Strict, Time-of-Filing Compliance with R.C. 2969.25(A): No Post-Filing Cure via Updated Affidavits or Civ.R. 15

Introduction

In State ex rel. Harris v. Schwendeman, Slip Opinion No. 2025-Ohio-4769, the Supreme Court of Ohio unanimously affirmed the Seventh District Court of Appeals’ dismissal of an inmate’s mandamus action under the Public Records Act (R.C. 149.43) for failure to strictly comply with R.C. 2969.25(A)’s inmate-affidavit requirement. The case arises from a public-records request by inmate Lionel Harris to an Ohio Department of Rehabilitation and Correction employee, B. Schwendeman. Although Harris ultimately received the requested records—rendering his request for production moot—he pursued statutory damages based on alleged delay. The court below dismissed his action on a Civ.R. 12(C) motion for judgment on the pleadings because Harris’s filing affidavit omitted a prior federal appeal from within the preceding five years.

On appeal as of right, Harris challenged the dismissal through three propositions of law: (1) that R.C. 2969.25(A), using the disjunctive “or,” required him to disclose either a civil action or an appeal of a civil action, but not both; (2) that his later “updated” affidavit cured any omission; and (3) that he should have been permitted to amend under Civ.R. 15(A). The Supreme Court rejected all three, holding that Harris forfeited the first argument by not timely presenting it to the court of appeals and reaffirming that inmates must strictly comply at the time of filing; defects cannot be cured through later affidavits or amendments.

Summary of the Opinion

• The Court affirmed the Seventh District’s judgment granting Schwendeman’s Civ.R. 12(C) motion and dismissing Harris’s mandamus complaint for noncompliance with R.C. 2969.25(A).
• Harris forfeited his statutory-construction argument that “civil action or appeal” permits disclosure of one but not both; he did not present that contention below when it could have been addressed.
• R.C. 2969.25(A) requires strict compliance at the time the inmate commences a civil action. An “updated” affidavit filed months later cannot cure an omission.
• Civ.R. 15(A) does not provide a mechanism to retroactively cure noncompliance with R.C. 2969.25(A); amending the complaint or affidavit after the fact is futile under existing precedent.
• Any potential error in the court of appeals’ consideration of materials beyond the pleadings on the 12(C) motion was invited by Harris’s own filing of an updated affidavit that admitted the omission.

Detailed Analysis

Procedural posture and the Civ.R. 12(C) framework

The case originated as an original action in mandamus in the court of appeals. After Harris conceded that the production request had become moot, he sought statutory damages. Schwendeman moved for judgment on the pleadings (Civ.R. 12(C)) based on Harris’s failure to comply with R.C. 2969.25(A).

The Supreme Court reiterated the Civ.R. 12(C) standards:

• Judgment on the pleadings is proper where no material factual issues exist and the movant is entitled to judgment as a matter of law (State ex rel. Midwest Pride IV, Inc. v. Pontious, 1996-Ohio-459).
• Review is de novo because the motion presents pure questions of law (State ex rel. Leneghan v. Husted, 2018-Ohio-3361; Reister v. Gardner, 2020-Ohio-5484).
• Courts deciding a 12(C) motion are generally confined to the “pleadings” as defined by Civ.R. 7(A) (complaint, answer, and replies) (State ex rel. McCarley v. Dept. of Rehab. & Corr., 2024-Ohio-2747).

While the Seventh District appeared to draw on information beyond the original pleadings to identify Harris’s omitted Sixth Circuit appeal, the Supreme Court held any such error was invited. Harris himself submitted an “updated” affidavit that both acknowledged and supplied the very appeal he omitted, thereby precluding him from challenging the court’s consideration of that material (Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20 (1986) (invited error doctrine); McCarley, 2024-Ohio-2747).

R.C. 2969.25(A): Strict, time-of-filing compliance

The central statute, R.C. 2969.25(A), requires that “at the time that an inmate commences a civil action or appeal against a government entity or employee,” the inmate must file an affidavit describing each civil action or appeal of a civil action filed in any state or federal court within the previous five years. The Court once again emphasized:

• The requirement is mandatory, and noncompliance requires dismissal (State ex rel. Ridenour v. Brunsman, 2008-Ohio-854; State ex rel. White v. Bechtel, 2003-Ohio-2262).
• Strict, not substantial, compliance is required (State ex rel. Manns v. Henson, 2008-Ohio-4478; State v. Henton, 2016-Ohio-1518).
• An affidavit that lists some, but not all, prior actions is defective and subject to dismissal (State ex rel. Swanson v. Dept. of Rehab. & Corr., 2019-Ohio-1271; Robinson v. LaRose, 2016-Ohio-7647).
• Timing matters: the affidavit must be filed when the action is commenced, and the defect cannot be cured after-the-fact (Fuqua v. Williams, 2003-Ohio-5533).

