MARIAH S. CRENSHAW v. SHAWN L. HOWARD, SR.
No. 110898
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
November 3, 2022
2022-Ohio-3914
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED
RELEASED AND JOURNALIZED: November 3, 2022
Civil Aрpeal from the Cuyahoga County Common Pleas Court Case No. CV-21-947564
Appearances:
Mariah S. Crenshaw, pro se.
Edwin V. Hargate, for appellee.
EILEEN A. GALLAGHER, P.J.:
{¶ 1} Plaintiff-appellant Mariah Crenshaw appeals from an order of the Cuyahoga County Court of Common Pleas granting judgment on the pleadings in favor of defendant-appellee Shawn L. Howard, Sr. Crenshaw contends that the trial court erred in (1) granting Howard‘s
{¶ 2} For the reasons that follow, we reverse the trial court‘s decision granting Howard‘s motion for judgment on the pleadings, vacate the trial court‘s October 7, 2021 order denying “plaintiffs request for indigent status for purpose of paying filing fees and court costs” and remand for further proceedings.
Procedural and Factual Background
{¶ 3} On May 13, 2021, Crenshaw filed а complaint in the Cuyahoga County Court of Common Pleas, asserting claims of defamation, slander, libel and telecommunications harassment against Howard. Crenshaw alleged that, “[s]ince January 1, 2021,” Howard had “posted numerous slanderous, libelous, and defaming statements on social media multiple times a day” with “intent to harass, annoy, and embarrass [Crenshaw].” Crenshaw further alleged that Howard had engaged in “nonstop harassment, bullying, and intimidation” in violation of
{¶ 4} The case was originally assigned to Judge Deena Calabrese. On June 28, 2021, Crenshaw filed an “affidavit of disqualification pursuant to [R.C.] 2701.03” with the trial court and the Ohio Supreme Court, requesting that Judge Calabrese be recused from handling the case because Howard had been a witness in a case Judge Calabrese had prosecuted when she was an assistant prosecuting attorney. Judge Calabrese voluntarily recused herself from the case and the case was reassigned to Judge Shirley Stricklаnd Saffold. Crenshaw did not request recusal of Judge Saffold.
{¶ 5} Howard filed an answer in which he denied all of the allegations in Crenshaw‘s complaint and asserted a laundry list of “affirmative defenses,” including failure to state a claim for which relief could be granted.
{¶ 6} On August 4, 2021, Crenshaw filed a motion for leave to amend her complaint to include an additional claim of “journalistic malpractice” against Howard. Crenshaw asserted that Howard held “media credentials” and that he had “misused his journalist credentials to convey false and misleading statements to the public in an effort to discredit, harass, slander and malign [her].” The trial court denied the motion.
{¶ 7} On September 22, 2021, Howard filed a motion for judgment on the pleadings. He argued that Crenshaw‘s complaint should be dismissed because (1) Crenshaw had not pled any legally cognizable cause
{¶ 8} Crenshaw filed an opposition in which she asserted that (1) Howard‘s motion was untimely because the pleadings had not yet closed, (2) Howard had “offered a ‘statement of facts’ that was not supported by any evidence collected during [d]iscovery,” (3) Crenshaw “must have the opportunity to introduce evidence through the [d]iscovery process before a dismissal can be granted” and (4) Crenshaw had been granted an ex parte civil stalking protection order against Howard on September 20, 2021.
{¶ 9} On October 8, 2021, the trial court granted judgment on the pleadings in favor of Howard. The trial court explained its ruling as follows:
When affording plaintiff all reasonable inferences possibly derived from the factual allegations of the complaint and the pleadings, plaintiff is not able to prove a set of facts entitling her to relief. Accordingly, judgment in favor of defendant on the pleadings is granted as a matter of law.
{¶ 10} Crenshaw appealed, raising the following five assignments of error for review:
- The trial court erred in granting a 12(C) motion when the pleadings had not closed.
- The trial court erred in granting the motion on grounds of failure to state a claim upon which relief can be granted as a matter of law.
- The trial court erred in disallowing an inclusion claim of journalistic malpractice.
- The trial court erred in denying the appellant‘s affidavit of indigency.
