[Cite as Brown v. Schmidt, 2016-Ohio-2864.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                     ROSS COUNTY

STEVEN S. BROWN,                              :   Case No. 15CA3523

        Plaintiff-Appellant,                  :

        v.                                    :   DECISION AND
                                                  JUDGMENT ENTRY
MATTHEW S. SCHMIDT,                           :
                                                  RELEASED: 5/4/2016
        Defendant-Appellee.                   :
                                          APPEARANCES:

Steven S. Brown, Youngstown, OH, pro se appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, Chillicothe, OH, pro se
appellee.
Harsha, J.
        {¶1}    The Ross County Court of Common Pleas dismissed the complaint filed

pursuant to R.C. 309.05 by Steven S. Brown seeking the removal of Matthew S.

Schmidt as Ross County Prosecuting Attorney.

        {¶2}    Brown asserts in his second assignment of error that the trial court erred

in dismissing his complaint on the basis that Brown failed to allege and establish that he

is a taxpayer, thus indicating that he lacked standing to file the complaint. We agree.

Nothing in R.C. 309.05 requires that a complaint seeking removal of a prosecuting

attorney specifically allege that the plaintiff is a taxpayer; capacity to sue is presumed

under Civ.R. 9(A). Because it did not appear beyond doubt from a review of his

complaint that Brown could prove no set of facts in support of his claim, including that

he was a taxpayer, the trial court erred in dismissing it for failure to state a claim upon

which relief can be granted. We sustain Brown’s second assignment of error. This
Ross App. No. 15CA3523                                                                2


holding renders moot Brown’s first, third, fourth, and part of his sixth assignments of

error, which also challenge the trial court’s dismissal of his complaint.

       {¶3}   In Brown’s fifth assignment of error and part of his sixth assignment of

error he claims that the trial court judge erred by rejecting his affidavit requesting the

judge’s recusal or disqualification from presiding over his case. Because we lack

jurisdiction to review the trial court’s decision, we dismiss this portion of Brown’s appeal.

                                          I. FACTS

       {¶4}   Steven S. Brown filed a complaint pursuant to R.C. 309.05 requesting the

removal of Ross County Prosecuting Attorney Matthew S. Schmidt for neglect and

misconduct. Brown alleged in his complaint and supporting affidavit that: (1) he is an

inmate at the state prison in Youngstown; (2) when he was an inmate at Ross

Correctional Institution, crimes were committed against him by prison employees,

Aramark Corporation, and an Ohio Assistant Attorney General; (3) in June 2014, he

filed an affidavit in the Ross County Court of Common Pleas seeking the issuance of

criminal warrants under R.C. 2935.09 against the specified individuals and Aramark; (5)

in January 2015, the common pleas court issued an order referring the affidavit to the

Ross County Prosecuting Attorney for investigation; (6) Schmidt notified Brown that he

had referred the affidavit to the Ohio State Highway Patrol for investigation; (7) in April

2015, a state trooper picked up documents from Brown to copy and send to Schmidt;

(8) when Brown asked the trooper to interview him and certain witnesses and

administer a lie-detector test, the trooper told him that Schmidt had told him not to talk

to Brown, investigate, or make any reports; and (9) Schmidt is knowingly and
Ross App. No. 15CA3523                                                              3


deliberately refusing to investigate the crime committed against him and is conspiring to

cover up those crimes. Brown referred to himself as a “citizen” in his complaint.

       {¶5}   At the same time he filed his complaint, Brown filed an affidavit seeking

the recusal or disqualification of the trial court judge, who he claimed was prejudiced

against him. Brown claimed he filed his affidavit under R.C. 2701.03 and 2937.20, as

well as Crim.R. 25(A) and (B).

       {¶6}   The prosecutor filed a Civ.R. 12(B)(6) motion to dismiss Brown’s

complaint for failure to state a claim upon which relief can be granted because Brown

did not allege that he was a taxpayer and thus lacked standing to seek his removal

under R.C. 309.05. Brown filed a timely response in which he asserted that he is a

taxpayer subject to income, property, and sales taxes and that there was no law

exempting inmates from taxation.

       {¶7}   The trial court denied Brown’s request for recusal or disqualification. The

trial court judge reasoned that the provisions Brown cited were inapplicable and that he

could be fair and impartial in the proceeding. The trial court also ordered Brown to

respond to the prosecutor’s motion to dismiss even though he already had. Brown filed

a response noting that he had already responded to the motion.

       {¶8}   The trial court granted the prosecutor’s Civ.R. 12(B)(6) motion and

dismissed Brown’s complaint after stating that Brown had not filed a response to the

motion. The trial court concluded that Brown lacked standing to file the complaint to

remove the prosecutor under R.C. 309.05 because he had “failed to allege and

establish that he is a taxpayer.” This appeal followed.

