[Cite as Vos v. State, 2017-Ohio-4005.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

DONALD L. VOS, et al., ) CASE NO. 16 CO 0034 

) 

PLAINTIFFS-APPELLANTS, ) 

) 

VS. ) OPINION 

) 

STATE OF OHIO, et al, ) 

) 

DEFENDANTS-APPELLEES. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Columbiana County, Ohio 

Case No. 2016 CV 00465 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiffs-Appellants: Donald Vos, pro se

 39916 Hazel Run Road 

Hammondsville, Ohio 43930 

Dennis Scott Wallace, pro-se

6607 Carbon Hill Road 

East Palestine, Ohio 44413 

For Defendants-Appellees: Atty. Peter Jamison 

Asst. Attorney General 

Executive Agencies Section 

30 East Broad Street, 26th Floor 

Columbus, Ohio 43215 

Atty. Sarah Pierce 

Asst. Attorney General 

Constitutional Offices Section 

30 East Broad Street, 16th Floor 

Columbus, Ohio 43215 

JUDGES: 

Hon. Carol Ann Robb 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Dated: May 25, 2017 
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ROBB, P.J. 

{¶1} Plaintiffs-Appellants Donald Vos and Dennis Wallace appeal the 

decision of Columbiana County Common Pleas Court granting Defendants-Appellees 

Governor John Kasich, Attorney General Mike DeWine, the State of Ohio, and the 

Ohio Environmental Review Appeals Commission (“Ohio ERAC”) Civ.R. 12(b)(1) and 

Civ.R. 12(b)(6) motion to dismiss. For the reasons expressed below, the trial court’s 

dismissal based on Civ.R. 12(b)(1) and Civ.R. 12(b)(6) is affirmed. 

Statement of the Case 

{¶2} Appellants filed a complaint against Appellees and Defendant Ohio 

Environmental Protection Agency (“Ohio EPA”) in September 2016. Appellants 

sought to have the Negley, Ohio Landfill permanently closed. They alleged blood 

and body parts from the victims of the September 11, 2001 terrorist attack in New 

York City are interred in the Negley, Ohio Landfill. Appellants alleged debris from the 

September 11, 2001 terrorist attack in New York City was transported and dumped in 

the Negley, Ohio Landfill, and this debris contains blood and body parts from the 

victims of the terrorist attack. Appellants contended various State officials are 

covering up these facts and committed a “Misfeasance, a Malfeasance and a 

Nonfeasance.” They asserted the Governor’s appointments to Ohio ERAC are to 

ensure Ohio EPA was favored in actions taken against it by individuals and 

companies. 9/12/16 Complaint. Ohio EPA is alleged to have failed and refused to 

abide by its own rules in refusing to inspect the Negley Landfill. 9/12/16 Complaint. 

Ohio EPA purportedly knew debris from New York and New Jersey was going to the 

Negley Landfill but did not inspect the debris. 9/12/16 Complaint. It is alleged Ohio 

ERAC failed to abide by its own rules in appeals brought before them in an effort to 

protect the Ohio EPA. 9/12/16 Complaint. Ohio ERAC allegedly denied Appellants 

due process of law and equal protection. 9/12/16 Complaint. Appellants claim the 

Attorney General allowed prosecutors in his office to work for him and Ohio ERAC at 

the same time, which created a conflict of interest. 9/12/16 Complaint. 

{¶3} Appellants sought the following relief: 
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(1) That the State of Ohio replace the Director of the Ohio 

Environmental Protection Agency; 

(2) That the State create a new Environmental Review Appeals 

Commission and prohibit any person who has worked for the State of 

Ohio Attorney Generals [sic] Office from being placed on the 

Commission; 

(3) That the State of Ohio order all permits granted to the Negley, 

Ohio Dump to be null and void; 

(4) That the State of Ohio order that because the Ohio 

Environmental Protection Agency failed and refused to conduct 

inspections as to what the material was that was brought into the 

Negley, Ohio dump by railroad car and by truck from New York and 

New Jersey, that the State of Ohio order all material be removed from 

the dump and that the State of Ohio have an inspection of all material 

that is dug out of the dump to inspect for evidence of blood and body 

parts from 911 in New York that went into the dump by railroad car or 

by truck; 

(5) That the State of Ohio order that the Negley, Ohio Dump be 

closed and turned into a burial park for those victims of 911 that were 

not accounted for after 911; 

(6) That the Ohio Environmental Protection Agency be ordered to 

create a fund to maintain the burial park forever; 

(7) That the State of Ohio pay Donald L. Vos and Dennis Scott 

Wallace sum [sic] FIVE MILLION DOLLARS, (5,000,000.00) each, for 

its denial of Due Process and the Equal Protection of the Law, as well 

as its bias; denial of Due Process of Law; and the Equal Protection of 

the Law, towards Donald L. Vos and Dennis Scott Wallace. [sic] 

9/12/16 Complaint. 
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{¶4} In response, all defendants filed motions to dismiss based on Civ.R. 

