Blue v. Bur. of Workers' Comp.

2023 Ohio 3481

• Court: Ohio Court of Appeals
• Decided: September 28, 2023
• Docket: 112652
• Status: Published

Opinion

[Cite as Blue v Bur. of Workers' Comp., 2023-Ohio-3481.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

MARIO D. BLUE, :

Plaintiff-Appellant, : No. 112652 v. :

BUREAU OF WORKERS’ : COMPENSATION,

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 28, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-967336

Appearances:

Mario D. Blue, pro se.

David Yost, Ohio Attorney General, and Daniel A. Kirschner, Assistant Attorney General, for appellee.

EMANUELLA D. GROVES, J.:

Plaintiff-appellant, Mario D. Blue (“Blue”), pro se, appeals the trial

court’s decision granting defendant-appellee’s, Bureau of Workers’ Compensation

(“BWC”), motion for summary judgment. For the following reasons, we affirm. Procedural Background and Facts

On August 12, 2022, Blue filed a complaint against BWC alleging

BWC wrongfully held and distributed compensation to a third-party agency without

verbal or written consent. Blue was injured in two separate incidents for which he

received payments from the BWC under claim nos. 18-178645 and 16-810366 (the

“payments”). Blue alleged that those payments were distributed to the Child

Support Enforcement Agency (“CSEA”) without his verbal or written consent and

that the payments were not subject to garnishment.

As evidence of this, Blue attached an administrative order from the

Ohio Department of Job and Family Services (“ODJFS”) for release of lump sum

payments to ODJFS because Blue had outstanding child support arrearages.

Additionally, Blue attached correspondence between himself and BWC where he

challenged the disbursement to CSEA. BWC’s final communication to Blue

informed him that BWC was required to notify CSEA when they disbursed funds

and that the transfer of the funds to CSEA was required by applicable law.

On September 6, 2022, BWC filed an answer to Blue’s complaint and

a motion to dismiss. In the motion to dismiss, BWC argued the common pleas court

did not have jurisdiction over this matter. BWC claimed that the court of claims had

original jurisdiction for this type of complaint. Blue filed a responsive motion on

September 12, 2022, objecting to the motion to dismiss and requesting summary

judgment. In the motion, Blue explicitly rejected BWC’s jurisdictional challenge and

affirmatively stated that the common pleas court held subject-matter jurisdiction. Blue did not challenge venue at that time. Additionally, Blue claimed BWC violated

many state and federal “codes and laws”; however, Blue failed to raise any state or

federal constitutional claims.

The trial court denied BWC’s motion on October 18, 2022, and denied

Blue’s motion for summary judgment on November 21, 2022. Upon completion of

discovery, BWC filed a motion for summary judgment on March 23, 2023. On April

6, 2023, Blue filed an affidavit in objection to BWC’s motion for summary judgment.

Blue included claims that BWC was a debt collector and subject to the Fair Debt

Collections Practices Act (the “FDCPA”) under federal law. The trial court granted

BWC’s motion for summary judgment on April 24, 2023. On that same day, Blue

filed a motion requesting a change of venue. The trial court denied the motion as

moot.

Blue now appeals and raises the following assignment of error for our

review. We have included Blue’s “issues presented for review” to provide more

context.

Assignment of Error

Appellants summary judgment was in violation of the Due Process [Clause] under the Fifth and Fourteenth Amendment of the United States Constitution.

Issue Presented for Review

Was the summary judgment in compliance with the United States Constitution, specifically the Fifth and Fourteenth Amendments?

Was the appellant deprived his Due Process [right] of not having his claims heard in a competent venue of jurisdiction? Was the court holding legal and lawful standing to deny plaintiff’s request to remove said claim to a different venue to be heard?

Law and Analysis

Blue is proceeding pro se and under Ohio law, all litigants, including

those who are pro se, are held to the same standard and must be held accountable

for the rules of civil procedure and for their own mistakes. Bikkani v. Lee, 8th Dist.

Cuyahoga No. 89312, 2008-Ohio-3130, ¶ 29, citing Kilroy v. B.H. Lakeshore Co.,

111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996).

In his sole assignment of error, Blue argues that the trial court erred

in granting BWC’s motion for summary judgment because it violated his Fifth and

Fourteenth Amendment rights. Basically, in his issues presented, Blue questions

whether he was deprived of his right to due process and whether the trial court had

authority to deny his motion to change venue. Notably, Blue does not make any

arguments to dispute the merits of the trial court’s ruling on the motion for summary

judgment. Blue suggests that had the trial court properly reviewed his motion for

change of venue, it would have been granted and the proper court would have heard

his complaint.

Preliminarily, we will address Blue’s question whether the trial court

properly denied the motion to change venue as moot. Venue merely addresses the

choice of a convenient forum for a case. United Gulf Marine, LLC v. Continental

Refining Co., LLC, 3d Dist. Allen No. 1-17-40, 2017-Ohio-9083, ¶ 18. “[T]he

question of venue is one of convenience and asks in which court, among all those with jurisdiction, to best bring a claim.” Cheap Escape Co., Inc. v. Haddox, L.L.C.,

10th Dist. Franklin No. 06AP-1107, 2007-Ohio-4410, ¶ 11, citing State v. Kremer, 3d

Dist. Van Wert No. 15-05-05, 2006-Ohio-736, ¶ 6.

