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Debra Henneke v. Ohio Department of Insurance

October 18, 2011

DEBRA HENNEKE, PLAINTIFF-APPELLANT,
v.
OHIO DEPARTMENT OF INSURANCE,
DEFENDANT-APPELLEE.



APPEAL from the Court of Claims of Ohio. (C.C. No. 2010-12346)

The opinion of the court was delivered by: French, J.

Cite as

Henneke v. Ohio Dept. of Ins.,

DECISION

(REGULAR CALENDAR)

{¶1} Plaintiff-appellant, Debra Henneke ("appellant"), appeals the judgment of the Court of Claims of Ohio, which dismissed her complaint against defendant-appellee, Ohio Department of Insurance ("ODI"). For the following reasons, we affirm.

{¶2} In December 2010, appellant filed a complaint against ODI. In it, appellant alleged that she had held a surety bail bond license until ODI revoked her license following an administrative action in which ODI charged that appellant solicited business unlawfully. As her causes of action, appellant alleged that ODI's action against appellant, and its non-action against other surety bail bond license-holders, constituted selective enforcement that violated her rights of equal protection and due process under the Ohio and United States Constitutions.

{¶3} ODI moved to dismiss appellant's complaint under Civ.R. 12(B)(1) for lack of subject-matter jurisdiction, and the trial court granted that motion. In its decision, the court held, first, that it had no jurisdiction to address appellant's claims as a substitute for an administrative appeal she could have filed under R.C. 119.12. Second, the court held that the Court of Claims lacked jurisdiction over appellant's constitutional claims. Accordingly, the court dismissed the complaint.

{¶4} Appellant filed a timely appeal, and she raises the following assignment of error:

THE COURT OF CLAIMS ERRED IN GRANTING [ODI'S] MOTION TO DISMISS.

{¶5} In her sole assignment of error, appellant contends that the trial court erred by granting ODI's motion to dismiss. In ruling on a Civ.R. 12(B)(1) motion to dismiss for lack of subject-matter jurisdiction, a trial court "must determine whether the claim raises any action cognizable in that court." Milhoan v. E. Local School Dist. Bd. of Edn., 157 Ohio App.3d 716, 2004-Ohio-3243, ¶10. The issue of subject-matter jurisdiction involves "a court's power to hear and decide a case on the merits and does not relate to the rights of the parties." Vedder v. Warrensville Hts., 8th Dist. No. 81005, 2002-Ohio-5567, ¶14. We review de novo a trial court's grant or denial of a Civ.R. 12(B)(1) motion to dismiss. Moore v. Franklin Cty. Children Servs., 10th Dist. No. 06AP-951, 2007-Ohio-4128, ¶15.

{¶6} Appellant contends, first, that the trial court misconstrued her complaint as an attempt to appeal ODI's revocation of her license. In making this argument, appellant appears to agree with the trial court that, if her complaint were an attempt to appeal the revocation, it would be improper. In discussing its jurisdiction, the trial court articulated the legal principles that apply to administrative appeals under R.C. 119.12. Then the court stated: "To the extent that [appellant's] claims amount to an appeal from a license revocation ordered by ODI, R.C. 119.12 provides a right of appeal to a court of common pleas." The trial court did not misstate the law in this respect, and it was not improper for the court to state--in an abundance of caution--that the court would lack jurisdiction over such an appeal.

{¶7} Appellant also contends that her constitutional claims are cognizable in the Court of Claims. As appellant notes, pursuant to R.C. 2743.02(A)(1), the state has agreed to be sued and to "have its liability determined * * * in accordance with the same rules of law applicable to suits between private parties." This basic principle, appellant contends, requires the court to assume jurisdiction over a claim for selective enforcement of licensing laws by state agencies. We disagree.

{¶8} By its terms, R.C. 2743.02 limits a plaintiff in the Court of Claims to causes of action that she could pursue if the defendant were a private party. Here, appellant's complaint alleged that ODI's administrative actions (or non-action) violated her constitutional rights to equal protection and due process of law, claims she could not bring against a private party. Therefore, the Court of Claims lacks jurisdiction to hear her claims. See Barnett v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-1186, 2010-Ohio-4737, ¶14 (holding that the Court of Claims had no jurisdiction over inmate's constitutional claims against state department); Bleicher v. Univ. of Cincinnati College of Medicine (1992), 78 Ohio App.3d 302, 306-07 (holding that the Court of Claims had no jurisdiction over student's constitutional claims against state university); Thompson v. S. State ...


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