Opinion
2023-00640VI
02-27-2024
IN RE: SHAUNTEE T. MCCOY STAR M. LEWANDOWSKI Applicant
Sent to S.C. Reporter 08/26/24
ORDER
LISA L. SADLER, JUDGE
{¶1} On January 18, 2024, a hearing was held in this matter before a Magistrate of this court. On February 27, 2024, the Magistrate issued a Decision wherein she found that decedent was the victim of criminally injurious conduct when he was shot and killed by another person. The Magistrate determined that the Attorney General's final decision was not supported by a preponderance of the evidence. The Magistrate recommended that the Attorney General's final decision be reversed and that the claim be remanded to the Attorney General's Office for calculation of economic loss for Applicant's minor children.
{¶2} The Attorney General filed objections to the Magistrate's Decision on March 13, 2024. On March 19, 2024, Applicant filed a Motion to Strike asserting that the Attorney General's objections were filed one day late and should not be considered by the Court. On the same day, the Attorney General filed a reply to Applicant's Motion. In its response the Attorney General asserted that its objections were timely because the number of days in a year is 365, not 366, and thus February 29, 2024, should not be counted in computing the objection period in this case. The Attorney General cited Buckeye Union Ins. Co. v. Lowe, 10th Dist. Franklin No. 81AP-437, 1981 Ohio App. LEXIS 12864 (October 20, 1981), Schon v. National Tea Co., 19 Ohio App.2d 222, 250 N.E.2d 890 (7th Dist. 1969), and App.R. 14A in support of its argument. On March 22, 2024, Applicant filed a reply brief to the Attorney General's response reasserting her motion to strike.
Although the Attorney General titled it's reply "The Attorney General's Reply to Appellant's Motion to Strike and Leave to File Objections", it did not request leave to file late objections, it merely argued that it's objections are timely or, in the alternative, that the Court should reject the Magistrate's Decision and make its own ruling.
Applicant also filed a reply brief in response to Attorney General's objections on the same day that need not be addressed on the merits.
{¶3} First, the Rules of Appellate Procedure are inapplicable in the Court of Claims, even in cases regarding an appeal of an Attorney General's Victims of Crime Compensation Fund final decision. State ex rel. La Batte v. Baynes, 11 Ohio App.3d 230, 231, 464 N.E.2d 621 (10th Dist. 1983), App.R. 1.
{¶4} Second, the holdings in both Buckeye Union and Schon pertain to the definition of the word "year". Civ.R. 53(D)(3)(b)(i), the controlling rule in this case, states, in part: "A party may file written objections to a magistrate's decision within fourteen days of the filing of the decision, whether or not the court has adopted the decision during that fourteen-day period as permitted by Civ.R. 53(D)(4)(e)(i)." The rule does not contain the word "year", thus Buckeye Union and Schon are not applicable in this case.
{¶5} The Attorney General's objections were filed fifteen days after the Magistrate's Decision, it did not seek leave to file such objections. Therefore, no timely objections were filed; the Court will not consider the Attorney General's late objections.
{¶6} The Court agrees with the Magistrate's primary analysis of the claim, however, upon review of the claim file, the Court modifies the Decision as follows. In the Magistrate's Decision she states "[e]ven assuming arguendo that McCoy and Davis were armed and shot each other, the fact that McCoy died a minute before Davis indicates that, more likely than not, Davis shot McCoy first, and then McCoy shot Davis in self-defense." The Court finds that no evidence was presented to support the conclusion that time of death determines who may have been the primary aggressor or who may have been acting in self-defense. Also of note is Applicant's argument that contributory misconduct cannot be considered when the criminally injurious conduct results in the victim's death. R.C. 2743.61(E)(2) states: "if the criminally injurious conduct upon which the claim is based resulted in a victim's death, the attorney general and the court of claims shall not consider whether there was contributory misconduct by the deceased victim." This further supports the Magistrate's findings. Accordingly, this Court modifies the Magistrate's Decision as set forth herein, and adopts the recommendation as its own.
IT IS HEREBY ORDERED THAT
{¶7} The Applicant's Motion to Strike is GRANTED;
{¶8} The February 27, 2024 Decision of the Magistrate is MODIFIED and ADOPTED in accordance with the above;
{¶9} This claim is REMANDED and judgment entered for Applicant;
{¶10} Costs assumed by the reparations fund.