[Cite as Wernert v. Ohio Parole Bd., 2023-Ohio-1984.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Patricia Wernert et al., :
Plaintiffs-Appellants, : No. 22AP-580
(C.P.C. No. 21CV-4800)
v. :
(REGULAR CALENDAR)
Ohio Parole Board et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on June 15, 2023
On brief: ACLU of Ohio Foundation, David J. Carey,
Freda J. Levenson, Amy R. Gilbert, and Ohio Justice & Policy
Center, David A. Singleton, Mark Vander Laan, and
Pamela H. Thurston for appellants. Argued: David J. Carey.
On brief: Dave Yost, Attorney General, and D. Chadd
McKitrick for appellees. Argued: D. Chadd McKitrick.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Plaintiffs-appellants, Patricia Wernert and George Clayton, appeal from a
judgment of the Franklin County Court of Common Pleas, purporting to dismiss their
complaint for failure to state a claim upon which relief may be granted. For the following
reasons, we dismiss the appeal.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The procedural history of this case is tied to a previously filed complaint
against appellees filed by Shawn Brust and Melissa Grasa, (“Brust complaint”). Though the
complaint filed by Brust and Grasa is not part of the record in this appeal, the material
No. 22AP-580 2
allegations and the nature of the claims alleged in the Brust complaint can be gleaned from
the trial court’s August 24, 2022 decision and entry filed in this case.
{¶ 3} On May 13, 2021, Brust and Grasa, both of whom are inmates in the custody
and control of the Ohio Department of Rehabilitation and Correction (“ODRC”), filed a
complaint against appellees alleging they had been denied meaningful consideration of
parole due to appellees’ implementation of a “blanket policy” prohibiting prospective
parolees from accessing victim impact statements submitted to appellees. (Aug. 24, 2022
Decision & Entry at ¶ 6, citing Brust compl. at ¶ 25). Brust and Grasa alleged that the victim
impact statements contained false information and they sought both a declaration that
appellees’ policy violated Ohio law and an injunction prohibiting appellant from employing
the policy in processing future parole applications. The trial court found that the claims in
the Brust complaint were predicated alternatively upon statutory law and the rule of law
articulated by the Supreme Court of Ohio in State ex rel. Keith v. Ohio Adult Parole Auth.,
141 Ohio St.3d 375, 2014-Ohio-4270, ¶ 24.1
{¶ 4} On June 16, 2021, appellees moved the trial court to dismiss the Brust
complaint, pursuant to Civ.R. 12(B)(6), for failure to state a claim for relief. Appellees argued
that R.C. 5120.21(D)(5) required appellees to keep victim impact statements confidential and
none of the recognized exceptions applied. Appellees also disputed Brust’s and Grasa’s claim
that the rule of law in Keith and its progeny permit an inmate to access victim impact
statements submitted to appellees in the parole process.
{¶ 5} On July 28, 2021, appellants, who are also inmates in the custody and control
of ODRC, filed a complaint against appellees alleging they had been denied meaningful
consideration of parole due to appellees’ “blanket practice” of denying parole to any inmate
serving a sentence commuted to life in prison pursuant to Lockett v. Ohio, 438 U.S. 586
(1978). On September 28, 2021, appellees moved the trial court, pursuant to Civ.R. 12(E),
for an order requiring appellants to file an amended complaint attaching copies of certain
1In Keith, the parole board denied Keith’s request for parole. In its decision, the parole board expressly relied
on information in his parole board file indicating that he had been paroled eight times, when in fact he had
been paroled just six times. Keith brought a mandamus action seeking a new parole hearing. The Supreme
Court of Ohio issued a writ of mandamus upon finding that Keith “made a showing that there may be
substantive errors in his record.” Id. at ¶ 30. The court held that the parole board “must therefore conduct an
investigation into Keith’s allegations and correct any substantive errors” in his parole board file. Id.
No. 22AP-580 3
documents relating to their parole. Appellees also filed a motion, pursuant to Civ.R. 42,
seeking consolidation of this case with the Brust case, arguing that the two cases presented
common questions of law or fact.
{¶ 6} Appellants disputed certain representations made by appellees in their
memorandum in support of consolidation, but they did not oppose consolidation. On
November 23, 2021, the trial court granted appellees’ unopposed motion and consolidated
the two cases. Appellees’ motion for a definite statement had been fully briefed and was still
pending when the two cases were consolidated.2
{¶ 7} On August 24, 2022, the trial court issued a decision and entry granting
appellees’ motion to dismiss the Brust complaint for failure to state a claim upon which relief
could be granted. The trial court determined that the allegations in the Brust complaint, if
accepted as true, did not give rise to a justiciable controversy. In addressing Brust’s common
law claims, the trial court determined that Keith and its progeny do not vest Ohio inmates
with a legally protected right of access to victim impact statements submitted to appellees in
connection with parole.
{¶ 8} The August 24, 2022 decision and entry was filed in each of the two
consolidated cases. The text of the decision and entry contains no mention of appellants by
name and no reference or citation to any of the specific allegations in appellants’ complaint.
Other than the caption of the consolidated cases, the August 24, 2022 decision and entry
pertains exclusively to the Brust case.
{¶ 9} According to appellants’ merit brief in this appeal, appellants’ counsel
contacted the trial court after receiving a copy of the August 24, 2022 decision and entry and
were informed by trial court staff that the trial court intended to sua sponte dismiss their
complaint when it issued the ruling. Appellants maintain that they timely-filed their appeal
in this case after receiving this information from the trial court. Brust and Grasa also
appealed to this court from the August 24, 2022 decision and entry. See Brust v. Ohio Parole
Board, case No. 22AP-581.
{¶ 10} On September 28, 2022, this court issued a journal entry sua sponte
consolidating the two appeals on concluding that these cases appear to involve similar parties
2 In January 2022, another Ohio inmate sought to intervene in this action, but the motion was denied.
No. 22AP-580 4
and issues. In a subsequent journal entry dated October 3, 2022, we reconsidered
consolidation and granted appellants’ unopposed motion to deconsolidate the appeals
docketed under case Nos. 22AP-580 and 22AP-581.
II. ASSIGNMENT OF ERROR
{¶ 11} Appellant assigns the following error for our review:
The trial court erred by dismissing Appellants’ claims sua
sponte and without prior notice, based solely on an order
granting a motion to dismiss filed in a different case, and
without providing reasoning for the dismissal.
III. FINAL APPEALABLE ORDER
{¶ 12} Although neither party in the present case has questioned whether the
August 24, 2022 decision and entry, constitutes a final appealable order in appellants’ case,
we have the duty to sua sponte determine whether we have jurisdiction of this appeal. Price
v. Jillisky, 10th Dist. No. 03AP-801, 2004-Ohio-1221; G. Scottco Invest. Co. v. Korleski, 10th
Dist. No. 10AP-582, 2011-Ohio-6656, ¶ 7. “In accordance with R.C. 2505.03, the jurisdiction
of appellate courts is limited to ‘the review of final orders, judgments and decrees.’ ” Estate
of Brown v. McCall, 10th Dist. No. 22AP-458, 2023-Ohio-780, ¶ 15, quoting Corbitt v. State
Farm Mut. Auto. Ins. Co., 10th Dist. No. 03AP-897, 2004-Ohio-1011, ¶ 5. “If the order is not
a final appealable order, we lack jurisdiction and must dismiss the appeal.” State Dept. of
Taxation v. Barney, 10th Dist. No. 21AP-461, 2023-Ohio-636, ¶ 7, citing G. Scottco Invest.
Co. at ¶ 7, citing Prod. Credit Assn. v. Hedges, 87 Ohio App.3d 207 (4th Dist.1993).
{¶ 13} Civ.R. 54 provides that a “ ‘Judgment’ as used in these rules means a written
entry ordering or declining to order a form of relief, signed by a judge, and journalized on the
docket of the court.” The August 24, 2022 decision and entry journalized in this case clearly
declines to order the relief requested by the Brust complaint, but it neither orders nor declines
to order the relief sought by appellants’ complaint. The August 24, 2022 decision and entry
does not explicitly dispose of appellants’ complaint.
{¶ 14} Appellees’ claim, however, the August 24, 2022 decision and entry was
intended as a sua sponte dismissal of appellants’ complaint, even though the decision and
entry does not mention appellants by name and does not refer to any specific allegation in
their complaint. Appellees reasons that because the August 24, 2022 decision and entry was
No. 22AP-580 5
filed in appellants’ case and because the factual allegations and legal theories asserted in the
two complaints are the same, the August 24, 2022 decision and entry dismissing the Brust
complaint impliedly disposed of appellants’ complaint on the same grounds. We disagree.
{¶ 15} As there was no motion to dismiss filed in this case, the purported dismissal
of appellants’ complaint was without notice to the parties. We have recognized that
Civ.R. 12(B)(6) “neither expressly permits nor forbids courts to sua sponte dismiss
complaints for failure to state a claim upon which relief can be granted, generally a court may
dismiss a complaint on its own motion only after the parties are given notice of the court’s
intention to dismiss and an opportunity to respond.” Bullard v. McDonald’s, 10th Dist. No.
20AP-374, 2021-Ohio-1505, ¶ 10, citing State ex rel. Edwards v. Toledo City School Dist. Bd.
of Edn., 72 Ohio St.3d 106, 108 (1995). We cautioned that sua sponte dismissal of a case on
the merits without notice is warranted only “ ‘when a complaint is frivolous or the claimant
obviously cannot prevail on the facts alleged in the complaint.’ ” State ex rel. Bunting v.
Styer, 147 Ohio St.3d 462, 2016-Ohio-5781, ¶ 12, quoting State ex rel. Cincinnati Enquirer v.
Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, ¶ 3, quoting State ex rel. Scott v. Cleveland, 112
Ohio St.3d 324, 2006-Ohio-6573, ¶ 14, citing State ex rel. Duran v. Kelsey, 106 Ohio St.3d
58, 2005-Ohio-3674, ¶ 7.
{¶ 16} The material allegations in this case are summarized in the complaint as
follows:
The Board denied meaningful consideration to Ms. Wernert
and Mr. Clayton—who have both been incarcerated in Ohio’s
prison system since 1976—through the Board’s current practice
or policy of denying parole to all individuals, regardless of
individual circumstances, who were previously sentenced to
death but are now parole eligible. Upon information and belief,
the Board has applied this practice or policy since at least 2016.
(July 28, 2021 Compl. at ¶ 2.)
{¶ 17} In our view, the fact that the August 24, 2022 decision and entry dismissing
the Brust complaint was also filed in the present case is of no moment as the local rules of the
common pleas court provide that all pleadings filed after the consolidation order “shall bear
the complete captions of all consolidated cases and shall be filed in each case.”
No. 22AP-580 6
Loc.R. 31(E)(2). The local rules further provide that “[a]lthough cases have been
consolidated, each case shall remain separate and distinct.” Loc.R. 31(E)(2).3
{¶ 18} With respect to the factual allegations in the two complaints, even though
both the Brust complaint and appellants’ complaint allege that appellees erroneously
employed a blanket policy or practice in denying the respective parole applications, the
specific policy or practice at issue in the two cases is materially different. The Brust complaint
alleges that the victim impact statements upon which appellees rely in reviewing parole
applications contain false information. Brust and Grasa seek access to those statements in
order to identify and rebut any false information. As the trial court explained in the
August 24, 2022 decision and entry, the claims in the Brust complaint are predicated
alternatively on an exception to R.C. 5120.21(D)(5) and an alleged good faith extension of the
rule of law in Keith.
{¶ 19} By contrast, appellants complaint does not allege that appellees relied on
false information in denying parole. Rather, appellants claim that parole was not given
meaningful consideration in their cases due to the undisputed fact that their sentences had
been commuted and appellees’ blanket practice of denying parole to inmates serving a
sentence commuted pursuant to Lockett. Thus, the facts alleged in appellants’ complaint are
significantly different than those alleged in the Brust complaint. Additionally, unlike the
Brust complaint, there is no apparent statutory provision directly applicable to appellants’
claims for declaratory and injunctive relief. Indeed, the legal theory relied on by appellants
is this case is largely unknown because the trial court’s August 24, 2022 decision and entry
was issued without prior notice to appellants.
{¶ 20} We do not find it permissible to infer a sua sponte dismissal of appellants’
complaint from the language of the August 24, 2022 decision and entry. Moreover, there is
no dispute that appellants filed their appeal only after they contacted the trial court and
learned that the August 24, 2022 decision and entry was intended as a sua sponte dismissal
of their complaint. The trial court, however, never journalized an entry or order either
3 Because the August 24, 2022 decision and entry confines its discussion to the four corners of the Brust
complaint and fails to address the specific factual allegations in appellants’ complaint this court does not have
the benefit of the trial court’s analysis for purposes of appellate review. Thus, even if we were to accept
jurisdiction of this appeal, and even though this court’s review of a Civ.R. 12(B)(6) dismissal is de novo, we
cannot review trial court judgments in a vacuum. Sheridan v. Metro. Life Ins. Co., 182 Ohio App.3d 107, 2009-
Ohio-1808, ¶ 16 (10th Dist.).
No. 22AP-580 7
explicitly dismissing appellants’ complaint or otherwise explaining that the August 22, 2022
decision and entry was intended as a sua sponte dismissal of appellants’ complaint.
{¶ 21} The only indication in the record that the August 24, 2022 decision and entry
had any impact on appellants’ case is a notation in the disposition/tie-off sheet that other
pending motions in appellants’ case are moot. It axiomatic, however, that a trial court speaks
exclusively through its journal entries. Ruben v. Ruben, 10th Dist. No. 12AP-717, 2013-Ohio-
3924, citing State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163 (1995); State v. King, 70
Ohio St.3d 158, 162 (1994); In re Adoption of Gibson, 23 Ohio St.3d 170, 173 (1986), fn. 3. A
disposition/tie-off sheet is neither a journal entry nor a judgment. Nationstar Mtge. LLC v.
Bates-Brown, 10th Dist. No. 18AP-639, 2019-Ohio-1073, ¶ 14. (“The tie-off sheet serves
merely an administrative and not substantive function by removing pending motions from
the trial court’s docket.”)
{¶ 22} Because it is not reasonable to read the August 24, 2022 decision and entry
as a sua sponte dismissal of appellants’ complaint, and because there is no other entry or
order in the record dismissing appellants’ complaint, we conclude that the trial court did not
issue a final judgment in this case. Accordingly, we must dismiss the appeal for the lack of a
final appealable order.
IV. CONCLUSION
{¶ 23} Having determined that the August 24, 2022 decision and entry is not a final
appealable order, we sua sponte dismiss the appeal for lack of appellate jurisdiction.
Appeal dismissed.
BEATTY BLUNT, P.J. and LELAND, J., concur.
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