The trial court’s decision regarding a motion to change venue is

discretionary and will not be disturbed absent an abuse of discretion. United Gulf

Marine, LLC at ¶ 20. An abuse of discretion “implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983); State v. Hill, Slip Opinion No. 2022-Ohio-4544,

¶ 9.

The plaintiff chooses venue when he files the initial complaint.

Soloman v. Excel Marketing, 114 Ohio App.3d 20, 25, 682 N.E.2d 724 (2d

Dist.1996). A challenge to venue is waived if not brought in an answer or in a

motion. Civ.R. 12(H). Additionally, the challenge to venue must be made at the

earliest possible moment. Durrah v. Durrah, 12th Dist. Butler No. CA2005-06-144,

2006-Ohio-2138, ¶ 12; McGannon v. A. Am. Entertainment Corp., 8th Dist.

Cuyahoga No. 76002, 1999 Ohio App. LEXIS 3308, at ¶ 12 (July 15, 1999).

Although Blue’s motion to change venue is time stamped prior to the

trial court’s ruling on BWC’s summary judgment motion, the clerk journalized the

trial court’s ruling before it journalized Blue’s motion. It is unclear from the record

when either document was received for filing, but we note that the trial court’s

decision is dated four days prior to the date the entry was journalized. Accordingly,

Blue’s motion to change venue was effectively filed after final judgment in the matter. Consequently, Blue’s venue issue was both untimely and moot.

Accordingly, the trial court did not err when it denied Blue’s motion as moot. The

trial court therefore did not abuse its discretion by denying the motion.

Turning to the trial court’s grant of BWC’s motion for summary

judgment, we first note that our review of summary judgment is de novo. Johnson v.

Cleveland City School Dist., 8th Dist. Cuyahoga No. 94214, 2011-Ohio-2778, ¶ 33.

In a de novo review, “we afford no deference to the trial court’s decision and

independently review the record to determine whether [the denial of] summary

judgment is appropriate.” Id. at ¶ 53, citing Hollins v. Shaffer, 182 Ohio App.3d

282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th Dist.).

Summary judgment is appropriate when “(1) no genuine issue as to

any material fact exists; (2) the party moving for summary judgment is entitled to

judgment as a matter of law; and (3) viewing the evidence most strongly in favor of

the nonmoving party, reasonable minds can only reach one conclusion which is

adverse to the nonmoving party.” Ceasor v. E. Cleveland, 2018-Ohio-2741, 112

N.E.3d 496, ¶ 15 (8th Dist.); citing Hull v. Sawchyn, 145 Ohio App.3d 193, 196, 762

N.E.2d 416 (8th Dist.2001).

“The burden of showing that no genuine issue of material fact exists

falls on the party who moves for summary judgment.” Sickles v. Jackson Cty. Hwy.

Dept., 196 Ohio App.3d 703, 2011-Ohio-6102, 965 N.E.2d 330, ¶ 12 (4th Dist.), citing

Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). To meet this

burden, the moving party must reference “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, timely filed in the action,” that demonstrate the non-

moving party has no evidence to support their claims. Id., citing Civ.R. 56(C). Once

the moving party has met its burden, the nonmoving party must respond with

affidavits and/or set forth specific facts as provided in Civ.R. 56 showing there are

genuine issues for trial. Id., citing Civ.R. 56(E).

Blue argues that the trial court violated his Fifth and Fourteenth

Amendment rights by not considering his motion to change venue. The Due Process

Clause of the Fifth Amendment to the United States Constitution, as applicable to

the states through the Fourteenth Amendment, provides that no person shall be

deprived of life, liberty, or property without due process of law. Notice and

opportunity to be heard are required for due process. Bank of Am., N.A. v. Adams,

8th Dist. Cuyahoga No. 101056, ¶ 24, citing In re Thompkins, 115 Ohio St.3d 409,

2007-Ohio-5238, 875 N.E.2d 582, ¶ 13. In any proceeding that is to be accorded

finality, notice to the interested parties of the pendency of the action and an

opportunity to present their objections is required as an elementary and

fundamental requirement of due process. Id., quoting Mullane v. Ctr. Hanover

Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). When parties

are given notice and opportunity to defend against a claim, no violation of due

process occurs in the granting of a summary judgment. Id. at ¶ 25. The trial court’s

journal entries show Blue was given notice of BWC’s motion and the opportunity to

respond to the motion for summary judgment. Further, Blue availed himself of the opportunity to be heard by filing an objection to the notice. Consequently, Blue was

not denied his right to due process and the trial court did not err in granting BWC’s

motion for summary judgment or denying Blue’s motion for change of venue.

Accordingly, Blue’s argument is without merit and is overruled.

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 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.

__________________________ EMANUELLA D. GROVES, JUDGE

MARY EILEEN KILBANE, P.J., and MARY J. BOYLE, J., CONCUR