STEPHEN EARLY JOHNSON, Plaintiff-Appellant, v. CLAUDE STEPHANIE JOHNSON, ET AL., Defendants-Appellees.
No. 108420
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 9, 2020
2020-Ohio-1381
RAYMOND C. HEADEN, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED; RELEASED AND JOURNALIZED: April 9, 2020; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-18-902590
Stephen Early Johnson, pro se.
Claude Stephanie Johnson, pro se.
RAYMOND C. HEADEN, J.:
{¶ 1} Plaintiff-appellant Stephen E. Johnson (“Stephen“), pro se, appeals the trial court‘s decision granting defendant-appellee, Claude S. Johnson‘s (“Claude“) motion to dismiss pursuant to
I. Factual and Procedural History
{¶ 2} In Cuyahoga C.P. No. CV-18-902590, Stephen, pro se, filed a five-count complaint against his wife, Claude, on September 28, 2018.1 Claude, pro se, answered the amended complaint on October 25, 2018.
{¶ 3} The trial court conducted a case management conference on November 1, 2018, when it set a discovery deadline for January 4, 2019, and required the submission of dispositive motions by January 11, 2019. The trial court also referred the case to arbitration, pursuant to Loc.R. 29 of the Court of Common Pleas of Cuyahoga County, General Division (“Loc.R. 29“), with a request that the arbitration be completed by January 18, 2019.2
{¶ 4} Prior to the arbitration hearing, Stephen filed the fоllowing discovery requests on December 28, 2018: request for admissions, request for production of documents, and request for first set of interrogatories.
{¶ 5} An arbitration hearing was held on January 3, 2019, and Stephen appealed the arbitration panel‘s decision on February 4, 2019. The case was
{¶ 6} On February 25, 2019, Stephen filed a motion requesting the court to (1) deem admitted Claude‘s unanswered requests for admissions, and (2) grant Stephen‘s motion for summary judgment based upon those admissions. On February 26, 2019, Claude filed two motions: (1) a motion for extension of time to complete discovery, and (2) a motion to dismiss in accordance with
{¶ 7} On March 11, 2019, the trial court granted Claude‘s motion to dismiss because Stephen‘s complaint fаiled to state a claim upon which relief could be granted.
{¶ 8} Following the court‘s granting of Claude‘s
The trial court erred and abused its discretion ruling in favor of the appellee after the appellant established for the record the appellee had procedural[ly] defaulted by failing to timely answer the admissions as required by
Civ.R. 36(C) [.]
{¶ 9} Stephen contends that the trial court erred and аbused its discretion when it found his February 25, 2019 motion moot rather than (1) finding Claude‘s unanswered admissions deemed admitted, and (2) based upon those admissions, granting Stephen‘s motion for summary judgment. Claude‘s argument is difficult to discern, but it appears to focus on the lack of discovery prior to the arbitration hearing and the trial court‘s granting of her
{¶ 10} After reviewing the issues and arguments, we find that Stephen is not challenging the trial court‘s finding that his February 25, 2019 motion was moot; rathеr, Stephen contends that the trial court‘s granting of Claude‘s
{¶ 11} Technically, because Claude filed her
{¶ 12} Claude‘s motion will be reviewed under a
The Ohio Supreme Court has held that a
Civ.R. 12(C) motion for judgment on the pleadings is to be considered as if it were a belated motion to dismiss for failure to state a claim upon which relief can be granted. State ex rel. Pirman v. Money (1994), 69 Ohio St.3d 591, 592, 1994-Ohio-208, 635 N.E.2d 26. Therefore, we will analyze the[ Civ.R 12(C) motion] under the same principles which we would apply in reviewing aCiv.R. 12(B)(6) dismissal.
Black v. Coats, 8th Dist. Cuyahoga No. 85067, 2005-Ohio-2460, ¶ 6.
{¶ 13} The test to determine whether a complaint can be dismissed pursuant to
{¶ 14} In his amended complaint, Stephen raised five counts.
