Clark v. Twinsburg

[Cite as Clark v. Twinsburg, 2022-Ohio-4330.]
IN THE COURT OF CLAIMS OF OHIO
LYNN A. CLARK Case No. 2022-00493PQ
Requester Judge Patrick E. Sheeran
v. DECISION AND ENTRY
CITY OF TWINSBURG
Respondent
{¶1} Requester Lynn A. Clark objects to a Special Master’s Report and
Recommendation in this public-records case. The Court overrules Clark’s objections for
reasons set forth below.
I. Background
{¶2} On June 22, 2022, Lynn A. Clark, a self-represented litigant, filed a Complaint
against Respondent City of Twinsburg (City), alleging a denial of access to public records
in violation of R.C. 149.43(B). Clark asserts in the Complaint: “April 29, 2022, May 10,
2022, May 27, 2022, June 1, 2022, June 14, 2022. No documents have been provided
nor has any reason been given as to why they have not been provided.”
{¶3} The Court appointed a Special Master who referred the case to mediation.
After mediation failed to successfully resolve all disputed issues between the parties, the
case was returned to the Special Master’s docket. The City thereafter moved to dismiss
Clark’s Complaint under R.C. 2743.75(E)(2).
{¶4} On October 18, 2022, the Special Master issued a Report and
Recommendation (R&R). The Special recommends denying the City’s motion to dismiss.
(R&R, 3.) The Special Master states in the Report and Recommendation’s conclusion:
Upon consideration of the pleadings and attachments, the Special
Master recommends the court find that all of requester’s sufficiently specific
requests for public records have been rendered moot and deny the claim
for further production of records.
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The Special Master recommends the court find that no other violation
of R.C. 149.43(B) has been shown. It is recommended costs be assessed
to requester.
(R&R, 11.)
{¶5} On October 31, 2022, Clark filed written objections to the Special Master’s
Report and Recommendation. Clark’s objections are not accompanied by any proof of
service. On October 31, 2022, Clark filed another document that supplements his written
objections. Clark’s supplemental filing is not accompanied by any proof of service.
{¶6} On November 14, 2022, the City filed a written response in opposition to
Clark’s objections. The City’s counsel certifies that “a copy of the foregoing Motion to
Dismiss [sic] was filed electronically on November 14, 2022. Notice of this filing will be
sent to all parties by operation of the Court’s electronic filing system. A copy of this Motion
[sic] was also sent by electronic mail to Mr. Lynn Clark * * * and via certified mail, return
receipt requested to: Lynn A. Clark * * *.”
II. Law and Analysis
{¶7} The General Assembly created an alternative means to resolve public-records
dispute through the enactment of R.C. 2743.75. Welsh-Huggins v. Jefferson Cty.
Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 11. See
R.C. 2743.75(A). Under R.C. 2743.75(F)(1), not later than seven business days after
receiving a response of a public office or person responsible for public records, or a
motion to dismiss a complaint, if applicable, a special master is required to “submit to the
court of claims a report and recommendation based on the ordinary application of
statutory law and case law as they existed at the time of the filing of the complaint.”
However, for good cause shown, a special master “may extend the seven-day period for
the submission of the report and recommendation to the court of claims under this division
by an additional seven business days.” R.C. 2743.75(F)(1).
{¶8} R.C. 2743.75(F)(2) governs the filing of objections to a special master’s report
and recommendation. Under R.C. 2743.75(F)(2), either party “may object to the report
and recommendation within seven business days after receiving the report and
recommendation by filing a written objection with the clerk and sending a copy to the other
party by certified mail, return receipt requested. * * * If either party timely objects, the other
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party may file with the clerk a response within seven business days after receiving the
objection and send a copy of the response to the objecting party by certified mail, return
receipt requested. The court, within seven business days after the response to the
objection is filed, shall issue a final order that adopts, modifies, or rejects the report and
recommendation.”
A. Clark’s written objections and supplemental filing fail to comply with
procedural requirements under R.C. 2743.75(F)(2) and the Ohio Rules of Civil
Procedure.
{¶9} Pursuant to R.C. 2743.75(F)(2), either party “may object to the report and
recommendation within seven business days after receiving the report and
recommendation by filing a written objection with the clerk and sending a copy to the other
party by certified mail, return receipt requested.” (Emphasis added.) Clark’s objections
are not accompanied by any proof of completed service. Clark thus has failed to comply
with R.C. 2743.75(F)(2)’s procedural requirements for serving written objections by
certified mail, return receipt requested.
{¶10} Under R.C. 2743.03(D), the Rules of Civil Procedure “shall govern practice
and procedure in all actions in the court of claims, except insofar as inconsistent with this
chapter.” Pursuant to Civ.R. 5(B)(4), a served document is required to be “accompanied
by a completed proof of service which shall state the date and manner of service,
specifically identify the division of Civ.R. 5(B)(2) by which the service was made, and be
signed in accordance with Civ.R. 11.” According to Civ.R. 5(B)(4), “[d]ocuments filed with
the court shall not be considered until proof of service is endorsed thereon or separately
filed.” (Emphasis added.) R.C. 2743.75(F)(2)’s requirement that objections should be
served on a non-objecting party is consistent with Civ.R. 5(B)’s service requirements.
Therefore, under Civ.R. 5(B)(4) Clark’s objections and supplemental filing (which, like
Clark’s objections, is not accompanied by proof of service) should not be considered by
the Court, absent proof of completed service.
{¶11} The Court recognizes that Clark is a self-represented litigant but, Clark
nonetheless is required to follow procedural law and court rules. The Tenth District Court
of Appeals has explained,
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While one has the right to represent himself or herself and one may proceed
into litigation as a pro se litigant, the pro se litigant is to be treated the same
as one trained in the law as far as the requirement to follow procedural law
and the adherence to court rules. If the courts treat pro se litigants
differently, the court begins to depart from its duty of impartiality and
prejudices the handling of the case as it relates to other litigants represented
by counsel.
Justice v. Lutheran Social Servs., 10th Dist. Franklin No. 92AP-1153, 1993 Ohio App.
LEXIS 2029, at *6 (Apr. 8, 1993). Accord State ex rel. Fuller v. Mengel, 100 Ohio St.3d
352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v. Ohio Dept of Job & Family
Servs., 145 Ohio App. 3d 651, 654, 763 N.E.2d 1238 (2001) (“‘[i]t is well established
that pro se litigants are presumed to have knowledge of the law and legal procedures and
that they are held to the same standard as litigants who are represented by counsel’”).
The Court does not look favorably on Clark’s failure to follow procedural requirements
under R.C. 2743.75(F)(2) or the Ohio Rules of Civil Procedure.
B. Clark’s request to consider new evidence is not well taken.
{¶12} Under R.C. 2743.75(F)(2), any objection to the report and recommendation
“shall be specific and state with particularity all grounds for the objection.” Clark states in
the objections:
Now comes Requester, Lynn A. Clark, with additional comments in
response to Special Master Jeff Clark’s October 16, 2022, Report and
Recommendation. Please note those comments were submitted via USPS
last week. Those are now moot considering the discovery of new evidence
as described below.
***
Based upon these recent discoveries, the Requester believes that
the burden of proof has been satisfied and respectfully requests that the
Special Master review the newly presented documentation and modify the
draft Report and Recommended. Furthermore, if the Special Master finds
this evidence persuasive, to place the burden of all fees upon the
Respondent.
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(Objections.)
{¶13} In response, the City essentially contends that Clark seeks to improperly
introduce three new pieces of evidence and that Clark’s purported new evidence is neither
material nor pertinent because two of the three pieces of purported new evidence are not
responsive to Clark’s public-records requests and the other piece of new evidence is a
document that has been provided to Clark in response to Clark’s public-records requests.
{¶14} Clark’s invitation to consider new evidence is not well taken. As the Tenth
District Court of Appeals has stated:
Pursuant to long-standing precedent, “[a] reviewing court cannot add matter
to the record before it, which was not a part of the trial court’s proceedings,
and then decide the appeal on the basis of the new matter.” State v.
Ishmail (1978), 54 Ohio St.2d 402, 377 N.E.2d 500, paragraph one of the
syllabus. Similarly, a reviewing court cannot consider evidence that a party
added to the trial court record after that court’s judgment, and then decide
an appeal from the judgment based on the new evidence.
Paasewe v. Wendy Thomas 5 Ltd., 10th Dist. Franklin No. 09AP-510, 2009-Ohio-6852, ¶
15; see Stancourt v. Worthington City School Dist. Bd. of Edn., 164 Ohio App.3d 184,
2005-Ohio-5702, 841 N.E.2d 812, ¶ 6 (10th Dist.), fn. 2. Accord State ex rel. Bey v. Byrd,
160 Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57, ¶ 20, quoting In re Adoption of
Z.G.A., 2d Dist. Greene No. 2015-CA-51, 2016-Ohio-238, ¶ 29 (“‘[a] party cannot
introduce new evidence on appeal’”).
{¶15} As a reviewing court in this public-records dispute, this Court should not add
matter to the record before it, which was not part of the proceedings before the Special
Master. And, as the reviewing court in this public-records dispute, this Court should not
consider evidence that an objecting party seeks to add to the record, and then decide the
matter based on the new evidence. See Paasewe at ¶ 15; Stancourt at ¶ 6, fn. 2. Clark’s
request for the Court to consider new evidence is unpersuasive.
{¶16} Moreover, based on the Court’s independent review, the Court finds that the
Special Master’s Report and Recommendation is correctly based on the ordinary
application of statutory law and case law as they existed at the time of the filing of the
Complaint.
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III. Conclusion
{¶17} The Court overrules Clark’s objections for reasons set forth above. The
Court adopts the Special Master’s Report and Recommendation. Court costs are
assessed to Clark. The Clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.
PATRICK E. SHEERAN
Judge
Filed November 16, 2022
Sent to S.C. Reporter 12/5/22