12(B)(1) and Civ.R. 12(B)(6). 10/17/16 Governor, Attorney General and State of 

Ohio Motion to Dismiss; 10/18/16 Ohio EPA Motion to Dismiss; 10/18/16 Ohio ERAC 

Motion to Dismiss. They all asserted similar arguments. They contended the 

common pleas court lacked subject matter jurisdiction because the monetary claim 

for damages was within the exclusive jurisdiction of the Court of Claims. They also 

asserted the complaint failed to state a claim upon which relief could be granted. The 

Ohio ERAC asserted the claims could potentially be interpreted to be 1983 claims. 

However, the 1983 claims were only against individuals, not the state agencies and 

thus, any 1983 claim would fail. 10/18/16 Ohio ERAC Motion to Dismiss. 

{¶5} Appellants filed a combined response and once again asserted there 

was a cover up and body parts from 911 victims are interred in the Negley Landfill. 

10/20/16 Combined Reply. As to Ohio ERAC’s position the claim asserted was a 

1983 claim, Appellant stated it was not a 1983 claim. 10/20/16 Combined Reply. 

{¶6} Appellees Governor, Attorney General, and the State, and Defendant 

Ohio EPA filed replies. Appellees Governor, Attorney General, and the State 

reasserted Civ.R. 12(B)(1) and Civ.R. 12(B)(6). 11/2/16 Governor, Attorney General, 

and State of Ohio Reply. They also asserted this case is a collateral attack; Plaintiffs 

had a full opportunity to litigate any alleged bias in the tribunal before the 

Commission and on appeal to our court in Wallace v. Nally, 7th Dist. No. 14 CO 32, 

2015-Ohio-4146. 11/2/16 Governor, Attorney General, and State of Ohio Reply. 

Defendant Ohio EPA replied asserting alleged violations of its actions or inactions 

related to the landfill were required by statute to be adjudicated before the Ohio 

ERAC. 11/7/16 Ohio EPA Reply. Thus, the common pleas court did not have 

jurisdiction over the claims. 11/7/16 Ohio EPA Reply. 

{¶7} The trial court granted the motions to dismiss in three separate 

judgment entries. It granted Appellee Ohio ERAC’s motion to dismiss holding, 

“Plaintiffs’ claims for monetary damages against Defendant are dismissed without 

prejudice pursuant to Civil Rules 12(B)(1) and 41(B)(4)(a). Plaintiffs’ other claims are 

dismissed with prejudice.” 12/1/16 J.E. Five days later, it granted Defendant Ohio 

EPA’s motion to dismiss. 12/6/16 J.E. Two days following that decision, the trial 
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court granted Appellees Governor, Attorney General, and State of Ohio’s Motion to 

Dismiss holding, “Plaintiffs’ claims for monetary damages against State Defendants 

are dismissed without prejudice pursuant to Civil Rules 12(B)(1) and 41(B)(4)(a). 

The remainder of Plaintiffs’ claims against the State Defendants are dismissed with 

prejudice.” 12/8/16 J.E. 

{¶8} Appellants appealed the December 1, 2016 decision granting Ohio 

ERAC’s motion to dismiss and the December 8, 2016 decision granting Governor, 

Attorney General, and the State of Ohio’s motion to dismiss. 12/7/16 NOA; 12/13/16 

NOA. Appellants did not file a notice of appeal from the December 6, 2016 ruling and 

did not attach that judgment to either the December 7, 2016 or December 13, 2016 

notices of appeal. 

