[Cite as Mehno v. Dattilio, 2016-Ohio-4659.]
                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


ANTHONY MEHNO,                                 )   CASE NO. 15 CO 0023
                                               )
        PLAINTIFF-APPELLANT,                   )
                                               )
VS.                                            )   OPINION
                                               )
ANTHONY J. DATTILIO,                           )
                                               )
        DEFENDANT-APPELLEE.                    )

CHARACTER OF PROCEEDINGS:                          Civil Appeal from the Court of Common
                                                   Pleas of Columbiana County, Ohio
                                                   Case No. 2015 CV 400

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellant:                           Anthony Mehno, pro se
                                                   #642-629
                                                   15802 State Route 104 North
                                                   P.O. Box 5500
                                                   Chillicothe, Ohio 45601

For Defendant-Appellant:                           Atty. Andrew Beech
                                                   Assistant Prosecutor
                                                   Columbiana County Courthouse
                                                   105 South Market Street
                                                   Lisbon, Ohio 44432


JUDGES:

Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
                                                   Dated: June 17, 2016
[Cite as Mehno v. Dattilio, 2016-Ohio-4659.]
ROBB, J.


        {¶1}     Plaintiff-Appellant Anthony Mehno appeals the decision of Columbiana
County Common Pleas Court granting Defendant-Appellee Anthony J. Dattilio’s,
Columbiana County Clerk of Courts, Civ.R. 12(B)(6) motion to dismiss. The issue is
whether Appellant stated a claim for relief under R.C. 2935.09 and R.C. 2935.10. For
the reasons expressed below, the trial court’s decision is affirmed.
                                          Statement of the Case
        {¶2}     On August 3, 2015, Appellant, acting pro se, filed a complaint against
Appellee in his individual and official capacity. Appellant contended that on February
27, 2015 he sent an “Affidavit of Accusation” pursuant to R.C. 2935.09 and R.C.
2935.10 to Appellee, the Columbiana County Clerk of Courts. He claimed instead of
filing the affidavit and issuing an arrest warrant, Appellee forwarded it to the
prosecutor’s office.         Appellant contended that act constituted negligence and
“careless indifference” to his rights. Appellant sought only monetary damages in the
amount of “$250.000 [sic] dollars.” The prayer for relief did not request an order
requiring Appellee to comply with R.C. 2935.09 and R.C. 2935.10. The complaint
was accompanied by a R.C. 2969.25(A) affidavit indicating he has not filed any civil
actions in this court or any other court in the United States within the past five years.
        {¶3}     In lieu of filing an answer, Appellee, represented by the Columbiana
County Prosecutor’s Office, filed a Civ.R. 12(B)(6) motion to dismiss for failure to
state a claim upon which relief can be granted.              Appellee asserted Appellant’s
admission that Appellee forwarded the affidavit to the prosecutor’s office indicated
the mandates of R.C. 2935.09 and R.C. 2935.10 were followed; the clerk had no duty
to issue an arrest warrant, but acted within his discretion and forwarded the matter to
the prosecuting attorney. According to Appellee, since Appellee complied with the
statutory requirements, Appellant could not establish any factual basis upon which
any award of damages could be granted. 8/6/15 Appellee Motion to Dismiss.
        {¶4}     The trial court granted the motion to dismiss. 9/2/15 J.E.
        {¶5}     Appellant, acting pro se, timely appealed the decision and raises two
assignments of error. The assignments of error will be addressed together.
                                  First and Second Assignments of Error
                                                                                      -2-

