Plaza v. Roberts

2024 Ohio 3021

• Court: Ohio Court of Appeals
• Decided: August 8, 2024
• Docket: 113693
• Status: Published

Opinion

[Cite as Plaza v. Roberts, 2024-Ohio-3021.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

ROBERT PLAZA, :

Plaintiff-Appellant, : No. 113693 v. :

NIKITA ROBERTS, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: August 8, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-981740

Appearances:

Robert Plaza, pro se.

EILEEN A. GALLAGHER, P.J.:

Plaintiff-appellant, Robert Plaza, appeals (1) an order dismissing his

complaint against the defendants-appellees Nikita Roberts (“Roberts”) and K.B. (a

minor at the time period relevant to Plaza’s allegations) and (2) an order denying his

Civ.R. 60(B) motion for relief from that order. The defendants-appellees have not

filed an appearance in the appeal and have not responded to Plaza’s appellate

arguments. For the reasons that follow, we dismiss the appeal.

I. Factual Background and Procedural History

Plaza, acting pro se, filed a complaint against Roberts and K.B. on

June 29, 2023, asserting “fraud.”

Plaza alleged that he was on parole with a parole condition that

prohibited him from having contact with minors. He claimed that K.B.

misrepresented himself as an adult on a social-networking application designed to

facilitate communications and connections between adults. Plaza further alleged

that Roberts (as K.B.’s mother) facilitated and encouraged K.B.’s use of the adult

application.

Plaza allegedly communicated with K.B. over the application and

ultimately met face-to-face with K.B. several times. Plaza alleged that these

encounters, in turn, caused him to be found in violation of his parole. He says he

was sentenced to serve a prison term based on this parole violation. Plaza asked for

an award of “general damages, punitive damages, and special damages.”

On October 31, 2023, the trial court filed a notice of its intent to dismiss

the complaint, sua sponte, under Civ.R. 12(B)(6) for failure to state a claim upon

which relief can be granted. The court ordered Plaza to show cause as to why the

complaint should not be dismissed.

On November 16, 2023, Plaza filed a document styled as a “motion

showing cause against dismissal,” in which he argued that his complaint stated a

claim for fraud and that he suffered cognizable damages for (1) violating his parole “without my knowledge” and (2) being “traumatized” by “mental anguish and pain

and suffering.”

On December 14, 2023, the trial court issued an order dismissing the

complaint with prejudice for failure to state a claim. The court reasoned, among

other things, that a parent is not vicariously liable for a child’s fraud and that Plaza

did not plead with particularity “the circumstances that would lead him to a

justifiable reliance on [K.B.’s] representations about his age.” The docket notes that

the judgment entry was sent by regular mail service to Plaza.

Initially, Plaza did not appeal the judgment. He instead filed a motion

for relief from judgment pursuant to Civ.R. 60(B)(5) on January 17, 2024. In the

motion, Plaza argued that his complaint, while “perhaps inartful[],” adequately

pleaded a claim for “negligent supervision” against Roberts and adequately set forth

circumstances showing his justifiable belief that K.B. was an adult.

On February 7, 2024, the trial court denied the motion. Plaza filed his

notice of appeal on March 1, 2024. His notice identified that he is appealing both

the December 2023 dismissal order and the February 2024 denial of his Civ.R.

60(B) motion. His assignments of error, however, address only the dismissal order:

First Assignment of Error: The trial court erred and abused its discretion by dismissing the case on the basis of determining that Plaintiff did not “allege with particularity sufficient surrounding circumstances that his reliance on the misrepresentation of Defendant [K.B.] is justifiable,” in violation of Plaintiff’s right to due process of law.

Second Assignment of Error: The trial court erred and abused its discretion by dismissing the complaint in this case while failing to address the liability incurred by negligent supervision, pled within the complaint.

II. Law and Analysis

Before we can review the merits of the assignments of error, we must

first consider whether we have jurisdiction to hear this appeal. See, e.g., Scheel v.

Rock Ohio Caesars Cleveland, L.L.C., 2017-Ohio-7174, ¶ 7 (8th Dist.) (noting that

the court has a duty to examine, sua sponte, potential deficiencies in its jurisdiction).

Pursuant to App.R. 4(A), “a party who wishes to appeal from an order

that is final upon its entry shall file the notice of appeal required by App.R. 3 within

30 days of that entry.” This court only has jurisdiction to consider appeals that are

timely filed. See, e.g., Portfolio Recovery Assocs. LLC v. Crenshaw, 2024-Ohio-

1282, ¶ 8 (8th Dist.); see also LexisNexis v. Ostrow, 2017-Ohio-9393, ¶ 4 (2d Dist.)

(“App.R. 4’s time requirements are ‘mandatory and jurisdictional’”), quoting Craft

v. Ferguson, 2003-Ohio-3173, ¶ 15 (5th Dist.).

Here, Plaza is attempting to appeal from the trial court’s December

2023 final order dismissing his complaint for failure to state a claim. Plaza did not

appeal from that order until March 2024, well outside the window prescribed by

App.R. 4(A).

While Plaza sought to set the order aside through a Civ.R. 60(B)

motion, “[a] litigant cannot use a Civ.R. 60(B) motion for relief from judgment as a

substitute for a timely appeal.” State ex rel. Hatfield v. Miller, 2023-Ohio-429, ¶ 12,

citing Harris v. Anderson, 2006-Ohio-1934, ¶ 9; see also Bank of Am., N.A. v. Kuchta, 2014-Ohio-4275, ¶ 15 (Civ.R. 60(B) “does not exist to allow a party to obtain

relief from his or her own choice to forgo an appeal from an adverse decision.”).

Plaza’s appeal is timely from the denial of his Civ.R. 60(B) motion, but

the substance of his assignments of error address only the merits of the December

2023 final judgment. Moreover, the argument sections of his appellate brief focus

on the Civ.R. 12(B)(6) standard for dismissal and criticize the trial court’s analysis

in its dismissal order. The brief lacks any significant analysis or argument regarding

the relevant standards for reviewing the denial of a Civ.R. 60(B) motion.

This is an example of “bootstrapping,” that is, assigning error “from a

final order that was not the subject of a timely notice of appeal” in an “otherwise

timely appeal.” E.g., Basit v. Chapman, 2016-Ohio-4562 (8th Dist.). This court has

consistently refused to address “bootstrapped” assignments of error. Id. (collecting

cases); see also Chapon v. Std. Contracting & Eng., 2007-Ohio-4306, ¶ 3 (8th Dist.).

“Bootstrapping” “‘is procedurally anomalous and inconsistent with the appellate

rules which contemplate a direct relationship between the order from which the

appeal is taken and the error assigned as a result of that order.’” Chapon at ¶ 3,

quoting State v. Church, 1995 Ohio App. LEXIS 4838 (8th Dist. Nov. 2, 1995).

Plaza had 30 days to appeal the dismissal of his complaint. We are

mindful that Plaza is not an attorney. But, pro se or not, because he failed to timely

appeal, we lack jurisdiction to consider his appeal. See, e.g., Chase Home Fin. LLC

v. Oliver, 2008-Ohio-235, ¶ 8 (8th Dist.) (“Because [appellant] failed to appeal the

trial court’s judgment entry . . . we lack jurisdiction to consider this appeal.”). III. Conclusion

Because (1) Plaza’s appeal from the trial court’s December 14, 2023

dismissal order was untimely and (2) he failed to articulate any alleged error with

respect to the trial court’s February 7, 2024 judgment dismissing his Civ.R. 60(B)

motion, we dismiss this appeal.

It is ordered that the appellant bear the costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

_________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and MARY J. BOYLE, J., CONCUR