[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Franks v. Ohio Adult Parole Auth., Slip Opinion No. 2020-Ohio-711.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 2020-OHIO-711
THE STATE EX REL. FRANKS, APPELLANT, v. OHIO ADULT PAROLE AUTHORITY
                                    ET AL., APPELLEES.

  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as State ex rel. Franks v. Ohio Adult Parole Auth., Slip Opinion
                                   No. 2020-Ohio-711.]
Mandamus—A motion for relief from judgment may not be used as a means to
        litigate an argument that has been waived—Court of appeals’ judgment
        affirmed.
    (No. 2019-0603—Submitted October 22, 2019—Decided March 4, 2020.)
      APPEAL from the Court of Appeals for Franklin County, No. 18AP-390.
                                    ________________
        Per Curiam.
        {¶ 1} Appellant, Jerry Franks, appeals the Tenth District Court of Appeals’
denial of his motion for relief from the judgment dismissing his mandamus action
against appellees the Ohio Adult Parole Authority and the Bureau of Sentence
Computation (collectively, “the APA”). We affirm.
                              SUPREME COURT OF OHIO




                                     Background
        {¶ 2} On May 31, 2018, Franks, an inmate at the Pickaway Correctional
Institution, filed a complaint for a writ of mandamus against the APA in the Tenth
District Court of Appeals. Franks alleged that he had been convicted of aggravated
murder with a firearm specification and had been sentenced in 1999 to an aggregate
prison sentence of 23 years to life. According to Franks, he should have been
eligible for parole in 2019, but the APA has his first hearing scheduled for 2024.
The merits of Franks’s mandamus case are not before this court.
        {¶ 3} Franks did not pay the filing fee when he filed his complaint, and he
did not seek a waiver of that fee. See R.C. 2969.25(C) (an inmate seeking to waive
the filing fee for a civil action must file an affidavit of waiver, an affidavit of
indigency, a statement of the balance in his inmate account for the preceding six
months, and a statement that sets forth other assets of value). Based on this
deficiency, on June 19, 2018, the magistrate for the court of appeals sua sponte
recommended that Franks’s complaint be dismissed.
        {¶ 4} Five days before the magistrate’s recommendation, on June 14, 2018,
Franks executed an affidavit attesting that he was “void of assets and funds” and
that “as a result, [he] c[ould] not give security for the filing fee[] nor costs * * * by
such prepayment or otherwise.” Franks failed to attach a statement setting forth the
balance of his inmate account from the previous six months. While Franks claims
to have submitted the affidavit in response to the magistrate’s recommendation, the
affidavit actually predates the recommendation.
        {¶ 5} On September 20, 2018, the Tenth District Court of Appeals adopted
the recommendation of the magistrate and dismissed the complaint. The court of
appeals specifically noted that no party had filed objections to the magistrate’s
decision.
        {¶ 6} Four months later, on January 23, 2019, Franks filed a motion for
relief from judgment, pursuant to Civ.R. 60(B)(1) and (5). Franks argued that he




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                                January Term, 2020




had never claimed to be indigent and that the court of appeals erred when it adopted
the magistrate’s recommendation to dismiss his complaint based on his failure to
file any indigency documentation. According to Franks, rather than assuming that
he wished to claim indigent status, the magistrate should have given him an
opportunity to pay the filing fee before recommending that his complaint be
dismissed.
       {¶ 7} The court of appeals denied Franks’s motion for relief from judgment
on March 26, 2019. The court held that Franks’s failure to file objections to the
magistrate’s decision barred him from asserting that the court of appeals committed
any error when it adopted the magistrate’s recommendation.             Franks timely
appealed.
                                      Analysis
       {¶ 8} The issue in this appeal is not whether Franks is entitled to a writ of
mandamus. Nor is the issue whether the court of appeals properly dismissed
Franks’s complaint in the first instance. Rather, the only issue in this case is
whether the court of appeals properly denied Franks’s motion for relief from
judgment.
       {¶ 9} Civ.R. 53 authorizes courts of record to appoint magistrates to assist
them. See Civ.R. 53(A) and (C)(1). When a matter is referred to a magistrate for
decision, the magistrate is required to prepare a written decision.              Civ.R.
53(D)(3)(a)(i) and (iii). A party who disagrees with the magistrate’s decision has
14 days to file objections. Civ.R. 53(D)(3)(b)(i). A party’s failure to file objections
to a magistrate’s decision has consequences:


       Except for a claim of plain error, a party shall not assign as error on
       appeal the court’s adoption of any factual finding or legal
       conclusion, whether or not specifically designated as a finding of




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                             SUPREME COURT OF OHIO




       fact or conclusion of law * * *, unless the party has objected to that
       finding or conclusion as required by Civ.R. 53(D)(3)(b).


