[Cite as Manville v. Hazen, 2019-Ohio-1133.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

TODD MANVILLE,                                   :

                Plaintiff-Appellant,             :
                                                             No. 107105
                v.                               :

KIRSTEN HAZEN,                                   :

                Defendant-Appellee.              :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: March 28, 2019


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                      Case Nos. CV-16-860031 and CV-17-874190


                                           Appearances:

                Todd Manville, pro se, for appellant.

                Jordan & Sidoti L.L.P., Bret Jordan, for appellee.


LARRY A. JONES, SR., P.J.:

                  Pro se plaintiff-appellant, Todd Manville (“Manville”), appeals the

trial court’s granting of summary judgment in favor of defendant-appellee, Kirsten

Hazen (“Hazen”). For the reasons that follow, we affirm.

                  In January 2017, Manville filed a pro se complaint alleging that he

gave money and property to Hazen that she refused to return to him. According to
Manville, in 2007, he signed a power of attorney over to Hazen so she could have

access to his bank accounts and lines of credit while he was incarcerated.1 He claims

he also signed over title to three cars and a motorcycle to Hazen and entrusted her

with the contents of his house.

               The record shows that Hazen filed for bankruptcy in 2008. The

bankruptcy court served Manville and gave him notice of the date of the meeting of

creditors, deadlines to file a proof of claim, and other relevant information. Manville

failed to file a proof of claim or other objection. In 2013, Hazen’s debts were

discharged, and her case was closed in March 2014. Manville filed numerous

motions with the bankruptcy court, including a motion to reopen the case. The court

denied his motions.

               Manville filed numerous pro se motions with the trial court in the

instant case, all of which the trial court denied. In April 2017, the court issued an

order noting that Manville had yet to perfect service upon Hazen and informing

Manville that the case would be dismissed pursuant to Civ.R. 4(E) if service was not

perfected by July 10, 2017. Service was perfected in May 2017, and Hazen filed an

answer on July 3, 2017, which was deemed admitted by the court.




      1In 2007, Manville pleaded guilty to two counts of rape and one count of
pandering obscenity involving a minor stemming from the sexual abuse of a young
child. He was sentenced to 15 years in prison and classified as a sexual predator. See
State v. Manville, Cuyahoga C.P. No. CR-07-491035-A.
              Manville continued to file numerous pro se motions. In November

2017, Hazen moved for summary judgment. In her motion, Hazen argued that her

bankruptcy case precluded Manville from making additional claims against her.

              The trial court granted Hazen’s motion for summary judgment,

finding that Hazen’s discharge in bankruptcy court precluded Manville’s attempt to

relitigate matters that should have been raised in that court.

              Manville filed a notice of appeal and raises the following assignments

of errors:

      I. The Trial Court erred in denying Mr. Manville’s In Forma
      Pauperis Motion.

      II. The Trial Court erred in denying Mr. Manville’s Default
      Judgment Motions.

      III. The Trial Court erred in not allowing Mr. Manville a mode of
      prosecution.

      IV. The Trial Court erred in not granting Mr. Manville any
      discovery.

      V. The Trial Court erred in granting Ms. Hazen’s Summary
      Judgment Motion.

                                Law and Analysis

              In the first assignment of error, Manville claims that the trial court

erred in denying his in forma pauperis motion. In his motion, Manville asked the

court to waive its filing fee and any court costs associated with pursuing his claim.

The trial court denied his motion.

              R.C. 2323.31 provides that,
         [t]he court of common pleas by rule may require an advance
         deposit for the filing of any civil action or proceeding. On motion of
         the defendant, and if satisfied that such deposit is insufficient, the
         court may require it to be increased from time to time, so as to
         secure all costs that may accrue in the cause, or may require
         personal security to be given; but if a plaintiff makes an affidavit
         of inability either to prepay or give security for costs, the clerk of
         the court shall receive and file the petition. Such affidavit shall be
         filed with the petition, and treated as are similar papers in such
         cases.2

                   Thus, R.C. 2323.31 allows courts of common pleas to require an

advance deposit for the filing of any civil action. Loc.R. 7 of the Court of Common

Pleas of Cuyahoga County, General Division, requires the prior deposit of court costs

and lists the specific amounts for each court cost. The rules states: “A poverty

affidavit filed in lieu of a cash deposit must state the reasons for the inability to

prepay costs and is subject to Court review at any stage of the proceedings.” Id.

                   “‘The determination of indigence for purposes of whether a plaintiff

should be required to pay filing fees and court costs ‘is typically granted liberally in

order to preserve the due process rights of litigants and guarantee an access to

judicial process and representation.”’ Guisinger v. Spier, 166 Ohio App.3d 728,

2006-Ohio-1810, 853 N.E.2d 320, ¶ 6 (2d Dist.), quoting Evans v. Evans, 10th Dist.

Franklin Nos. 04AP-816 and 04AP-1208, 2005-Ohio-5090, ¶ 23. But the mere

filing of an affidavit of indigence does not constitute an automatic waiver of court

costs.



         2R.C.   2323.31 was amended, effective March 22, 2019.
              Ohio’s common pleas courts have the inherent power to secure the

orderly administration of justice and safeguard against conduct that would impair

the free exercise of judicial functions. Nelson v. Rodriguez, 3d Dist. Hancock No. 5-

10-20, 2011-Ohio-996, ¶ 5, citing Eubank v. Doneghy, 6th Dist. Lucas No. L-88-193,

1989 Ohio App. LEXIS 2141, 3 (June 9, 1989). As an exercise of that authority, it is

within a court’s discretion to determine whether indigency status is proper in a

particular case for waiving the deposit for security of costs. Rodriguez at id.

             The trial judge may consider whether a litigant has caused
      the court’s limited resources to be expended needlessly in the past
      by filing numerous, repetitious, or frivolous complaints, whether
      the affidavit of indigency includes sufficient information
      concerning the litigant’s financial condition, whether additional
      information is required, and whether the affidavit of indigency
      appears to be reasonable under conditions then existing.

Guisinger at id., citing Wilson v. Dept. of Rehab. & Corr., 138 Ohio App.3d 239,

243, 741 N.E.2d 152 (10th Dist.2000); see also Yeager v. Moody, 7th Dist.

Carroll No. 11 CA 874, 2012-Ohio-1691.

              The standard of review in an appeal from a decision denying a motion

for leave to proceed in forma pauperis is an abuse of discretion. Wilson at id.

              Here, the trial court was within its discretion to deny Manville’s

motion. Manville initially filed a complaint against Hazen on March 8, 2016. See

Manville v. Hazen, Cuyahoga C.P. No. CV-16-860031. In that case, Manville filed

an affidavit that admitted he had filed five civil actions against the Ohio Department

of Rehabilitation and Correction in the past five years. During the ten-month

pendency of CV-16-860031, Manville filed more than two dozen motions and
“notices” with the trial court. He also filed an appeal, which was dismissed for a lack

of a final, appealable order. See Manville v. Hazen, 8th Dist. Cuyahoga No. 104734

(July 25, 2016).

               On November 21, 2016, the trial court dismissed his case without

prejudice. Manville refiled his complaint on January 10, 2017, and, as mentioned,

has filed numerous motions and notices in this case.

      The goal of fairly dispensing justice is compromised when a court
      is forced to devote its limited resources to processing an indigent’s
      repeated frivolous filings. In Re Sindram (1991), 498 U.S. 177,
      180, 112 L.Ed. 2d 599, 111 S. Ct. 596. Pro se litigants have a
      greater capacity than most to disrupt the fair allocation of judicial
      resources because they are not subject to the financial constraints
      that deter other litigants from filing frivolous actions, such as
      filing fees and attorney’s fees. Id. Thus, a court may protect the
      fair administration of justice and deny in forma pauperis status to
      those litigants deemed to have abused the system.

Wilson v. Dept. of Rehab. & Corr., 138 Ohio App.3d 239, 243, 741 N.E.2d 152,

(10th Dist.2000), at 233.

               Manville has filed seven civil cases since 2012 and numerous motions

and notices in the current case. Accordingly, the trial court did not abuse its

discretion in denying Manville’s motion to proceed in forma pauperis.

               The first assignment of error is overruled.

               In the second assignment of error, Manville contends that the trial

court erred in denying his motions for default judgment.
               Civ.R. 55 provides that “when a party against whom a judgment for

affirmative relief is sought has failed to plead or otherwise defend as provided by

these rules, * * * a default judgment may be entered against that party.”

               Manville filed his complaint on January 10, 2017. He filed a motion

for default judgment on April 20, 2017. Manville did not perfect service on Hazen

until May 17, 2017, after he filed his motion for default judgment. A trial court lacks

personal jurisdiction to enter a default judgment against a defendant where effective

service of process has not been made upon the defendant and the defendant has not

appeared in the case or otherwise waived service. Fifth Third Bank v. Hatfield, 10th

Dist. Franklin No. 03AP-175, 2004-Ohio-755, ¶ 12. Therefore, the trial court

correctly denied his motion.

               Manville filed a second motion for default judgment on June 27, 2017,

and a third motion July 14, 2017. Hazen answered the complaint on July 3, 2017;

her answer was deemed admitted as of that day.

               In Ohio, it is a fundamental tenet of judicial review that courts should

decide cases on the merits. DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 192,

431 N.E.2d 644 (1982). The granting of a default judgment is a harsh remedy, which

should only be imposed when the actions of the defaulting party create a

presumption of willfulness or bad faith. Domadia v. Briggs, 11th Dist. Geauga No.

2008-G-2847, 2009-Ohio-6510, ¶ 19.

               Civ.R. 12(A)(1) provides that a defendant shall serve his or her answer

within 28 days after service.    Loc.R. 8(C) of the Court of Common Pleas of
Cuyahoga County, General Division, allows a party desiring an extension for filing

under Civ.R. 12 to either procure a written stipulation approved by all parties or

obtain approval of the court. The court granted Hazen’s motion to file her answer

instanter. We find no error in the trial court giving Hazen leave to file her answer

outside the prescribed 28 days.

               In light of the above, the trial court did not err in denying Manville’s

motions for default judgment. Accordingly, the second assignment of error is

overruled.

               In the third assignment of error, Manville argues that the trial court

did not allow him a “mode of prosecution” because the court did not transport him

from prison for hearings. To support his position, Manville cites Shepard Grain Co.

v. Creager, 160 Ohio App.3d 377, 2005-Ohio-1717, 827 N.E.2d 392, ¶ 17 (2d Dist.).

In Shepard Grain Co., the court found no abuse of discretion in the trial court’s

decision not to transport a prisoner to court for trial but determined that the trial

court abused its discretion in denying his motion to be present via telephone

conference.

               The United States Supreme Court has “chosen not to extend to

[prisoners] the Fourteenth Amendment due process right to physical access to the

courts.” Mancino v. Lakewood, 36 Ohio App.3d 219, 221, 523 N.E.2d 332 (8th

Dist.1987), citing Wolff v. McDonnell, 418 U.S. 539, 576, 94 S.Ct. 296341, L.Ed.2d

935 (1974). Thus, an absolute right for an incarcerated party to be present in a civil

action does not exist.
               On October 26, 2017, Manville filed a motion asking the court to

transport him for the final pretrial. On November 22, 2017, Hazen moved for

summary judgment. The trial court set a final pretrial date for February 20, 2018,

and a trial date for March 19, 2018. The court granted Hazen’s summary judgment

motion on January 31, 2018, and cancelled the pretrial and trial dates. Thus, no

pretrial hearing was held and Manville cannot show he was prejudiced.

               Accordingly, the third assignment of error is overruled.

               In the fourth assignment of error, Manville argues that the trial court

erred in denying his motions for discovery.

               Manville filed numerous discovery motions prior to perfecting service

on Hazen. Civ.R. 33(A)(2) provides that “[i]nterrogatories, without leave of court,

may be served upon the plaintiff after commencement of the action and upon any

other party after service of the summons and complaint upon the party.” Therefore,

the trial court did not err in denying those motions filed prior to service being

perfected.

               Manville filed numerous discovery requests after his first set of

discovery requests were denied due to a lack of service. The trial court denied his

additional discovery requests as moot and granted Hazen’s summary judgment

motion. Although the record does not indicate why the trial court denied Manville’s

motions as moot prior to granting summary judgment, we find that there was no

prejudice to Manville because the trial court granted summary judgment based on

res judicata, not based on the merits of the case.
              Accordingly, the fourth assignment of error is overruled.

              In the fifth assignment of error, Manville argues that the trial court

erred in granting summary judgment in favor of Hazen.

              To be entitled to summary judgment, the moving party must

demonstrate: (1) that there is no genuine issue of material fact; (2) that the moving

party is entitled to judgment as a matter of law; and (3) that reasonable minds can

come to but one conclusion, and that conclusion is adverse to the party against

whom the motion for summary judgment is made, who is entitled to have the

evidence construed most strongly in his favor. Civ.R. 56(C).

      A bankruptcy plan confirmed by a bankruptcy court has the effect
      of a judgment rendered by a state or district court. Any attempt
      by the parties [to the bankruptcy] to relitigate any of the matters
      that were raised or could have been raised [in the bankruptcy
      proceeding] is barred by the doctrine of res judicata. A judgment
      in bankruptcy court bars a subsequent suit if (1) both cases involve
      the same parties; (2) the prior judgment was rendered by a court
      of competent jurisdiction; (3) the prior decision was a final
      judgment on the merits; and (4) the same cause of action is at issue
      in both cases.” Jungkunz v. Fifth Third Bank (1994), 99 Ohio
      App.3d 148, 151, 650 N.E.2d 134 (internal citations omitted).

Badovick v. Greenspan, 8th Dist. Cuyahoga No. 96097, 2011-Ohio-3262, ¶ 13.

              In Ohio, all participants in a bankruptcy proceeding, not just formally

named parties, are barred by res judicata from asserting matters they could have

raised in the bankruptcy proceedings. Id. at ¶ 16, citing Federated Mgmt. Co. v.

Latham & Watkins, 138 Ohio App.3d 815, 823, 742 N.E.2d 684 (10th Dist.2000).

              Creditors and those in privity with a party to a bankruptcy proceeding

are also considered parties to the bankruptcy action for res judicata purposes.
Badovick at ¶ 17, citing Sanders Confectionery Prods., Inc. v. Heller Fin., Inc., 973

F.2d 474, 481 (C.A.6, 1992).

                In Badovick, this court noted that,

        [t]he Bankruptcy Code contains a strong preference for final
        resolution of all claims involving the debtor, largely in order for the
        debtor to obtain a fresh start. To release creditors and equity
        security holders from the bonds of res judicata would allow them
        to launch collateral attacks on confirmed plans, undermining the
        necessary ability of bankruptcy courts to settle all of the claims
        against the debtor. To interpret the term “party” narrowly would
        also run counter to the provisions in the Code which outline the
        effect of plans and offer methods for challenging the bankruptcy
        orders.

Badovick, 8th Dist. Cuyahoga No. 96097, 2011-Ohio-3262, citing Federated

Mgmt. Co. at id.

                The record shows that Manville was a creditor in Hazen’s bankruptcy

case.    Therefore, he is considered a “party” for res judicata purposes.         The

bankruptcy discharge was a final judgment rendered by a court of competent

jurisdiction, and the claims Manville has against Hazen for return of his property

could have been or were asserted in the bankruptcy proceedings. Because the

parties in the instant case — Manville and Hazen — were also parties to Hazen’s

bankruptcy proceeding and because the causes of action are the same in both

actions, Manville’s claims are barred by res judicata.

                Accordingly, the court did not err in granting Hazen’s motion for

summary judgment.

                The fifth assignment of error is overruled.
              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MICHELLE J. SHEEHAN, J., CONCUR