Appeal from the December 1, 2016 Order 

{¶9} Three assignments of error are raised: 

“The Trial Court Judge ERRORED when he decided fact, that were to be 

decided by a Jury.” [sic] 

“The Judge created an error when he dismissed the Ohio Environmental 

Protection Agency from the Civil Action based on issues of an Appeal to the Ohio 

Environmental Review Appeals Commission, when they claimed there were no new 

facts without the discovery process.” [sic] 

“The Judge created an error when he relied of Ohio Environmental Protection 

Agency’s statement that the Court in Columbiana County Ohio lacked jurisdiction to 

hear the Civil Action.” [sic] 

{¶10} At the outset it is noted there are some procedural problems with the 

appeal of the December 1, 2016 decision. 

{¶11} The appellate brief does not comply with the Appellate Rules; 

Appellants failed to comply with App.R. 12(A)(2). They do not cite to any legal 

authority in support of their arguments. Furthermore, the arguments are not 

developed, and the arguments are unclear. That said, this court, in the interest of 

justice, has attempted to decipher the arguments and address them. 

{¶12} However, those issues are not the only procedural issues in this appeal. 

The assignments of error pertaining to the December 1, 2016 order argue the trial 
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court erred in dismissing the claims against Ohio EPA. The December 1, 2016 order, 

however, was the trial court’s granting Ohio ERAC’s motion to dismiss. Ohio EPA 

was dismissed in the trial court’s December 6, 2016 order. That order was not 

appealed. The Appellate Civil Docketing Statements indicated the judgments being 

appealed were the December 1, 2016 judgment and the December 8, 2016 

judgment. 12/7/16 Civil Docketing Statement; 12/13/16 Civil Docketing Statement. 

The December 1, 2016 and the December 8, 2016 orders are the only orders 

attached to the notices of appeal. As such, Appellant did not invoke our jurisdiction 

to determine if the trial court erred when it dismissed the Ohio EPA from the civil 

action. Accordingly, we cannot review whether the trial court’s dismissal of the Ohio 

EPA was correct. 

{¶13} Furthermore, Appellants’ do not ask this court to overturn the trial 

court’s decision to dismiss Ohio ERAC. The appellate brief discusses Ohio EPA 

being dismissed from the action; it does not discuss Ohio ERAC. Therefore, as to 

Ohio ERAC and the December 1, 2016 order it is within our authority to affirm the trial 

court’s decision because there are no arguments presented to us that the dismissal 

of Ohio ERAC was incorrect. 

{¶14} Despite those deficiencies, this court will address the merits of the 

December 1, 2016 order. Ohio ERAC moved to dismiss the claims based on Civ.R. 

12(B)(1) and Civ.R. 12(B)(6). It was Ohio ERAC’s position before the trial court and it 

is their position on appeal that even taking the factual allegations as true, there was 

not a viable civil rights claim and the Court of Claims has exclusive jurisdiction over 

claims seeking monetary damages against the state. The trial court agreed and 

granted the motion to dismiss. 

{¶15} We review the trial court’s decision de novo. Morway v. Durkin, 181 

Ohio App.3d 195, 2009–Ohio–932, 908 N.E.2d 510, ¶ 18 (7th Dist.) (Review of Civ.R. 

12(B)(1) ruling.); Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 

814 N.E.2d 44, ¶ 5 (Review of Civ.R. 12(B)(6) ruling.). The standard of review for a 

dismissal for lack of subject matter jurisdiction, pursuant to Civ.R. 12(B)(1), is 

whether any cause of action cognizable by the forum has been raised in the 

complaint. McKinney v. Noble Corr. Inst., 7th Dist. No. 10 NO 370, 2011-Ohio-3174, 
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¶ 10, citing State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 

(1989). For a court to dismiss under Civ.R. 12(B)(6), “it must appear beyond doubt 

from the complaint that the plaintiff can prove no set of facts entitling him to 

recovery.” O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 

N.E.2d 753 (1975), syllabus. A Civ.R. 12(B)(6) motion tests only the legal sufficiency 

of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio 

St.3d 545, 548, 605 N.E.2d 378 (1992). In ruling on a Civ.R. 12(B)(6) motion, the 

court must accept the factual allegations contained in the complaint as true and draw 

all reasonable inferences from these facts in favor of the plaintiff. Mitchell v. Lawson 

Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). If there is a set of facts 

consistent with the complaint that would allow for recovery, the court must not grant 

the motion to dismiss. York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144, 573 

N.E.2d 1063 (1991). 

{¶16} The trial court’s decision was correct. The Court of Claims has 

exclusive jurisdiction over the claims. The Court of Claims is a court of limited 

jurisdiction that has exclusive, original jurisdiction over claims brought against the 

state as a result of the state's waiver of immunity in R.C. 2743.02. R.C. 2743.03 

established the court of claims, granting it “exclusive, original jurisdiction of all civil 

actions against the state permitted by the waiver of immunity contained in section 

2743.02 of the Revised Code.” R.C. 2743.03(A)(1). Thus, claims seeking legal relief 

from the state as permitted by the statutory waiver of immunity fall within the 

exclusive jurisdiction of the court of claims. Id.; Cirino v. Ohio Bur. of Worker's 

Comp., 8th Dist. No. 104102, 2016-Ohio-8323, ¶ 46, citing Measles v. Indus. Comm. 

of Ohio, 128 Ohio St.3d 458, 2011-Ohio-1523, 946 N.E.2d 204, ¶ 7 (The court of 

claims “has exclusive jurisdiction over civil actions against the state for money 

damages that sound in law.”). 

{¶17} R.C. Chapter 2743 does not divest other courts of jurisdiction “to hear 

and determine a civil action in which the sole relief that the claimant seeks against 

the state is a declaratory judgment, injunctive relief, or other equitable relief.” Santos 

v. Ohio Bur. of Workers' Comp., 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, ¶ 

9; R.C. 2743.03(A)(2). Where claims for damages are coupled with claims for 
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injunctive, declaratory or other equitable relief, however, all of the claims are within 

the exclusive, original jurisdiction of the court of claims. R.C. 2743.03(A)(2). 

{¶18} The complaint clearly seeks monetary damages from the state; each 

Appellant sought five million dollars in damages. The damages were sought because 

Appellants were allegedly denied their right to appeal a decision to Ohio ERAC; the 

complaint stated, “The Environmental Review Appeals Commission created a denial 

of Due Process of Law, the Equal Protection of the Law towards Appellants, making 

an Appeal against the Ohio Environmental Protection Agency.” 9/12/16 Complaint. 

The complaint sounded in law and was within the exclusive jurisdiction of the Court of 

Claims. 

{¶19} Ohio ERAC additionally argues the complaint also raised a civil rights 

1983 claim. According to it, a 1983 claim cannot be raised against the state because 

a state agency is not a person under 42 U.S.C. 1983. In response to this argument, 

Appellants asserted they were not raising a 1983 claim. 10/20/16 Plaintiffs Reply. 

However, Appellants did not explain what claim they were raising. 

{¶20} Considering Appellants admission, it was not a 1983 claim. That said, it 

is unclear what claim was raised and how it would fall outside the Court of Claims 

exclusive jurisdiction. The complaint alleged no facts to demonstrate whether or not 

any of the defendants, let alone Ohio ERAC, violated their due process rights or 

equal protections rights. 

{¶21} For these reasons, the trial court’s December 1, 2016 order is affirmed. 

Appeal from the December 8, 2016 Order 

{¶22} Three assignments of error are raised as follows: 

“The Trial Court Judge ERRORED when he decided fact, that were to be 

decided by a Jury.” [sic] 

“The Judge created an error when he dismissed the Ohio Attorney General; 

the State of Ohio and the Governor of the State of Ohio from the Civil Action based 

on issues of an Appeal to the Ohio Environmental Review Appeals Commission, 

when they claimed there were no new facts without the discovery process.” [sic] 
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“The Judge created an error when he relied the State of Ohio; the Governor 

and the Ohio Attorney General’s statements that the Court in Columbiana County 

Ohio lacked jurisdiction to hear the Civil Action.” [sic] 

{¶23} The brief for the appeal of the December 8, 2016 order also fails to 

comply with the Appellate Rules. Appellants failed to comply with App.R. 12(A)(2). 

They do not cite to any legal authority in support of their arguments. Furthermore, 

the arguments are not developed and the arguments are unclear. That said, in the 

interest of justice, we will address the decipherable issues. 

{¶24} The Governor, Attorney General, and the State of Ohio moved to 

dismiss the complaint based on Civ.R. 12(B)(1) and Civ.R. 12(B)(6). Appellees 

Governor, Attorney General, and the State of Ohio asserted the Court of Claims has 

exclusive jurisdiction over the claims. They also asserted the complaint failed to 

state a claim upon which relief could be granted. The relief requested was either 

available through an administrative process, was not something Appellees could 

give, or Appellants had already attempted to achieve the result through the correct 

means but were unsuccessful. 

