King v. Divoky

[Cite as King v. Divoky, 2021-Ohio-1712.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
DERRICK MARTIN KING C.A. No. 29769
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PATRICIA DIVOKY, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellees CASE No. CV-2017-08-3304
DECISION AND JOURNAL ENTRY
Dated: May 19, 2021
CALLAHAN, Judge.
{¶1} Appellant, Derrick King, pro se, appeals from the judgment of the Summit County
Court of Common Pleas dismissing his complaint. For the reasons set forth below, this Court
affirms.
I.
{¶2} This is the second appeal of this matter. This Court previously set forth the factual
and procedural background as follows:
Mr. King was receiving benefits from the Disability Financial Assistance program
at the time the General Assembly ended the program. After the Summit County
Department of Job and Family Services notified Mr. King that his benefits would
be ending, Mr. King filed a declaratory judgment action against its director, Patricia
Divoky, and the director of the Ohio Department of Job and Family Services,
Cynthia Dungey, seeking a declaration that the repeal of the program violated his
federal due process rights, his state and federal equal protection rights, and his right
to safety under the Ohio Constitution. He also sought to enjoin the directors from
terminating his benefits.
The directors moved to dismiss Mr. King’s complaint under [Civ.R.] 12(B)(6),
arguing that he had failed to state a claim upon which relief could be granted. They
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also opposed his request for injunctive relief. Mr. King opposed their motions, but
the trial court dismissed his complaint * * * [and] denied Mr. King’s motion for a
temporary restraining order and preliminary injunction.
King v. Divoky, 9th Dist. Summit No. 28441, 2018-Ohio-2280, ¶ 2-3 (“King I”). In King I, this
Court reversed the trial court’s dismissal of Mr. King’s declaratory judgment action because the
trial court reviewed his complaint under the wrong standard for a motion to dismiss a declaratory
judgment action for failure to state a claim and the error was not harmless. Id. at ¶ 1, 5-6. The
matter was remanded for further proceedings consistent with the decision in King I. Id. at ¶ 7.
{¶3} On remand, the director of the Ohio Department of Job and Family Services
(“ODJFS”) filed a supplement to the motion to dismiss and a motion to stay discovery pending the
trial court’s ruling on the motion to dismiss and the supplement. Mr. King opposed both motions
on the basis that there was no motion to dismiss pending after the remand. The trial court granted
the motion to stay discovery.
{¶4} Mr. King filed several motions, including a motion for leave to amend his
complaint, a motion for a pretrial, a motion for restraining order and preliminary injunction, a
motion for summary judgment, and a motion to disqualify counsel for the director of the ODJFS.
The directors of the ODJFS and the Summit County Department of Job and Family Services
(“SCDJFS”) opposed all of Mr. King’s motions, with the exception of the motion for a pretrial.
{¶5} While the above motions were pending, Mr. King filed a motion to stay the
proceedings and to place the case on the inactive docket pending the resolution of his appeal in a
separate, but related, administrative appeal concerning the termination of his benefits. The trial
court granted the motion and the case was stayed for approximately sixteen months.
{¶6} After the Ohio Supreme Court declined to accept jurisdiction over Mr. King’s
related administrative appeal, Mr. King filed a motion to return the case to the active docket and
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to withdraw his previously filed motion for leave to amend his complaint, motion for temporary
restraining order and preliminary injunction, and motion for summary judgment.
Contemporaneous with this motion, Mr. King filed his first amended complaint without leave of
court. The directors of the ODJFS and the SCDJFS moved to strike and/or dismiss Mr. King’s
first amended complaint.
{¶7} The trial court reinstated the case to the active docket, struck Mr. King’s first
amended complaint, and ordered Mr. King to clarify which of his previous motions he sought to
withdraw in light of the court’s ruling striking his first amended complaint. After Mr. King
confirmed that he wanted to withdraw his motion for leave to amend his complaint, motion for
temporary restraining order and preliminary injunction, and motion for summary judgment, the
trial court ordered the same motions withdrawn. Additionally, the trial court denied Mr. King’s
motion for a pretrial and deemed that the director of the ODJFS’s supplemental motion to dismiss
was submitted.
