[Cite as Messenger v. Marion Cty. Prosecutor's Office, 2020-Ohio-851.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




CHAD A. MESSENGER,
                                                                   CASE NO. 9-19-62
       PLAINTIFF-APPELLANT,

       v.

STATE OF OHIO, MARION COUNTY
PROSECUTOR'S OFFICE, PROSECUTOR-                                   OPINION
BRENT W. YAGER, ET AL.,

       DEFENDANTS-APPELLEES.



                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 2018CV0142

                                     Judgment Affirmed

                             Date of Decision: March 9, 2020



APPEARANCES:

        Chad A. Messenger Appellant
Case No. 9-19-62


WILLAMOWSKI, J.

       {¶1} Plaintiff-appellant Chad A. Messenger (“Messenger”) appeals the final

judgment and several interlocutory orders issued by the Marion County Court of

Common Pleas. For the reasons set forth below, the judgment of the trial court is

affirmed.

                           Facts and Procedural History

       {¶2} On October 6, 2010, Messenger was arrested by the police. Doc. 1. At

the time of his arrest, he had $3,536.00 in cash on his person. Doc. 1. The police

seized these funds and stored them at the police station. Doc. 1. On October 7,

2010, the police released these funds to Christie Harrah (“Harrah”), who was, at that

time, Messenger’s wife and the victim of the offense for which Messenger had been

arrested. Doc. 1. While in prison, Messenger sent his mother to obtain his funds

from the police on January 24, 2012. Doc. 1. The police informed his mother that

these funds had already been released to Harrah. Doc. 1. At this time, Messenger

became aware that the police did not retain his $3,536.00.

       {¶3} In 2013, Messenger filed Case No. 2013-CV-0473 to obtain these

funds. Doc. 1. According to a copy of the judgment entry that was attached to

Messenger’s complaint, the trial court determined that the property officer at the

Marion Police Department erred by releasing Messenger’s funds to Harrah. Doc. 1.

However, the trial court determined that the property officer was immune from

liability because she acted within the scope of her employment and without

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malicious purpose. Doc. 1. The trial court then entered a judgment against Harrah

for $3,563.00. Doc. 1.

       {¶4} On March 6, 2018, Messenger filed a complaint pro se with the trial

court that named, as defendants, the former Marion County Prosecutor, Brent Yager

(“Yager”); the Marion County Prosecutor’s Office (“the Prosecutor’s Office”); the

Office of the Law Director, City of Marion (“the Law Director’s Office”); and the

Assistant Law Director, Jason D. Warner (“Warner”). Doc. 1. Messenger appears

to have named Yager as a party because Yager had been involved in Messenger’s

criminal prosecution. Doc. 1. However, Yager had passed away on October 3,

2017. Doc. 52, Ex. B. In his complaint, Messenger requested a declaratory

judgment against his criminal conviction. Doc. 1. He also sought $6,000.00 in

punitive damages and $3,536.00 in compensatory damages from the named

defendants. Doc. 1.

       {¶5} Both the Law Director’s Office and the Prosecutor’s Office filed

motions to dismiss. Doc. 12, 17. On September 5, 2018, the trial court dismissed

the claims against the Prosecutor’s Office and the Law Director’s Office. Doc. 20.

However, the trial court found that Messenger raised claims against Warner and

Yager individually. Doc. 20. The trial court did not dismiss the claims brought

against Yager or Warner, finding that these issues and claims had not been litigated

in Case No. 2013-CV-0473. Doc. 20.



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       {¶6} On June 19, 2019, Messenger filed a motion seeking recusal of the

judge in this case. Doc. 58. Messenger argued that the judge should not preside

over this case because this judge had previously presided over Messenger’s criminal

trial. Doc. 58. On July 19, 2018, the Chief Justice of the Supreme Court of Ohio

denied Messenger’s affidavits of disqualification. Doc. 65.

       {¶7} On September 18, 2018, Warner filed a motion to dismiss. Doc. 21.

