[Cite as Thompson v. Cuyahoga Cty. Clerk of Courts, 2020-Ohio-382.]

                              COURT OF APPEALS OF OHIO

                            EIGHTH APPELLATE DISTRICT
                               COUNTY OF CUYAHOGA

JOHNNY THOMPSON,                                     :

                Plaintiff-Appellant,                 :
                                                                      No. 108806
                v.                                   :

CUYAHOGA COUNTY
CLERK OF COURTS,                                     :

                Defendant-Appellee.                  :


                              JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: February 6, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-19-914989


                                           Appearances:

                Johnny Thompson, pro se.

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Brian R. Gutkoski, Assistant Prosecuting
                Attorney, for appellee.


MARY EILEEN KILBANE, J.:

                  Plaintiff-appellant Johnny Thompson appeals the trial court’s

decision to grant defendant-appellee’s Civ.R. 12(B)(6) motion to dismiss. For the

reasons that follow, we affirm.
                                       Facts

               On September 21, 2017, appellant Johnny Thompson mailed an

“Accusation by Affidavit,” pursuant to R.C. 2935.09 and 2935.10, to the Cuyahoga

County Clerk of Courts. His affidavit alleged that a key witness in his 2012 trial had

perjured himself. Upon receipt, Thompson alleges that the clerk’s office deliberately

misfiled his affidavit as a civil complaint and that he was subsequently charged $118

for the filing fee. Thompson then filed motions with the trial court on November 15,

2017, December 7, 2017, and January 22, 2018, in an attempt to notify the judge of

the alleged violation.   The judge found that each motion failed to meet the

requirements of Evid.R. 201(B) and declined to rule. Thompson elected to file a civil

suit at that time.

               Thompson’s complaint, filed May 8, 2019, alleges that he suffered

damages as a result of the clerk of courts’ deliberate misfiling of his affidavit.

Thompson requested $100,000 dollars in damages — including punitive damages

— for the alleged misfiling. Cuyahoga County filed a motion to dismiss on Civ.R.

12(B)(6) grounds on June 20, 2019.

               The county cited five reasons why the trial court should dismiss the

action including that “the County-Entity Defendant is immune under R.C. 2744.02.”

The trial judge waited only four days before ruling on the motion on June 24, 2019.

Thompson did not have an opportunity to object to the county’s motion to dismiss

because of the trial court’s untimely grant of the dismissal; nevertheless Thompson

did not file an objection to the motion to dismiss nor appeal the court’s untimely
approval. The trial court granted the motion to dismiss for failure to state a claim

for which relief could be granted.

              Thompson filed a notice of appeal on July 17, 2019.

                                 Law and Analysis

              Thompson’s initial affidavit was submitted correctly pursuant to R.C.

2935.09 and 2935.10; however there is nothing in this record that suggests his

complaint was misfiled. Thompson did not file an appeal on that issue, instead

chose to pursue a civil complaint against Cuyahoga County. It is from that suit that

this appeal arises. He has raised two assignments of error for our review.


                                 Assignment of Error 1

      Appellant contends that he was denied procedural and substantive due
      process and equal protection of law under the 1st, 5th, and 14th
      Amendments to the United States Constitutions where the trial court
      misapplied R.C. 2935.09 and 2935.10 standard of review for probable
      cause determination, and abused its discretion when it dismissed the
      complaint, which was contrary to procedures.

                                 Assignment of Error 2

      Appellant contends that the trial court denied him due process and
      equal protection of law under the 1st, 5th, 14th amendments to the
      United States Constitutions where it imposed upon the appellant-
      victim of a crime, an illegal court cost, filing fees for attempting to file
      and report a crime.


                               Standard of Review

              This court applies a de novo standard of review of a trial court’s ruling

on a Civ.R. 12(B)(6) motion to dismiss. Perrysburg Twp. v. Rossford, 103 Ohio
St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta U.S.A.

Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136.

               A trial court may grant a motion to dismiss for failure to state a claim

upon which relief can be granted where it appears “beyond doubt from the

complaint that the plaintiff can prove no set of facts entitling [him] to relief.” Grey

v. Walgreen Co., 197 Ohio App.3d 418, 2011-Ohio-6167, 967 N.E.2d 1249, ¶ 3 (8th

Dist.).

                        Political Subdivision Immunity

               At the outset, it must be noted that only Thompson’s first assignment

of error in any way addresses the question of whether the trial court erred in

granting the motion to dismiss. The second assignment of error serves only as an

attempt to bolster his underlying suit. Therefore, we will address only the first

assignment of error.

               The sole question then for this court is whether the Cuyahoga County

Clerk of Courts — while performing governmental functions — is a political

subdivision immune from liability under R.C. Chapter 2744. We find that it is

immune and that the motion to dismiss was properly granted.

               In Ohio, political subdivision immunity is governed by R.C. Chapter

2744. This chapter sets forth a three-tiered analysis for determining whether a

political subdivision is immune from liability for injury or loss of property. See

Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392,

2008-Ohio-2567, 889 N.E.2d 521.
               The first tier, pursuant to R.C. 2744.02(A)(1), states in relevant part

that

       [e]xcept as provided in division (B) of this section, a political
       subdivision is not liable in damages in a civil action for injury, death or
       loss to person or property allegedly caused by an act or omission of the
       political subdivision or an employee of the political subdivision in
       connection with a governmental or proprietary function.

               The second tier of the analysis then, requires a court to consider

whether any exceptions to immunity apply as set forth in R.C. 2744.02(B). Barton

v. Cty. of Cuyahoga, 8th Dist. Cuyahoga No. 105008, 2017-Ohio-7171. If an

exception applies, then under the third tier of analysis immunity may be reinstated

if the political subdivision can demonstrate the applicability of any of the defenses

set forth in R.C. 2744.03.

               Here, appellant’s suit concerned the governmental functions of the

employees of the Cuyahoga County Clerk of Courts.             A county is a political

subdivision and the “operation of a clerk of courts’ office is a governmental

function.” Lambert v. Clancy, 125 Ohio St. 3d 231, 2010-Ohio-1483, 927 N.E.2d 585.

The clerk of courts and its employees, performing their government functions, are

not liable under these facts in a civil action stemming from the performance of their

government functions.        Defendant would only be liable if any exceptions to

immunity apply per R.C. 2744.02(B). None do.

               Appellant argues that the trial court erred but offers no relevant

authority to support that defendant-appellee is not immune from suit. As a result,

we find that his arguments lack merit.
                Based on the foregoing, we find the trial court did not err in granting

the county’s Civ.R. 12(B)(6) motion to dismiss on the basis that it is immune from

liability in this case.

                Finally, we must consider the state’s motion for sanctions filed

pursuant to App.R. 23 on grounds that the appeal presents no reasonable question

for review.

                App.R. 23 states, “If a court of appeals shall determine that an appeal

is frivolous, it may require the appellant to pay reasonable expenses of the appellee

including attorney fees and costs.” A frivolous appeal is one that presents no

reasonable question for review. Talbott v. Fountas, 16 Ohio App. 3d 226, 475 N.E.2d

187 (10th Dist.1984). We find Thompson’s arguments regarding immunity provided

a reasonable question for our review; therefore we overrule the state’s request.

                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 issue out of this court directing the

common pleas 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 EILEEN KILBANE, JUDGE

EILEEN A. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR
