Byrd v. Newark

[Cite as Byrd v. Newark, 2021-Ohio-3886.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
HOUSTON BYRD, JR. : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2021 CA 00052
:
CITY OF NEWARK, LICKING :
COUNTY, ET AL. :
:
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 21 CV 00107
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 29, 2021
APPEARANCES:
For Plaintiff-Appellant: For Defendants-Appellees:
HOUSTON BYRD, JR., PRO SE ANGELICA M. JARMUSZ
241 N. 10th St. 7775 Walton Parkway, Suite 200
Newark, OH 43055 New Albany, OH 43054
MEL L. LUTE, JR.
ADAM J. ARES
400 South Main St.
North Canton, OH 44720
Licking County, Case No. 2021 CA 00052 2
Delaney, J.
{¶1} Plaintiff-Appellant Houston Byrd, Jr. appeals the June 18, 2021 judgment
entry of the Licking County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
Civil Complaint
{¶2} On February 8, 2021, Plaintiff-Appellant Houston Byrd, Jr. filed a pro se
complaint with the Licking County Court of Common Pleas entitled, “Claim of
Unconstitutionality.” He named as defendants the City of Newark, Licking County,
Prosecutor Bill Hayes, York Risk, Public Entity Services of Ohio, and Mathew (sic) M.
Gilmore. Attached to his complaint were the following: August 26, 2014 Newark Division
of Police Narrative Supplement, September 12, 2014 letter from the Licking County
Prosecutor, October 2, 2019 letter from the Licking County Prosecutor, November 1, 2019
letter from Matthew M. Gilmore, and September 22, 2020 letter from the Licking County
Prosecutor. The following facts arise solely from Byrd’s complaint and attached exhibits.
{¶3} In his complaint, Byrd alleged he filed a report with the Newark City Police
Department stating he had been the victim of theft. On or about August 14, 2014, Byrd
ordered home construction material from Thomas Ross, a person affiliated with an
unnamed building supply company. Byrd did not receive the materials he purchased and
thereafter, Byrd filed his complaint of theft with the police. Based on the report, former
Officer Jeremy Wesner investigated the matter and determined that Byrd did place an
order for siding with the building supply company and the building supply company was
aware of the order for siding material. On August 26, 2014, Officer Wesner concluded no
Licking County, Case No. 2021 CA 00052 3
criminal charges should be sent to the Licking County Prosecutor’s Office and informed
Byrd of the result of his investigation.
{¶4} On September 4, 2014 and September 8, 2014, Byrd sent two complaint
letters to the Licking County Prosecutor’s Office with allegations against Tom Ross. The
Licking County Prosecutor, Kenneth W. Oswalt, sent a letter to the Newark Police
Department on September 12, 2014, stating that Byrd’s allegations were worthy of further
investigation. He asked the Newark Police Department to assign the matter for
investigation and upon the completion of the investigation, refer the matter to the
prosecutor’s office for review. Prosecutor Oswalt also stated in the letter that he was
sending a letter to Tom Ross to determine if Ross could resolve the dispute.
{¶5} Byrd stated in his complaint that he did not receive any communications
from the Licking County Prosecutor’s Office until October 2, 2019. On October 2, 2019,
the Licking County Prosecutor, William C. Hayes, sent a letter to Byrd stating the office
was in receipt of his letter dated September 28, 2019. Hayes stated the prosecutor’s office
had conducted a thorough review of Byrd’s letter and it did not appear there were any
county actions involved; therefore, the prosecutor’s office could not assist Byrd in the
matter.
{¶6} At some point, Byrd filed a “tort claim” against the City of Newark with the
Public Entity Risk Services of Ohio (“PERSO”), which provided liability coverage to the
city. On November 1, 2019, Matthew M. Gilmore, Litigation Specialist with PERSO
responded to Byrd’s “tort claim.” The letter stated that PERSO completed an investigation
of his claim against its member, the City of Newark, Licking County, and determined there
was no liability on their part. The letter also advised Byrd that the statute of limitations ran
Licking County, Case No. 2021 CA 00052 4
on the matter on or around the summer of fall of 2016 and Ohio law would no longer
obligate PERSO or the City of Newark for Byrd’s claim.
{¶7} On September 7, 2020, Byrd sent a letter to the Licking County Prosecutor’s
Office regarding Newark Police Report No. 14-24043 and his complaint against Tom
Ross. The Licking County Prosecutor’s Office responded on September 22, 2020. The
letter stated the prosecutor’s office reviewed the file on the matter and determined in
contravention of Byrd’s claim he received no response from the prosecutor’s office, the
records showed that Kenneth Oswalt and the investigative detective with the Newark
Police Department communicated with Byrd during the pendency of the investigation and
closed the case in 2014/2015. Another review of the case by the prosecutor’s office
concurred it was not a criminal matter, but a civil contract action. The letter further advised
that the statute of limitations for felony offenses was six years, so that if the offense
occurred on August 14, 2014, the statute of limitations had passed, and the case could
not be reopened.
{¶8} Byrd’s pro se complaint did not comply with Civ.R. 8 and the rules of
pleading. As best can be determined from his complaint, Byrd’s claims can be
summarized as: (1) Newark Police Department officers and the Licking County
Prosecutor violated §3.07 of the Revised Code (forfeiture of office for misconduct in
office), §2921.44(E) of the Revised Code (dereliction of duty), and §2921.45 (interfering
with civil rights) of the Revised Code; (2) Newark Police Department officers and the
Licking County Prosecutor committed perjury in violation of §2921.11 of the Revised
Code; (3) the City of Newark and Licking County failed to enforce §2913.51 (receiving
stolen property) and §2913.02 (theft) of the Revised Code, as well as Sec. 109:4-3-09
Licking County, Case No. 2021 CA 00052 5
(failure to deliver, substitution of goods and services) of the Ohio Administrative Code; (4)
the City of Newark and Licking County violated Article I, Section I of the Ohio Constitution
(right to freedom and protection of property); (5) the defendants violated 42 U.S.C.S.
§1985(3) (conspiracy to interfere with civil rights); (6) the City of Newark failed to comply
with its Vision and Mission Statement; and (7) the City of Newark committed a tort by
failing to enforce Newark City Ordinances.
Motion to Dismiss
{¶9} In response to the complaint, the Defendants-Appellees City of Newark,
York Risk, PERSO, Matthew M. Gilmore, and Licking County Prosecutor Bill Hayes filed
motions to dismiss pursuant to Civ.R. 12(B)(6) for failure to state a claim for relief. The
parties raised multiple arguments to support their motion to dismiss including that Byrd’s
claims were barred by the statute of limitations, barred by statutory immunity, and Byrd
lacked standing.
{¶10} Byrd did not file a response to the motions to dismiss. On March 8, 2021,
Byrd filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C).
{¶11} On June 18, 2021, the trial court filed its judgment entry granting the
motions to dismiss filed by the Appellees. The trial court reviewed Byrd’s complaint and
found it did not comply with Civ.R. 8, presenting a challenge to determine his causes of
action against the defendants. However, construing the allegations in his complaint as
true, the trial court determined the content of his complaint did not raise valid claims for
which the court could grant relief.
{¶12} It is from this judgment that Byrd now appeals.
Licking County, Case No. 2021 CA 00052 6
ANALYSIS
App.R. 16
{¶13} We begin by noting that the appellant’s brief filed by Byrd does not comply
with App.R. 16. This Court has held that a brief is noncompliant if it does not satisfy the
mandatory requirements of App.R. 16. Zanesville v. Robinson, 5th Dist. Muskingum App.
No. 09-CA-39, 2010-Ohio-4843, ¶ 26; Benick v. Morrow County Health District, 5th Dist.
Morrow No. 2019CA0007, 2020-Ohio-4443, ¶ 11. A failure to comply with App.R. 16
would permit this Court to dismiss Byrd’s appeal. State v. Darby, 5th Dist. Richland No.
2019 CA 0013, 2019-Ohio-2186, ¶¶ 21-24.
{¶14} We understand that Byrd has filed this appeal pro se. Nevertheless, “like
members of the bar, pro se litigants are required to comply with rules of practice and
procedure.” Oyler v. Oyler, 5th Dist. Stark No. 2014CA00015, 2014-Ohio-3468, 2014 WL
3907024, ¶ 19 quoting Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP–116,
2006–Ohio–3316, ¶ 9. See, also, State v. Hall, 11th Dist. No.2007–T–0022, 2008–Ohio–
2128, ¶ 11. We also understand that “an appellate court will ordinarily indulge a pro se
litigant where there is some semblance of compliance with the appellate rules.” State v.
Richard, 8th Dist. No. 86154, 2005–Ohio–6494, ¶ 4 (internal quotation omitted). “Fairness
and justice are best served when a court disposes of a case on the merits.” DeHart v.