{¶8} Following those rulings, Mr. King moved the trial court judge to recuse herself
from the matter. The motion was denied. The trial court then granted the motions to dismiss filed
by both directors and the supplemental motion to dismiss filed by the director of the ODJFS and
denied Mr. King’s motion for temporary restraining order and preliminary injunction.
{¶9} Mr. King filed this appeal. His five assignments of error are rearranged for ease of
discussion.
II.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED BY GRANTING THE “SUPPLEMENTAL”
MOTION TO DISMISS.
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{¶10} In his fourth assignment of error, Mr. King argues that the trial court erred when it
granted the motions to dismiss and the supplement to the motion to dismiss.1 We disagree.
{¶11} Following this Court’s remand in King I, the trial court granted the directors’
motions to dismiss and the director of the ODJFS’s supplement to the motion to dismiss on the
basis that Mr. King’s complaint for a declaratory judgment action “present[ed] no real, actual, or
justiciable controversy[]” and thereby Mr. King had failed to state a claim upon which relief could
be granted. Mr. King states that the trial court’s judgment should be reversed because “he
presented ample evidence that he would have succeeded on both the declaratory judgment
proceeding and on the civil rights action.” This is the entirety of Mr. King’s argument.
{¶12} While Mr. King presented a discussion and case law regarding the standard of
review to be applied by this Court when reviewing a judgment based upon Civ.R. 12(B)(6) and
the dismissal of a declaratory judgment action, Mr. King has not developed an argument that the
trial court erred in dismissing his complaint for failure to state a claim upon which relief could be
granted because the complaint “present[ed] no real, actual, or justiciable controversy.” See App.R.
16(A)(7). Nor has Mr. King cited any legal authority in support of his contention. See id.
{¶13} “An appellant bears the burden of formulating an argument on appeal and
supporting that argument with citations to the record and to legal authority.” State v. Watson, 9th
Dist. Summit No. 24232, 2009-Ohio-330, ¶ 5, citing App.R. 16(A)(7). Moreover, it is not the duty
of this Court to develop an argument in support of an assignment of error, even if one exists. See
1
While Mr. King’s stated assignment of error only identifies the “‘supplemental’ motion
to dismiss,” his argument also makes reference to the motions to dismiss. Moreover, the trial court
granted the motions to dismiss filed by the directors of the ODJFS and the SCDJFS and the
supplement to the motion to dismiss filed by the director of the ODJFS. Accordingly, we will
consider both of the motions to dismiss and the supplement to the motion to dismiss in reviewing
this assignment of error.
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Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). Because
Mr. King has failed to develop an argument and support his position in any way, he has not met
his burden of demonstrating error on appeal regarding the trial court’s judgment dismissing his
complaint for failure to state a claim. See Harris v. Nome, 9th Dist. Summit No. 21071, 2002-
Ohio-6994, ¶ 14. Accordingly, we decline to address this portion of Mr. King’s assignment of
error. See App.R. 12(A)(2); App.R. 16(A)(7).
{¶14} Mr. King also claims that the trial court did not have jurisdiction to enter a dismissal
because “there was no proper motion to dismiss * * * pending before the trial court[]” following
the remand in King I. Mr. King’s position is misplaced as the record reflects otherwise.
{¶15} “Upon remand from an appellate court, the lower court is required to proceed from
the point at which the error occurred.” State ex rel. Stevenson v. Murray, 69 Ohio St. 2d 112, 113
(1982), citing Commrs. of Montgomery Cty. v. Carey, 1 Ohio St. 463 (1853), paragraph one of the
syllabus. In King I, this Court reversed the judgment dismissing Mr. King’s complaint for failure
to state a claim and remanded the matter for “further proceedings consistent with this decision.”
King, 2018-Ohio-2280, at ¶ 1, 7. The error in King I occurred in the trial court’s decision-making
process where, in ruling on the directors’ motions to dismiss for failure to state a claim, the trial
court applied the wrong standard to Mr. King’s complaint for declaratory judgment. Id. at ¶ 5.
