[Cite as Thomas v. Ohio Dept. of Mental Health, 2017-Ohio-7525.]




LINDA THOMAS, Admr.                                  Case No. 2015-00487

       Plaintiff                                     Judge Patrick M. McGrath
                                                     Magistrate Anderson M. Renick
       v.
                                                     DECISION
OHIO DEPARTMENT OF MENTAL
HEALTH

       Defendant



        {¶1} Before the court are written objections filed on July 10, 2017 by plaintiff
Linda Thomas, administrator of the estate of Brian Burkett, Jr., deceased, to
Magistrate Anderson M. Renick’s decision of June 23, 2017 recommending judgment in
favor of defendant Ohio Department of Mental Health (ODMH). Upon review, the court
finds no error of law or other defect evidence on the face of Magistrate Renick’s
decision.
        {¶2} Civ.R. 53(D)(3)(b) pertains to objections to a magistrate’s decision. Under
Civ.R. 53(D)(3)(b)(i), a party may file written objections to a magistrate’s decision within
fourteen days of the filing of the decision, whether or not a court has adopted the
decision during that fourteen day period. According to Civ.R. 53(D)(4)(c), if no timely
objections are filed, a court may adopt a magistrate’s decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate’s decision.
        {¶3} Here, Thomas did not timely file written objections to Magistrate Renick’s
decision and, when Thomas filed her objections, she failed to follow procedural
requirements contained in Civ.R. 5 because she did not attach a certificate of service
with her objections or separately file proof of service with the court, which under Ohio
law, is tantamount to a failure to file objections. And, even if Thomas had timely filed
written objections, her objections generally do not comport with requirements contained
Case No. 2015-00487                           -2-                             DECISION


in Civ.R. 53(D)(3)(b)(ii) that require an objection to be specific and state with
particularity all grounds for an objection.

   I. Background
       {¶4} On May 13, 2015, Thomas sued ODMH, alleging claims of wrongful death,
loss of consortium, and negligent infliction of emotional distress stemming from the
death of Brian Burkett, Jr., who before he died, had been hospitalized at the Timothy B.
Moritz Forensic Unit at Twin Valley Behavioral Healthcare.       After Thomas filed her
complaint, the court appointed attorney Anderson M. Renick as a magistrate in the
cause without limitation of authority specified in Civ.R. 53(C), and it directed that
objections to the magistrate’s decision, if any, were required to be filed as provided in
Civ.R. 53(D)(3)(b).
       {¶5} A trial pertaining to the issue of liability was held on November 7, 2016.
After the trial, a transcript of the proceedings was filed in the court. On June 23, 2017,
Magistrate Renick rendered a decision wherein he recommended the issuance of a
judgment in favor of ODMH.          Seventeen days later—on July 10, 2017—Thomas,
through her counsel, filed written objections to Magistrate Renick’s decision, without
including completed proof of service. On July 17, 2017, ODMH filed a response to
Thomas’s objections.

   II. Thomas did not timely file written objections to Magistrate Renick’s
       decision. And Thomas did not attach a certificate of service with her
       objections or separately file proof of service with the court, which, under
       Ohio law, is tantamount to a failure to file objections.
       {¶6} Civ.R. 53(D)(3)(b) pertains to objections to a magistrate’s decision.
According to Civ.R. 53(D)(3)(b)(i), a party “may file written objections to a magistrate’s
decision within fourteen days of the filing of the decision, whether or not the court has
adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).” And if any party timely files objections, any other party “may also file
Case No. 2015-00487                         -3-                                 DECISION


objections not later than ten days after the first objections are filed.”            Civ.R.
53(D)(3)(b)(i). Civ.R. 53(D)(3)(b)(i) does not expressly permit a party to file a response
to another party’s objections.
       {¶7} Civ.R. 53(D)(4) pertains to a court’s action on a magistrate’s decision.
According to Civ.R. 53(D)(4)(c), “[i]f no timely objections are filed, the court may adopt a
magistrate’s decision, unless it determines that there is an error of law or other defect
evident on the face of the magistrate's decision.” Compare Civ.R. 53(D)(4)(d) (“If one or
more objections to a magistrate’s decision are timely filed, the court shall rule on those
objections”). Pursuant to Civ.R. 53(D)(4)(a), a magistrate’s decision “is not effective
unless adopted by the court.”

       A. Thomas’s objections are untimely.
       {¶8} Here, Magistrate Renick issued his decision on June 23, 2017 and the
court’s record indicates that a copy of Magistrate Renick’s decision was sent to
Thomas’s counsel that same day. Thomas’s objections were therefore due in this court
by Friday, July 7, 2017—fourteen days after the filing of Magistrate Renick’s decision.
However, Thomas did not file her objections until July 10, 2017.          Thus, Thomas’s
objections are untimely. Because Thomas’s objections are untimely, in accordance with
Civ.R. 53(D)(4)(c) this court may adopt Magistrate Renick’s decision as its own,
provided that the court finds no error of law or other defect evident on the face of
Magistrate Renick’s decision.

       B. Thomas’s objections do not comport with requirements contained in
          Civ.R. 5.
       {¶9} A review of Thomas’s untimely objections discloses that the objections do
not comport with requirements contained in Civ.R. 5 because the filed objections do not
contain a completed proof of service. Civ.R. 5(A) pertains to the service of papers
subsequent to an original complaint, providing in part: “Except as otherwise provided in
Case No. 2015-00487                         -4-                                 DECISION


these rules, every order required by its terms to be served, every pleading subsequent
to the original complaint unless the court otherwise orders because of numerous
defendants, every paper relating to discovery required to be served upon a party unless
the court otherwise orders, every written motion other than one which may be heard ex
parte, and every written notice, appearance, demand, offer of judgment, and similar
paper shall be served upon each of the parties.” (Emphasis added.) According to
Civ.R. 5(B)(4), the served document “shall be accompanied by a completed proof of
service which shall state the date and manner of service, specifically identify the division
of Civ.R. 5(B)(2) by which the service was made, and be signed in accordance with
Civ.R. 11. Documents filed with the court shall not be considered until proof of service
is endorsed thereon or separately filed.” (Emphasis added.) Here, because Thomas’s
written objections do not contain a completed proof of service, pursuant to
Civ.R. 5(B)(4) this court is not permitted to consider them.         Accord Campbell v.
Mattingly, Franklin C.P. No. 13 CV 07-007510, 2014 Ohio Misc. LEXIS 10575, at *1
(July 21, 2014) (“The defendant, Shannon Mattingly, e-filed a one sentence objection to
the Magistrate’s decision on June 24, 2014 but no Certificate of Service was attached.
Accordingly, the Court cannot consider the objection for any purpose”).
       {¶10} Moreover, Ohio case law indicates that a party’s failure to follow the
procedural requirement of Civ.R. 5 when filing objections to a magistrate’s decision is
tantamount to a failure to file objections. In Barringer v. Barringer, 5th Dist. Licking No.
13-CA-54, 2014-Ohio-480, the Fifth District Court of Appeals noted that, although the
appellant in that case filed objections to a magistrate’s decision, the appellant failed to
include a certificate of service indicating that she had served the objections on the
appellee in that case. Barringer at ¶ 12. The appellate court found that the appellant’s
“failure to follow the procedural requirement of Civ.R. 5 was tantamount to failing to file
objections to the magistrate’s decision.” Id. at ¶ 15. Applying Barringer, it follows that,
in this instance, Thomas’s failure to include a completed proof of service with her filed
Case No. 2015-00487                          -5-                                     DECISION


objections indicating that she served objections on ODMH is tantamount to a failure to
file objections. And since Thomas’s filing is equivalent to having filed no objections at
all, this court may proceed as if no objections have been filed. Accord Bradshaw v.
Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2008-07888, 2011-Ohio-4841 (proceeding
as if no objections had been filed after finding a party did not attach a certificate of
service with filed objections or separately file proof of service with the court).

       C. Summary
       {¶11} Upon review, the court determines that Thomas’s objections to Magistrate
Renick’s decision of June 23, 2017 are untimely. And because Thomas’s untimely
objections do not contain a completed proof of service, the court further determines that
the court may not consider them.

   III. Even if Thomas’s objections had been timely filed, the objections generally
        do not comport with requirements contained in Civ.R. 53(D)(3)(b)(ii).
       {¶12} Civ.R. 53(D)(3)(b)(ii) provides requirements for a party’s objection to a
magistrate’s decision, stating: “An objection to a magistrate’s decision shall be specific
and state with particularity all grounds for objection.” The rule does not define the terms
“specific” or “grounds.” The plain ordinary meaning of these terms therefore should be
used when interpreting Civ.R. 53(D)(3)(b)(ii), unless a contrary intention is clearly
expressed by the Ohio Rules of Civil Procedure. See State ex rel. Brilliant Elec. Sign
Co. v. Indus. Comm. of Ohio, 57 Ohio St.2d 51, 54, 386 N.E.2d 1107 (1979) (“‘In
construing statutes, it is customary to give words their plain ordinary meaning unless the
legislative body has clearly expressed a contrary intention.’ Youngstown Club v.
Porterfield (1970), 21 Ohio St. 2d 83, 86. This maxim applies equally to administrative
regulations.”)
       {¶13} In common usage the term “specific” means “[o]f, relating to, or designating
a particular or defined thing; explicit.” Black’s Law Dictionary 1616 (10th Ed.2014). And
Case No. 2015-00487                          -6-                                  DECISION


in common usage the term “ground” means the “reason or point that something (as a
legal claim or argument) relies on for validity.” Id. at 819. Here, Thomas has submitted
ten objections—with objections 1 through 9 relating to purported “findings” by the
magistrate, and a tenth objection contesting the magistrate’s decision because it is
purportedly against the manifest weight of the evidence. Thomas’s filing also states: “In
support of all of the above objections, Plaintiff hereby incorporates by reference her
post-trial brief in its entirety.”
        {¶14} A review of objections Nos. 1 through 9 discloses that the objections
contain quotations—apparently from the magistrate’s decision—but none of the
objections lists a page number of the magistrate’s decision, or a reference to the
transcript, where the purported error occurred. Thus, none of these nine objections
satisfy the specificity requirement contained in Civ.R 53(D)(3)(b)(ii). And a review of
Thomas’s objections shows that, except for the tenth objection where Thomas objects
to the entirety of Magistrate Renick’s decision “as said decision is against the manifest
weight of the evidence,” the other objections do not state grounds for the objections.
And, even though Thomas’ tenth objection raises a manifest-weight-of-the-evidence
argument, the tenth objection does not indicate why, in Thomas’s view, Magistrate
Renick’s decision is against the manifest weight of the evidence.
        {¶15} Thus, even if the court were to rule on Thomas’s objections, only Thomas’s
tenth objection arguably comports with Civ.R. 53(D)(3)(b)(ii)’s requirements that call for
an objection to be specific and identify with particularity all grounds for the objection.

    IV. Conclusion
        {¶16} Accordingly, for reasons set forth above, the court determines that
Thomas’s objections to Magistrate Renick’s decision of June 23, 2017 are untimely.
And because Thomas’s untimely objections do not contain a completed proof of service,
the court further determines the court may not consider them.            Upon independent
review, the court determines that there is no error of law or other defect evident on the
Case No. 2015-00487                      -7-                               DECISION


face of Magistrate Renick’s decision. Finding no error of law or other defect evidence
on the face of Magistrate Renick’s decision, the court also determines that the
magistrate’s decision and recommendation should be adopted, including the findings of
fact and conclusions of law contained in it, and that judgment should be rendered in
favor of ODMH.




                                               PATRICK M. MCGRATH
                                               Judge
[Cite as Thomas v. Ohio Dept. of Mental Health, 2017-Ohio-7525.]




LINDA THOMAS, Admr.                                  Case No. 2015-00487

       Plaintiff                                     Judge Patrick M. McGrath
                                                     Magistrate Anderson M. Renick
       v.
                                                     JUDGMENT ENTRY
OHIO DEPARTMENT OF MENTAL
HEALTH

       Defendant



        {¶17} For the reasons set forth in the decision filed concurrently herewith, upon
independent review, the court determines that there is no error of law or other defect
evident on the face of Magistrate Renick’s decision of June 23, 2017. Finding no error
of law or other defect evidence on the face of Magistrate Renick’s decision, the court
adopts Magistrate Renick’s decision and recommendation as its own, including the
findings of fact and conclusions of law contained therein. Judgment is rendered in favor
of defendant Ohio Department of Mental Health. Court costs are assessed against
plaintiff Linda Thomas. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.



                                                       PATRICK M. MCGRATH
                                                       Judge

cc:
Natasha A. Wells Niklas                              Charles R. Janes
3412 West Market Street                              Eric A. Walker
Akron, Ohio 44333                                    Assistant Attorneys General
                                                     150 East Gay Street, 18th Floor
                                                     Columbus, Ohio 43215-3130
Filed August 16, 2017
Sent to S.C. Reporter 9/8/17
