[Cite as Moore v. Naiman, 2017-Ohio-1163.]



               Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 104715




                               ROBERT MOORE, III
                                                    PLAINTIFF-APPELLANT

                                              vs.


                                DEBORAH NAIMAN

                                                    DEFENDANT-APPELLEE




                                         JUDGMENT:
                                          AFFIRMED


                                   Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CV-16-859882

        BEFORE:          Boyle, J., Keough, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                   March 30, 2017
FOR APPELLANT

Robert Moore, III
Inmate No. 572-298
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Jennifer Meyer
Assistant County Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Plaintiff-appellant, Robert Moore, III (“Moore”), appeals from the trial

court’s judgment granting defendant-appellee, Deborah Naiman’s (“Naiman”) motion to

dismiss Moore’s complaint for declaratory judgment and injunctive relief.             Moore

raises the following five assignments of error for review:

       1.     The trial court erred in dismissing Appellant’s declaratory judgment
              pursuant to Civil Rule 12(B)(6) without ruling on [the] existing
              controversy, and the trial court also had erred when it had failed to
              address the merits of the Appellant’s Complaint.

       2.     The defendant Deborah Naiman forfeiture waiver [sic] through
              Appellant Moore’s guilty plea was error because no plea-agreement
              was never [sic] signed nor executed by the defendant Naiman nor
              did the Appellant Moore signed [sic] any plea-agreement agreeing
              to the forfeiture of his money and property.

       3.     The trial court erred by dismissing Appellant’s Complaint for
              declaratory judgment and injunction [sic] relief pursuant to Civ.R.
              12(B)(6) when it ignored the plain allegations and requests found in
              the complaint, and where a real controversy arose between the
              parties concerning Appellant[sic] unsigned and unwritten
              plea-agreement the defendant entered on the record with Appellant
              Moore on behalf of the State of Ohio on August 14, 2009 and
              immunity cannot be granted where there is no lawsuit against the
              Defendant Deborah Naiman.

       4.     The trial court committed prejudicial error in granting the motion to
              dismiss and defendant’s motion to dismiss under Civ.R. 12(B)(6)
              under the res judicata defense was error for res judicata cannot be
              used through a motion to dismiss under Civ.R. 12(B)(6).

       5.     Defendant [sic] plea-agreement entered on the record is invalid for
              there was no written agreement executed nor signed by the
              Appellant Moore for a plea-agreement is a contract and without a
              signed plea-agreement the Appellant is not bound by any terms of
              an orally made plea for controversy arose from it.
         {¶2} Finding no merit to Moore’s arguments, we affirm the judgment of the trial

court.

I.       Procedural History and Factual Background

         {¶3} On March 4, 2016, Moore filed his “Complaint for Declaratory Judgment

and Injunction [sic] Relief” against Naiman, a former assistant prosecutor for Cuyahoga

County.        Moore’s complaint centered around his theory that his plea agreement, which

he entered into with respect to two former criminal indictments against him in 2009, was

invalid because it was unwritten and unsigned, especially because it pertained to

forfeited property and money.

         {¶4} Specifically, Moore’s complaint alleged, in pertinent part:

         2.       Defendant Deborah Naiman, is a former Assistance [sic]
                  Prosecuting Attorney for Cuyahoga County, Ohio herein referred to
                  as the Defendant, that Defendant’s plea-agreement is and was
                  unenforceable.

         3.       Plaintiff is seeking to have this Honorable Court declare that a
                  plea-agreement is a contract in nature and must be treated under the
                  contract law, and that a contract must be written and signed by both
                  parties, even when property forfeiture is part of a plea-agreement,
                  without either the agreement is unenforceable.
         10.      The Defendant caused controversy to exist, when Plaintiff never
                  signed a written plea-agreement, and that a [sic] unsigned and
                  unwritten plea-agreement was unenforceable for a written
                  plea-agreement does not exist, nor did Plaintiff sign any written
                  agreement contract [sic].

