[Cite as Muhammad v. Ohio Civ. Rights Comm., 2013-Ohio-3730.]


                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 99327




                             RAHEEM MUHAMMAD
                                                       PLAINTIFF-APPELLANT

                                                 vs.

                 OHIO CIVIL RIGHTS COMMISSION
                                                       DEFENDANT-APPELLEE




                                        JUDGMENT:
                                         AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-793420

       BEFORE: Rocco, J., Boyle, P.J., and E.A. Gallagher, J.

       RELEASED AND JOURNALIZED: August 29, 2013
APPELLANT

Raheem Muhammad, Pro Se
P.O. Box 40251
Washington, D.C. 20016-0251

ATTORNEYS FOR APPELLEE

Michael DeWine
Ohio Attorney General
BY: Patrick M. Dull
Principal Assistant Attorney General
Civil Rights Section
30 East Broad Street
15th Floor
Columbus, OH 43215

Karen Adonolfi
225 South Main Street
Akron, OH 44308
KENNETH A. ROCCO, J.:

       {¶1} Petitioner-appellant Raheem Muhammad, proceeding pro se, appeals from the

trial court order that granted the Civ.R. 12(B)(1) motion to dismiss his complaint that

respondent-appellee the Ohio Civil Rights Commission (the “OCRC”) filed.

       {¶2} Appellant presents two assignments of error.        He claims the trial court

wrongfully dismissed his action and further claims that the Ohio Civil Rules that apply to

service of actions filed pursuant to R.C. 4112.06(B) are unconstitutional.

       {¶3} A review of the App.R. 9(A) record renders his first assignment of error

unpersuasive. Moreover, the record reflects appellant failed to raise in the trial court the

argument he makes in his second assignment of error; therefore, he has waived it for

appellate purposes. Consequently, both of his assignments of error are overruled, and the

trial court’s order is affirmed.

       {¶4} On September 28, 2012, appellant filed this action, pro se, in the common

pleas court as a petition for judicial review of the OCRC decision mailed to him on

September 6, 2012. The OCRC decided that there was “no probable cause” for it “to

issue an administrative complaint accusing [T.D. Security Ltd., Inc.] of an unlawful

discriminatory practice.” The OCRC instead decided to dismiss appellant’s complaint.

       {¶5} In the caption of his petition, appellant named as the respondents in this

action only the OCRC and several of its representatives. He merely alleged that his

petition referred to the OCRC case of “Raheem Muhammad vs. T D. Security Limited,

Incorporated, et al.” He further alleged the OCRC’s decision was “wrongfully entered,”
      that the decision was entered “without any input” from him, that he was “aggrieved” by

      the decision, and that the decision was unsupported by law.

             {¶6} He attached to his petition a copy of the OCRC’s decision that determined the

      action of appellant “v. T.D. Security Limited, Inc.” The OCRC stated that it “found no

      information or records that would raise an inference that [T.D. Security Ltd., Inc.]

      unlawfully discriminated against” appellant. The OCRC informed appellant that his

      “right to obtain judicial review of this order and the mode and procedure thereof is set

      forth in R.C. 4112.06,” and “advised [him] to consult an attorney” on the process.

             {¶7} Appellant also attached a “certificate of service” of his petition, stating that a

      copy had been:

                   served upon the following person(s) by either HAND DELIVERY
             AND/OR BY FACSIMILE AND/OR BY UNITED STATES FIRST
             CLASS MAIL, POSTAGE PREPAID on this 25th day of September,
             2012:

                    President Barack Hussein Obama * * *

                    Governor John R. Kasich * * *



             Chairman * * * ; Executive Director * * * ; et al. of the [OCRC] * * *

             * * * T. D. Security Limited Incorporated * * *

      {¶8} Appellant attached to his petition a letter addressed to the clerk of court. Therein, he

“DEMAND[ED]” that the clerk locate some documents appellant previously had sent, and notified the

clerk that he was submitting the current petition “with regards to the Ohio Civil Rights Commission”

and its decisions “pertaining to TD Security Limited Incorporated of Cleveland, Ohio, dated: July 19,
2012; received: August 8, 2012 and mailed: September 6, 2012.” Appellant further stated that he

intended to sue the clerk personally “in federal court.”

       {¶9} The record reflects the clerk of court sent summons to the named “defendant,” i.e., OCRC,

by certified mail. On October 22, 2012, the OCRC received such service of appellant’s petition.

       {¶10} On November 5, 2012, the OCRC filed a notice of appearance in the action. Two days

later, the OCRC filed a Civ.R. 12(B)(1) motion to dismiss appellant’s petition. The OCRC argued that

dismissal was appropriate because appellant had failed to initiate service of his petition on T. D.

Security Ltd., Inc., the other party to the administrative action, as required by R.C. 4112.06.

              {¶11} On November 14, 2012, appellant filed a “motion to strike” the OCRC’s

       “FRIVOLOUS” motion to dismiss his action. Appellant ignored both the OCRC’s basis

       for its motion and the clerk’s file stamp by arguing that his petition was filed on “October

       12, 2012.” This, however, was the date he paid a fee for filing his affidavit of poverty in

       this action. Moreover, this date would have made his petition untimely pursuant to R.C.

       4112.06.

              {¶12} On November 21, 2012, the OCRC filed an opposition brief to appellant’s

       motion to strike, pointing out the latter difficulty with appellant’s argument.

              {¶13} On December 6, 2012, the trial court issued an order dismissing appellant’s

       petition with prejudice.     The court’s journal entry stated that appellant’s failure to

       “initiate service through the clerk of court upon T. D. Security Limited, Inc. within thirty

       days of the Commission mailing its final order on September 6, 2012” deprived the court

       of jurisdiction to consider appellant’s petition.
              {¶14} Appellant appeals from the foregoing order and presents the following two

       assignments of error.

                      I. The trial court judge erred, as a matter of law, by wrongfully
              dismissing plaintiff-appellant’s petition for judicial review pursuant to
              Ohio’s Revised Code Section 4112.06(B) and under Civ.R. 12 (B)(6)
              [sic] for an alleged failure by the plaintiff-appellant to initiate service
              through the clerk of court upon all parties to the administrative action.

              II. The Ohio rules of court that requires [sic] that an individual perfects [sic]
       service on all parties to the administrative action is irrefutably unconstitutional
       since it blatantly violates the Equal Protection and Due Process Clauses of the
       United States Constitution’s Fourteenth Amendment.

       {¶15} In his first assignment of error, appellant argues that the trial court’s order granting the

OCRC’s motion for dismissal was improper because the certificate of service he attached to his petition

demonstrated that he “served” all the necessary adverse parties to his action. Neither the contents of

the record nor prior decisions of this court support his argument.

       {¶16} Civ.R. 12(B)(1) applies to dismissal of actions due to lack of subject-matter jurisdiction.

“Appellate review of a trial court's decision to dismiss a case pursuant to Civ. R. 12(B)(1) * * * is de

novo.” Crestmont Cleveland Partnership v. Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746

N.E.2d 222 (10th Dist.2000). In a de novo review, this court applies the same standards as the trial

court. GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16.

              {¶17} In order to dismiss a complaint under Civ.R. 12(B)(1), the court must

       determine whether a plaintiff has alleged any cause of action that the court has authority

       to decide. Crestmont, 139 Ohio App.3d at 936. When a trial court determines its own

       subject-matter jurisdiction, the court “has authority to consider any pertinent evidentiary

       materials.” Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 564 N.E.2d 477 (1990),
fn. 3. In this case, appellant attached to his petition a copy of the OCRC’s decision in the

matter of appellant’s complaint against T.D. Security Limited, Inc.

       {¶18} R.C. 4112.06 sets forth the statutory requirements for judicial review of

OCRC orders. In pertinent part, that statute states:

                (A) Any complainant, or respondent claiming to be aggrieved by a
       final order of the commission, * * * may obtain judicial review thereof * *
       * in a proceeding as provided in this section. Such proceeding shall be
       brought in the common pleas court of the state within any county wherein
       the unlawful discriminatory practice which is the subject of the
       commission’s order was committed
        *** .

              (B) Such proceedings shall be initiated by the filing of a petition in

       court as provided in division (A) of this section and the service of a copy of

       the said petition upon the commission and upon all parties who appeared

       before the commission. * * * The court shall thereupon have jurisdiction of

       the proceeding and of the questions determined therein, and shall have

       power to grant such temporary relief, restraining order, or other order as it

       deems just and proper * * * .

              ***

              (H) If no proceeding to obtain judicial review is instituted by a
       complainant, or respondent within thirty days from the service of order of
       the commission pursuant to this section, the commission may obtain a
       decree of the court for the enforcement of such order upon showing that
       respondent is subject to the commission’s jurisdiction and resides or
       transacts business within the county in which the petition for enforcement is
       brought. (Emphasis added.)


       {¶19} The Ohio Supreme Court has held that the requirements of R.C. 4112.06 are
jurisdictional. Ramsdell v. Ohio Civ. Rights Comm., 56 Ohio St.3d 24, 27-28, 563

N.E.2d 285 (1990) (“ * * * when the right to appeal is conferred by statute, the appeal can

be perfected only in the mode prescribed by statute.”) The Ramsdell court further stated:

              As the court of appeals recognized in Gray v. Ohio Civil Rights
       Comm. (1987), 37 Ohio App. 3d 16, 17, 523 N.E. 2d 338, 339, open-ended
       statutes of limitation are contrary to public policy.
       * * * [I]f R.C. 4112.06(H) does not impose a mandatory thirty-day time
       limit on commission appeals, a party seeking to appeal a commission order
       would be free to file a petition for review at any time. Under such a
       regime, it is conceivable that the courts would be asked to review
       commission orders months or even years after their issuance, when the
       evidence had become stale and the parties had died or disappeared. It is
       highly improbable that the legislature intended such a result when it enacted
       the governing legislation for the Civil Rights Commission. Consequently,
       this court rejects the appellant’s argument that R.C. 4112.06(H) does not
       impose a mandatory thirty-day time limit for filing appeals from
       commission orders. (Emphasis added.)

       {¶20} The Ramsdell court also considered the applicability of the civil rules to the

mandatory 30-day requirement for filing appeals from the OCRC’s decision. Citing this

court’s opinion in Cleveland v. Ohio Civ. Rights Comm., 43 Ohio App.3d 153, 540

N.E.2d 278 (8th Dist.1988), the Supreme Court indicated that, while the civil rules cannot

be used to extend the jurisdictional time period, the rules indeed may apply after the

petition for review is filed in the common pleas court. Ramsdell, at 27-28; compare

Lovalenti v. Piping Industry Training Ctr., 6th Dist. Lucas No. L-00-1222, 2000 Ohio

App. LEXIS 6065

(Dec. 22, 2000) (petitioner cannot invoke Civ.R. 15(C) to extend trial court’s

jurisdiction).

       {¶21} This court in Cleveland held in pertinent part:
             The Rules of Civil Procedure apply to an action commenced in common pleas
      court pursuant to R.C. 4112.06. Abbyshire Constr. Co. v.. Civil Rights Comm. (1974), 39
      Ohio App. 2d 125, 68 O.O. 2d 319, 316 N.E. 2d 893. R.C. 4112.06 is silent as to
      whether the petition initiating the appeal must be served through the clerk of courts.
      However, a de novo hearing of a Civil Rights Commission decision on the merits is
      clearly adversarial in nature. Therefore, Civ. R. 3(A) and Civ. R. 4(A) and (B) apply
      absent a good and sufficient reason not to apply those rules. We cannot find such good
      and sufficient reason.

             ***

             [T]he case sub judice does not involve a defect in notice; rather, it involves a

      failure of proper service. Failure of proper service is not a minor, hypertechnical

      violation of the rules. Such failure is in direct contravention of the Rules of Civil

      Procedure.

             ***

             * * * In order to commence its action, which is fundamental to any adjudication,
      appellant was required to serve opposing parties with a summons and complaint through
      the clerk of courts. See Civ. R. 3 and 4. (Emphasis added.)

      {¶22} This court’s decision in Cleveland compels the same outcome in this case. Because the

record reflects appellant never initiated proper service on a necessary party, viz., T.D. Security Ltd.,

Inc., within the 30-day time period set forth in R.C. 4112.06(B) through the clerk of court, the trial

court lacked jurisdiction over his petition.    Under these circumstances, the trial court properly

dismissed appellant’s petition.   Ramudit v. Fifth Third Bank, 1st Dist. Hamilton No. C-030941,

2005-Ohio-374, ¶ 11.

      {¶23} Appellant’s first assignment of error, accordingly, is overruled.

      {¶24} Perhaps in anticipation of this court’s unfavorable disposition of his first assignment of
error, appellant argues in his second assignment of error that requiring him to comply with the Ohio

Civil Rules as to service of his petition violates his constitutional rights. But see May v. Ohio Civ.

Rights Comm., 58 Ohio App.3d 56, 568 N.E.2d 716 (1st Dist.1989). However, appellant never raised

this argument in the trial court, so he has waived it for appellate purposes. Thompson v. Preferred Risk

Mut. Ins. Co., 32 Ohio St.3d 340, 342, 513 N.E.2d 733 (1987); Hous. Advocates, Inc. v. Am. Fire &

Cas. Co., 8th Dist. Nos. 86444 and 87305, 2006-Ohio-4880, ¶ 33.                 Consequently, his second

assignment of error also is overruled.

       {¶25} The trial court’s order is 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.



____________________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