Thus, on remand the trial court was required to consider anew the directors’ motions to dismiss
using the correct standard. See generally Circuit Solutions, Inc. v. Mueller Elec. Co., 9th Dist.
Lorain No. 07CA009139, 2008-Ohio-3048, ¶ 5, citing Circuit Solutions, Inc. v. Mueller Elec. Co.,
9th Dist. Lorain No. 05CA008775, 2006-Ohio-4321 (This Court recognized that the prior appeal
remanded the matter to the trial court to apply the correct standard. The language of the mandate
in the earlier appeal stated “the cause is remanded for further proceedings consistent with this
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decision.”). Accordingly, the directors’ motions to dismiss were pending upon remand, and the
trial court had jurisdiction to rule on the directors’ motions to dismiss. Mr. King’s claim to the
contrary is not well-taken.
{¶16} Mr. King’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED BY FAILING TO ALLOW DISCOVERY TO
PROCEED FOLLOWING THIS COURT’S REVERSAL OF THE INITIAL
MOTION TO DISMISS THE COMPLAINT.
{¶17} In his second assignment of error, Mr. King argues that the trial court erred when
it granted a stay of discovery upon remand. We disagree.
{¶18} We review a trial court’s resolution of discovery matters, including an order to stay
discovery pending the resolution of a dispositive motion, under an abuse of discretion standard.
See State ex rel. DeWine v. Helms, 9th Dist. Summit No. 28304, 2017-Ohio-7148, ¶ 13, quoting
Thomson v. Ohio Dept. of Rehab. and Corr., 10th Dist. Franklin No. 09AP-782, 2010-Ohio-416,
¶ 32. An abuse of discretion is present when a trial court’s decision “‘is contrary to law,
unreasonable, not supported by evidence, or grossly unsound.’” Menke v. Menke, 9th Dist. Summit
No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-
Ohio-1999, ¶ 25.
{¶19} Mr. King argues that “[o]nce this Court reversed the motion to dismiss the
complaint, the trial court had a clear duty to allow discovery to take place before entertaining
dispositive motions.” In support of his argument, Mr. King cites to Civ.R. 26(B)(1) for the
proposition that “a party may obtain discovery regarding any unprivileged matter concerning the
pending litigation[]” and references the trial court’s broad discretion in discovery matters. While
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both of these propositions are correct, neither support Mr. King’s contention that the trial court
had a “clear duty” to allow discovery before ruling on the Civ.R. 12(B)(6) motions to dismiss.
{¶20} The Ohio Supreme Court has held that a trial court’s handling of discovery practices
is not a ministerial duty, but rather a discretionary power. Mauzy v. Kelly Servs., Inc., 75 Ohio
St.3d 578, 592 (1996), quoting State ex rel. Daggett v. Gessaman, 34 Ohio St. 2d 55, 57 (1973).
“A trial court has the inherent authority to control its docket and to decide discovery matters.” In
re Guardianship of Bakhtiar, 9th Dist. Lorain No. 16CA010932, 2017-Ohio-5835, ¶ 5. Included
in this inherent authority over discovery matters is the “discretion to stay discovery pending the
resolution of motions that [are] potentially dispositive of the matter[.]” Id. at ¶ 6. See Grover v.
Bartsch, 170 Ohio App. 3d 188, 2006-Ohio-6115, ¶ 10 (2d Dist.); Thomson at ¶ 32-33.
{¶21} The purpose of a discovery stay during the pendency of a dispositive motion is to
avoid the unnecessary expense and burden of discovery should the dispositive motion be granted.
See White v. Cent. Ohio Gaming Ventures, LLC, 10th Dist. Franklin No. 18AP-780, 2019-Ohio-
1078, ¶ 15; Watley v. Wilkinson, 10th Dist. Franklin No. 03AP-1039, 2004-Ohio-5062, ¶ 18.
Moreover, appellate courts in Ohio have concluded that discovery is unnecessary for a trial court
to decide a motion to dismiss for failure to state a claim upon which relief can be granted. Wiles
v. Miller, 10th Dist. Franklin No. 12AP-989, 2013-Ohio-3625, ¶ 3, 44, quoting Lindow v. N.
Royalton, 104 Ohio App. 3d 152, 159 (8th Dist.1995). “The completion of discovery is not relevant
to the granting of a motion to dismiss[,]” because the trial court’s consideration of a motion to
dismiss under Civ.R. 12(B)(6) is limited to the allegations and evidence contained in the complaint
and precludes facts outside of the complaint. Lindow at 159; Crane Serv. & Inspections, LLC v.
Cincinnati Specialty Underwriters Ins. Co., 12th Dist. Butler No. CA2018-01-003, 2018-Ohio-
3622, ¶ 33, citing Lindow at 159.
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{¶22} Mr. King has failed to demonstrate how the trial court’s order to stay discovery in
this matter was an abuse of discretion. To the extent Mr. King contends that there was no motion
to dismiss pending upon remand, we have already found that position to be misplaced.
{¶23} In light of the foregoing, we conclude that the trial court did not abuse its discretion
when, after the remand, it granted the requested stay of discovery pending the resolution of the
director of the ODJFS’s motion to dismiss and the supplement. See Grover, 170 Ohio App. 3d
188, 2006-Ohio-6115, at ¶ 10; Thomson, 2010-Ohio-416, at ¶ 32-33. Mr. King’s second
assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY FAILING TO SET THE MATTER FOR A
PRETRIAL HEARING UNDER CIV.R. 16 AND SUMMIT CO. LOC. R. 8.01
ONCE THIS COURT REVERSED AND REINSTATED THE CASE.
{¶24} In his first assignment of error, Mr. King argues that the trial court abused its
discretion and violated his due process rights by not holding a pretrial after the case was remanded
to the trial court. We disagree.
{¶25} Under the Ohio Rules of Civil Procedure, trial courts have broad discretion in
setting and holding pretrials. Proctor v. King, 5th Dist. Licking No. 2007CA00133, 2008-Ohio-
5413, ¶ 33. See also Civ.R. 16. Courts may also establish their own local court rule governing
pretrial procedure, whether it be mandatory, discretionary, or upon request of a party. 3 Ohio
Jurisprudence Pleading and Practice Forms, Mandatory or Discretionary Nature of Pretrial
Conference, Section 21:2 (2020). We review a trial court’s enforcement and application of its
local procedural rules for an abuse discretion. See Yanik v. Yanik, 9th Dist. Summit No. 21406,
2003-Ohio-4155, ¶ 9; Michaels v. Michaels, 9th Dist. Medina No. 07CA0058-M, 2008-Ohio-2251,
¶ 13.
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{¶26} Additionally, a trial court possesses the “inherent authority to control its own docket
and manage the cases before it.” Holsopple v. Holsopple, 9th Dist. Summit No. 29441, 2020-
Ohio-1210, ¶ 18. See State ex rel. Charvat v. Frye, 114 Ohio St. 3d 76, 2007-Ohio-2882, ¶ 23.
This Court reviews a trial court’s orders regarding docket and case management for an abuse of
discretion. See MBNA Am. Bank, N.A. v. Bailey, 9th Dist. Summit No. 22912, 2006-Ohio-1550, ¶
10. See also Holsopple at ¶ 18. An abuse of discretion is present when a trial court’s decision “‘is
contrary to law, unreasonable, not supported by evidence, or grossly unsound.’” Menke, 2015-
Ohio-2507, at ¶ 8, quoting Tretola, 2015-Ohio-1999, at ¶ 25.
{¶27} Mr. King suggests that the trial court was required to hold a pretrial. In Ohio,
pretrial procedure in civil matters is governed by Civ.R. 162 which provides that a trial court “may
schedule one or more conferences before trial to accomplish” a variety of objectives set forth
therein. With regard to civil matters in the Summit County Common Pleas Court, General
Division, Loc.R. 8.01(A) sets forth the following pretrial procedure applicable in the local courts:
A pretrial conference shall be held in every civil case filed, unless: (1) the assigned
judge enters an order dispensing with said conference; or (2) said judge permits an
agreed statement of counsel in lieu of said pretrial conference. Upon entry of such
order or agreed statement dispensing with the pretrial conference, provision shall
be made for scheduling the case for trial.