The trial court granted Warner’s motion to dismiss on December 27, 2018. Doc.

29. At this point, Yager was the only party remaining in this litigation. On March

1, 2019, the Prosecutor’s Office filed a renewed motion to dismiss on behalf of

Yager. Doc. 42. On September 11, 2019, the trial court found that Messenger’s

complaint, in fact, stated a claim for conversion; that the applicable statute of

limitations for this alleged tort had run; and that this cause of action was, therefore,

barred. Doc. 71. For this reason, the trial court granted the Prosecutor’s Office’s

renewed motion to dismiss the claim against Yager. Doc. 70, 71.

       {¶8} The appellant filed his notice of appeal on October 7, 2019. Doc. 73.

On appeal, Messenger raises the following assignments of error:

                             First Assignment of Error

       State of Ohio, Marion County Prosecutor’s Office, & the
       Prosecutor—Brent W. Yager, or Prosecutor—Raymond A.
       Grogan, Jr. & Marion County Law Director’s Office, & Assistant
       Law Director—Jason D. Warner, abused discretion and lack of
       subject matter jurisdiction, & due process, & without an order,
       or the benefit of an evidentiary hearing, etc.


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                             Second Assignment of Error

       Court judge abused its discretion and erred to the prejudice, bias
       to preconceived opinion; erred in correcting an statute violation
       of another judge’s conclusion of law, of judgment entry.

                              First Assignment of Error

       {¶9} In his first assignment of error, Messenger appears to assert that the trial

court erred in dismissing his complaint against the Marion County Prosecutor’s

Office, the Law Director’s Office, Warner, and Yager. He also makes several

arguments against his criminal conviction.

                                   Legal Standard

       {¶10} Civ.R. 3(A) governs the initiation of a cause of action and reads, in its

relevant part, as follows:

       [a] civil action is commenced by filing a complaint with the court,
       if service is obtained within one year from such filing upon a
       named defendant, or upon an incorrectly named defendant whose
       name is later corrected pursuant to Civ.R. 15(C) * * *.

Civ.R. 3(A). Thus, if a plaintiff fails to obtain service within one year of filing a

complaint, then no action is commenced pursuant to Civ.R. 3(A). Maryhew v. Yova,

11 Ohio St.3d 154, 159, 464 N.E.2d 538, 541 (1984).

       {¶11} Service is an essential component of commencing an action under

Civ.R. 3(A) because this is the process through which a court with venue and subject

matter jurisdiction “asserts jurisdiction over the person of the party served.” During

v. Quoico, 2012-Ohio-2990, 973 N.E.2d 838, ¶ 25 (10th Dist.), quoting Mississippi


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Publishing Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 90 L.Ed. 185

(1946). Personal jurisdiction represents “[a] court’s power to bring a person into its

adjudicative process * * *.” Renacci v. Evans, 9th Dist. Medina No. 09CA0004-M,

2009-Ohio-5154, ¶ 6, quoting Black’s Law Dictionary 870 (8th Ed.2004).

       {¶12} Thus, “[a] trial court lacks jurisdiction to render a judgment against a

defendant if effective service of process has not been made on the defendant and the

defendant has not appeared in the case or waived service.” Bowling v. Grange Mut.

Cas. Co., 10th Dist. Franklin No. 05AP-51, 2005-Ohio-5924, ¶ 27. “Inaction upon

the part of a defendant who is not served with process, even though he might be

aware of the filing of the action, does not dispense with the necessity of service.”

Maryhew, supra, at 157.

       {¶13} A cause of “action may be dismissed when service of process has not

been obtained after the passage of more than one year.” Id. at 157. In determining

whether the trial court has personal jurisdiction over a defendant, matters outside of

the complaint may be considered. Price v. Wheeling Dollar Sav. & Trust Co., 9

Ohio App.3d 315, 460 N.E.2d 264, first paragraph of the syllabus (10th Dist.)