Applying these principles, the Court held Harris’s original affidavit was deficient because it omitted a federal appeal filed in 2022, within the five-year lookback window. His later “updated” filing could not cure the original defect, and the action was properly dismissed.

Forfeiture of the “or vs. and” argument

Harris’s first proposition posited that the statute’s use of “civil action or appeal of a civil action” permitted him to choose between listing the underlying action or the appeal, rendering separate disclosure of both unnecessary. The Supreme Court refused to reach the merits because Harris did not raise this argument in the court of appeals when it could have been addressed and potentially corrected.

That forfeiture ruling rested on familiar preservation principles: issues not presented below are generally not considered on appeal (State ex rel. Zollner v. Industrial Commission, 1993-Ohio-49; State v. Rogers, 2015-Ohio-2459; State v. Childs, 14 Ohio St.2d 56 (1968)). As a result, the Court left unresolved whether the statute’s “or” could ever be read to relieve an inmate of listing both the underlying civil action and any appeals of that action. Nevertheless, the Court’s reliance on “strict compliance” and the line of cases holding that omitting any qualifying case or appeal requires dismissal strongly signals that, in practice, both must be listed where both exist.

Invited error and materials outside the pleadings

Although Civ.R. 12(C) confines courts to the pleadings, any potential error from straying beyond that boundary was neutralized here by invited error: Harris submitted an “updated” affidavit that conceded and disclosed the omitted appeal. Under the invited-error doctrine, a party cannot take advantage of an error he induced (Hal Artz; McCarley). This aspect underscores a tactical risk for litigants: attempting to fix a statutory defect late may foreclose procedural objections.

Civ.R. 15(A) cannot salvage R.C. 2969.25(A) noncompliance

Harris alternatively argued he should have been allowed to amend under Civ.R. 15(A). The Court rejected that contention for two reasons. First, he did not actually move to amend his complaint within the rule’s timeframes; he merely filed an “updated” affidavit months after filing. Second, and more fundamentally, the Court reaffirmed that Civ.R. 15 is not a “safe harbor” for R.C. 2969.25(A) defects. Supreme Court precedent “expressly forecloses all avenues for curing a failure to comply,” including amending the complaint (State ex rel. Swopes v. McCormick, 2022-Ohio-4408; State ex rel. Hall v. Mohr, 2014-Ohio-3735).

Precedents cited and their influence

• State ex rel. Midwest Pride IV, Inc. v. Pontious (1996-Ohio-459): Articulates the standard for judgment on the pleadings—no material fact issues; entitlement as a matter of law. Guided the de novo review posture.
• State ex rel. Leneghan v. Husted (2018-Ohio-3361) and Reister v. Gardner (2020-Ohio-5484): Reinforce de novo review of 12(C) decisions as questions of law.
• State ex rel. McCarley v. Dept. of Rehab. & Corr. (2024-Ohio-2747): Limits 12(C) to pleadings and illustrates invited error; used to explain why any reliance on extra-pleading material was not reversible here.
• Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20 (1986): Foundational statement of the invited-error rule; prevented Harris from leveraging an error he induced.
• State ex rel. Zollner v. Industrial Comm. (1993-Ohio-49), State v. Rogers (2015-Ohio-2459), State v. Childs (1968): Preservation and forfeiture principles; the Court used these to decline review of the “or vs. and” argument not raised below.
• State ex rel. Ridenour v. Brunsman (2008-Ohio-854), State ex rel. White v. Bechtel (2003-Ohio-2262): Establish that R.C. 2969.25(A) is mandatory; noncompliance requires dismissal.
• Fuqua v. Williams (2003-Ohio-5533): Emphasizes the statute’s timing—compliance is required at “commencement”; later efforts do not cure the defect.
• State ex rel. Manns v. Henson (2008-Ohio-4478) and State v. Henton (2016-Ohio-1518): Require strict, not substantial, compliance with the affidavit requirement.
• State ex rel. Swanson v. Dept. of Rehab. & Corr. (2019-Ohio-1271), Robinson v. LaRose (2016-Ohio-7647): Clarify that partial listings—omitting any qualifying action or appeal—are fatal.
• State ex rel. Swopes v. McCormick (2022-Ohio-4408), State ex rel. Hall v. Mohr (2014-Ohio-3735): Reject using Civ.R. 15 to cure R.C. 2969.25(A) noncompliance; amending after filing does not save the action.

Impact and Implications

• Operational gatekeeping reaffirmed: The decision reinforces that R.C. 2969.25(A) continues to operate as a strict, jurisdictional-like gatekeeping device for inmate civil actions against government entities and employees. Inmates must list every qualifying prior civil action and every appeal of a civil action in any jurisdiction within the last five years.
• No post-filing fixes: Courts will dismiss actions for incomplete affidavits even if the substantive claim might otherwise have merit (e.g., entitlement to public-records statutory damages). Updated affidavits and attempted amendments will not salvage the case.
• Preservation discipline: Litigants must develop statutory-interpretation arguments (such as the meaning of “or”) in the court of appeals to avoid forfeiture on further review.
• Practical effect on public-records mandamus: Even when agencies ultimately produce records, inmates seeking statutory damages under R.C. 149.43 cannot reach the merits unless they strictly satisfy R.C. 2969.25(A) at filing.
• Civ.R. 12(C) practice: Parties opposing 12(C) should avoid injecting extra-pleading material that could cure the movant’s proof problems; doing so risks invited error precluding relief.

Complex Concepts Simplified

• Mandamus: A court order compelling a government official to perform a clear legal duty. In Ohio, mandamus is a common vehicle to enforce the Public Records Act.
• Public Records statutory damages: R.C. 149.43 permits statutory damages and, in some cases, attorney fees if an office fails to timely comply. However, a procedurally defective mandamus complaint can prevent reaching this question.
• R.C. 2969.25(A) affidavit: Inmates must file, at the time of commencing a civil action or appeal against a government entity/employee, an affidavit listing each civil action or appeal of a civil action filed in any state or federal court during the previous five years. Omitting even one qualifying case or appeal requires dismissal.
• Strict vs. substantial compliance: Strict compliance means exact adherence to the statute’s demands; near-miss or partial compliance is insufficient.
• “Commencement” of an action: The point at which the complaint is filed. The affidavit must be filed then; later supplementation is not allowed to cure defects.
• Civ.R. 12(C), judgment on the pleadings: A procedural device to resolve cases based solely on the pleadings when no factual disputes exist.
• Invited error: A party cannot complain on appeal about an error the party induced the court to make (e.g., by introducing the very material that creates the error).
• Forfeiture (preservation): Arguments not raised in the lower court are generally not reviewable on appeal.

Practice Pointers and Checklist

For inmates and counsel filing civil actions under R.C. 2969.25(A)

• Compile a complete five-year litigation history across all jurisdictions—state and federal, trial and appellate.
• List both:
  • Each civil action, and
  • Each appeal of a civil action
  where applicable. If in doubt, include it.
• Verify dates carefully; the five-year window is measured backward from the filing date of the new action.
• File the affidavit simultaneously with the complaint; do not rely on later supplementation.
• If opposing a Civ.R. 12(C) motion, avoid submitting extra-pleading materials that concede or confirm omissions unless prepared to accept invited-error consequences.
• Preserve arguments: If you believe R.C. 2969.25(A) should be construed differently (e.g., that “or” is disjunctive in a way that affects what must be listed), raise that argument in the court of appeals first.

For courts and agencies

• Routinely verify inmate affidavits against accessible dockets (including federal PACER and state appellate databases) within the five-year window.
• When moving under Civ.R. 12(C), aim to ground arguments within the pleadings. If extra-pleading facts are used, be prepared to show the opposing party invited reliance or consider conversion to summary judgment if appropriate.

Unresolved Questions

• Meaning of “or” in R.C. 2969.25(A): The Court did not decide whether the phrase “civil action or appeal of a civil action” allows disclosure of one but not both in any scenario. Given the Court’s repeated insistence on strict compliance and dismissal for any omission, the practical baseline remains to disclose both.

Conclusion

State ex rel. Harris v. Schwendeman reinforces three settled pillars of Ohio inmate litigation: strict, time-of-filing compliance with R.C. 2969.25(A); the inability to cure affidavit defects through later “updated” filings or Civ.R. 15 amendments; and the consequences of forfeiture and invited error in appellate practice. Though framed within a public-records mandamus dispute where the underlying production eventually occurred, the Court’s ruling underscores that threshold statutory compliance determines whether an inmate can litigate the merits at all—including claims for statutory damages. The opinion provides a clear procedural roadmap: list every qualifying civil action and every appeal from the past five years, in every jurisdiction, at the moment of filing—or face dismissal.

Per curiam; all participating Justices concurred (Kennedy, C.J.; Fischer, DeWine, Brunner, Deters, Hawkins, and Shanahan, JJ.). Judgment of the Seventh District Court of Appeals affirmed.