                             II. ASSIGNMENTS OF ERROR
Ross App. No. 15CA3523                                                             4


      {¶9}   Brown assigns the following errors for our review:

      1. THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE
         REFUSED TO LET THE CASE PROCEED AND DISMISSED THE
         CASE, IN VIOLATION OF THE 1ST AMENDMENT OF THE UNITED
         STATES CONSTITUTION, ARTICLE I SECTION 16 OF THE OHIO
         CONSTITUTION, DUE PROCESS OF LAW CONSTITUTION OHIO
         ARTICLE I SECTION 16 AND CONSTITUTION OF THE UNITED
         STATES, AMENDMENTS V, AND FIVE [SIC], AND FOURTEEN.

      2. THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE
         CONCLUDED THAT THE PLAINTIFF WAS NOT A TAXPAYER AND
         DISMISSED FOR THAT REASON.

      3. THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE
         REFUSED TO CONSIDER THE PLAINTIFF’S RESPONSE TO THE
         APPELLEE’S MOTION TO DISMISS AND MOTION FOR
         RECONSIDERATION.

      4. ANY STATUTE THAT EXEMPTS ANY CITIZEN FROM REDRESS,
         LIKE R.C. 309.05 IS UNCONSTITUTIONAL WHEN IT EXEMPTS
         PRISONERS, IN VIOLATION OF DUE PROCESS OF LAW, EQUAL
         PROTECTION OF THE LAWS, THE 1ST AMENDMENT TO THE U.S.
         CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO
         CONSTITUTION, U.S. CON. AMEND. 5 AND 14.

      5. THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE
         REFUSED TO RECUSE HIMSELF.

      6. THE TOTALITY OF THE DECISIONS AND ACTIONS BY JUDGE
         NUSBAUM SHOW VIOLATIONS OF SUBSTANTIVE DUE PROCESS
         IN VIOLATION OF THE U.S. AND OH CONSTITUTIONS.

                                III. LAW AND ANALYSIS

                          A. Dismissal for Failure to State a Claim

                                   1. Standard of Review

      {¶10} “A motion to dismiss for failure to state a claim upon which relief can be

granted tests the sufficiency of the complaint.” Volbers–Klarich v. Middletown Mgt., Inc.,

125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. “In order for a trial court to

dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief
Ross App. No. 15CA3523                                                                 5


can be granted, it must appear beyond doubt that the plaintiff can prove no set of facts

in support of the claim that would entitle the plaintiff to the relief sought.” Ohio Bur. of

Workers' Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶

12; Lloyd v. Robinson, 4th Dist. Ross No. 14CA3462, 2015-Ohio-1331, ¶ 11. “Whether

a complaint sufficiently sets forth a claim presents a question of law we review de novo.”

Strahler v. Vessels, 4th Dist. Washington No. 11CA24, 2012-Ohio-4170, ¶ 9.

                                      2. Law and Analysis

       {¶11} In his second assignment of error Brown asserts that the trial court erred

when it concluded that he was not a taxpayer and dismissed his complaint for lack of

standing. Brown filed his complaint under R.C. 309.05, which provides that “[o]n

complaint, in writing, signed by one or more taxpayers, containing distinct charges and

specifications of wanton and willful neglect of duty or gross misconduct in office by the

prosecuting attorney, supported by affidavit and filed in the court of common pleas, the

court shall assign the complaint for hearing and shall cause reasonable notice of the

hearing to be given to the prosecuting attorney of the time fixed by the court for the

hearing.” The trial court determined that Brown had failed to allege or establish that he

was a taxpayer, thus necessitating the dismissal of his complaint for lack of standing.

       {¶12} However, Ohio is a notice-pleading state and it is only where precedent,

statutes, or rules require it that there is a heightened pleading requirement mandating

fact pleading. See, e.g., Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167,

2008-Ohio-5379, 897 N.E.2d 147, ¶ 12; see generally Klein, Darling, and Terez, 1

Baldwin’s Oh. Prac. Civ. Prac., Section 12:9 (Dec. 2014) (“the Ohio Rules contemplate

the use of ‘notice’ pleading, rather than ‘fact’ pleading, in accord with the notice pleading
Ross App. No. 15CA3523                                                               6


regimen created by the Federal Rules. * * * But, in certain situations where strong

public policy considerations mandate intense scrutiny, the court requires that the plaintiff

plead operative facts with particularity”).

