[Cite as Fairley v. Lorain Cty. Probate Court, 2019-Ohio-5456.]




JULIETTE FAIRLEY                                       Case No. 2019-00902PQ

       Requester                                       Judge Patrick M. McGrath

       v.
                                                       DECISION AND ENTRY
LORAIN COUNTY PROBATE COURT,
CLERK OF THE COURT

        Respondent
        {¶1} Requester Juliette Fairley, a self-represented litigant, has filed a document
labeled “Request for Judicial Notice.” Fairley also has filed a document labeled
“Supplement to Requester’s Response to Request for Judicial Notice and to Deny
Dismissal.”
    I. Background
        {¶2} On August 21, 2019, pursuant to R.C. 2743.75(D), Fairley sued respondent
Lorain County Probate Court, Clerk of Court, alleging a denial of access to public
records. The court appointed a special master in the cause. The court, through the
special master, referred the case to mediation. After mediation failed to successfully
resolve all disputed issues between the parties, respondent, through counsel, moved for
dismissal pursuant to Civ.R. 12(B)(6) (failure to state a claim upon which relief can be
granted).
        {¶3} On November 6, 2019, the special master issued a report and
recommendation (R&R) wherein he recommended dismissal of Fairley’s complaint
pursuant to Civ.R. 12(B)(1) (lack of subject-matter jurisdiction).
        {¶4} On November 18, 2019—five business days after Fairley received a copy of
the R&R—she filed a document labeled “Request for Judicial Notice.” According to a
certificate of service accompanying Fairley’s document, Fairley sent a copy of the
document “via email and the United States Postal Service first class with adequate
postage prepaid” to respondent’s counsel.
Case No. 2019-00902PQ                       -2-                    DECISION AND ENTRY


       {¶5} On December 4, 2019, Fairley submitted another filing, which is labeled
“Supplement to Requester’s Response to Request for Judicial Notice and to Deny
Dismissal.” With this filing Fairley appended an order of the special master that is dated
November 22, 2019 (Exhibit A).         In the filing Fairley “requests that [the court]
supplement her response with the decision (EXH A), deny dismissal and instead issue
an Order that requires the Honorable Clerk of the Lorain County Probate Clerk to
uphold press freedom and release the records queried.” According to a certificate of
service accompanying Fairley’s filing, Fairley served the document on respondent’s
counsel by email and first-class mail, postage prepaid.
       {¶6} The court’s docket identifies Fairley’s filing of November 18, 2019, as an
objection to the special master’s decision of November 6, 2019. The court’s docket lists
Fairley’s filing of December 4, 2019, as a miscellaneous filing.
   II. Law and Analysis
          1. R.C. 2743.75(F)(2) governs objections to a special master’s report and
          recommendation.
       {¶7} R.C. 2743.75(F)(2) sets forth the standard for reviewing objections to a
special master’s R&R issued under R.C. 2743.75. Pursuant to R.C. 2743.75(F)(2),
       [e]ither party may object to the report and recommendation within seven
       business days after receiving the report and recommendation by filing a
       written objection with the clerk and sending a copy to the other party by
       certified mail, return receipt requested. Any objection to the report and
       recommendation shall be specific and state with particularity all grounds
       for the objection. If neither party timely objects, the court of claims shall
       promptly issue a final order adopting the report and recommendation,
       unless it determines that there is an error of law or other defect evident on
       the face of the report and recommendation. If either party timely objects,
       the other party may file with the clerk a response within seven business
Case No. 2019-00902PQ                       -3-                   DECISION AND ENTRY


       days after receiving the objection and send a copy of the response to the
       objecting party by certified mail, return receipt requested. The court, within
       seven business days after the response to the objection is filed, shall
       issue a final order that adopts, modifies, or rejects the report and
       recommendation.
       2. Fairley’s filing of November 18, 2019, is a request for judicial notice—not
an objection. Fairley’s request for judicial notice is not well-taken.
       {¶8} Whether Fairley’s filing of November 18, 2019, constitutes an objection, as
contemplated under R.C. 2743.75(F)(2), is dubious because (1) the filing is plainly
denominated as a “Request for Judicial Notice,” (2) the word “objection,” “object,” or a
variant of “object” does not appear within the body of the filing, and (3) the filing does
not challenge the R&R issued by the special master, including the special master’s
recommendation for dismissal for lack of subject-matter jurisdiction. Rather, in the filing
Fairley asks the court to take judicial notice of a news article purportedly published on
November 15, 2019, which, according to Fairley, pertains to “a motion filed in the
Cuyahoga County Court of Common Pleas that would limit subpoena power in the
underlying racketeering claim that is currently pending before Judge Sherrie Miday
relating to the Guardianship of Mrs. Fourough Bakhtiar [Saghafi] in the Lorain County
Probate Court.” Fairley contends that the news article “is evidence that the practices of
the Lorain County Probate Court pertaining to guardianship of the elderly, such as Mrs.
Saghafi, are a matter of public concern.”
       {¶9} Judicial notice is “[a] court’s acceptance, for purposes of convenience and
without requiring a party’s proof, of a well-known and indisputable fact; the court’s
power to accept such a fact.” Black’s Law Dictionary 975 (10th Ed.2014). Accord F. W.
Woolworth Co. v. Kinney, 121 Ohio St. 462, 465, 169 N.E. 562 (1929) (Marshall, C.J.,
dissenting) (“‘[j]udicial notice’ is defined as the cognizance of certain facts which judges
and jurors may properly take and act upon without proof because they already know
Case No. 2019-00902PQ                        -4-                   DECISION AND ENTRY