Civ.R. 53(D)(3)(b)(iv). Thus, in a civil case before a trial court, when a party fails
to file objections to a magistrate’s decision, that party waives the right to later
assign as error on appeal the court’s adoption of any of the magistrate’s findings
and conclusions. See, e.g., J.S. v. T.S., 5th Dist. Knox No. 16CA18, 2017-Ohio-
1042, ¶ 21; Settlers Walk Home Owners Assn. v. Phoenix Settlers Walk, Inc., 12th
Dist. Warren Nos. CA2014-09-116, CA2014-09-117, CA2014-09-118, 2015-Ohio-
4821, ¶ 30.
       {¶ 10} This rule also applies in cases that commence as original actions in
the courts of appeals and proceed to this court as appeals of right. State ex rel.
Sautter v. Grey, 117 Ohio St.3d 465, 2008-Ohio-1444, 884 N.E.2d 1062, ¶ 11 (“The
Rules of Civil Procedure are generally applicable in original actions for
extraordinary writs”). The Tenth District Court of Appeals, for example, has
expressly incorporated the terms of Civ.R. 53 into its local rules. See Loc.R.
13(M)(1) of the Tenth District Court of Appeals. And when a party to an original
action in the Tenth District fails to object to a magistrate’s recommendation and the
court of appeals adopts it, that party waives his right to raise an argument pertaining
to that recommendation on appeal to this court. See, e.g., State ex rel. Muhammad
v. State, 133 Ohio St.3d 508, 2012-Ohio-4767, 979 N.E.2d 296, ¶ 3.
       {¶ 11} As Franks correctly notes in his first proposition of law, the
application of Civ.R. 53 to his case prohibits him from raising on appeal any
arguments he failed to preserve by filing objections to the magistrate’s decision; it
does not expressly bar him from making those arguments in a motion seeking relief
from judgment under Civ.R. 60(B). However, Franks’s argument, if accepted,
would undermine Civ.R. 53(D)(3)(b)(i), which requires objections to a magistrate’s
decision to be filed within 14 days of the filing of the decision. Franks’s theory




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                                January Term, 2020




would eliminate that time requirement by permitting a party to file objections to a
magistrate’s decision at any time, simply by captioning the pleading as a “motion
for relief from judgment.” We avoid interpretations that would cause one provision
of the Rules of Civil Procedure to conflict with another. See State ex rel. Natl. Emp.
Benefit Servs. v. Cuyahoga Cty. Court of Common Pleas, 49 Ohio St.3d 49, 50, 550
N.E.2d 941 (1990).
       {¶ 12} We therefore reject Franks’s suggestion, in his first proposition of
law, that he may use Civ.R. 60(B) to resurrect an argument that he failed to make
within the time frame permitted by rule.
       {¶ 13} Franks’s second proposition of law raises his argument on the merits,
namely that the court of appeals erred when it dismissed his complaint because he
was not seeking to waive the filing fees, and therefore the court of appeals should
have given him an opportunity to pay the fees before dismissing his complaint for
a writ of mandamus. As noted, Franks has waived this argument, and we reject his
second proposition of law on that basis.
       {¶ 14} In his third proposition of law, Franks asserts that R.C. 2969.25(C)
violates his constitutional right to due process. Franks waived this argument by
failing to raise it in the court of appeals. See State ex rel. Chagrin Falls v. Geauga
Cty. Bd. of Commrs., 96 Ohio St.3d 400, 2002-Ohio-4906, 775 N.E.2d 512, ¶ 15
(in mandamus action, failure to raise constitutional claims in the court of appeals
constitutes a waiver). We therefore reject Franks’s third proposition of law.
                                                                 Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
       FRENCH, J., not participating.
                               _________________
       Jerry Franks, pro se.




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                          SUPREME COURT OF OHIO




       Dave Yost, Attorney General, and George Horvath, Assistant Attorney
General, for appellees.
                           _________________




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