(holding that a trial court may examine evidentiary materials outside of the

complaint when determining whether to grant a motion to dismiss for lack of

personal jurisdiction).

       {¶14} “In ruling on a motion to dismiss, pursuant to Civ.R. 12(B), a trial

court must determine whether the complaint alleges any cause of action cognizable

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in the forum * * *.” State ex rel. Atty. Gen. v. Grand Tobacco, 171 Ohio App.3d

551, 2007-Ohio-418, 871 N.E.2d 1255, ¶ 13 (10th Dist.). On appeal, “review of a

trial court’s ruling on a motion to dismiss is de novo and, while we need not defer

to the trial court’s findings, we must, like the trial court, construe the factual

allegations in the complaint and all reasonable inferences therefrom in favor of the

nonmovant.” Shevin v. Pathi, 3d Dist. Seneca No. 13-02-20, 2002-Ohio-4457, ¶ 6.

                                  Legal Analysis

      {¶15} In our analysis of this assignment of error, we will first consider the

final judgment under which Yager was dismissed from this cause of action. We will

then briefly consider the interlocutory orders under which Warner, the Prosecutor’s

Office, and the Law Director’s Office were dismissed. This analysis will conclude

with an examination of whether the trial court erred in dismissing the claims that

Messenger raises against his criminal conviction on appeal.

      {¶16} In this case, Yager was the only named party in this cause of action at

the time that the trial court dismissed Messenger’s complaint. The record indicates

that Messenger attempted and perfected service on the Prosecutor’s Office, the Law

Director’s Office, and Warner. Doc. 14, 15. However, there is no evidence in the

record that Messenger even attempted service on Yager within one year of filing his

complaint. Further, since Yager was deceased at the time that Messeger filed his

complaint, Yager could not have been served in the year following the filing of

Messenger’s complaint, as is required to commence an action under Civ.R. 3(A).

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       {¶17} Given the impossibility of serving a deceased individual within one

year of filing a complaint against him, no action could be successfully commenced

against Yager personally pursuant to Civ.R. 3(A). See Weathers v. Carter, 2d Dist.

Montgomery No. 18598, 2001 WL 395389, *2 (Apr. 20, 2001) (holding that an

action cannot be commenced, as contemplated by Civ.R. 3(A), against a deceased

defendant because a deceased defendant cannot be served). Further, since Yager

was deceased, he could not have waived service of process or submit, by

appearance, to the trial court’s jurisdiction. Thus, as service of process was never

attempted on Yager within one year of the filing of Messenger’s complaint, the trial

court should have dismissed this cause of action.

       {¶18} Even if Messenger had attempted service on Yager, he still would not

prevail because his complaint was filed after the statute of limitations had run. The

fact that Yager was deceased at the time that Messenger filed his complaint does

not, by itself, render this suit a nullity as to Yager. “[A] complaint filed against a

deceased party is not a nullity, because the complaint may be amended to name the

real party in interest.” CitiMortgage, Inc. v. Bumphus, 197 Ohio App.3d 68, 2011-

Ohio-4858, 966 N.E.2d 278 (6th Dist.). Thus, upon learning of Yager’s death,

Messenger could have sought to name an appropriate defendant in Yager’s place.

The Supreme Court of Ohio set forth the requirements for amending a complaint

filed against a deceased defendant in Baker v. McKnight, 4 Ohio St.3d 125, 447

N.E.2d 104 (1983).

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         {¶19} In Baker, a plaintiff filed a suit but was unaware that the named

defendant had already died.                 The Supreme Court found that this situation

represented a “misnomer of party,” finding that the plaintiff “[e]ssentially * * * sued

an entity * * * by the wrong name.” Id. at 129. The Supreme Court then held that

         [w]here the requirements of Civ.R. 15(C) for relation back are
         met, an otherwise timely complaint in negligence which designates
         as a sole defendant one who dies after the cause of action accrued
         but before the complaint was filed has met the requirements of the
         applicable statute of limitations and commenced an action
         pursuant to Civ.R. 3(A), and such complaint may be amended to
         substitute an administrator of the deceased defendant’s estate for
         the original defendant after the limitations period has expired,
         when service on the administrator is obtained within the one-year,
         post-filing period provided for in Civ.R. 3(A).