       “The trial court denied Appellant due process and equal protection of the law
under the 1st, 5th, and 14th Amendments to the United States Constitutions [sic]
where it granted Appellee’s motion to dismiss, and ruled that Appellant failed to state
a claim upon which relief can be granted.”
       “The trial court abused its discretion and acted with bias against Appellant
when it ruled that Appellant had failed to state a claim upon which relief could be
granted, and thus denied Appellant his due process rights under the 1st, 5th and 14th
Amendments to the U.S. Constitutions, [sic] as the trial court never provided its
reasons for its legal findings which are required by law.”
       {¶6}   There appears to be two arguments raised in the assignments of error.
Appellant asserts the trial court committed plain and prejudicial error when it failed to
issue findings of fact and conclusions of law in its decision. He also argues the trial
court erred when it determined he failed to state a claim upon which relief could be
granted. Appellant claims Appellee had no discretion to forward the affidavit to the
prosecuting attorney, but rather was required to file it and issue an arrest warrant.
Each argument will be addressed in turn.
A. Findings of Fact and Conclusions of Law
       {¶7}   Civ.R. 52 provides a procedure to request findings of fact and
conclusions of law when questions of fact are tried to the court without a jury.
Appellant made no request for findings of fact and conclusions of law under the rule.
Therefore, the trial court was not required to issue findings of fact and conclusions of
law. Horn v. Horn, 6th Dist. No. S-12-015, 2013-Ohio-4084, ¶ 29 (no request for
findings of fact or conclusions of law made regarding trial court’s determination of
spousal support and therefore, trial court did not err in failing to issue them); In re
D.D.D., 7th Dist. No. 12 JE 7, 2012-Ohio-5254, ¶ 2 (trial court did not commit plain
error by failing to issue findings of fact and conclusions of law when there was no
request for them).
       {¶8}   Furthermore, even if findings of fact and conclusions of law were
requested, Civ.R. 52 indicates findings are not required when ruling on Civ.R. 12
motions; “Findings of fact and conclusions of law required by this rule and by Civ.R.
                                                                                         -3-

41(B)(2) and Civ.R. 23(G)(3) are unnecessary upon all other motions including those
pursuant to Civ.R. 12, Civ.R. 55 and Civ.R. 56.” Civ.R. 52.
          {¶9}   Specifically, as to ruling on a Civ.R. 12(B)(6) motion, the Ohio Supreme
Court has stated, “When a court dismisses a complaint pursuant to Civ.R. 12(B)(6), it
makes no factual findings beyond its legal conclusion that the complaint fails to state
a claim upon which relief can be granted. Thus, the court does not assume the role
of factfinder and has no duty to issue findings of fact and conclusions of law.” State
ex rel. Drake v. Athens County Bd. of Elections, 39 Ohio St.3d 40, 41, 528 N.E.2d
1253 (1988).
          {¶10} For both of the above reasons, Appellant’s assertion that the trial court
committed error when it failed to issue findings of fact and conclusions of law fails.
B. Civ.R. 12(B)(6) Dismissal
          {¶11} A reviewing court conducts a de novo review of a trial court's decision
on a Civ.R. 12(B)(6) motion to dismiss. Perrysburg Twp. v. Rossford, 103 Ohio St.3d
79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.
          {¶12} Civ.R. 12(B)(6) allows a court to dismiss a claim if it is apparent on the
face of the complaint that relief cannot be granted. Marks v. Reliable Title Agency,
Inc., 7th Dist. No. 11 MA 22, 2012-Ohio-3006, ¶ 8. In examining the complaint, the
trial court must presume all factual allegations contained in the complaint are true,
and make all reasonable inferences in favor of the nonmoving party. Mitchell v.
Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). A motion to
dismiss for failure to state a claim can be denied only after the trial court examines
the complaint and determines the allegations do not provide for relief on any possible
theory. Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 667, 653 N.E.2d 1186 (1995).
          {¶13} Here, Appellant sent an “affidavit of accusation” pursuant to R.C.
2935.09 and R.C. 2935.10 to the Columbiana County Clerk of Courts. The complaint
appears to indicate the crime being asserted in the “affidavit of accusation” was a
felony.     Appellee forwarded the affidavit to the prosecuting attorney.       Appellant
contends Appellee was required to file the affidavit and issue an arrest warrant. He
asserts Appellee had no discretion and should not have forwarded it to the
prosecuting attorney.
                                                                                       -4-

       {¶14} The Ohio Supreme Court has explained R.C. 2935.09 must be read in
pari materia with R.C. 2935.10. State ex rel. Dominguez v. State, 129 Ohio St.3d
203, 2011-Ohio-3091, 951 N.E.2d 77, ¶ 2, citing State ex rel. Strothers v. Turner, 79
Ohio St.3d 272, 273, 680 N.E.2d 1238 (1997).
       {¶15} R.C. 2935.09(D) outlines the procedure for a private citizen to file an
affidavit charging a criminal offense:

       A private citizen having knowledge of the facts who seeks to cause an
       arrest or prosecution under this section may file an affidavit charging
       the offense committed with a reviewing official for the purpose of review
       to determine if a complaint should be filed by the prosecuting attorney
       or attorney charged by law with the prosecution of offenses in the court
       or before the magistrate. A private citizen may file an affidavit charging
       the offense committed with the clerk of a court of record before or after
       the normal business hours of the reviewing officials if the clerk's office
       is open at those times. A clerk who receives an affidavit before or after
       the normal business hours of the reviewing officials shall forward it to a
       reviewing official when the reviewing official's normal business hours
       resume.

R.C. 2935.09(D).
       {¶16} R.C. 2935.09(A) defines reviewing official; “(A) As used in this section,
“reviewing official” means a judge of a court of record, the prosecuting attorney or
attorney charged by law with the prosecution of offenses in a court or before a
magistrate, or a magistrate.” A clerk of courts is not a reviewing official as defined by
R.C. 2935.09(A). State ex rel. Morrison v. Smith, 5th Dist. No. 15CA46, 2016-Ohio-
623, ¶ 4.
       {¶17} R.C. 2935.10(A) sets forth a reviewing official’s duties when an affidavit
alleging a felony is received:

       Upon the filing of an affidavit or complaint as provided by section
       2935.09 of the Revised Code, if it charges the commission of a felony,
       such judge, clerk, or magistrate, unless he has reason to believe that it
       was not filed in good faith, or the claim is not meritorious, shall forthwith
                                                                                         -5-

       issue a warrant for the arrest of the person charged in the affidavit, and
       directed to a peace officer; otherwise he shall forthwith refer the matter
       to the prosecuting attorney or other attorney charged by law with
       prosecution for investigation prior to the issuance of warrant.

R.C. 2935.10(A).
       {¶18} As aforementioned, Appellant asserted in the complaint that the
affidavit alleged a felony was committed. Thus, R.C. 2935.10(A) was applicable.
       {¶19} Neither R.C. 2935.09 nor R.C. 2935.10 requires the clerk of courts to
file the affidavit and issue an arrest warrant in this situation. It is undisputed the clerk
of courts received this affidavit by mail, which would have been during the normal
business hours of the reviewing officials.          Under R.C. 2935.09, there is no
requirement for the clerk of courts to file the affidavit during the normal business
hours of the reviewing official. The clerk's legal duty to file an affidavit only arises
when the clerk receives an affidavit from a private citizen during a reviewing official's
non-business hours. State ex rel. Morrison, 2016-Ohio-623, at ¶ 9 (holding relator
failed to state a claim upon which relief may be granted because relator makes no
allegation in his complaint that the affidavit was received by the clerk during the
reviewing official's non-business hours).
       {¶20} Furthermore, both of these sections indicate Appellee complied with his
official duties by forwarding the “affidavit of accusation” to the prosecuting attorney.
The prosecuting attorney is a reviewing official as defined by R.C. 2935.09. Id. at ¶
4. A clerk has no reviewing authority under the language used in R.C. 2935.10. Id.
at ¶ 12 (stating a clerk is only required to issue a warrant if the reviewing authority
finds the claim to be meritorious and filed in good faith). The only option under these
two statutes is for the clerk to forward the affidavit to a reviewing official. Id. at ¶ 3-
12; R.C. 2935.09(D).
       {¶21} Consequently, based on the above the trial court correctly determined
Appellant was not entitled to relief under any possible theory because there was no
breach of a duty.
                                                                                     -6-

                                  Conclusion
      {¶22} Both assignments of error are meritless. The trial court did not err by
failing to issue findings of fact and conclusions of law; Appellant was not entitled to
findings of fact and conclusions of law. Likewise, the trial court correctly granted the
Civ.R. 12(B)(6) motion; it is apparent from the face of the complaint relief cannot be
granted under any possible theory. The trial court’s decision is affirmed.



Donofrio, P.J., concurs.

Waite, J., concurs.