While Loc.R. 8.01(A) uses the term “shall” in reference to holding a pretrial conference, the rule
also contains exceptions to holding a pretrial. See generally State ex rel. Clay v. Cuyahoga Cty.
Med. Examiner’s Office, 152 Ohio St. 3d 163, 2017-Ohio-8714, ¶ 34. Accordingly, Loc.R. 8.01(A)
2
Effective July 1, 2020, Civ.R. 16 was “amended to bring the Ohio rule closer to the federal
rule, while still allowing for Ohio courts to decide whether to hold a scheduling conference.” 2020
Staff Note, Civ.R. 16 (Noting that the prior version of Civ.R. 16 and the current version of Civ.R.
16 both “provide[] that holding a scheduling conference is permissive, not mandatory.”). This
amendment took effect after the trial court denied Mr. King’s motion for a pretrial and granted the
directors’ motions to dismiss. Accordingly, we will reference the previous version of Civ.R. 16 in
effect at the time this matter was pending before the trial court.
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does not require a pretrial in every civil case in the Summit County Common Pleas Court, General
Division.
{¶28} One month after the matter was remanded to the trial court, Mr. King filed a motion
for a pretrial. The trial court entered an order denying Mr. King’s motion for a pretrial on the
grounds that it had the “inherent power to control its own docket and the progress of the
proceedings before it.” In the same order, the trial court recognized that the director of the
ODJFS’s “pending supplemental motion to dismiss * * * [was] submitted.” Two weeks later, the
trial court granted the directors’ pending motions to dismiss and the director of the ODJFS’s
supplement to the motion to dismiss.
{¶29} By denying Mr. King’s motion for a pretrial, the trial court entered an order
dispensing with the pretrial conference pursuant to Loc.R. 8.01(A)(1). Moreover, it became
unnecessary to schedule the case for trial as the trial court granted the pending motions to dismiss.
Based upon the trial court’s application of Loc.R. 8.01(A), a pretrial was not required in this matter
and the trial court did not abuse its discretion in applying Loc.R. 8.01(A) and not holding a pretrial.
{¶30} Mr. King also suggests that the trial court abused its discretion in not holding a
pretrial because there was a “heightened need” for a pretrial following “this Court’s reversal of the
trial court’s judgment dismissing the case[.]” Mr. King again fails to acknowledge the pending
motions to dismiss following the remand in King I and the trial court’s order staying discovery
pending the resolution of the motions to dismiss. We have previously concluded in the fourth
assignment of error that Mr. King’s contention regarding the absence of any motions to dismiss is
contrary to the record. Further, in the second assignment of error we affirmed the propriety of the
trial court’s order staying discovery pending the resolution of the motions to dismiss.
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{¶31} Lastly, Mr. King argues that he was denied due process by the trial court’s denial
of his request for a pretrial. In support of this argument, Mr. King quotes a passage from the
American Bar Association’s website discussing pretrial conferences that generally states that
pretrial conferences help judges to manage cases by establishing time frames for concluding all
pretrial activities and to set tentative trial dates. The quoted passage, however, does not address a
litigant’s due process right to a pretrial.
{¶32} Mr. King fails to cite any other legal authority supporting this proposition. See
App.R. 16(A)(7). Additionally, Mr. King has not developed a due process argument, and this
Court cannot construct one on his behalf. See Alonso v. Thomas, 9th Dist. Lorain No.
19CA011483, 2021-Ohio-341, ¶ 67, fn. 7, citing Cardone, 1998 WL 224934, at *8. Because Mr.
King fails to offer any argument and legal authority to support a due process violation, we decline
to address this portion of his assignment of error. See App.R. 12(A)(2); App.R. 16(A)(7).