(Emphasis added.) Id. at syllabus. However, for the rule in Baker to apply, the

plaintiff must have filed a complaint after the named defendant has died1 but before

the statute of limitations for the relevant cause of action has run. Id.

         {¶20} In the case before this Court, there is no indication that Messenger was

aware of Yager’s death at the time that Messenger filed his complaint. However,

for the rule in Baker to have given Messenger an opportunity to substitute Yager

with an existing entity, he had to have filed his complaint within the relevant statute

of limitations. Baker at 129. See Sorrell v. Estate of Datko, 147 Ohio App.3d 319,




1
 If the defendant dies after the action has been initiated, then Civ.R. 25 applies. See Greenberg v. Heyman-
Silbiger, 2017-Ohio-515, 78 N.E.3d 912, ¶ 32 (10th Dist.) (finding that Civ.R. 25 operates to allow
substitution where that the defendant was living at the time that the action was filed and died subsequently).

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770 N.E.2d 608, ¶ 23-25 (7th Dist.) (addressing whether a plaintiff’s demand for

service is moot where the estate of the deceased defendant no longer exists).

         {¶21} A motion to dismiss may be granted if the complaint, on its face,

shows that the claim is barred by the statute of limitations. Faber v. Seneca County

Sheriff’s Dept., 2018-Ohio-786, 108 N.E.3d 213, ¶ 7 (3d Dist.).

         In determining which statute of limitations should be applied to a
         particular cause of action, [the Ohio Supreme Court] has held
         that ‘* * * courts must look to the actual nature or subject matter
         of the case, rather than to the form in which the action is pleaded.
         The grounds for bringing the action are the determinative
         factors[;] the form is immaterial.’ Hambleton v. R.G. Barry Corp.
         * * *, 12 Ohio St.3d 179, 183, 12 OBR 246, 249, 465 N.E.2d 1298,
         1302 [(1984)].

Lawyers Cooperative Publishing Co. v. Muething, 65 Ohio St.3d 273, 276, 603

N.E.2d 969, 973 (1992).

         {¶22} In his complaint, Messenger alleged that Yager wrongfully took

$3,536.00 that belonged to him (Messenger). Doc. 1. After reviewing Messenger’s

filings, the trial court determined that this was, in essence, a conversion claim.2 See

Joyce v. General Motors Corp., 49 Ohio St.3d 93, 96, 551 N.E.2d 172, 175 (1990)

(holding “that conversion is the wrongful exercise of dominion over property to the




2
  Messenger asserted that Ohio’s criminal forfeiture laws applied to the facts of this case. Doc. 1. However,
there is no evidence in the record that these funds were seized pursuant to these forfeiture laws or even
retained as evidence. See Doc. 1. These funds appear to have been in the possession of the police for
safekeeping because the funds were on Messenger’s person at the time that he was arrested. Doc. 1, Thus,
the trial court determined that this action was for conversion and that these funds were not subject to Ohio’s
criminal forfeiture provisions. Doc. 71.

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exclusion of the rights of the owner, or withholding it from his possession under a

claim inconsistent with his rights.”).

       {¶23} Under R.C. 2305.09(B), conversion claims are subject to a four-year

statute of limitations. R.C. 2305.09(B). See Smith v. Asbell, 4th Dist. Scioto No.

03CA2897, 2005-Ohio-2310, ¶ 41. Since Messenger did not discover that the police

released his funds until January 24, 2012, he had until January 24, 2016 to file a

claim for conversion. However, he did not file this complaint until March 6, 2018.

