[Cite as Zimmerman v. Montgomery Co. Pub. Health Dept.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

JUDY KAY ZIMMERMAN : : Plaintiff-Appellant : C.A. CASE NO. 26816 : v. : T.C. NO. 15MSC162 : MONTGOMERY COUNTY PUBLIC : (Civil appeal from Common Pleas HEALTH DEPARTMENT, et al. : Court, Probate Division) : Defendants-Appellees : : ...........

OPINION

Rendered on the ___1st___ day of _____April_____, 2016.

...........

JUDY KAY ZIMMERMAN, c/o 2501 5th Street E, Menomonie, Wisconsin 54751 Plaintiff-Appellant

ADAM M. LAUGLE, Atty. Reg. No. 0092013, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Defendant-Appellee Montgomery County Public Health Department

MARC S. DAVIS, Atty. Reg. No. 0091246, Assistant Attorney General, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215 Attorney for Defendant-Appellee Ohio Department of Health

.............

DONOVAN, P.J.

{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Judy Kay

Zimmerman, filed August 27, 2015. Zimmerman appeals from the decision of the -2-

probate court that dismissed, for lack of subject matter jurisdiction, her “Complaint for

Declaratory Judgment.” We hereby affirm the judgment of the probate court.

{¶ 2} Zimmerman’s complaint provides that she “grants personal jurisdiction to

this Court and therefrom seeks clarification regarding the purpose and intent of [her

certificate of live birth and her certification of birth] in order to end controversy.”

Zimmerman named as respondents “Judy Kay Zimmerman – State File No. 194009623,”

the Montgomery County Health Department (“MCHD”), the Ohio Department of Health,

and the State of Ohio. The complaint provides that Zimmerman “claims damage, harm,

loss and injury as a result of respondent’s (sic) acts wherein complainant alleges that

respondents use complainant’s property in commercial and legal transactions without

complainant’s knowledge or consent.” Zimmerman sought “a declaration and decree

concerning” “the purpose and intent,” and “the construction and validity,” of her certificate

of live birth and her certification of birth, as well as “[a]ll of the facts relied upon in the

creation of said instruments.” Zimmerman also sought a “declaration and decree” as to

her “legal relation to the Entity/ Organization JUDY KAY ZIMMERMAN – STATE FILE

NO. 1946009623,” as well as her “rights and duties associated with said

Entity/Organization,” the “nature and purpose of said Entity/Organization,” and her “status

at law as affected by said Entity/Organization.” Zimmerman’s complaint “requires

Declaratory Relief in the form of an Order directing that respondents: 1. Provide an

accounting of said Entity/Organization; [and] 2. Terminate and dissolve said

Entity/Organization unless for good cause shown.” Attached to the complaint are

Zimmerman’s certificate of live birth and birth certificate, which reflect that she was born

in Dayton, Ohio, in 1946. -3-

{¶ 3} On June 2, 2015, MCHD filed a Motion to Dismiss for “failure to state a claim

against the MCHD upon which relief can be granted.” On June 19, 2015, the probate

court issued an “Entry and Order Granting Motion to Dismiss; Notifying Parties of Intention

to Dismiss Remaining Claims.” The court noted that “[a]t best, the complaint contains only

one allegation – ‘that respondents use complainant’s property in commercial and legal

transactions without complainant’s knowledge or consent.’ ” The court concluded that

“[t]his allegation is insufficient to meet the notice pleading standard.” The court notified

the parties that “it intends to dismiss Zimmerman’s claims against the remaining

defendants. To the extent that any party opposes such intention, he or she may file a

memorandum in opposition on or before July 10, 2015.”

{¶ 4} On June 23, 2015, Zimmerman filed an “Answer to Respondent Montgomery

County’s Motion to Dismiss.” On June 24, 2015 the Ohio Department of Health filed a

Motion to Dismiss for lack of subject matter jurisdiction and for failure to state a claim.

{¶ 5} On July 13, 2015, Zimmerman filed “Complainant’s Motion for Summary

Judgment” against the State of Ohio and “Judy Kay Zimmerman – State File No.

1946009623.” She also filed a “Certificate of Service” and an Affidavit as well as the

following:

Memorandum (1) In Support of Motions to Dismiss Montgomery County Public Health Department and Ohio Department of Health, (2) In Opposition to the Court’s Intention to Dismiss Remaining Claims, (3) In Support of Motion for Summary Judgment, or in the alternative, Removal of this Case to a Court that is Cognizable to Make a Determination on the Issues Raised, or in the alternative, a De Novo Hearing of the Case.

{¶ 6} In dismissing Zimmerman’s complaint, the probate court determined as -4-

follows:

***

A. Answer to Montgomery County’s Motion to Dismiss

The Court granted MCPHD’s motion to dismiss seventeen days after

it was filed, affording Zimmerman sufficient time to file a memorandum

opposing dismissal, if she so desired. Zimmerman failed to file a

memorandum within this time period, instead filing an “answer” to MCPHD’s

motion four days after it was granted and the claims against MCPHD were

dismissed. The entry and order granting MCPHD’s motion, and dismissing

the claims against MCPHD, is a final appealable order that may not be

reconsidered by the Court. See Pitts v. Ohio Dept. of Transportation,

,

(1981). Accordingly, the Court may

not consider or rule upon the arguments set forth in Zimmerman’s Answer

to Respondent Montgomery County’s Motion to Dismiss.

B. Dept. of Health’s Motion to Dismiss

In lieu of filing an answer, the Civil Rules authorize a party to file a

motion to dismiss for lack of subject matter jurisdiction and/or failure to state

a claim upon which relief can be granted. Civ.R. 12(B)(1),(6). Here, Dept.

of Health has moved to dismiss the claims against it on both grounds.

With respect to subject matter jurisdiction, “[i]t is a well-settled

principle of law that probate courts are courts of limited jurisdiction and are

permitted to exercise only the authority granted to them by statute and by

the Ohio Constitution.” In re Guardianship of Hollins,

, -5-

,

. The statute governing the

probate court’s subject matter jurisdiction, R.C. 2101.24, enumerates

certain matters over which it has jurisdiction, including “declaratory

judgments, including, but not limited to, those rendered pursuant to section

2107.084 of the Revised Code”. R.C. 2101.24(A)(1)(l). The chapter

governing declaratory judgments authorizes persons interested under legal

instruments, including wills, to obtain declarations regarding the

construction or validity of such instruments. R.C. 2721.03. The chapter

further authorizes persons interested in the estate of a decedent, ward, or

trust to obtain declarations of their rights in cases to ascertain any class of

persons interested in the estate, direct the fiduciary of the estate to act or

abstain from acting and determine any question arising in the administration

of the estate. R.C. 2721.05.

Although the statutes governing declaratory judgments extend the

power of the probate court to grant declaratory relief within its subject matter

jurisdiction, they do not enlarge the court’s jurisdiction. Nemcek v. Paskey,

,

,

. (Trumbull

P.C.). As discussed in the preceding paragraph, R.C. 2101.24

enumerates certain matters within the probate court’s jurisdiction. The

statute also grants the probate court jurisdiction over a matter if another

section of the Revised Code does so. R.C. 2101.24(A)(2), (B)(1)(a). Only

one statute grants the probate court jurisdiction over birth records. That

statute provides: -6-

Whoever claims to have been born in this state, and whose registration of birth is not recorded, or has been lost or destroyed, or has not been properly and accurately recorded, may file an application for registration of birth or correction of the birth record in the probate court of the county of the person’s [birth] or residence or the county in which the person’s mother resided at the time of the person’s birth.

R.C. 3705.15. Consequently, the “[p]robate court’s jurisdiction pertaining

to birth certificates is limited to ordering the registration of an unrecorded

birth and the correction of a birth record.”

.

In this case, Zimmerman’s complaint requests a declaratory

judgment regarding the construction and validity of a certificate of live birth

and certification of birth. Although aspects of the complaint are murky, one

thing is clear – the complaint does not include a request that the Court

register an unrecorded birth or correct a birth record, which are the only

requests regarding birth certificates and records that are within this Court’s

subject matter jurisdiction. Thus, to the extent the complaint states any

claims upon which relief can be granted, this Court lacks subject matter

jurisdiction over them. Therefore, the Court must dismiss this action and

may not consider or rule upon any additional arguments set forth in Dept.

of Health’s Motion to Dismiss or any arguments set forth [in] Zimmerman’s

Motion for Summary Judgment and related filings.

{¶ 7} Zimmerman asserts the following assignment of error:

DISMISSAL OF THE CASE WITHOUT GRANTING A

DECLARATORY JUDGMENT AND DENIAL OF SUMMARY JUDGMENT

AGAINST STATE OF OHIO WAS AN ABUSE OF DISCRETION ON THE -7-

PART OF THE COURT.

{¶ 8} Zimmerman cites R.C. Chapter 2721. R.C. 2721.07 provides: “Courts of

record may refuse to render or enter a declaratory judgment or decree under this chapter

if the judgment or decree would not terminate the uncertainty or controversy giving rise

to the action or proceeding in which the declaratory relief is sought.” According to

Zimmerman, “[t]his is the only reason cited for dismissal and the Court did not cite this

reason. Appellant believes the Declaratory Judgment should be liberally construed to

clear up any confusion on rights and duties pursuant to the instruments of interest in this

case.”

{¶ 9} Zimmerman further asserts as follows:

Default or Summary judgment is granted in favor of the plaintiff when

a respondent has not answered the summons. Neither State of Ohio nor

JUDY KAY ZIMMERMAN – STATE FILE NUMBER 1946009623 responded

to the Complaint. Appellant considers these two parties one-and-the-

same, in that STATE OF OHIO created the latter entity/account and

appears to be the registered owner of same. By dismissing the case,

Appellant was denied her right to due process.

{¶ 10} Zimmerman further cites R.C. 2101.16, which provides that the filing fee for

a complaint for declaratory judgment is $20.00, which “shall be charged and collected, if

possible, by the probate judge and shall be in full for all services rendered in the

respective proceedings.” Zimmerman argues that the fee is “voluntary” and asserts as

follows:

* * * The Probate Court Judge who also acts in the role of the Clerk -8-

of Court, rejected Appellant[’]s assertion. Subsequently, Appellant was

forced to tender a fee of $165.00 fee (sic) in a pay-for-play scheme.

Appellant conditionally accepted the fee in exchange that she be given

“Honest Services”. The Court imposed additional fees at each filing.

Appellant relies on Article 40 of the Magna Carta:

To none will we sell, to none deny or delay, right or justice,

as well as Article VIII Sec. 7 of the Constitution of the State of Ohio 1802,

brought forward in Article I Sec. 16 of the current Ohio Constitution which

states:

That all courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have a remedy by the due course of law and right and justice administered without denial or delay.

By being required to tender a fee, the Appellant alleges that the Court turned

into a commercial enterprise and therefore, at a minimum, should provide

Honest Services. Appellant was denied Honest Services by being denied

a Declaratory Judgment.

{¶ 11} In its brief, the MCPHD asserts as follows:

The Probate Court[] was not acting unreasonably, arbitrarily, or

unconscionably in dismissing Zimmerman’s declaratory judgment action.

Thus, the Court’s order dismissing Appellant’s complaint does not constitute

an abuse of discretion. The dismissal arose from Zimmerman’s failure to

meet the requirements for bringing a declaratory judgment action. * * *

{¶ 12} In its brief, the Ohio Department of Health argues “[t]his Court reviews a -9-

lower court’s decision granting a motion to dismiss under a de novo standard of review,”

and that Zimmerman’s declaratory judgment action is not within the probate court’s

subject matter jurisdiction.

{¶ 13} As this Court has previously noted:

When a litigant files a Civ.R. 12 motion to dismiss for lack of subject-

matter jurisdiction, the trial court must determine whether the complaint

contains allegations of a cause of action that the trial court has authority to

decide. Crestmont Cleveland Partnership v. Ohio Dept. of Health (2000),

,

. “The trial court is not confined

to the allegations of the complaint when determining its subject-matter

jurisdiction pursuant to a Civ.R. 12(B)(1) motion to dismiss * * *.” Southgate

Dev. Corp. v. Columbia Gas Transm. Corp. (1976),

,

,

, paragraph one of the syllabus. We apply de

novo review to the trial court's decision on a motion to dismiss for lack of

subject-matter jurisdiction. Crestmont Cleveland

.

Vinson v. Diamond Triumph Auto Glass, Inc.,

,

,

(2d Dist.).

{¶ 14} As noted by the Twelfth District:

* * * [A] probate court is a court of limited jurisdiction, and probate

proceedings are restricted to those actions permitted by statute and by the

constitution. Corron v. Corron,

,

(1988),

paragraph one of the syllabus. “Statutes which create a declaratory -10-

judgment procedure do not extend the jurisdiction of the subject matter of a

court but rather extend the power of the court to grant declaratory relief

within its respective jurisdiction. In other words, declaratory judgment

statutes provide an additional remedy which may be granted by a court but

they do not extend the jurisdiction as to the subject matter upon which a

court may act.” Nemcek v. Paskey,

,

,

(C.P.), quoting Ryan v. Tracy,

,

(1983). “The probate court has jurisdiction to render

declaratory judgments pursuant to R.C. Chapter 2721 and R.C. 2101.24.”

; See also First Nat. Bank of Southwestern

.

Estate of Everhart v. Everhart,

,

, ¶ 18 (12th Dist.). “Probate

court’s jurisdiction pertaining to birth certificates is limited to ordering the registration of

an unrecorded birth and the correction of a birth record. R.C. 3705.15.” Nemcek, ¶ 14.

{¶ 15} As the probate court determined, Zimmerman’s complaint did not allege

a cause of action that the probate court had authority to decide. In other words, the

complaint for declaratory relief did not request the registration of an unrecorded birth or

the correction of a birth record and was subject to dismissal by the probate court for lack

of subject matter jurisdiction. R.C. Chapter 2721 does not expand the probate court’s

jurisdiction beyond that conferred by R.C. 3705.15. Since Zimmerman’s complaint was

subject to dismissal, the court was not required to address the arguments in her motion

for summary judgment and supporting affidavit. Finally, Zimmerman’s argument that the

probate court “turned into a commercial enterprise” based upon the fees she paid is not -11-

a proper subject for appeal to this Court.

{¶ 16} There being no merit to Zimmermann’s assigned error, it is overruled, and

the judgment of the trial court is affirmed.

..........

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Judy Kay Zimmerman Adam M. Laugle Marc S. Davis Hon. Alice O. McCollum