Aetna Life Ins. Co., 69 Ohio St.2d 189, 193, 431 N.E.2d 644, 647 (1982). We caution,
however, that “[i]f an argument exists that can support [an] assignment of error, it is not
this court's duty to root it out.” State v. Colston, 5th Dist. Muskingum No. CT2019-0076,
2020-Ohio-3879, 2020 WL 4345269, ¶ 58 quoting Thomas v. Harmon, 4th Dist. Lawrence
No. 08CA17, 2009-Ohio-3299, at ¶14, quoting State v. Carman, 8th Dist. Cuyahoga No.
Licking County, Case No. 2021 CA 00052 7
90512, 2008-Ohio-4368, at ¶31. “It is not the function of this court to construct a
foundation for [an appellant's] claims; failure to comply with the rules governing practice
in the appellate courts is a tactic which is ordinarily fatal.” Catanzarite v. Boswell, 9th Dist.
Summit No. 24184, 2009-Ohio-1211, at ¶16, quoting Kremer v. Cox, 114 Ohio App.3d
41, 60, 682 N.E.2d 1006 (9th Dist. 1996). In the interest of justice but within the bounds
of the Rules of Appellate Procedure, we will address Byrd’s argument that the trial court
erred in granting the Appellees’ motions to dismiss.
Motion to Dismiss
{¶15} While the appellant’s brief does not contain a statement of the assignments
of errors presented for review pursuant to App.R. 16(A)(3), we find the thrust of Byrd’s
argument is that the trial court erred in granting the Appellees’ motions to dismiss. Our
standard of review on a Civil Rule 12(B) motion to dismiss is de novo and we conduct an
independent review of the trial court’s decision without any deference to the trial court’s
determination. See Huntsman v. State, 5th Dist. Stark No. 2016CA00206, 2017–Ohio–
2622, 2017 WL 1710432, ¶ 20; Deutsche Bank Natl. Trust Co. v. Mallonn, 2018-Ohio-
1363, 110 N.E.3d 765, ¶ 21 (5th Dist.). Based on that standard of review and in the
interest of fairness and justice under the circumstances of this case, we engage in an
independent review of the motions to dismiss to determine if the trial court erred in
granting the motions.
{¶16} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey County Bd. of Commissioners, 65 Ohio St.3d 545, 605 N.E.2d 378 (1992).
Under a de novo analysis, we must accept all factual allegations of the complaint as true,
Licking County, Case No. 2021 CA 00052 8
and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v.
Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991). To dismiss a complaint pursuant to Civil
Rule 12(B)(6), it must appear beyond doubt that the plaintiff can prove no set of facts in
support of the claim that would entitle plaintiff to relief. York v. Ohio State Highway Patrol,
60 Ohio St.3d 143, 573 N.E.2d 1063 (1991).
{¶17} Pursuant to Civ.R. 12(B), we review the motions to dismiss from only the
perspective of the four corners of the complaint, which includes the exhibits Byrd attached
to his complaint. We agree with the trial court that Byrd’s complaint did not comply with
Civ.R. 8. It is difficult to determine his causes of actions and the facts supporting those
causes of action against the Appellees.
{¶18} The Appellees argued in their motions to dismiss that Byrd’s claims were
time-barred by the applicable statues of limitations because the actions that formed the
basis of his claims occurred in 2014 and he did not file his complaint until 2021. The
complaint states the alleged theft offense occurred in 2014, which the Newark Police
Department reviewed and determined was not a criminal action on August 26, 2014, as
evidenced by the attached Narrative Supplement from the Newark Police Department.
The attached exhibits showed the Licking County Prosecutor’s Office reviewed the matter
again in 2014 and the matter was closed by the prosecutor’s office in 2014/2015.
{¶19} Pursuant to R.C. 2744.04(A), an action against a political subdivision to
recover damages for injury, death, or loss to person or property caused by the act or
omission of a governmental or proprietary function must be brought within two years after
the cause of action accrued. In this case, the basis of Byrd’s complaint are the alleged
acts or omissions of the City of Newark, Licking County, and the Licking County
Licking County, Case No. 2021 CA 00052 9
Prosecutor’s Office in failing to prosecute his complaint of theft in 2014. While Byrd has
named PERSO, York Risk, and Matthew M. Gilmore as defendants, the basis of his claim
against these parties arose out of the alleged acts and omissions of their insured
governmental entities. Pursuant to the two-year statute of limitations, Byrd’s claims
against the Appellees were time-barred after 2016.
{¶20} Accepting all the understandable factual allegations of Byrd’s complaint as
true and all reasonable inferences drawn in favor Byrd, we agree with the Appellees and
the trial court that Byrd’s causes of action are barred by the applicable statute of
limitations and therefore not viable claims that would entitle him to relief.
CONCLUSION
{¶21} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Wise, John, J., concur.