Graham v. JPay, Inc.

[Cite as Graham v. JPay, Inc., 2021-Ohio-401.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NATHAN GRAHAM JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2020 CA 0034
JPAY INC., et al.
Defendants-Appellees O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Civil Division, Case No.
2019-CV-0763R
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: February 11, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
NATHAN GRAHAM ZACHARY B. SIMONOFF
Inmate #384-747 124 Middle Avenue
Mansfield CI Suite #500
P.O. Box 788 Elyria, Ohio 44035
Mansfield, Ohio 44901
Richland County, Case No. 2020 CA 0034 2
Hoffman, P.J.
{¶1} Plaintiff-appellant Nathan Graham appeals the March 9, 2020 Judgment Entry
entered by the Richland County Court of Common Pleas, which denied his motion for
default judgment against defendant-appellee JPay, Inc. and granted Appellee’s motion to
dismiss.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is an inmate at Mansfield Correctional Institution, serving a 53 year
prison term. Appellee provides electronic media access to Ohio inmates via kiosks
located in the housing units of the prisons. Appellee's services include email; video
messaging; and 30-minute “video visits” between prisoners and family members.
Appellee also offers “individual digital devices” for electronic media such as digital music,
e-books, and electronic games. These devices are akin to iPads, but the offerings are
limited to Appellee's services. Inmates purchase media access from Appellee by
transferring funds from their commissary accounts to their J-Pay Media Accounts.
{¶3} In order to utilize these services, Appellant agreed to be bound by the terms
of Appellee’s service agreement, which included an arbitration clause. JAMS, then the
American Arbitration Association (“AAA”) provided the dispute resolution services.
Appellant utilized Appellee’s services, but encountered problems with such. He
attempted to initiate the arbitration process, however, was unable to do so in a timely
manner. Appellant maintains he lost his right to arbitrate as a result of JAMS and AAA’s
failure to provide him with the appropriate arbitration forms and information.
{¶4} On October 16, 2019, Appellant filed a complaint, naming Appellee, JAMS,
and AAA as defendants. Appellant asserted causes of action for unfair or deceptive
Richland County, Case No. 2020 CA 0034 3
consumer sales practices under R.C. 1345.02; unconscionable act or practice under R.C.
1345.03; and breach of contract. AAA filed a motion for extension of time to move, plead,
or otherwise respond on November 20, 2019. On November 21, 2019, Appellee filed a
motion for leave to plead. JAMS filed a motion to dismiss on November 22, 2019.
Appellee filed a motion to dismiss on November 25, 2019. The trial court granted Appellee’
motion for leave to plead on November 27, 2019.
{¶5} On December 12, 2019, Appellant filed an amended complaint, asserting the
same four causes of action and advancing identical allegations as set forth in his original
complaint, but designating JAMS and AAA as subcontractors of Appellee.
{¶6} Appellee filed a supplement to its motion to dismiss on December 30, 2019.
JAMS and AAA also filed motions to dismiss the amended complaint.
{¶7} Appellant filed a voluntary dismissal of JAMS on January 9, 2019. On January
16, 2020, Appellant filed a motion to strike Appellee’s motion to dismiss and a motion for
default judgment. The following day, Appellant filed a motion to strike AAA’s motion to
dismiss and motion for default judgment. Appellant subsequently filed a voluntary
dismissal of AAA.
{¶8} Via Judgment Entry filed March 9, 2020, the trial court granted Appellee’s
motion to dismiss, finding Appellant’s causes of action fail to state a claim against
Appellee. The trial court dismissed Appellant’s amended complaint without prejudice.
The trial court also denied Appellant’s motion for default judgment, finding Appellee did
not fail to plead or otherwise defend by filing its motion to dismiss.
{¶9} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
Richland County, Case No. 2020 CA 0034 4
I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT ALLOWED APPELLEES TO FILE AN ANSWER BEYOND RULE
DATE WHERE THERE WAS NO SHOWING OF “EXCUSABLE NEGLECT”
AND APPELLEES FAILED TO COMPLY WITH PROCEDURES OUTLINE
IN RULES OF CIVIL PROCEDURE FOR LATE FILING.
II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT GRANTED APPELLEE’S MOTION TO DISMISS FOR FAILURE
TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED
PURSUANT TO CIV. R. 12(B)(6).
{¶10} As an initial matter, we first determine whether this is a final, appealable
order capable of invoking this Court's jurisdiction.
{¶11} Article IV, Section 3(B)(2) of the Ohio Constitution grants jurisdiction to
courts of appeals “to review and affirm, modify, or reverse judgments or final orders of the
courts of record inferior to the court of appeals within the district.” Consequently, this
Court does not have jurisdiction over nonfinal orders. CitiMortgage, Inc. v. Roznowski,
139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 10, citing Gen. Acc. Ins. Co. v.
Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). “ An order of a court is
a final appealable order only if the requirements of both R.C. 2505.02 and, if applicable,
Civ.R. 54(B), are met.” Id. (Internal quotation and citation omitted).
{¶12} We begin our analysis by noting the trial court dismissed Appellants'
complaint “without prejudice.” Ordinarily, a dismissal without prejudice is other than on
Richland County, Case No. 2020 CA 0034 5
the merits under Civ.R. 41(B) and is not appealable. Bland v. Toyota Motor Sales U.S.A.,
Inc., 2nd Dist. Montgomery No. 27837, 2018-Ohio-1728, ¶ 7, citing Ebbets Partners, Ltd.
v. Day, =71 Ohio App.3d 20, 2007-Ohio-1667, 869 N.E.2d 110, ¶ 11 (2d Dist.). With
regard to a dismissal without prejudice under Civ.R. 12(B)(6), however, such a dismissal
may be appealable “if the plaintiff cannot plead the claims any differently to state a claim
for relief.” Id., quoting Hulsmeyer v. Hospice of Southwest Ohio, Inc., 1st Dist. Hamilton
No. C–120822, 2013-Ohio-4147, 998 N.E.2d 517, ¶ 11. If the rule were otherwise, a
plaintiff whose complaint was found deficient under Civ.R. 12(B)(6) would be without a
remedy to challenge that determination. Id.{¶13} In both his original complaint and amended complaint, Appellant failed to
allege any facts to support his claims Appellee violated the terms of the parties’ agreement
and/or the Ohio Consumer Sales Practices Act. However, we find Appellant may be able
to rectify the deficiencies found by the trial court by pleading the claims with specific
factual allegations. Because Appellant is able to plead the claims differently, we find the
trial court’s dismissal was not a final appealable order.
{¶14} Accordingly, we decline to address the merits of Appellant’s arguments at
this time as the order being appealed is not a final and appealable, despite the trial court's
certification under Civ.R. 54(B). We do so under the authority of the Ohio Supreme Court's
decision in Walburn v. Dunlap, 2009–Ohio–1221. See, also, Kallaus v. Allen, 5th Dist.
App. No. 09–CA–0002, 2009–Ohio–6339.
Richland County, Case No. 2020 CA 0034 6
{¶15} Having concluded no final appealable order exists in this case, we dismiss
this appeal for lack of jurisdiction.
By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur