[Cite as Newman v. Ohio Civ. Rights. Comm., 2019-Ohio-4183.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 PETER K. NEWMAN                                    :
                                                    :
         Plaintiff-Appellant                        :    Appellate Case No. 28401
                                                    :
 v.                                                 :    Trial Court Case Nos. 2018-CV-1023
                                                    :    and 2018-CV-1024
 OHIO CIVIL RIGHTS COMMISSION,                      :
 et al.                                             :    (Civil Appeal from
                                                    :    Common Pleas Court)
         Defendants-Appellees                       :


                                            ...........

                                            OPINION

                          Rendered on the 11th day of October, 2019.

                                            ...........

PETER K. NEWMAN, Atty. Reg. No. 0010468, 594 Garden Road, Dayton, Ohio 45419
     Plaintiff-Appellant, Pro Se

PATRICK M. DULL, Atty. Reg. No. 0064783, Principal Assistant Attorney General, 30
East Broad Street, 15th Floor, Columbus, Ohio 43215
      Attorney for Defendants-Appellees

                                            .............




DONOVAN, J.
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        {¶ 1} Plaintiff-appellant Peter K. Newman, acting pro se, appeals from a judgment

of the Montgomery County Court of Common Pleas, which dismissed his petitions for

judicial review filed pursuant to R.C. 4112.06 in Montgomery C.P. Nos. 2018-CV-1023

and 2018-CV-1024. Newman filed a timely notice of appeal with this Court on May 15,

2019.

        {¶ 2} Newman is a former adjunct professor at the University of Dayton (“UD”),

where he taught various courses in its law school and MBA program. After UD failed to

renew his teaching contract for the spring semester of 2017, Newman filed lawsuits in

which he claimed that UD, through its employees, retaliated against him for filing an

internal discrimination and harassment complaint against a female African-American law

student.1 We also note that Newman was banned indefinitely from the UD campus on

July 31, 2017.

        {¶ 3} While he was engaged in litigation with UD, Newman filed two charges with

the defendant-appellee Ohio Civil Rights Commission (OCRC), alleging employment

discrimination and public accommodations discrimination.       In his charges, Newman

requested that the OCRC investigate whether UD had unlawfully discriminated against

him when it failed to renew his teaching contract and when it banned him from the UD

campus. After conducting a preliminary investigation into Newman’s allegations, the

OCRC concluded that it was “not probable” that UD had unlawfully discriminated against

him and declined to issue an administrative complaint with respect to either charge filed

by Newman. Thereafter, Newman filed a motion in which he requested that the OCRC


1
  See Newman v. University of Dayton, S.D. Ohio No. 3:17-cv-179, 2017 WL 4076517
(October 31, 2017), aff’d, 751 F.Appx. 809 (6th Cir.2018); see also Newman v. University
of Dayton, Montgomery C.P. No. 2019 CV 0515.
                                                                                         -3-


reconsider its “not probable” determinations, and the OCRC agreed.

       {¶ 4} On February 1, 2018, the OCRC held a hearing wherein both Newman and

UD representatives appeared for oral arguments. At the close of the hearing, the OCRC

issued its reconsideration decisions, again finding that it was “not probable” that UD

discriminated against Newman; therefore, it did not file an administrative complaint

against UD.

       {¶ 5} On March 5, 2018, Newman filed two complaints in the Montgomery County

Court of Common Pleas against the OCRC and the following OCRC employees: the five

commissioners who issued the “not probable” findings, the executive director, chief legal

counsel, the director of enforcement and compliance, the reconsideration supervisor, the

Dayton regional director, and the field coordinator.      Newman also named an Ohio

Assistant Attorney General as a defendant in his complaints.           Each of Newman’s

pleadings contained two elements: a “Complaint” comprised of his 42 U.S.C. 1983 due

process and equal protection claims against the listed parties; and a “Petition for Judicial

Review” in which he requested review of the OCRC’s two “not probable” determinations

pursuant to R.C. 4112.06.

       {¶ 6} Both of Newman’s complaints against the OCRC were removed to federal

court. After removal, the federal district court consolidated the cases and issued an

opinion dismissing Newman's 42 U.S.C. 1983 due process and equal protection claims,

finding that each individual defendant was entitled to absolute and qualified immunity.