{¶33} Upon review of the docket and the motions in this matter, we cannot conclude that
the trial court abused its discretion by not holding a pretrial after the case was remanded to the trial
court. Considering the existing discovery stay and the potentially dispositive nature of the pending
motions to dismiss, it was reasonable for the trial court to decline to hold a pretrial for the purposes
of discussing discovery related to summary judgment motions and other disputes between the
parties. The trial court’s decision to dispense with the pretrial and to proceed to rule on the pending
motions to dismiss was a valid exercise of its “inherent power to control its own docket and the
progress of the proceedings in its court.” See Business Data Sys., Inc. v. Gourmet Cafe Corp., 9th
Dist. Summit No. 23808, 2008-Ohio-409, ¶ 21.
{¶34} Mr. King’s first assignment of error is overruled.
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ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN GRANTING THE MOTION TO STRIKE THE
AMENDED COMPLAINT.
{¶35} In his third assignment of error, Mr. King argues that it was error for the trial court
to strike his amended complaint. We disagree.
{¶36} Mr. King claims that the trial court ignored this Court’s holding in King v. Semi
Valley Sound, LLC, 9th Dist. Summit No. 25655, 2011-Ohio-3567, when it relied upon the filing
of the directors’ motions to dismiss to limit his right to amend his complaint without leave of court.
Mr. King only challenges the trial court’s failure to follow the holding in King v. Semi Valley
Sound, LLC. We will limit our review accordingly.
{¶37} In King v. Semi Valley Sound, LLC, this Court concluded that the version of Civ.R.
15(A) in effect at that time did not require the plaintiff to obtain leave of court to file an amended
complaint when the defendants had not filed answers, but instead filed motions to dismiss. Id. at
¶ 6. Mr. King argues that the holding in King v. Semi Valley Sound, LLC applies to this matter
and, because that decision has not been overruled, the doctrine of stare decisis requires the reversal
of the trial court’s order striking his first amended complaint. Mr. King’s argument is misplaced
because King v. Semi Valley Sound, LLC has been superseded by the 2013 amendment to Civ.R.
15(A).
{¶38} The prior version of Civ.R. 15(A) applicable in King v. Semi Valley Sound, LLC
provided as follows:
A party may amend his pleading once as a matter of course at any time before a
responsive pleading is served or, if the pleading is one to which no responsive
pleading is permitted and the action has not been placed upon the trial calendar, he
may so amend it at any time within twenty-eight days after it is served. Otherwise
a party may amend his pleading only by leave of court or by written consent of the
adverse party. Leave of court shall be freely given when justice so requires. A
party shall plead in response to an amended pleading within the time remaining for
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response to the original pleading or within fourteen days after service of the
amended pleading, whichever period may be the longer, unless the court otherwise
orders.
The earlier version of Civ.R. 15(A) did not preclude a plaintiff from filing an amended complaint
as a matter of course when the defendants had filed a motion to dismiss in lieu of an answer. See
King at ¶ 6. See also Boylen v. Ohio Dept. of Rehab. and Corr., 182 Ohio App. 3d 265, 2009-Ohio-
1953, ¶ 43 (5th Dist.).
{¶39} The 2013 amendment to Civ.R. 15(A), however, changed the parameters and
created limitations regarding “amendment without leave of court of a complaint, or other pleading
requiring a responsive pleading[.]” See 2013 Staff Note, Civ.R. 15. The July 1, 2013 amendment,
which applies in this matter, rewrote Civ.R. 15(A) as follows:
A party may amend its pleading once as a matter of course within twenty-eight days
after serving it or, if the pleading is one to which a responsive pleading is required
within twenty-eight days after service of a responsive pleading or twenty-eight days
after service of a motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In
all other cases, a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court shall freely give leave when justice
so requires. Unless the court orders otherwise, any required response to an
amended pleading must be made within the time remaining to respond to the
original pleading or within fourteen days after service of the amended pleading,
whichever is later.
Thus, as a matter of course, the current version of Civ.R. 15(A) allows a plaintiff to amend a
complaint either “within (1) 28 days of service of the complaint, or (2) the earlier of 28 days of
service of (a) a responsive pleading or (b) a motion to dismiss, to strike, or for a more definite
statement.” Hunter v. Rhino Shield, 10th Dist. Franklin No. 18AP-244, 2019-Ohio-1422, ¶ 13,
citing 2013 Staff Note, Civ.R. 15. Following the expiration of the applicable 28-day period, a
plaintiff must obtain either leave from the trial court or written consent from the opposing party
before filing an amending complaint. See Hunter at ¶ 13; Civ.R. 15(A). These changes to Civ.R.
