Sultaana v. Keefe Supply Co.

• Docket Number: 2021-A-0009
• Decision Date: 01 November 2021
• Citation: 2021 Ohio 3881
• Parties: HAKEEM SULTAANA, Plaintiff-Appellant, v. KEEFE SUPPLY COMPANY, et al., Defendant-Appellee.
• Court: Ohio Court of Appeals

1

2021-Ohio-3881

HAKEEM SULTAANA, Plaintiff-Appellant, v. KEEFE SUPPLY COMPANY, et al., Defendant-Appellee.

No. 2021-A-0009

Court of Appeals of Ohio, Eleventh District, Ashtabula

November 1, 2021

Civil Appeal from the Court of Common Pleas Trial Court No. 2017 CV 00052

Judgment Affirmed

Hakeem Sultaana, pro se, PID# A654-265, Mansfield Correctional Institution, (Plaintiff-Appellant).

Tracey L Turnbull and Brodie L Butland, Porter, Wright, Morris &amp Arthur, LLP, (For Defendant-Appellee).

OPINION

MATT LYNCH, J.

{¶1} Plaintiff-appellant, Hakeem Sultaana, appeals the trial court's dismissal of his Complaint with prejudice on the motion of defendant-appellee, Keefe Supply Company; the refusal to enforce his subpoena requests; the denial of his motion for relief from judgment; and the denial of his motion to supplement the record. For the following reasons, we affirm the judgment of the court below.

{¶2} On January 24, 2017, Sultaana (an inmate of the Ohio prison system) filed a Complaint for Product Liability, Other Torts Other Civil against Keefe Supply. The case remained pending until its dismissal on February 26, 2021.

{¶3} On March 9, 2021, Sultaana filed a Notice of Appeal. Further details of the procedural history of this case will be provided under the appropriate assignments of error.

{¶4} On appeal, Sultaana raises the following assignments of error:

{¶5} "[1.] [The] trial court abused its discretion by dismissing with prejudice when the record confirms Sultaana gave notice he was placed on quar[a]ntine by prison officials and video zoom was down on 2-26-21 & the trial court never sent notice to prison officials."

{¶6} "[2.] [The] trial court abused its discretion by denying Sultaana['s] request to compel non-party Lake Erie [Correctional Institution] to comply with his subpoena request."

{¶7} "[3.] [The] trial court erred by denying Sultaana's Civil Rule 60(B) filing."

{¶8} "[4.] [The] trial court abused its discretion in denying Sultaana's unopposed motion to supplement the record pursuant to Appellate Rule 9(E)."

{¶9} Sultaana's assignments of error will be considered out of order.

{¶10} In the fourth assignment of error, Sultaana argues the trial court erred by denying his Motion to Supplement the Record pursuant to Appellate Rule 9(E).

(E) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by the trial court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated, the parties by stipulation, or the trial court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that omission or misstatement be corrected, and if necessary that a supplemental record be certified, filed, and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.

App.R. 9(E).

{¶11} The decision whether to supplement the record or not has been treated as discretionary. In re Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109, 821 N.E.2d 568, ¶ 12; Cobb v. Cobb, 62 Ohio St.2d 124, 127, 403 N.E.2d 991 (1980). Accordingly, we review the trial court's decision for abuse of discretion. State v. Cross, 7th Dist. Mahoning No. 07-MA-74, 2008-Ohio-3240, ¶ 33.

{¶12} On April 20, 2021, Sultaana filed a Motion to Supplement the Record, seeking "to have the record in this case to include his February 9^th 2021, filing that was faxed to the court * * * but by mistake or etc the clerk failed to make a record of Sultaana's notice of being on quarantine."

{¶13} On May 17, 2021, the trial court denied the Motion to Supplement, noting that there was no document captioned "Notice of Quarantine" with a certificate of service dated February 9 filed with the court. The court stated: "The only evidence of the filing that Plaintiff provided to the Court is a fax confirmation page that shows a two[-]page document was faxed to the Court on February 9, 2021. There is no way to verify what document was actually faxed, other than the Court's docket itself. The record speaks for itself."

{¶14} On appeal, Sultaana argues that the trial court abused its discretion because the document was filed when he "delivered in good faith his notice' of being placed on quar[a]ntine to the clerk of court." See Zanesville v. Rouse, 126 Ohio St.3d 1, 2010-Ohio-2218, 929 N.E.2d 1044, ¶ 8 ("[W]hen a paper is in good faith delivered to the proper officer to be filed, and by him received to be kept in its proper place in his office, it is 'filed.' The indorsement upon it by such officer of the fact and date of filing is but evidence of such filing.") (citation omitted). According to Sultaana, his Notice was filed by virtue of it being faxed to the clerk.

{¶15} Sultaana's reliance on Rouse is misplaced. In the first instance, Rouse did not involve the supplementing of the record on appeal, but whether a trial court's jurisdiction was properly invoked by the filing of a complaint. In the second instance, the delivery of the complaint to the clerk in Rouse was evidenced by the existence of the complaint in the court's electronic docket and an affidavit from the clerk attesting its receipt. Id. at ¶ 11. In the present case, the only evidence is that something was faxed to the clerk which Sultaana claims was a Notice of Quarantine. In other words, the evidence fails to even substantiate delivery to the clerk.

{¶16} It would be improper to supplement the record on appeal in these circumstances. The Appellate Rule is applicable when there is a discrepancy between what occurred in the trial court and the record on appeal. In re Estate of Reeck, 21 Ohio St.3d 126, 127, 488 N.E.2d 195 (1986) ("App.R. 9(E) grants an appellate court the power to conform the record so that material inadvertently omitted is included"); State v. Newell, 1st Dist. Hamilton Nos. C-160453, C-160454, C-160455, and C-160456, 2017-Ohio-4143, ¶ 9 ("App.R. 9(E) permits the parties to correct the record to reflect what actually happened in the trial court"). Here, there is no evidence that the Notice of Quarantine was received, docketed, or considered by the trial court. Sultaana does not seek to supplement the record on appeal to make it conform with what occurred in the trial court, but to alter what actually occurred (or did not occur) in the trial court. This is an impermissible use of Appellate Rule 9(E). See McGeorge v. McGeorge, 10th Dist. Franklin No. 00AP-1151, 2001 WL 537037, *2 ("pursuant to App.R. 9(E), the reviewing court may only add material that was not made a part of the original record by accident but was in fact considered by the trial court in rendering its decision"); State ex rel. Mun. Constr. Equip. Operators' Labor Council v. Cleveland, 162 Ohio St.3d 195, 2020-Ohio-3197, 165 N.E.3d 214, ¶ 19 ("[a] reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter") (citation omitted).

{¶17} The fourth assignment of error is without merit.

{¶18} In the second assignment of error, Sultaana argues the trial court erred by denying his request to compel a non-party, Lake Erie Correctional Institution, to comply with his discovery request.

{¶19} The Civil Rules provide for a motion to compel discovery as follows: "On notice to other parties and all affected persons, a party may move for an order compelling discovery. The motion shall include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action." Civ.R. 37(A)(1). "[A]bsent an abuse of discretion, an appellate court must affirm a trial court's disposition of discovery issues." State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998).

{¶20} On April 4, 2017, Sultaana filed a Notice of Service of Subpoena on Lake Erie Correctional Institution Commissary. The attached subpoena commanded the Lake Erie Correctional Institution to produce certain emails and other documents by April 21.

{¶21} On April 25, 2017, Sultaana filed a Motion to Compel Non-Party Lake Erie Correctional to comply with the subpoena. On May 31, the trial court denied the Motion on the grounds that "[t]he certificate of service does not show that the motion was served on the non-party."

{¶22} On June 6, 2017, Sultaana filed a Renewed Emergency Motion to Compel Non-Party Lake Erie Correctional to Comply with Subpoena. The certificate of service indicates that the motion was hand-delivered to "Lake Erie Correctional Institution Unit Manager Harson and Lake Erie Commissary." The trial court denied the Renewed Motion without explanation on June 23, 2017.

{¶23} Initially we note that no particular individual was identified as the recipient of the subpoena itself and therefore, it may be doubted if Unit Manager Harson is the proper individual to receive service of the Emergency Motion to Compel. Moreover, the Rule requires a motion to compel to include certification that the movant has in good faith attempted to resolve the matter without court intervention. Sultaana's Emergency Motion merely moves the court "in an emergency setting to have non-party Lake Erie Correctional Institution compel to Plaintiff Hakeem Sultaana's discovery request that was uttered to Lake Erie Correctional." Absent any indication in the Motion that Sultaana attempted to obtain the discovery without court action, we find no abuse of discretion in the trial...