them; facts which may be judicially noticed are those which are part of the common
knowledge of nearly all persons of common understanding and intelligence, and courts
may not properly exclude from their knowledge matters which are generally known to
persons of intelligence”).   Evid.R. 201 governs judicial notice of adjudicative facts,
which, pursuant to Evid.R. 201(A), are “the facts of the case.” Under Evid.R. 201(C) a
court has discretion whether to take judicial notice.
       {¶10} Here, Fairley asks the court to take judicial notice of a news article
apparently published on November 15, 2019—nine days after the special master issued
the R&R. Fairley fails to specify how the news article pertains to the facts of this case
that concerns a request for public records or to the special master’s recommendation
that Fairley’s complaint should be dismissed for lack of subject-matter jurisdiction. The
court finds that Fairley’s request to have the court take judicial notice of the news article
is not well-taken.
       3. If Fairley’s filing of November 18, 2019, were construed to be an
objection, then the objection should be overruled.
       {¶11} Even if the court were to construe Fairley’s filing of November 19, 2019, as
an “objection,” the court would conclude that Fairley’s objection should be overruled
because (1) in the filing Fairley does not state with particularity all grounds for the
objection, as required by R.C. 2743.75(F)(2), (2) in the filing Fairley does challenge the
special master’s findings of fact and conclusions of law, and (3) Fairley’s filing is
procedurally irregular since Fairley served her objection upon respondent’s counsel by
email and U.S. first-class mail—not by certified mail, return receipt requested, as
required by R.C. 2743.75(F)(2).


       4. If Fairley’s filing of December 4, 2019, were construed to be an objection
pursuant to R.C. 2743.75(F)(2), then the objection would be untimely.
Case No. 2019-00902PQ                         -5-                  DECISION AND ENTRY


      {¶12} In Fairley’s filing of December 4, 2019, Fairley asks the court to “deny
dismissal” and issue an order directing respondent to release the records sought by
Fairley—thus,   by   the   filing   Fairley   seems   to   seek   relief from   the   R&R’s
recommendation. Whether, however, Fairley’s filing of December 4, 2019, should be
construed as an objection under R.C. 2743.75(F)(2) is arguable because (1) the filing is
plainly denominated as a “Supplement to Requester’s Response to Request for Judicial
Notice and to Deny Dismissal,” (2) the word “objection,” “object,” or a variant of “object”
does not appear within the body of the filing, and (3) Fairley failed to serve the
document on respondent’s counsel by certified mail, return receipt requested, as
required by R.C. 2743.75(F)(2).
      {¶13} Moreover, if Fairley’s filing of December 4, 2019, were construed to be an
objection, then the objection would be untimely because Fairley filed the document
fourteen business days after Fairley received a copy of the R&R.                 See R.C.
2743.75(F)(2) (permitting either party to file a written objection within seven business
days after receiving a report and recommendation). And, in this instance, if Fairley’s
filing were construed to be an untimely objection, then, according to R.C. 2743.75(F)(2),
absent a timely objection by respondent, the court is not required to rule on Fairley’s
objection. Rather, pursuant to R.C. 2743.75(F)(2) this court would need to determine
whether there is an error of law or other defect evident on the face of the R&R.
However, upon independent review of the R&R, the court does not find an error of law
or other defect evident on the face of the R&R.            Thus, even if Fairley’s filing of
December 4, 2019, were construed to be an objection, Fairley’s untimely objection
would be of no moment.




   III. Conclusion
Case No. 2019-00902PQ                        -6-                   DECISION AND ENTRY


         {¶14} The court holds that Fairley’s filing of November 18, 2019, is a request for
judicial notice; that Fairley’s request for judicial notice is DENIED; and that, if Fairley’s
filing of November 18, 2019, were construed as an objection, then Fairley’s objection
should be overruled. The court further holds that Fairley’s filing of December 4, 2019, is
a supplemental filing to Fairley’s filing of November 18, 2019 and that, if Fairley’s filing
of December 4, 2019, were construed as an objection, then the objection would be
untimely.
         {¶15} Because there is no error of law or other defect evident on the face of the
special master’s R&R of November 6, 2019, the court adopts the R&R. The court
dismisses Fairley’s complaint for lack of subject-matter jurisdiction. Court costs are
assessed against Fairley. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.




                                            PATRICK M. MCGRATH
                                            Judge
Filed December 17, 2019
Sent to S.C. Reporter 1/16/20