15(A) have been recognized and applied by other Ohio appellate courts. See, e.g., Martin v. Block
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Communications, Inc., 6th Dist. Lucas No. L-16-1213, 2017-Ohio-1474, ¶ 17-19; Shaw v. Access
Ohio, 2d Dist. Montgomery No. 27638, 2018-Ohio-2969, ¶ 36-37.
{¶40} In this matter, the directors filed motions to dismiss in response to Mr. King’s
complaint. Relying upon the current version of Civ.R. 15(A) and taking into consideration the
filing of the motions to dismiss, the trial court struck Mr. King’s first amended complaint because
he filed it after the applicable 28-day period provided for in Civ.R. 15(A).
{¶41} Because King v. Semi Valley Sound, LLC has been superseded by the 2013
amendment to Civ.R. 15(A), we cannot conclude that the trial court erred when it applied the
current version of Civ.R. 15(A) and declined to apply the holding in King v. Semi Valley Sound,
LLC to determine Mr. King’s right to amend his complaint without leave of court. For these
reasons, the trial court did not err in granting the directors’ motions to strike Mr. King’s first
amended complaint. Mr. King’s third assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRED BY FAILING TO RECUSE ITSELF FROM THE
CASE.
{¶42} In his fifth assignment of error, Mr. King argues that because the trial judge was
biased and unfair, his due process rights were violated when the trial judge refused to recuse herself
in this matter. We disagree.
{¶43} As a threshold issue, the parties dispute whether this Court has jurisdiction to
address Mr. King’s judicial bias claim. In resolving this jurisdictional question, we recognize that
“[t]he term ‘judicial bias’ has developed two related but independent meanings” which has resulted
in confusion regarding an appellate court’s jurisdiction over judicial bias claims. See State v.
Loudermilk, 1st Dist. Hamilton No. C-160487, 2017-Ohio-7378, ¶ 17. One meaning of judicial
bias “relates to the formal process used to remove a judge from hearing a case because the judge
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has an interest in the matter or is prejudiced in favor of one party[,]” while the other type of judicial
bias “occurs when a judge’s conduct in overseeing a case prevents a party from receiving a fair
trial.” Id.
{¶44} A party may seek to disqualify a judge who is allegedly prejudiced and biased by
filing an affidavit of disqualification with the Ohio Supreme Court in accordance with R.C.
2701.03. See Shih v. Byron, 9th Dist. Summit No. 25319, 2011-Ohio-2766, ¶ 24, quoting State v.
Ramos, 88 Ohio App. 3d 394, 398 (9th Dist.1993). With regard to this type of judicial bias claim,
the Ohio Supreme Court has held that the Ohio Constitution, Article IV, Section 5(C) “vests
exclusive authority to pass on disqualification matters in the chief justice or her designee.” State
v. Osie, 140 Ohio St. 3d 131, 2014-Ohio-2966, ¶ 62, citing Beer v. Griffith, 54 Ohio St. 2d 440,
441-442 (1978). See Shih at ¶ 24. Thus, an appellate court lacks the “authority to pass upon
disqualification or to void the judgment of the trial court upon that basis.” Beer at 441-442. Accord
Wilburn v. Wilburn, 169 Ohio App. 3d 415, 2006-Ohio-5820, ¶ 10 (9th Dist.). For the same
reasons, an appellate court also lacks jurisdiction to review a trial court’s decision on a motion to
recuse. State ex rel. Hough v. Saffold, 131 Ohio St. 3d 54, 2012-Ohio-28, ¶ 2; State v. Chapman,
9th Dist. Lorain No. 11CA009973, 2012-Ohio-640, ¶ 6; State v. Carter, 1st Dist. Hamilton No. C-
170655, 2019-Ohio-1749, ¶ 22. This Court has no authority to review this type of judicial bias
claim alleged by Mr. King.
