Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
2016 CV 000008.
Banks, pro se, Grafton Correctional Institution,
DeWine, Ohio Attorney General, State Office Tower, and Debra
L Gorrell Wehrle, Assistant Attorney General, 150 East Gay
Street, Criminal Justice Section, (For Defendant-Appellee).
COLLEEN MARY OTOOLE, J.
Dajuan Banks appeals from the judgment of the Lake County
Court of Common Pleas, dismissing his action for wrongful
imprisonment for failure to state a claim. The State of Ohio
contends the trial court lacked personal jurisdiction of it,
and should have dismissed on that basis. Finding no error, we
We recently recounted the facts regarding Banks' criminal
case in State v. Banks, 11th Dist. Lake No.
2015-L-128, 2016-Ohio-4925, ¶2-4:
"In January 2008, Banks was indicted by the Lake County
Grand Jury on three counts of aggravated murder, each
carrying a death penalty specification, and firearm
specifications; two counts of aggravated burglary, with
firearm specifications; and one count of kidnapping, with a
firearm specification. The indictment arose from his
extraordinarily brutal murder of Sam Nicholson in October
2007. State v. Banks, 11th Dist. Lake No.
2008-L-177, 2009-Ohio-6856, ¶2. Banks was jealous that
Mr. Nicholson was dating Banks' ex-girlfriend, Jackie
Duncan. Id. Banks entered Mr. Nicholson's home;
held him at gunpoint; struck him in the head with the gun;
forced Mr. Nicholson to lie on the floor; then, slit his
throat, so Ms. Duncan would find his bloodstained corpse when
she returned home. Id.
"Banks pleaded not guilty to all charges. Extensive
motion practice took place. Banks, supra, at
¶7-11. Banks then entered a plea deal with the state,
filing a motion to withdraw his not guilty plea October 20,
2008. Under the deal, Banks pleaded guilty to aggravated
murder, aggravated robbery, and kidnapping, all with firearm
specifications. Id. at ¶12. In return, the
state agreed to nolle prosequi the death penalty
specifications, and the remaining counts of the indictment.
Id. After hearing, the trial court accepted the
plea, and sentenced Banks to life imprisonment without the
possibility of parole for the aggravated murder, two ten year
terms for the aggravated robbery and kidnapping,
respectively, and three years on merged firearm
"Banks appealed, and we affirmed. Banks at
Banks filed this civil action for wrongful imprisonment
November 6, 2015. The trial court mistakenly treated it as a
criminal action, and dismissed it November 13, 2015.
Thereafter, the state moved the trial court to vacate its
November 13, 2015 judgment entry, which it did by a judgment
entry filed January 4, 2016. The action was reinstated.
November 11, 2016, the state moved to dismiss, alleging the
trial court lacked personal jurisdiction over it. February
22, 2016, Banks opposed the motion to dismiss. The trial
court struck the brief in opposition February 26, 2016, since
it had not been served on the state. March 11, 2016, the
trial court filed its judgment entry, granting the motion to
dismiss. Initially, the trial court determined it had
personal jurisdiction over the state. It proceeded to analyze
Banks' complaint under Civ.R. 12(B)(6), and concluded it
failed to state a claim under the wrongful imprisonment
statute, R.C. 2743.48.
Banks timely appealed, assigning three errors. Before dealing
with them, however, we must inquire regarding the state's
argument the trial court lacked personal jurisdiction over
it. While not making a cross assignment of error, the state
reiterates this argument on appeal. Its factual basis for the
allegation is that Banks did not serve the Lake County
Prosecutor with his complaint. Rather, he instructed the Lake
County Clerk of Courts to serve the Attorney General of Ohio.
The state then points to R.C. 309.09(A), which provides:
"The prosecuting attorney shall be the legal adviser of
the board of county commissioners, board of elections, all
other county officers and boards, and all tax-supported
public libraries, and any of them may require written
opinions or instructions from the prosecuting attorney in
matters connected with their official duties. The prosecuting
attorney shall prosecute and defend all suits and
actions that any such officer, board, or tax-supported public
library directs or to which it is a party, and no county
officer may employ any other counsel or attorney at the
expense of the county, except as provided in section 305.14
of the Revised Code." (Emphasis added.)
The state asserts that the Lake County Prosecutor is the
proper person to defend it against Banks' wrongful
imprisonment action. Thus, the state maintains the prosecutor
had to be served with the complaint in order to establish
personal jurisdiction over the state. The state observes that
two recent decisions of the courts of common pleas have
accepted this reasoning. See, e.g., Boyd v. State,
Montgomery C.P. No. 2015 CV 05614 (Dec. 29, 2015);
Washington v. State, Summit C.P. No. CV 2015 11 5316
(Mar. 4, 2016).
In Maryhew v. Yova,11 Ohio St.3d 154, 156 ...