         12.      This Court must declare that a controversy do exsist [sic] between
                  the Plaintiff and Defendant, for Plaintiff’s plea-agreement was
                  orally made, which failed short of a written agreement, which were
                  neither written or signed by the Plaintiff, and the records are devoid
              of any plea-agreement being signed by the Plaintiff and the
              Defendant.

       {¶5} In 2009, Moore was charged in two multi-count indictments for

drug-related offenses: Cuyahoga C.P. Nos. CR-09-521078-A (“Case No. 521078”) and

CR-09-525878-A (“Case No. 525878”). Moore proceeded to trial on Case No. 521078,

and a jury returned a verdict of guilty on all counts. Following the verdict, but before

sentencing, Moore agreed to a plea deal that encompassed both cases.

       {¶6} At the plea hearing on August 14, 2009, Moore pleaded guilty to Count 1

in Case No. 525878, with the trial court dismissing Counts 2 and 3. In addition, Moore

agreed to waive his appellate rights in Case No. 521078 and to waive his constitutional

rights, including rights to any further discovery, forfeiture rights and appellate rights, in

Case No. 525878.     Moore also agreed to forfeit certain vehicles and money. Moore

acknowledged and agreed to the terms of the plea on the record. The trial court

sentenced Moore to a total of 13 years in prison on both cases.

       {¶7} In September 2009, Moore appealed both cases. This court dismissed the

appeals, sua sponte, because the trial court’s judgment entries stated that Moore had

waived his appellate rights, suppression rights, and rights to recover any property seized.

       {¶8} In September 2010, Moore filed a “motion to vacate and void sentence,”

which solely challenged the trial court’s waiver of mandatory fines. In this motion,

Moore requested that his entire sentence be vacated.         This court reversed the trial

court’s decision, but held that only the sentence as to the waiver of fines was void. State

v. Moore, 8th Dist. Cuyahoga Nos. 96111 and 96112, 2011-Ohio-4246, ¶ 18. The Ohio
Supreme Court affirmed our decision, holding that the trial court’s failure to include the

mandatory fine when an affidavit of indigency was not filed prior to the entry of sentence

renders that part of the sentence void.         State v. Moore, 135 Ohio St.3d 151,

2012-Ohio-5479, 985 N.E.2d 432, syllabus.

       {¶9} In response to Moore’s civil complaint, Naiman moved to dismiss and

argued that Moore’s complaint failed to state a claim upon which relief could be granted,

was barred by res judicata and the statute of limitations, and that she was entitled to

absolute prosecutorial immunity.

       {¶10} On June 20, 2016, the trial court granted Naiman’s motion to dismiss.       It

is from this judgment that Moore appeals.

II.    Standard of Review

       {¶11} 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.   Rogers v. Fuerst, 8th Dist. Cuyahoga No. 100670, 2014-Ohio-2774,

¶ 5, citing Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814

N.E.2d 44. A 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).

       {¶12} It is well settled that when a party files a motion to dismiss, all factual

allegations of the complaint must be taken as true and all reasonable inferences must be

drawn in favor of the nonmoving party.      Brown v. Carlton Harley-Davidson, Inc., 8th
Dist. Cuyahoga No. 99761, 2013-Ohio-4047, ¶ 12, citing Garofalo v. Chicago Title Ins.

Co., 104 Ohio App.3d 95, 104, 661 N.E.2d 218 (8th Dist.1995).

       {¶13} But, “unsupported conclusions of a complaint are not considered admitted *

* * and are not sufficient to withstand a motion to dismiss.” U.S. Bank Natl. Assn. v.

Perry, 8th Dist. Cuyahoga No. 99608, 2013-Ohio-3814, ¶ 7, citing State ex rel. Hickman

v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989). To prevail on a Civ.R. 12(B)(6)

motion, it must appear from the face of the complaint that the plaintiff can prove no set

of facts that would justify a court in granting relief.     Id., citing O’Brien v. Univ.

Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975).

III.   Moore’s First, Third and Fourth Assignments of Error

       {¶14} In his first, third and fourth assignments of error, Moore raises issues

regarding the trial court’s dismissal of Moore’s complaint. Because these arguments

are interrelated, we will consider them together.