       {¶13} R.C. 309.05 does contain a heightened pleading requirement insofar as

“[c]omplaints under R.C. 309.05 must contain distinct charges and specifications.” See,

e.g., Woodman v. Tubbs Jones, 103 Ohio App.3d 577, 582, 660 N.E.2d 520 (8th

Dist.1995). But nothing in R.C. 309.05 required Brown to specifically allege that he is a

taxpayer; it only required that he be a taxpayer.

       {¶14} Moreover, “[i]t is not necessary to aver the capacity of a party to sue.”

Civ.R. 9(A); Dot Systems, Inc. v. Adams Robinson Ent., Inc., 67 Ohio App.3d 475, 481,

587 N.E.2d 844 (4th Dist.1990). Rather, “[c]apacity is presumed unless specifically

alleged.” See Ernst, Baldwin’s Oh. Prac. Tort L., Section 2:70 (2d Ed.2015).

       {¶15} “Civ.R. 12(B)(6) motions * * * merely ascertain whether the complaint

alleges the elements of the claim with sufficient particularity so that reasonable notice is

given to opposing parties, i.e., Ohio generally follows notice, rather than fact, pleading.”

In re Election Contest of Democratic Primary Held May 4,1999, 87 Ohio St.3d 118, 120,

717 N.E.2d 701 (1999). Brown’s complaint alleged the elements of his claim under R.C.

309.05 with sufficient particularity to give the prosecutor reasonable notice that he was

seeking his removal for neglect and misconduct.

       {¶16} Therefore, dismissal under Civ.R. 12(B)(6) for failure to state a claim was

not warranted because it did not appear beyond doubt that Brown could prove no set of

facts in support of his claim. Looking solely to the complaint, it is possible that Brown is

a taxpayer. Consequently, the trial court erred in holding that Brown was required to
Ross App. No. 15CA3523                                                               7


allege or establish that he was a taxpayer in his complaint to withstand dismissal under

Civ.R. 12(B)(6) when neither R.C. 309.05 nor any precedent required that he do so. We

sustain Brown’s second assignment of error.

       {¶17} In his first, third, fourth, and part of his sixth assignments of error Brown

also attacks the trial court’s judgment dismissing his complaint for failure to state a

claim. He raises several contentions, including constitutional claims. But our sustaining

of his second assignment of error renders these assignments of error moot and we

need not address their merits. App.R. 12(A)(1)(c); Besser v. Griffey, 88 Ohio App.3d

379, 383, 623 N.E.2d 1326 (4th Dist.1993) (reversal of dismissal of complaint rendered

assignments of error moot); see also State ex rel. Essig v. Blackwell, 103 Ohio St.3d

481, 2004-Ohio-5586, 817 N.E.2d 5, ¶ 34, quoting State ex rel. DeBrosse v. Cool, 87

Ohio St.3d 1, 7, 716 N.E.2d 1114 (1999) (“ ‘courts decide constitutional issues only

when absolutely necessary’ ”).

                     B. Recusal or Disqualification of Trial Court Judge

       {¶18} In his fifth and part of his sixth assignments of error Brown asserts that the

trial court judge erred in denying his request that the judge recuse or disqualify himself

because of bias. Because a court of appeals lacks jurisdiction to review these

decisions, we dismiss this portion of Brown’s appeal. See State ex rel. Hough v.

Saffold, 131 Ohio St.3d 54, 2012-Ohio-28, 960 N.E.2d 451, ¶ 2; Beer v. Griffin, 54 Ohio

St.2d 440, 441-442, 377 N.E.2d 775 (1978) (“Since only the Chief Justice or [the chief’s]

designee may hear disqualification matters, the Court of Appeals was without authority

to pass upon disqualification or to void the judgment of the trial court upon that basis”);

Citizen of Hocking Cty. v. Ohio Power Co., 4th Dist. Hocking No. 11CA24, 2012-Ohio-
Ross App. No. 15CA3523                                                               8


4985, ¶ 20 (“we lack jurisdiction to consider [appellant’s] argument that the trial court

erred when it failed to grant her motion for recusal”).

                                    IV. CONCLUSION

       {¶19} The trial court erred in dismissing Brown’s complaint to remove the

prosecuting attorney for neglect and misconduct. Having sustained Brown’s second

assignment of error, we reverse the judgment of the trial court and remand the cause for

further proceedings. We dismiss that portion of Brown’s appeal challenging the trial

court’s decision denying his request that the judge recuse or disqualify himself.

                                                               JUDGMENT REVERSED
                                                              AND CAUSE REMANDED.
                                                           APPEAL DISMISSED IN PART.
Ross App. No. 15CA3523                                                            9


                                  JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. The APPEAL IS DISMISSED IN PART. Appellee shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Dissents.



                                  For the Court




                                  BY: ________________________________
                                      William H. Harsha, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
