[Cite as King v. Divoky, et al., 2018-Ohio-2280.]


STATE OF OHIO                      )                     IN THE COURT OF APPEALS
                                   )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

DERRICK MARTIN KING                                      C.A. No.   28441

        Appellant

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
PATRICIA DIVOKY, et al.                                  COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellees                                        CASE No.   CV-2017-08-3304

                                  DECISION AND JOURNAL ENTRY

Dated: June 13, 2018



        HENSAL, Judge.

        {¶1}     Derrick King appeals a judgment of the Summit County Court of Common Pleas

that dismissed his declaratory judgment action under Civil Rule 12(B)(6). For the following

reasons, this Court reverses.

                                                    I.

        {¶2}     Mr. King was receiving benefits from the Disability Financial Assistance program

at the time the General Assembly ended the program. After the Summit County Department of

Job and Family Services notified Mr. King that his benefits would be ending, Mr. King filed a

declaratory judgment action against its director, Patricia Divoky, and the director of the Ohio

Department of Job and Family Services, Cynthia Dungey, seeking a declaration that the repeal of

the program violated his federal due process rights, his state and federal equal protection rights,

and his right to safety under the Ohio Constitution. He also sought to enjoin the directors from

terminating his benefits.
                                                 2


       {¶3}    The directors moved to dismiss Mr. King’s complaint under Rule 12(B)(6),

arguing that he had failed to state a claim upon which relief could be granted. They also opposed

his request for injunctive relief. Mr. King opposed their motions, but the trial court dismissed his

complaint, concluding that its “scant factual allegations” failed to support his argument that the

repeal of the benefit program deprived him of due process of law, was not rationally related to a

legitimate government purpose, deprived him of safety, or violated his right to equal protection

of the laws. The court also concluded that Mr. King’s factual allegations did not support his

assertion that the directors had deprived him of his constitutional rights or establish that he was

entitled to injunctive relief. The court also denied Mr. King’s motion for a temporary restraining

order and preliminary injunction. Mr. King has appealed, assigning three errors.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT DISMISSED THE CASE.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN ITS FINDINGS THAT KING’S COMPLAINT
       FOR DECLARATORY JUDGMENT FAILED TO STATE A CLAIM FOR
       RELIEF, AS R.C. 812.40 AND OTHER CHANGES WHICH PERTAIN TO
       THE ELIMINATION OF DISABILITY FINANCIAL ASSISTANCE
       PROGRAM AS ENACTED BY 2017 AM. SUB. H.B. 49, 2017 OHIO LAWS
       FILE 10, ARE UNCONSTITUTIONAL UNDER THE EQUAL PROTECTION
       AND DUE PROCESS CLAUSES OF THE UNITED STATES AND OHIO
       CONSTITUTIONS.

                                 ASSIGNMENT OF ERROR III

       R.C. 812.40 AND OTHER CHANGES WHICH PERTAIN TO THE
       ELIMINATION OF DISABILITY FINANCIAL ASSISTANCE PROGRAM AS
       ENACTED BY 2017 AM. SUB. H.B. 49, 2017 OHIO LAWS FILE 10, ARE
       UNCONSTITUTIONAL UNDER THE “SAFETY” CLAUSE OF THE OHIO
       CONSTITUTION.
                                                 3


        {¶4}   Mr. King argues that the trial court incorrectly dismissed his complaint.

Typically, for a defendant “[t]o prevail on a Civ.R. 12(B)(6) motion to dismiss, it must appear on

the face of the complaint that the plaintiff cannot prove any set of facts that would entitle him to

recover.” Raub v. Garwood, 9th Dist. Summit No. 22210, 2005-Ohio-1279, ¶ 4. The rule

operates differently, however, in a declaratory judgment action. Under Revised Code Section

2721.03, any person affected by a statute “may have determined any question of construction or

validity arising under the * * * statute * * * and obtain a declaration of rights, status, or other

legal relations under it.” Thus, “[a] complaint by which a declaratory judgment has been sought

is not properly dismissed for failure to state a claim upon which relief can be granted based upon

a conclusion that the plaintiff’s position on the merits of his or her claim is incorrect.” Weyandt

v. Davis, 112 Ohio App.3d 717, 721 (9th Dist.1996). “Rather, such a complaint may only be

dismissed for failure to state a claim upon which relief can be granted if: (1) no real controversy

or justiciable issue exists between the parties; or (2) the declaratory judgment will not terminate

the uncertainty or controversy.” Id. We review the dismissal of a declaratory judgment action as

not justiciable for an abuse of discretion. Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208,

¶ 13.

        {¶5}   The trial court did not examine the justiciability of the issues that Mr. King raised

in his declaratory judgment action.      Instead, the court dismissed the complaint because it

contained only “scant factual allegations” that failed to support Mr. King’s arguments. Upon

review of the trial court’s decision, we conclude that the court did not review Mr. King’s

complaint under the correct standard. See Weyandt at 721 (concluding that trial court erred when

it did not dismiss declaratory judgment “claims based upon a determination that there was no

real controversy or justiciable issue between the parties or because a declaratory judgment would
                                                  4


not terminate the uncertainty or controversy.”). The error may be harmless, however, if the trial

court, in its judgment, “actually granted the declaratory relief requested by the plaintiff.” Id.

       {¶6}    Upon review of the trial court’s judgment entry, we cannot say that it granted the

declaratory relief requested by Mr. King. The court did not conclude that the termination of the

Disability Financial Assistance program did not violate Mr. King’s due process rights, violate his

right to safety, or violate his right to the equal protection of the law. It only determined that Mr.

King’s complaint did not provide enough factual support for his claims. We, therefore, cannot

say that the trial court’s dismissal of Mr. King’s complaint was harmless error. Mr. King’s first

assignment of error is sustained. His second and third assignments of error are overruled as

premature.

                                                 III.

       {¶7}    Mr. King’s first assignment of error is sustained.            His second and third

assignments of error are premature, and are overruled on that basis. The judgment of the Summit

County Court of Common Pleas is reversed, and this matter is remanded for further proceedings

consistent with this decision.

                                                                                 Judgment reversed,
                                                                                and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                5


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

DERRICK MARTIN KING, pro se, Appellant.

MICHAEL DEWINE, Attorney General, and THERESA R. HANNA, Assistant Attorney
General, for Appellee.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JOSEPH R. MCALEESE, Assistant
Prosecuting Attorney,