Doc. 1. Thus, the statute of limitations for Messenger’s claim had expired by the

time that he filed his complaint, barring this action. For this reason, the rule in Baker

still would not have afforded Messenger the opportunity to amend his complaint and

substitute a real party in interest for Yager.

       {¶24} Even if Messenger had filed his complaint before the statute of

limitations had run, he would still not prevail because he did not, even after he had

notice of Yager’s death, seek to substitute or obtain service on an existing entity in

place of Yager within one year of filing his complaint. While Messenger’s initial

complaint was not a nullity under Baker, his complaint still “did not suffice to

commence the action under Civ.R. 3(A).” Molette v. Portsmouth City Council, 179

Ohio App.3d 455, 2008-Ohio-6342, 902 N.E.2d 515, ¶ 40 (4th Dist.). “[I]n order

for the action to be deemed timely commenced,” Messenger still “had to serve the

property party * * * within the one-year limitation period of Civ.R. 3(A) * * *.” Id.



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       {¶25} While the record does not indicate that Messenger was aware that

Yager had passed away at the time that the complaint was filed, the Prosecutor’s

Office made at least two filings that stated Yager was deceased within one year of

the filing of Messenger’s complaint. Doc. 33, 42. However, Messenger never

sought to amend his complaint to name an existing entity in place of Yager and

never sought service of process on that existing entity within one year of filing his

complaint. See Lake Ski I-80, Inc. v. Habowski, 2015-Ohio-5535, 57 N.E.3d 215, ¶

(11th Dist.) (holding that “a deceased individual cannot be a party to an action”

“[b]ecause ‘actual or legal’ existence * * * [is a] condition[] precedent for being

sued * * *.”). For this reason, Messenger’s action against Yager still would have

failed even if his complaint had been filed within the applicable statute of

limitations.

       {¶26} In the caption of his first assignment of error, Messenger also mentions

the Prosecutor’s Office, the Law Director’s Office, and Warner. However, in the

text of his argument, he does not cite to any case law or make any arguments that

suggest that the trial court erred in dismissing these parties from this action. Under

App.R. 16(A), an appellant must include, in his or her brief, “[a]n argument

containing the contentions of the appellant with respect to each assignment of error

presented for review” and “citations to the authorities, statutes, and parts of the

records on which appellant relies.” App.R. 16(A)(7). If an appellant does not

comply with the requirements of App.R. 16(A)(7), a court of appeals may disregard

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the assignment of error. Mousa v. Saad, 2017-Ohio-7116, 95 N.E.3d 941, ¶ 46 (3d

Dist.), citing Home S. & L. Co. of Youngstown v. Avery Place, L.L.C., 10th Dist.

Franklin Nos. 11AP-1152, 11AP-1153, 2012-Ohio-6255, ¶ 12.

       {¶27} Nonetheless, we have considered the facts surrounding the trial court’s

dismissal of these parties. The trial court granted Warner’s motion to dismiss on

the grounds that the claims against Warner were barred by the applicable statute of

limitations. Doc. 29. Similarly, the trial court determined that the Prosecutor’s

Office and the Law Director’s Office were correct in asserting that the claims

against them had previously been litigated in Case No. 2013-CV-473 and that

sovereign immunity barred these claims. Doc. 12, 17, 20. After reviewing the

evidence in the record, we do not find any indication that the trial court erred in its

ultimate disposition of these issues.

       {¶28} In his brief, Messenger also makes a number of arguments that

challenge his criminal conviction. Messenger, however, has already challenged his

conviction on direct appeal following his trial. See State v. Messenger, 3d Dist.