       {¶15} An action for a declaratory judgment may be dismissed pursuant to Civ.R.

12(B)(6) where (1) “there is no real controversy or justiciable issue between the parties,”

or (2) “the declaratory judgment will not terminate the uncertainty or controversy.” High

St. Properties v. Cleveland, 8th Dist. Cuyahoga No. 101585, 2015-Ohio-1451, ¶ 28,

citing Home Builders Assn. of Dayton & Miami Valley v. Lebanon, 12 Dist. Warren No.

CA2003-12-115, 2004-Ohio-4526.           A “controversy” exists for purposes of a

declaratory judgment action “when there is a genuine dispute between parties having

adverse legal interests of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.” High St. Properties at ¶ 29, citing Brewer v. Middletown, 12th

Dist. Butler No. CA91-02-039, 1992 Ohio App. LEXIS 3983 (Aug. 3, 1992).

      {¶16} Moore’s appellant brief states:

      Nevertheless, the appellant’s declaratory complaint and injunction [sic]
      relief never sought from the defendant Naiman any money, nor has the
      appellant’s complaint threatened the defendant by bringing forth a lawsuit
      requesting for [sic] money and damages.

Moore then submits that, “the defendant mistakes the appellant’s complaint as being a

civil lawsuit against defendant Naiman [.]”    Moore further states, in his reply brief, that

he “is not suing Defendant Naiman,” and his third assignment of error emphasizes “there

is no lawsuit against the Defendant Deborah Naiman.”

      {¶17} A thorough review of Moore’s complaint reveals that Moore identifies

Naiman solely because she was a former assistant prosecutor for Cuyahoga County, who

“caused   controversy    to   exsist[sic],   when   Plaintiff   never   signed   a   written

plea-agreement[.]”      Moore captioned his complaint as one for declaratory and

injunctive relief and requested a declaration that his unsigned, unwritten plea agreement

from 2009 was invalid. His complaint, however, is nothing more than another attempt

to void his plea agreement and sentence.       As Moore admits, the allegations are not

directed against Naiman, yet Moore named Naiman as the sole defendant in his

complaint.

      {¶18} Moore’s allegations against Naiman are unsupported and can only be seen

as conclusory. There can be no doubt that there is “no real controversy” or “justiciable
issue” that Moore has against Naiman. High St. Properties, 8th Dist. Cuyahoga No.

101585, 2015-Ohio-1451, at ¶ 28.

           {¶19} Presuming all factual allegations contained in the complaint are true, and

making all reasonable inferences in favor of the nonmoving party, Moore can prove no

set of facts to justify a court to grant any relief against Naiman. Thus, there is no viable

cause of action against Naiman that can be discerned from Moore’s complaint. 1

Therefore, the trial court properly granted Naiman’s motion to dismiss.

           {¶20} Moore’s first, third, and fourth assignments of error are overruled.

IV.        Moore’s Second and Fifth Assignments of Error

           {¶21} Moore’s second and fifth assignments of error are unrelated to the trial

court’s decision that granted Naiman’s motion to dismiss, which is the only issue on

appeal.      Rather, these assignments of error seek review of Moore’s plea agreement,

including the forfeiture of property in Case Nos. 521078 and 525878.                     It is well

established that this court need not address an assignment of error pertaining to issues

outside the scope of an appeal.           State v. Briscoe, 8th Dist. Cuyahoga No. 98414,

2012-Ohio-4943, ¶ 9, citing State v. Pollard, 8th Dist. Cuyahoga No. 97468,

2012-Ohio-2311. This court does not allow such impermissible bootstrapping. Id.

           {¶22} Thus, Moore’s second and fifth assignments of error are overruled.

           {¶23} Judgment affirmed.


       1
         Since there is no viable cause of action asserted by Moore, we need not discuss Naiman’s res
judicata, statute of limitations, and prosecutorial immunity arguments.
       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.




MARY J. BOYLE, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
