[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Franks v. Ohio Adult Parole Auth., Slip Opinion No. 2020-Ohio-711.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2020-OHIO-711

THE STATE EX REL. FRANKS, APPELLANT, v. OHIO ADULT PAROLE AUTHORITY 

ET AL., APPELLEES.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Franks v. Ohio Adult Parole Auth., Slip Opinion 

No. 2020-Ohio-711.] 

Mandamus—A motion for relief from judgment may not be used as a means to 

litigate an argument that has been waived—Court of appeals’ judgment 

affirmed.

(No. 2019-0603—Submitted October 22, 2019—Decided March 4, 2020.) 

APPEAL from the Court of Appeals for Franklin County, No. 18AP-390. 

________________ 

 Per Curiam. 

{¶ 1} Appellant, Jerry Franks, appeals the Tenth District Court of Appeals’ 

denial of his motion for relief from the judgment dismissing his mandamus action 

against appellees the Ohio Adult Parole Authority and the Bureau of Sentence 

Computation (collectively, “the APA”). We affirm. 
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Background 

{¶ 2} On May 31, 2018, Franks, an inmate at the Pickaway Correctional

Institution, filed a complaint for a writ of mandamus against the APA in the Tenth 

District Court of Appeals. Franks alleged that he had been convicted of aggravated 

murder with a firearm specification and had been sentenced in 1999 to an aggregate 

prison sentence of 23 years to life. According to Franks, he should have been 

eligible for parole in 2019, but the APA has his first hearing scheduled for 2024. 

The merits of Franks’s mandamus case are not before this court.

{¶ 3} Franks did not pay the filing fee when he filed his complaint, and he 

did not seek a waiver of that fee. See R.C. 2969.25(C) (an inmate seeking to waive 

the filing fee for a civil action must file an affidavit of waiver, an affidavit of 

indigency, a statement of the balance in his inmate account for the preceding six 

months, and a statement that sets forth other assets of value). Based on this 

deficiency, on June 19, 2018, the magistrate for the court of appeals sua sponte 

recommended that Franks’s complaint be dismissed. 

{¶ 4} Five days before the magistrate’s recommendation, on June 14, 2018, 

Franks executed an affidavit attesting that he was “void of assets and funds” and 

that “as a result, [he] c[ould] not give security for the filing fee[] nor costs * * * by 

such prepayment or otherwise.” Franks failed to attach a statement setting forth the 

balance of his inmate account from the previous six months. While Franks claims 

to have submitted the affidavit in response to the magistrate’s recommendation, the 

affidavit actually predates the recommendation. 

{¶ 5} On September 20, 2018, the Tenth District Court of Appeals adopted 

the recommendation of the magistrate and dismissed the complaint. The court of 

appeals specifically noted that no party had filed objections to the magistrate’s 

decision. 

{¶ 6} Four months later, on January 23, 2019, Franks filed a motion for 

relief from judgment, pursuant to Civ.R. 60(B)(1) and (5). Franks argued that he 
January Term, 2020 

3

had never claimed to be indigent and that the court of appeals erred when it adopted 

the magistrate’s recommendation to dismiss his complaint based on his failure to 

file any indigency documentation. According to Franks, rather than assuming that 

he wished to claim indigent status, the magistrate should have given him an 

opportunity to pay the filing fee before recommending that his complaint be 

dismissed. 

{¶ 7} The court of appeals denied Franks’s motion for relief from judgment 

on March 26, 2019. The court held that Franks’s failure to file objections to the 

magistrate’s decision barred him from asserting that the court of appeals committed 

any error when it adopted the magistrate’s recommendation. Franks timely 

appealed. 

Analysis 

{¶ 8} The issue in this appeal is not whether Franks is entitled to a writ of 

mandamus. Nor is the issue whether the court of appeals properly dismissed 

Franks’s complaint in the first instance. Rather, the only issue in this case is 

whether the court of appeals properly denied Franks’s motion for relief from 

judgment. 

{¶ 9} Civ.R. 53 authorizes courts of record to appoint magistrates to assist 

them. See Civ.R. 53(A) and (C)(1). When a matter is referred to a magistrate for 

decision, the magistrate is required to prepare a written decision. Civ.R. 