{¶45} Appellate courts, however, have “jurisdiction to review a claim of judicial bias that
is alleged to result in a violation of a [party’s] due process rights.” See Loudermilk at ¶ 20. See
Volpe v. Heather Knoll Retirement Village, 9th Dist. Summit No. 26215, 2012-Ohio-5404, ¶ 22
(Carr, J., concurring in judgment only); Dennie v. Hurst Constr., Inc., 9th Dist. Lorain No.
06CA009055, 2008-Ohio-6350, ¶ 16, fn. 1. “A fair trial in a fair tribunal is a basic requirement of
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due process[]” and the due process right of an impartial and disinterested tribunal applies to civil
and criminal cases alike. In re Murchinson, 349 U.S. 133, 136 (1955); Marshall v. Jerrico, Inc.,
446 U.S. 238, 242 (1980).
{¶46} Mr. King has framed part of his judicial bias claim in the context of a due process
violation. Mr. King claims that the trial court’s judgment should be reversed because the trial
judge is in “clear violation of the Ohio Rules of Judicial Conduct” and his due process rights were
violated when the trial judge failed to recuse herself from this case. Mr. King states that the “Due
Process Clause guarantees litigants a right to have their cases heard and decided by fair and
impartial judges.”
{¶47} Judicial bias is demonstrated by “‘a hostile feeling or spirit of ill will or undue
friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed
anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind
which will be governed by the law and [the] facts.’” State v. Jackson, 149 Ohio St. 3d 55, 2016-
Ohio-5488, ¶ 33, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph four
of the syllabus. “A judge is presumed to follow the law and not to be biased, and the appearance
of bias or prejudice must be compelling to overcome these presumptions.” In re Disqualification
of George, 100 Ohio St. 3d 1241, 2003-Ohio-5489, ¶ 5.
{¶48} We note that disagreement with a judge’s ruling on legal issues and the
management of the case are not evidence of bias or prejudice, but rather issues subject to appeal.
See In re Disqualification of McKay, 135 Ohio St. 3d 1286, 2013-Ohio-1461, ¶ 8; In re
Disqualification of Sutula, 105 Ohio St. 3d 1237, 2004-Ohio-7351, ¶ 4. Nor is disagreement with
the outcome of the case proof of bias to demonstrate a due process violation. See Ramsey v.
Ramsey, 10th Dist. Franklin No. 13AP-840, 2014-Ohio-1921, ¶ 76. And a reversal of the trial
17
judge’s decision by the court of appeals does not infer that the trial judge was biased against that
party on remand. In re Disqualification of Floyd, 135 Ohio St. 3d 1249, 2012-Ohio-6336, ¶ 10.
{¶49} Mr. King has failed to provide any citations to the record identifying the trial
judge’s display of “a hostile feeling or spirit of ill will” toward him or “the formation of a fixed
anticipatory judgment” against him. See State ex rel. Pratt at paragraph four of the syllabus;
App.R. 16(A)(7). Rather, Mr. King only claims that the trial judge was in violation of Jud.Cond.R.
2.2 and 2.11. “A bare allegation of bias does not state a claim of a violation of due process.”
Ramsey at ¶ 72.
{¶50} Additionally, Mr. King has failed to develop any argument in this regard. See
App.R. 16(A)(7). Mr. King has only made a conclusory statement in a subheading that his “Due
Process rights were violated by [the trial judge] when she failed to recuse herself[.]” As this Court
has repeatedly held, “[i]f an argument exists that can support [an] assignment of error, it is not this
[C]ourt’s duty to root it out.” Cardone, 1998 WL 224934, at *8. Because Mr. King fails to offer
any argument and citation to the record to support his position that the trial judge’s bias deprived
him of his due process rights, we decline to address this portion of his assignment of error. See
App.R. 12(A)(2); App.R. 16(A)(7).
{¶51} Mr. King’s fifth assignment of error is overruled.
III.
{¶52} Mr. King’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
18
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
DERRICK MARTIN KING, pro se, Appellant.
DAVE YOST, Attorney General, and THERESA R. DIRISAMER, Assistant Attorney General,
for Appellee.
SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN M. SIMS, Assistant
Prosecuting Attorney, for Appellee.