Marion No. 9-11-40, 2012-Ohio-2692, ¶ 1. Some of these arguments were not

raised in his 2018 filing before the trial court. Doc. 1. “It is well settled that a

litigant’s failure to raise an issue before the trial court waives the litigant’s right to

raise that issue on appeal.” Gentile v. Ristas, 160 Ohio App.3d 765, 2005-Ohio-

2197, 828 N.E.2d 1021, ¶ 74 (10th Dist.). We will not consider these arguments for

the first time on appeal. Further, even if he had raised these arguments before the

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trial court in his 2018 filing, all of these arguments could have been raised or should

have been raised during his prior direct appeal from his criminal conviction. State

v. Williams, 3d Dist. Crawford No. 3-17-05, 2017-Ohio-8022, ¶ 16. Thus, these

arguments are barred by the doctrine of res judicata. Id.

       {¶29} We turn now to the arguments that Messenger raised against his

conviction before the trial court in his 2018 filing. In his complaint, Messenger

requested a declaratory judgment against his criminal conviction. Doc. 1. The trial

court determined that Messenger should have brought a challenge to his criminal

conviction through a petition for postconviction relief or by direct appeal. Doc. 20.

See Stamper v. State, 3d Dist. Wyandot No. 16-01-12, 2001 WL 1545488, *2 (Dec.

5, 2001). Thus, the trial court found that the declaratory judgment that he sought in

this civil action was not the proper method to challenge his criminal conviction.

Doc. 20. The trial court then dismissed the claims against his prior conviction. Doc.

20. After reviewing the evidence in the record, we do not find any indication that

the trial court erred in making this determination. Further, as the trial court noted,

these arguments could have been raised or should have been raised during his prior

direct appeal from his criminal conviction. Williams, supra, at ¶ 16. Thus, these

arguments are also barred by the doctrine of res judicata. Id.

       {¶30} For these reasons set forth in this analysis, we conclude that the trial

court did not err in dismissing Messenger’s complaint. Thus, Messenger’s first

assignment of error is overruled.

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                            Second Assignment of Error

       {¶31} Messenger asserts that the judge in his case had a preconceived bias

against him. He also argues that the trial court erred in concluding that his complaint

presents a conversion claim against Yager and not a claim under Chapter 2981 of

the Ohio Revised Code.

                                   Legal Standard

       {¶32} “Authority to pass upon the disqualification of a judge of the Court of

Common Pleas is vested in the Chief Justice under Section 5(C) of Article IV of the

Ohio Constitution * * *.” Beer v. Griffith, 54 Ohio St.2d 775, 377 N.E.2d 775

(1978). For this reason, a court of appeals does not have the “authority to pass upon

disqualification or to void the judgment of the trial court upon that basis.” Id. “[A]

court of appeals lacks jurisdiction to review [recusal] decisions.” State ex rel.

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

                                   Legal Analysis

       {¶33} In this case, Messenger filed a motion that sought recusal or

disqualification of the trial judge. Doc. 58. The Chief Justice of the Supreme Court

of Ohio denied Messenger’s affidavits of disqualification. Doc. 65. Messenger has

already gone through the proper channels to argue for the recusal or disqualification

of the trial judge assigned to his case. As a court of appeals, we do not have

jurisdiction to review this decision. As such, the portion of his assignment of error



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that alleges a claim of judicial bias is dismissed from this appeal. Brown v. Schmidt,

4th Dist. Ross No. 15CA3523, 2016-Ohio-2864, ¶ 18.

       {¶34} Further, appellate review required that we conduct a de novo review

of the trial court’s decision to dismiss Messenger’s complaint. Thus, this Court was

not bound to give deference to the determination of the trial judge. Nonetheless,

our independent review led us to conclude that it was not error to dismiss

Messenger’s complaint. Thus, even if the trial judge had been biased, Messenger is

still not able to demonstrate that this bias ultimately prejudiced him. Finally, the

arguments that Messenger raises regarding the applicability of Chapter 2981 of the

Ohio Revised Code are moot because we have already affirmed the decision of the

trial court to dismiss his complaint under his first assignment of error. For these

reasons, his second assignment of error is overruled.

                                     Conclusion

       {¶35} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Marion County Court of Common Pleas

is affirmed.

                                                                 Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




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