Newman v. Ohio Civil Rights Comm., S.D. Ohio No. 3:18-cv-88, 2018 WL 5312686, *6

(October 26, 2018). In the opinion, the district court noted that Newman conceded that

the OCRC cannot be sued under 42 U.S.C. 1983. Id. at *4. After dismissing all of
                                                                                         -4-


Newman’s due process claims, the federal court remanded the remaining R.C. 4112.06

petitions for judicial review to the Montgomery County Court of Common Pleas. Id. at *7.

       {¶ 7} On remand, the trial court consolidated Newman’s petitions for judicial review

in an entry filed on February 26, 2019. On March 12, 2019, Newman filed a motion for

leave to conduct discovery. The OCRC filed a memorandum in opposition one day later.

       {¶ 8} On March 15, 2019, the OCRC filed a motion to dismiss based upon lack of

subject matter jurisdiction.   In support of its motion, the OCRC argued that, when

Newman filed his two petitions for judicial review on March 5, 2018, he instructed the clerk

of courts to serve his petitions on the OCRC. However, Newman did not instruct the

clerk to serve his petitions on UD. Rather, he sent copies of the petitions to UD’s

attorneys through the regular mail. One year passed, and Newman still had not served

UD through the clerk’s office.     Thus, the OCRC argued that the trial court lacked

jurisdiction to entertain Newman’s petitions.

       {¶ 9} On April 10, 2019, the trial court denied Newman’s motion for discovery. On

April 15, 2019, relying upon the Ohio Supreme Court’s holding in Hambuechen v. 221

Mkt. N., Inc., 143 Ohio St.3d 161, 2015-Ohio-756, 35 N.E.3d 502, the trial court granted

the OCRC’s motion to dismiss Newman’s petitions for lack of subject matter jurisdiction.

       {¶ 10} It is from this judgment that Newman appeals.

       {¶ 11} Newman’s first assignment of error is as follows:

       THE TRIAL COURT SHOULD NOT HAVE GRANTED DEFENDANTS’

       MOTION TO DISMISS BASED ON THE OHIO SUPREME COURT’S

       HAMBUECHEN DECISION BECAUSE THERE ARE A NUMBER OF

       FACTORS FOR WHY THIS PRECEDENT SHOULD NOT HAVE BEEN
                                                                                        -5-

       FOLLOWED IN THIS CASE.            ASSUMING, ARGUENDO, THAT THE

       TRIAL COURT CORRECTLY FOLLOWED HAMBUECHEN, THE AG

       WAIVED HIS SERVICE OBJECTIONS AND THE TRIAL COURT SHOULD

       HAVE GRANTED NEWMAN LEAVE TO CORRECT THE SERVICE

       PROBLEMS WITH HIS PETITIONS.

       {¶ 12} In his first assignment, Newman contends that the trial court erred when it

relied upon Hambuechen in finding that it lacked subject matter jurisdiction to hear his

petitions for judicial review. Specifically, Newman advances the following arguments in

support of his assertion regarding why the trial court should not have relied upon

Hambuechen: 1) courts should not “blindly follow” the doctrine of stare decisis; 2) the

holding in Hambuechen constituted improper “legislating from the bench;” 3) subject

matter jurisdiction is only a “procedural technicality,” and his cases should be adjudged

on their merits; 4) by relying upon Hambuechen, the Attorney General’s office “betrayed

its own mission statement;” and 5) because jurisdiction is only a “technical service

problem,” the trial court should have applied a “balancing of the equities.” Newman also

argues that, assuming that the trial court correctly relied upon the holding in Hambuechen,

the Attorney General “waived his service objections” to Newman’s petitions. Lastly,

Newman argues that the trial court should have granted him leave to “correct the technical

service problems with his petitions” through the “excusable neglect” exception enunciated

in Civ.R. 6(B).

       {¶ 13} As previously stated, Newman filed his petitions on March 5, 2018, and

served them on the OCRC through the clerk of courts. With respect to UD, however,

Newman simply mailed the petitions to the University’s attorneys. Pursuant to the Ohio
                                                                                            -6-

Supreme Court’s holding in Hambuechen, mailing an R.C. 4112.06 petition for judicial

review to one of the required parties is insufficient to provide subject matter jurisdiction to

a reviewing court.     Rather, “the petition for review of an order of the Civil Rights

Commission must be served by a clerk of courts on all parties who appeared before the

commission and on the commission itself within one year of the date that the petition was

filed, as required by Civ.R. 3(A).”

       {¶ 14} The Hambuechen court also stated the following:

       The office of the clerk of courts exists for a reason. The use of a central

       office brings stability to the system. The judicial system and the public thus

       have a concrete method of knowing when a document has been filed, who

       has been served with that document, and how that document was served.

       As this court recently reasoned in Clermont Cty. Transp. Improvement Dist.

       v. Gator Milford, L.L.C., 141 Ohio St.3d 542, 2015-Ohio-241, 26 N.E.3d 806,

       ¶ 2, “actual knowledge” is never a substitute for service by the clerk of

       courts.

Hambuechen, 143 Ohio St.3d 161, 2015-Ohio-756, 35 N.E.3d 502, ¶ 10. Therefore,

simply mailing UD’s attorneys copies of the petitions was insufficient to establish the

subject matter jurisdiction of the trial court.

       {¶ 15} Furthermore, “[w]hen a right to appeal is conferred by statute, the appeal

can be perfected only in the mode prescribed by statute. Ramsdell v. Ohio Civ. Rights

Comm., 56 Ohio St.3d 24, 27, 563 N.E.2d 285 (1990). R.C. 4112.06 confers a right to

appeal and obtain judicial review of a final order of the commission. Proceedings under

R.C. 4112.06 ‘shall be initiated by the filing of a petition in [the common pleas] court * * *
                                                                                            -7-


and the service of a copy of the said petition upon the commission and upon all parties

who appeared before the commission.’ R.C. 4112.06(B). The court obtains jurisdiction

upon the filing and service of the petition and the commission's subsequent filing of the

record. Id.” (Emphasis added.) Hambuechen at ¶ 14 (French, J., concurring). In light

of the holding in Hambuechen, the trial court properly dismissed Newman’s R.C. 4112.06

petitions because he failed to have UD served through the clerk of courts within one year

of the filing of the petitions. Therefore, the trial court did not err when it dismissed

Newman’s petitions based upon a lack of subject matter jurisdiction.

       {¶ 16} “A defect in subject-matter jurisdiction cannot be waived or forfeited and

may, therefore, be raised at any time.” Engelhart v. Hamilton Cty. Bd. of Commrs., 2016-

Ohio-4935, 69 N.E.3d 137, ¶ 6 (1st Dist.), citing State v. Mbodji, 129 Ohio St.3d 325,

2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10; State v. Wilson, 73 Ohio St.3d 40, 46, 652

N.E.2d 196 (1995) (“The issue of a court's subject matter jurisdiction cannot be waived.

A party's failure to challenge a court's subject matter jurisdiction cannot be used, in effect,

to bestow jurisdiction on a court where there is none.”); State ex rel. Kline v. Carroll, 96

Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27 (“invited error” is a branch of the

waiver doctrine and is inapplicable to an attack on the subject matter jurisdiction); Vilk v.

Dinardo, 8th Dist. Cuyahoga No. 103755, 2016-Ohio-5245, ¶ 10 (“the question of a court's

subject matter jurisdiction can be raised at any time -- even after judgment or on appeal”);

Leist v. Mad River Twp. Bd. of Trustees, 2d Dist. Clark No. [2015]-CA-86, 2016-Ohio-

2960, ¶ 6 (issues related to subject matter jurisdiction cannot be waived and may be

raised sua sponte by an appellate court). See also United States v. Cotton, 535 U.S. 625,

630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (because subject-matter jurisdiction goes
                                                                                          -8-


to the power of the court to adjudicate the merits of a case, it “can never be forfeited or

waived”); Rote v. Zel Custom Mfg., LLC, 816 F.3d 383, 392 (6th Cir.2016) (holding that

jurisdictional arguments not raised in the district court are not waived on appeal).

Significantly, Newman’s argument that the Attorney General waived jurisdiction was

withdrawn (page 8 of his reply brief).

       {¶ 17} Lastly, we conclude that Civ.R. 6(B) is inapplicable to the instant case.

Although Civ.R. 6(B) grants broad discretion to the trial court, its discretion is not

unlimited. Miller v. Lint, 62 Ohio St.2d 209, 214, 404 N.E.2d 752 (1980). “Neglect under

Civ.R. 6(B)(2) has been described as conduct that falls substantially below what is

reasonable under the circumstances.” Davis v. Immediate Med. Servs., Inc., 80 Ohio

St.3d 10, 14, 684 N.E.2d 292 (1997).          “The determination of whether neglect is

excusable or inexcusable must take into consideration all the surrounding facts and

circumstances, and courts must be mindful of the admonition that cases should be

decided on their merits, where possible, rather than procedural grounds.” State ex rel.

Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 466, 650 N.E.2d 1343

(1995), citing Marion Prod. Credit Assn. v. Cochran, 40 Ohio St.3d 265, 271, 533 N.E.2d

325 (1988). In determining whether neglect was excusable, courts may consider “the

danger of prejudice to the [movant], the length of delay and its potential impact on judicial

proceedings, the reasons for the delay, including whether it was within the reasonable

control of the movant, and whether the movant acted in good faith.” (Citation omitted.)

First Union-Lehman Bros.-Bank of Am. Commercial Mtge. Trust v. Pillar Real Estate

Advisors, Inc., 2d Dist. Montgomery No. 2010-CV-9039, 2014-Ohio-1105, ¶ 15.

       {¶ 18} Contrary to Newman's urging, subject matter jurisdiction cannot be
                                                                                            -9-

disregarded in order to decide a case on the merits. See Sunrise Coop., Inc. v. Joppeck,

9th Dist. Lorain No. 16CA010984, 2017-Ohio-7654, ¶ 9 (“[A] court cannot ignore issues

regarding subject matter jurisdiction.”). Subject matter jurisdiction is a court's power to

hear and decide a case on the merits. Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d

841 (1972), paragraph one of the syllabus. “If a court acts without [subject matter]

jurisdiction, then any proclamation by that court is void.” State ex rel. Tubbs Jones v.

Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998); see Lorain Natl. Bank v. Corna,

9th Dist. Lorain No. 13CA010472, 2015-Ohio-432, ¶ 6.              “When there is a lack of

jurisdiction, a dismissal of the action is the only proper order.” Dilatush v. Bd. of Rev., 107

Ohio App. 551, 552-553, 160 N.E.2d 309 (2d Dist.1959).

       {¶ 19} As previously stated, Newman portrays the trial court’s lack of subject

matter jurisdiction as a mere “technical service problem.” However, in Dilatush, we

stated the following:

       The dismissal of the appeal for want of jurisdiction is not a dismissal for a

       mere technicality. Jurisdiction is a basic and fundamental prerequisite to

       any action by the court.

(Emphasis added.) Id. at 552. Therefore, Newman cannot use Civ.R. 6(B) to create

subject matter jurisdiction where none exists. Civil rules are “procedural devices that do

not extend or limit the jurisdiction of the courts of this state.” Brooks v. Brooks, 2d Dist.

Montgomery No. 15789, 1996 WL 647635, *5; Civ.R. 82 (“These rules shall not be

construed to extend or limit the jurisdiction of the courts of this state.”) Subject matter

jurisdiction, or the lack thereof, is not a mere “technical service problem” to be easily

excused or disregarded. Accordingly, Newman’s assertion that his failure to serve UD
                                                                                       -10-


within the one-year period was “excusable neglect” pursuant to Civ.R. 6(B) in an effort to

somehow extend the trial court’s jurisdiction in the instant case is without merit.

       {¶ 20} Newman’s first assignment of error is overruled.

       {¶ 21} Newman’s second and final assignment of error is as follows:

       THE TRIAL COURT SHOULD NOT HAVE DENIED NEWMAN’S MOTION

       FOR LEAVE TO CONDUCT DISCOVERY AND FOR SUBMISSION OF

       ADDITIONAL EVIDENCE BECAUSE DURING THE COMMISSION’S

       HEARINGS ON NEWMAN’S TWO CHARGES, THE COMMISSION

       SOLICITED AND ACCEPTED NEW EVIDENCE FROM THE UNIVERSITY

       OF DAYTON AND NEWMAN WAS DENIED HIS DUE PROCESS RIGHT

       TO RESPOND TO THIS NEW EVIDENCE.

       {¶ 22} In his second assignment, Newman argues that his right to due process

was violated when the trial court denied his motion for additional discovery. However, in

light of our disposition of the first assignment of error, Newman’s second assignment is

rendered moot, and we need not address the merits of his argument.

       {¶ 23} Newman’s second assignment of error is overruled.

       {¶ 24} Both of Newman’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

                                      .............


WELBAUM, P.J. and HALL, J., concur.
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Copies sent to:

Peter K. Newman
Patrick M. Dull
Hon. Richard Skelton
