOUBLE JEOPARDY,
AND (2) FOR NOT ORDERING THE CLERK OF COURT TO
CORRECT THE MISFILING MADE IN THE CASE WHERE
APPELLANT FILED A **NEW CRIMINAL COMPLAINT***
WHICH THE CLERKS OFFICE FILED UNDER A
TERMINATED CASE NUMBER IN 15CV-2664, AND THAN
[SIC] RECHARGED [SIC] THE APPELLANT AGAIN $101.00.
{¶ 3} On February 23, 2016, we reversed the dismissal of the trial court while
noting the following factual procedure:
Appellant is an inmate at the Chillicothe Correctional
Institution. On March 27, 2015, appellant filed a pleading
captioned "(ACCUSATION BY AFFIDAVIT) (CRIMINAL
COMPLAINT)" ("affidavit") against appellee, who is a city of
Columbus police officer. Appellant alleged in the affidavit that
appellee committed perjury during appellant's criminal trial.
Appellant's affidavit specifically indicated it was being filed,
pursuant to HN1 R.C. 2935.09 and 2935.10, which permit a
private citizen to file an affidavit charging an offense against
another person.
On April 24, 2015, appellee filed a motion to dismiss for
failure to state a claim upon which relief could be granted.
Appellee asserted that (1) there is a process within the
criminal justice system for arrest warrants to be issued, but a
suit in a civil case is not part of that process, and (2) appellant
failed to file an affidavit of prior civil actions that complies
with R.C. 2969.25(A).
On May 14, 2015, appellant filed a motion arguing that the
court lacked jurisdiction over the case. Appellant asserted that
No. 16AP-374 3
the clerk of courts deliberately misfiled the case as a civil case
when it was clearly an affidavit filed under R.C. 2935.09.
Appellant requested that the trial court not issue any finding
but, instead, transfer the case to criminal court or forward it
to the prosecutor's office for investigation.
On July 15, 2015, the trial court issued an order in which it
granted appellee's motion to dismiss, terminated the case, and
assigned costs to appellant. On July 30, 2015, the trial court
issued a cost bill for $95. Appellant appeals the judgment of
the trial court, asserting the following assignment of error:
THE TRIAL COURT ABUSED IT'S DISCRETION
WHEN IT IMPOSED UPON THE APPELLANT COURT
COST AND FILING FEES WITHOUT HAVING
ACQUIRED SUBJECT-MATTER OR PERSONAL
JURISDICTION OVER THE CASE IN VIOLATION OF
THE APPELLANT'S 1ST, 5TH, AND 14TH
AMENDMENT RIGHTS UNDER THE UNITED STATES
CONSTITUTIONS TO DUE PROCESS AND EQUAL
PROTECTION OF THE LAW.
In his assignment of error, appellant argues that the trial
court erred when it imposed court costs and filing fees on him
without having acquired subject-matter or personal
jurisdiction. Specifically, appellant contends that he did not
file a motion to dismiss but, instead, filed a motion stating
that the trial court had no jurisdiction to do anything because
it was misfiled by the clerk of courts as a civil matter when it
was an affidavit pursuant to R.C. 2935.09. He asserts that the
trial court could not order him to pay the costs of an action
that he never intended to file.
Hillman v. Larrison, 10th Dist. No. 15AP-730, 2016-Ohio-666, ¶ 2-6.
{¶ 4} On remand, the trial court once again failed to follow our instructions and
dismissed the case due to Hillman filing an "invalid" affidavit. The trial court stated that
the affidavit was invalid because it lacked a notary stamp or seal. The trial court also
believed that it was precluded from conducting a review under R.C. 2935.09 and 2935.10
pursuant to our instructions because "a valid affidavit is a prerequisite." (Apr. 25, 2016
Decision, Entry & Order at 5.) The trial court stated that this court "apparently missed the
fact that the document did not contain the notary's seal or stamp." (Decision, Entry &
Order at 4.)
No. 16AP-374 4
{¶ 5} On May 16, 2016, Hillman appealed the judgment of the trial court issued
on April 25, 2016. Hillman asserts three assignments of error. However, all three
assignments of error are couched in allegations of constitutional violations, which state
that the trial court's dismissal violated his rights of due process and equal protection.
Hillman correctly notes that the trial court failed to follow this Court's instructions and
violated the law of the case doctrine when it dismissed the case. We do not believe it is
necessary to address the constitutional issues and reverse.
{¶ 6} The Tenth District's previous decision considered Hillman's affidavit to be
facially valid: "Appellant's affidavit was certified by a notary public and indicates in its
first sentence that it is being filed pursuant to R.C. 2935.09(A) and (D) and 2935.10."
Hillman at ¶ 13. In spite of this determination, the trial court made its own examination
of the validity of the affidavit. Furthermore, it applied a stricter standard than the
"substantial compliance" required by Ohio courts. See, e.g., Stern v. Bd. of Elections, 14
Ohio St.2d 175, 180, 183 (1968) (affirming validity of affidavit in spite of "a technical
defect in the prima facie proof of compliance with the statute with regard to the jurat of
the notary public"); Anderson v. Mitchell, 8th Dist. No. 99876, 2014-Ohio-1058(applying a "substantial compliance" standard to issue of whether affidavits were
notarized in accordance with R.C. 147.04 and noting that the "affidavit in Stern was
sufficient even though the notary failed to sign or imprint his seal onto the affidavit
because the notary's name was legibly printed on the document"). It is clear the trial
court, in addition to failing to follow our instructions, applied its own standard in
determining the validity of said affidavit.
{¶ 7} The law of the case doctrine extends to all issues previously decided as
finally settled. McCoy v. Engle, 42 Ohio App.3d 204, 206 (10th Dist.1987). On remand,
the trial court is only "free to change factual findings previously made by that court as to
issues not passed upon by the reviewing court." Id. The validity of Hillman's affidavit
was not the subject of the previous appeal and this Court previously considered it valid
before remanding the case. Because of this, the trial court was not free to revisit the
issue of the affidavit's validity as if it had not been settled and find a way to dismiss
Hillman's case rather than comply with the mandate of this Court. It is also noteworthy
that appellee does not even address Hillman's law of the case argument in its response.
Thus, we remand the case with instructions to apply with the statute, as this Court
No. 16AP-374 5
previously held. Under R.C. 2935.10, the trial court judge has "only two options: 1) issue
a warrant or 2) refer the matter to the prosecutor for investigation if there is a belief that
the affidavit lacks a meritorious claim, i.e. probable cause, or was not made in good
faith." State ex rel. Brown v. Jeffries, 4th Dist. No. 11CA3275, 2012-Ohio-1522, ¶ 9.
{¶ 8} For the foregoing reasons, we sustain Hillman's first assignment of error
insofar as it asserts that the trial court erred by violating the law of the case doctrine, but
overrule in regards to the constitutional violations asserted. We remand with instructions
to perform the mandate this Court previously issued. Finally, all outstanding issues raised
by Hillman's other assignments of error are overruled as moot.
Judgment reversed; case remanded.
TYACK and KLATT, JJ., concur.
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