- The trial court violated the canons of a judge.1
Law and Analysis
Motion for Judgment on the Pleadings
{¶ 11} As an initial matter, we note that the “history” section of Crenshaw‘s appellate brief sets forth numerous purported facts to which there are no citations
in the record and which are not set forth in the pleadings or otherwise included in the record in this appeal. Accordingly, we do not consider these facts when evaluating Crenshaw‘s assignments of error in this appeal. See
Standard of Review
{¶ 12} Under
{¶ 13} Dismissal of a complaint is appropriate under
Ruling on Civ.R. 12(C) Motion After Pleadings Closed
{¶ 14} In her first assignment of error, Crenshaw contends that the trial court erred in granting Howard‘s
{¶ 15} Where, as here, no counterclaim, cross-claim or third-party complaint is filed, the pleadings are “closed” once an answer is filed. See
{¶ 16} Further, because a
{¶ 17} Crenshaw‘s first assignment of error is overruled.
Ruling on Civ.R. 12(C) Motion – Failure to State a Claim for which Relief Could be Granted
{¶ 18} In her second assignment of error, Crenshaw argues that she sufficiently pled her claims in her complaint, that “[t]he [t]rial [c]ourt had a duty to determine if [Crenshaw] has failed to state facts that suppоrt a claim for relief” and that the trial court “failed that duty.”
{¶ 19} Crenshaw asserted four claims in her complaint: claims for slander, libel and defamation (collectively, the “defamation claims“) and a claim for telecommunications harassment. Defamation, which includes both slander and libel, is the “publication [of] a false statement ‘made with some degree of fault, reflecting injuriously on a person‘s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business оr profession.‘” Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 9, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995). Slander refers to spoken defamatory words, while libel refers to written or printed defamatory words. Mercer v. Goans, 8th Dist. Cuyahoga No. 109651, 2021-Ohio-1948, ¶ 19. To prevail on a defamation claim, whether libel or slander, a plaintiff must prove that (1) a false statement of fact, (2) about the plaintiff, (3) was published to a third party, (4) with the requisite degree of fault on the part of the defendant and (5) the statement was either defamatory per se or was defamatory per quod, causing special harm to the plaintiff. See, e.g., Geletka v. Radcliff, 8th Dist. Cuyahoga No. 110988, 2022-Ohio-2497, ¶ 31; Lograsso v. Frey, 2014-Ohio-2054, 10 N.E.3d 1176, ¶ 13 (8th Dist.); Garofolo v. Fairview Park, 8th Dist. Cuyahoga Nos. 92283 and 93021, 2009-Ohio-6456, ¶ 17.
In an action for a libel or slander, it is sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff. If the allegation is denied, the plaintiff must prove the facts, showing that the defamatory matter was published or spoken of him. In such action it is
not necessary to set out any obscene word, but it is sufficient to state its import.
{¶ 20}
No person shall make or cause to be made a telecommunication, or permit a telecommunication to be made from a telecommunications device under the person‘s control, with purpose to abuse, threaten, or harass another person.
{¶ 21}
{¶ 22} As used in
{¶ 23}
{¶ 24} In support of her claims, Crenshaw alleges that Howard has “posted numerous slanderous, libelous, and defaming statements on social media in violation of
{¶ 25} Construing all material allegations in the pleadings and all reasonable inferences that could be drawn therefrom in favor of Crenshaw, as we are required to do, we cannot say that Crenshaw could prove no set of facts in support of her claims that would entitle her to relief.
{¶ 26} Accordingly, the trial court erred in granting Howard‘s motion for judgment
Disallowing Inclusion of Journalistic Malpractice Claim
{¶ 27} In her third assignment of error, Crenshaw appears to challenge the trial court‘s denial of her motion to amend her complaint to assert a claim of a journalistic malpractice. However, in her argument in support of the assignment of error, Crenshaw does not address the merits of that motion.
{¶ 28}
{¶ 29} In her third assignment of error, Crenshaw does not address the factual or legal basis for her proposed “journalistic malpractice” claim or explain why she contends she should hаve been permitted to amend her complaint to assert such a claim against Howard. Instead, she argues that the trial court‘s denial of her motion “presents a res judicata issue,” that the trial court “in essence granted a 12b motion” when it granted Howard‘s
{¶ 30} For the reasons set forth above and because Crenshaw has not shown that the trial court abused its discretion in denying her motion for leave to amend her complaint, we overrule her third assignment of error.
Denial of Affidavit of Indigency
{¶ 31} In her fourth assignment of error, Crenshaw contends that the trial court abused its discretion in denying her affidavit of indigency without a “legal reason,” imposing an undue financial burden on Crenshaw. Crenshaw asserts that she “should not be denied access to the courts because her income falls below the poverty level.”
{¶ 32} When Crenshaw filed her complaint on May 13, 2021, she also filed a poverty affidavit. On June 1, 2021, the trial court3 entered an order stating:
Upon the request of the applicant and the court‘s review, the court finds that the applicant is an indigent litigant under
R.C. 2323.311 . In accordance and for good cause, the court hereby grants a waiver of prepayment of costs or fees in this matter. Pursuant toR.C. 2323.311(B)(4) , the clerk is hereby orderedto waive the advance deposit or security.
{¶ 33} On October 7, 2021 – the day before it issued its ruling on Howard‘s motion for judgment on the pleadings – the trial court entered an order denying Crenshaw‘s request for indigent status “for purposes of paying filing fees and court costs” as follows:
Plaintiff‘s poverty affidavit is hereby denied. It is within the court‘s discretion whether indigent status, for purposes of a poverty affidavit, is proper in a particular case. Wilson v. Dept. of Rehab. and Correction, 138 Ohio App.3d 239, 243, 741 N.E.2d 152 (10th
Dist.2000). Upon consideration of plaintiff‘s poverty affidavit, the court hereby denies plaintiff‘s request for indigent status for purposes of paying filing fees and court costs.
{¶ 34}
The court of common pleas by rule may require an advance deposit for the filing of any civil action or proceeding or of any responsive action by the defendant. On the motion of any party, and if satisfied that such deposit is insufficient, the court may require it to be increased from time to time, so as to secure all costs that may accrue in the cause, or may require personal security to be given. However, if a party makes an application to bе qualified as an indigent litigant as set forth in section 2323.311 of the Revised Code, the clerk of the court shall receive and file the civil action or proceeding or the responsive action by the defendant. If the court approves the application, the clerk shall waive the advance deposit or personal security under this section and the court shall proceed with the action or proceeding or the defendant‘s responsive action. If the court denies the application, the clerk shall retain the filing of the civil action оr proceeding or the defendant‘s responsive action, and the court shall issue an order granting the applicant whose application is denied thirty days to make the required deposit or personal security prior to any dismissal or other action on the filing of the civil action or proceeding or the defendant‘s responsive action.
{¶ 35}
The judge or magistrate shall approve the application [to be qualified as an indigent litigant] if the applicant‘s gross income does not exceed one hundred eighty-seven and five-tenths per cent of the federal poverty guidelines as determined by the United States department of health and human services for the state of Ohio and the applicant‘s monthly expenses are equal to or in excess of the applicant‘s liquid
assets as specified in division (C)(2) of section 120-1-03 of the Administrative Code, as amended, or a substantially similar provision.
An applicant‘s indigent status can be revisited as the case proceeds.
[T]he judge or magistrate, at any time while the action or proceeding is pending and on the motion of an applicant, on the motiоn of the opposing party, or on the court‘s own motion, may conduct a hearing to inquire into the applicant‘s status as an indigent litigant. The judge or magistrate shall affirm the applicant‘s status as an indigent litigant if the applicant‘s gross income does not exceed one
hundred eighty-seven and five-tenths per cent of the federal poverty guidelines as determined by the United States department of health and human services for the state of Ohio and the applicant‘s monthly expenses are equal to or in excess of the applicant‘s liquid assets as specified in division (C)(2) of section 120-1-03 of the Administrative Code, as amended, or a substantially similar provision. If the court finds that the applicant qualifies as an indigent litigant, the court shall proceed with the action or proceeding. If the court finds that the applicant does not qualify as an indigent litigant or no longer qualifies as an indigent litigant if previously so qualified as provided in [R.C. 2323.311(B)(4)], the clerk shall retain the filing of the action or proceeding, and the court shall issue an order granting the applicant whose motion is denied thirty days to make a required deposit or security, prior to any dismissal or other action on the filing or pendency of the civil action or proceeding.
{¶ 36} Loc.R. 7(A) of the Court of Common Pleas of Cuyahoga County, General Division states: “Unless otherwise provided by law, no civil action or proceeding will be accepted by the Clerk of Courts for filing unless the party or parties filing the action have first deposited a sum to secure the payment of the costs” and sets forth a schedule detailing the deposits required for each type of action or proceeding. Loc.R. 7(F) further provides:
If a party is unable tо pay court costs, then the party must submit a poverty affidavit requesting to have such charges waived on the form
prescribed by the court. The completed affidavit must be submitted to the Clerk of Courts who will accept the filing without costs. Once the case is assigned, the trial judge may make further inquiry into the party‘s ability to pay costs and order payment where appropriate.