{¶25} The trial court agreed and granted the motion to dismiss. 

{¶26} As stated above, we review the trial court’s decision de novo. Morway, 

2009–Ohio–932 at ¶ 18; Perrysburg Twp., 2004-Ohio-4362, at ¶ 5. 

{¶27} The trial court’s conclusion that it was without jurisdiction to decide the 

monetary damages issue was correct. The court of claims “has exclusive jurisdiction 

over civil actions against the state for money damages that sound in law.” Measles v. 

Indus. Comm. of Ohio, 128 Ohio St.3d 458, 2011-Ohio-1523, 946 N.E.2d 204, ¶ 7. 

{¶28} Furthermore, Appellants brought the underlying lawsuit seeking a court 

order directing the “State” to replace the director of Ohio EPA, remove all of the 

appointees of Ohio ERAC and replace them, and in replacing the appointees prohibit 

the Governor from replacing the appointees with people who work for or have worked 

for the Attorney General’s Office. 

{¶29} As to replacing the director of Ohio EPA, and removing and appointing 

new members to Ohio ERAC, a court cannot make such orders. As to Ohio ERAC, 

statutory law dictates, the governor appoints the members with the advice and 
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consent of the senate. R.C. 3745.02. The governor has the discretion to remove a 

member of the commission from office for conflict of interest, malfeasance, or 

nonfeasance, if certain notices and hearings are given and a statement is filed in the 

Secretary of State’s Office. R.C. 3745.02. The statute states, “The action of the 

governor in removing the member from office is final.” R.C. 3745.02. 

{¶30} A writ of mandamus could be warranted to make a governor fill a 

vacancy on Ohio ERAC. However, it would not be warranted to make the governor 

exercise his discretion to fill the vacancy with a certain person or to remove a person 

from the position: 

Mandamus will not lie to control or limit the actions of the governor 

when those actions are dependent upon his judgment or discretion. A 

clear legal duty to act must be established before mandamus can 

compel performance. While it does not lie to control discretion, 

mandamus has been applied by the courts to compel the exercise of 

that discretion. 

State Ex Rel. Schiering v. Celeste, 10th Dist. No. 83AP-241, 1983 WL 3622. See 

also, State ex rel. AFSCME v. Taft, 156 Ohio App.3d 37, 2004-Ohio-493, 804 N.E.2d 

88, ¶ 59 (3rd Dist.) (An executive decision on the allocation of funds or budget cuts is 

an act that is discretionary in nature and mandamus will not lie in a case where the 

Governor makes an executive decision to reduce the allocation of funds to state 

departments, agencies, offices, etc. in order to keep the state budget balanced, 

unless it could be found that the Governor clearly abused his discretion by neglecting 

or refusing to take any action to do so.); State ex rel. Gilligan v. Hoddinott, 36 Ohio 

St.2d 127, 127–28, 304 N.E.2d 382, 383 (1973) (“The writ of prohibition will issue to 

prevent a court from interfering with the Governor in the exercise of his discretionary 

powers as chief executive, absent a clear showing of abuse of that discretion; that 

interference being such a usurpation of power that it exceeds the court's 

jurisdiction.”). 

{¶31} Thus, the relief sought could not be granted. 

{¶32} Furthermore, any request for the operating permits of the Negley, Ohio 

Landfill to be voided was already adjudicated in Ohio ERAC; the claims in this case 
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are merely a collateral attack on that judgment. Appellants appealed Ohio ERAC’s 

decision to dismiss their appeal of the Ohio EPA’s decision concerning permits to the 

Negley, Ohio Landfill. Wallace v. Nally, 7th Dist. No. 14 CO 32, 2015-Ohio-4146. 

We affirmed that decision. Therefore, the issue regarding the permits has been 

adjudicated and is final. Appellants cannot collaterally attack the judgment. See

Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 653 N.E.2d 226 (1995). There was 

no relief the trial court could grant on that request. 

{¶33} For these reasons, the trial court’s December 8, 2016 decision is 

correct. 

Conclusion 

{¶34} Appellants’ assignments of error are without merit. The trial court’s 

December 1, 2016 and December 8, 2016 judgments are affirmed. 

Donofrio, J., concurs. 

Waite, J., concurs.