[Cite as Rogers v. Fuerst, 2014-Ohio-2774.]



                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100670




                                   DEMALE ROGERS
                                                       PLAINTIFF-APPELLANT

                                                 vs.


                          GERALD E. FUERST, ET AL.

                                                       DEFENDANTS-APPELLEES




                                              JUDGMENT:
                                               AFFIRMED


                                     Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CV-13-808512

        BEFORE:           Boyle, A.J., Blackmon, J., and Stewart, J.

        RELEASED AND JOURNALIZED:                      June 26, 2014
FOR APPELLANT

Demale Rogers, pro se
Inmate No. 462-269, M.C.I.
P.O. Box 57
Marion, Ohio 43301


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brendan R. Doyle
Assistant County Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

       {¶1} Plaintiff-appellant, Demale Rogers, appeals pro se from the trial court’s

judgment granting the motion to dismiss of defendants-appellees, Gerald Fuerst, Lisa

Jones, and Candice McCafferty. Rogers raises two assignments of error for our review:

       1. Whether a grant of defendants’ motion to dismiss, Civ.R. 12(B)(6)
       predicated on: (1) res judicata * * *; (2) materials and evidence outside the
       pleading, i.e., the complaint; * * *; and (3) a finding of absolute immunity
       was/is “contrary to law” and “clearly erroneous” as a matter of law and
       fact.

       2. Whether the trial court’s inclusion of a party whom was not a defendant
       named in the initiating complaint, i.e., “ANDREA F. ROCCO,” will
       suffice to relieve the named principal defendant “GERALD E. FUERST,”
       of his default, and will equally suffice to support the trial court’s grant of
       defendants’ Civ.R. 12(B)(6) motion to dismiss.

       {¶2} Finding no merit to his arguments on appeal, we affirm the judgment of the

trial court.

                       Procedural History and Factual Background

       {¶3} In June 2013, Rogers filed a complaint for false imprisonment against

Fuerst, former Cuyahoga County clerk of courts, as well as Jones and McCafferty,

Cuyahoga County deputy clerks of courts. Rogers alleged that because the grand jury

indictment against him did not possess a time or file stamp from the clerk of courts, and

the journal entry convicting and sentencing him did not possess a time stamp, they were

never actually filed with the court.    He therefore claims that the trial court lacked

jurisdiction to hear his criminal case, and as a result, he was wrongly imprisoned.
       {¶4} The defendants collectively moved to dismiss the case pursuant to Civ.R.

12(B)(6), which the trial court granted. It is from this judgment that Rogers now

appeals.

                                   Standard of Review

       {¶5} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for

failure to state a claim upon which relief can be granted, an appellate court’s standard of

review is de novo.    Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362,

814 N.E.2d 44, ¶ 5.

       {¶6} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim is

procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey

Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992), citing Assn. for

the Defense of the Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 537

N.E.2d 1292 (1989). A trial court must presume all factual allegations contained in the

complaint to be true and must make all reasonable inferences in favor of the nonmoving

party. Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 104, 661 N.E.2d 218

(8th Dist.1995), citing Perez v. Cleveland, 66 Ohio St.3d 397, 613 N.E.2d 199 (1993);

Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 532 N.E.2d 753 (1988); Phung v. Waste

Mgt., Inc., 23 Ohio St.3d 100, 491 N.E.2d 1114 (1986).

       {¶7} Thus, in order for a court to grant a motion to dismiss for failure to state a

claim, it must appear “beyond a doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.” (Citations omitted in original.)
O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d

753 (1975).

                                              Analysis

         {¶8} Although Rogers’s arguments are difficult to decipher, he alleged in his

complaint that the court lacked jurisdiction over him because the grand jury indictment

did not contain either a file stamp or a time stamp.        He further alleged that the court did

not have jurisdiction over him because, although the judgment entry convicting and

sentencing him contained a file stamp, it lacked a time stamp.            According to Rogers,

under R.C. 2303.08 and 2303.10, documents filed with the clerk of courts must contain

both a time stamp and a file stamp.           Rogers, however, misconstrues the meaning of

R.C. 2303.08 and 2303.10.

         {¶9} R.C. 2303.08 sets forth “general duties” of the clerk of the common pleas

court.    It provides in relevant part that

         [t]he clerk of the court of common pleas shall indorse on each pleading or
         paper in a cause filed in the clerk’s office the time of filing, enter all
         orders, decrees, judgments, and proceedings of the courts of which such
         individual is the clerk, [and] make a complete record when ordered on the
         journal to do so[.]

R.C. 2303.10 specifically explains how a clerk of court “indorses” papers filed with it,
stating that “[t]he clerk of the court of common pleas shall indorse upon every paper
filed with him the date of the filing thereof, and upon every order for a provisional
remedy and upon every undertaking given thereunder, the date of its return to his office.”

         {¶10} Thus, these statutes make clear that papers filed with the clerk of courts do

not need to state the exact time it was filed.           Rather, when papers are filed with the

court, the clerk must “indorse” them with “the date of filing.”
       {¶11} Significant to our analysis here is the fact that Rogers attached documents

to his complaint, namely the grand jury indictment against him and the judgment entry

convicting and sentencing him, that patently negate his claims. In Glazer v. Chase

Home Fin. L.L.C., 8th Dist. Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, this

court explained:

       “[D]ocuments attached to or incorporated into the complaint may be
       considered on a motion to dismiss pursuant to Civ.R. 12(B)(6).” NCS
       Healthcare, Inc. v. Candlewood Partners, L.L.C., 160 Ohio App.3d 421,
       427, 2005-Ohio-1669, 827 N.E.2d 797 (8th Dist.), citing State ex rel.
       Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, 673
       N.E.2d 1281 (1997). * * * The court may also consider material
       pertinent to jurisdictional issues without converting the motion into one for
       summary judgment. Shockey v. Fouty, 106 Ohio App.3d 420, 423, 666
       N.E.2d 304 (4th Dist.1995).

Glazer at ¶ 38.

       {¶12} In this case, both the grand jury indictment and judgment entry convicting

and sentencing Rogers contain a file stamp from the clerk of courts, dated June 24, 2003

and February 26, 2004, respectively.    The file stamps are evidence that the indictment

and judgment entry were properly filed and journalized with the court.     “Endorsing the

fact and date of filing on the judgment entry itself is evidence that it was filed on that

date.” In re Hopple, 13 Ohio App.3d 54, 55, 468 N.E.2d 129 (6th Dist.1983), citing

Ferrebee v. Boggs, 18 Ohio St.2d 87, 247 N.E.2d 753 (1969); King v. Penn, 43 Ohio St.

57, 61, 1 N.E. 84 (1885), and Lewis v. Pub. Fin. Corp., 9 Ohio App.2d 215, 223 N.E.2d

828 (7th Dist.1967).
         {¶13} Even if we were to accept Rogers’s interpretation of R.C. 2303.08 and

2303.10, that is, that the clerk must indicate not only the date but the time of filing, it

would not mean that the court lacked jurisdiction over him or his criminal case.

         {¶14} The Ohio Supreme Court has explained that the filing of the complaint

invokes the jurisdiction of the trial court, but that a pleading is “filed” when it is properly

deposited with the clerk of courts.           Zanesville v. Rouse, 126 Ohio St.3d 1,

2010-Ohio-2218, 929 N.E.2d 1044, ¶ 5, 7, judgment vacated in part on reconsideration

on other grounds, 126 Ohio St.3d 1227, 2010-Ohio-3754, 933 N.E.2d 260. A clerk’s

failure, however, to file stamp a document does not create a jurisdictional defect, and

when a pleading lacks an endorsement from the clerk, filing may be proven by other

means.     Id. at ¶ 8, 10.     The Supreme Court concluded in Rouse that there was

sufficient evidence in the case, such as the electronic docket sheet and an affidavit from

the clerk of courts, to show that the complaint was filed with the clerk even though it

lacked a time or date stamp. Id. at ¶ 10-11.

         {¶15} Here, the grand jury indictment is stamped “Received for Filing June 24,

2003 Gerald E. Fuerst.”       The judgment entry convicting and sentencing Rogers is

stamped “Filed Feb. 26, 2004 Gerald E. Fuerst, Clerk of Courts, Cuyahoga County,

Ohio.”     This is certainly more than sufficient evidence that the documents were filed

with the court.

         {¶16} Rogers’s first assignment of error is overruled.
       {¶17} In his second assignment of error, Rogers claims that the trial court and

defendants improperly substituted the present clerk of courts for Cuyahoga County,

Andrea F. Rocco, for Fuerst, who he named in his complaint. Rogers, however, has

failed to cite any authority for his argument as required by App.R. 16(A)(7).    Thus, we

decline to address it.

       {¶18} Judgment affirmed.

       It is ordered that appellees 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.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

PATRICIA ANN BLACKMON, J., and
MELODY J. STEWART, J., CONCUR