53(D)(3)(a)(i) and (iii). A party who disagrees with the magistrate’s decision has 

14 days to file objections. Civ.R. 53(D)(3)(b)(i). A party’s failure to file objections 

to a magistrate’s decision has consequences: 

Except for a claim of plain error, a party shall not assign as error on 

appeal the court’s adoption of any factual finding or legal 

conclusion, whether or not specifically designated as a finding of 
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fact or conclusion of law * * *, unless the party has objected to that 

finding or conclusion as required by Civ.R. 53(D)(3)(b). 

Civ.R. 53(D)(3)(b)(iv). Thus, in a civil case before a trial court, when a party fails 

to file objections to a magistrate’s decision, that party waives the right to later 

assign as error on appeal the court’s adoption of any of the magistrate’s findings 

and conclusions. See, e.g., J.S. v. T.S., 5th Dist. Knox No. 16CA18, 2017-Ohio1042, ¶ 21; Settlers Walk Home Owners Assn. v. Phoenix Settlers Walk, Inc., 12th 

Dist. Warren Nos. CA2014-09-116, CA2014-09-117, CA2014-09-118, 2015-Ohio4821, ¶ 30. 

{¶ 10} This rule also applies in cases that commence as original actions in 

the courts of appeals and proceed to this court as appeals of right. State ex rel. 

Sautter v. Grey, 117 Ohio St.3d 465, 2008-Ohio-1444, 884 N.E.2d 1062, ¶ 11 (“The 

Rules of Civil Procedure are generally applicable in original actions for 

extraordinary writs”). The Tenth District Court of Appeals, for example, has 

expressly incorporated the terms of Civ.R. 53 into its local rules. See Loc.R. 

13(M)(1) of the Tenth District Court of Appeals. And when a party to an original 

action in the Tenth District fails to object to a magistrate’s recommendation and the 

court of appeals adopts it, that party waives his right to raise an argument pertaining 

to that recommendation on appeal to this court. See, e.g., State ex rel. Muhammad 

v. State, 133 Ohio St.3d 508, 2012-Ohio-4767, 979 N.E.2d 296, ¶ 3. 

{¶ 11} As Franks correctly notes in his first proposition of law, the 

application of Civ.R. 53 to his case prohibits him from raising on appeal any 

arguments he failed to preserve by filing objections to the magistrate’s decision; it 

does not expressly bar him from making those arguments in a motion seeking relief 

from judgment under Civ.R. 60(B). However, Franks’s argument, if accepted, 

would undermine Civ.R. 53(D)(3)(b)(i), which requires objections to a magistrate’s 

decision to be filed within 14 days of the filing of the decision. Franks’s theory 
January Term, 2020 

5

would eliminate that time requirement by permitting a party to file objections to a 

magistrate’s decision at any time, simply by captioning the pleading as a “motion 

for relief from judgment.” We avoid interpretations that would cause one provision 

of the Rules of Civil Procedure to conflict with another. See State ex rel. Natl. Emp. 

Benefit Servs. v. Cuyahoga Cty. Court of Common Pleas, 49 Ohio St.3d 49, 50, 550 

N.E.2d 941 (1990). 

{¶ 12} We therefore reject Franks’s suggestion, in his first proposition of 

law, that he may use Civ.R. 60(B) to resurrect an argument that he failed to make 

within the time frame permitted by rule. 

{¶ 13} Franks’s second proposition of law raises his argument on the merits, 

namely that the court of appeals erred when it dismissed his complaint because he 

was not seeking to waive the filing fees, and therefore the court of appeals should 

have given him an opportunity to pay the fees before dismissing his complaint for 

a writ of mandamus. As noted, Franks has waived this argument, and we reject his 

second proposition of law on that basis. 

{¶ 14} In his third proposition of law, Franks asserts that R.C. 2969.25(C) 

violates his constitutional right to due process. Franks waived this argument by 

failing to raise it in the court of appeals. See State ex rel. Chagrin Falls v. Geauga 

Cty. Bd. of Commrs., 96 Ohio St.3d 400, 2002-Ohio-4906, 775 N.E.2d 512, ¶ 15 

(in mandamus action, failure to raise constitutional claims in the court of appeals 

constitutes a waiver). We therefore reject Franks’s third proposition of law. 

 Judgment affirmed. 

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and 

STEWART, JJ., concur. 

FRENCH, J., not participating. 

_________________ 

Jerry Franks, pro se. 
SUPREME COURT OF OHIO

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Dave Yost, Attorney General, and George Horvath, Assistant Attorney 

General, for appellees. 

_________________