{¶ 37} The language of
{¶ 38} There is nothing in the record to indicate that the trial court conducted a hearing to inquire into Crenshaw‘s status as an indigent litigant before denying her poverty affidavit. Thus, based on the record before us, Crenshaw could not be compelled to make an advance deposit or provide personal security for court costs in order to proceed with her case. However, Crenshaw‘s claimed indigency status would not, in and of itself, preclude Crenshaw from being responsible for paying court costs and filing fees at the conclusion of her case, as ordered by the trial court here, i.e., “den[ying] plaintiff‘s request for indigent status for purposes of
paying filing fees and court costs.” Crenshaw has not, as she contends, been “denied access to the courts” as a result of the trial court‘s ruling.
{¶ 39} Although Ohio courts “trаditionally waive filing fees and costs for indigent persons in order to promote the interests of justice,” the decision to do so is within the court‘s discretion. Nelson v. Rodriguez, 3d Dist. Hancock No. 5-10-20, 2011-Ohio-996, ¶ 5; see also Manville at ¶ 13 (“The standard of review in an appeal from a decision denying a motion for leave to proceed in forma pauperis is an abuse of discretion.“), citing Wilson, 138 Ohio App.3d at 243. In exercising that discretion, a trial court may consider
“whether a litigant has caused the court‘s limited resources to be expended needlessly in the past by filing numerous, repetitious, or frivolous complaints, whether the affidavit of indigency includes sufficient information concerning the litigant‘s financial condition, whеther additional information is required, and whether the affidavit of indigency appears to be reasonable under conditions then existing.”
Guisinger v. Spier, 166 Ohio App.3d 728, 2006-Ohio-1810, 853 N.E.2d 320, ¶ 6 (2d Dist.), quoting Wilson at 243 (citations omitted).
{¶ 40} Given our reversal of the trial court‘s decision granting Howard‘s motion for judgment on the pleadings, we believe the trial court‘s denial of Crenshaw‘s request for indigent status “for purposes of paying filing fees and court costs” is premature. Accordingly, we sustain Crenshaw‘s fourth assignment of error and vacate the trial court‘s October 7, 2021 order denying “plaintiffs request for indigent status for purpose of paying filing fees and court costs.”
Allegеd Violation of Canons of Judicial Conduct and Failure to Recuse
{¶ 41} In her fifth and final assignment of error, Crenshaw contends that the trial judge, Judge Saffold, violated Canons 2.2 (impartiality and fairness), 2.4 (external influences on judicial conduct), 2.6 (ensuring the right to be heard), 2.7 (responsibility to decide) and 2.11 (disqualification) of the Ohio Code of Judicial Conduct by failing to recuse herself from the case. Crenshaw claims that she became “a very outspoken critic” of Judge Saffold after Judge Saffold enforced a settlement agreement in a 2010 case in which Crenshaw was a party, that Crenshаw has been “a long-time critic of the judge‘s discretion in pro se cases for years,” that she and Judge Saffold “have a contentious history inside and outside the courtroom” and that Judge Saffold had demonstrated “blatant discrimination and personal bias against [Crenshaw]” by “always ruling against [her] without solid and supported matters of law being applied.”
{¶ 42} Although Crenshaw filed an affidavit seeking recusal of Judge Calabrese, Crenshaw did not seek recusal of Judge Saffold or otherwise raise this issue below. “The avenue for redress when a party alleges a violation of the Ohio Codе of Judicial Conduct or error in a judge‘s failure to recuse is to file an affidavit of disqualification with the Ohio Supreme Court under
{¶ 43} We therefore decline to address Crenshaw‘s argument that the trial judge‘s failure to recuse herself violated the Ohio Code of Judicial Conduct. See Murrill at ¶ 10. Crenshaw‘s fifth assignment of error is overruled.
{¶ 44} Judgment affirmed in part; reversed in part; and remanded.
It is ordered that appellee and appellant share the costs herein taxed.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, PRESIDING JUDGE
CORNELIUS J. O‘SULLIVAN, JR., J., and GENE A. ZMUDA, J.,* CONCUR
*(Sitting by assignment: Gene A. Zmuda, J., of the Sixth District Court of Appeals.)