A. Count 1
{¶ 15} In Count 1, Stephen alleges Claude committed libel and slander that are both forms of defamation. The proposed facts provided in support of these allegations are: “Later on that day [Claude] decided to call [the] [S]econd [D]istrict Police and make a false claim that [Stephen] threaten[ed] to kill her after [Stephen] abandoned her at Rite Aid located in Lakewood, OH * * *.” (Amended complaint at ¶ 6.)
{¶ 16} Defamation occurs when a publication containing a false statement is made with some degree of fault that (1) reflects injuriously on one‘s reputation, or
To establish a claim for defamation, a plaintiff must show: (1) a false statement of fact was made about the plaintiff, (2) the statement was defamatory, (3) the statement was published, (4) the plaintiff suffered injury as a proximate result of the publication, and (5) the defendant acted with the requisite degree of fault in publishing the statement.
Id. at ¶ 15, citing Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 77, citing Pollock v. Rashid, 117 Ohio App.3d 361, 368, 690 N.E.2d 903 (1st Dist.1996).
{¶ 17} Dеfamation can occur in two forms - slander, which is spoken, and libel, which is written. Stohlmann v. WJW TV, Inc., 8th Dist. Cuyahoga No. 86491, 2006-Ohio-6408, ¶ 8. Stephen alleged Claude committed both slander and libel.
1. Slander
{¶ 18} In reviewing his claim of slander, Stephen alleges that (1) Claude told the police that Stephen threatened to kill her; (2) the statement was untrue; and (3) he suffered damages.
{¶ 19} In Ohio, under notice pleading, a plaintiff need not prove his case at the pleading stage. DSS Servs., L.L.C. v. Eitel‘s Towing, L.L.C., 10th Dist. Franklin No. 18AP-567, 2019-Ohio-3158, ¶ 10. A plaintiff is required under
“Any communications made by private citizens to law enforcement personnel for the prevention or detection of crime are qualifiedly privileged and may not serve as the basis for a defamation action unless it is shown that the speaker was motivated by actual malice.”
Allen v. Pirozzoli, 8th Dist. Cuyahoga No. 103632, 2016-Ohio-2645, ¶ 14, quoting Lewandowski v. Penske Auto Group, 8th Dist. Cuyahoga No. 94377, 2010-Ohio-6160, ¶ 26, quoting Oswald v. Action Auto Body & Frame, Inc., 8th Dist. Cuyahoga No. 71089, 1997 Ohio App. LEXIS 1642, 8 (Apr. 24, 1997). Thus, an allegedly defamatory statement may not be actionable if the comment is privileged and was not made with ill will or actual malice. Boyd at ¶ 36. Here, Claude did not raise qualified privilege in her answer.4
{¶ 21} Upon a review of the pleadings, we find that Stephen asserted that Claude told the police he threatened to kill her after Stephen abandoned Claude at a local drugstore. Stephen denies the veracity of the statements and claims he suffered damages including emotional distress, poverty of inconvenience, and missing his child‘s third-grade graduation. Presuming the allegations are true and
2. Libel
{¶ 22} Libel, generally, is a false written publication that meets the elements of defamation. McKee v. McCann, 2017-Ohio-7181, 95 N.E.3d 1079, ¶ 36 (8th Dist.). Stephen does not allege any written publication resulted from Claude‘s meeting with the police. Stephen can prove no set of facts in support of his libel claim that would entitle him to relief, and as a result, the trial court correctly dismissed the libel cause of action under Count 1.
B. Counts 2-4
{¶ 23} For ease of analysis, Counts 2 through 4 will be discussed collectively.
{¶ 24} In Count 2, Stephen alleges Claude‘s “negligence and frivolous filings” caused great harm to Stephen and his relationship with his son. The complaint does not include any facts to support negligent behavior or frivolous filings by Claude.
{¶ 25} Count 3 of the amended cоmplaint asserts (1) Claude breached an oral contract to act as Stephen‘s caregiver, and (2) Claude “has taken personal property after verbally agreeing not to do so.” The complaint does not contain facts from which the existence of an oral agreement can be inferred. The complaint is also silent as to an agreement whereby Claude was restrained from taking personal prоperty.
{¶ 27} The mere recitation of legal standards, such as negligence, breach of contract, or theft, is not sufficient to prevail on a
C. Count 5
{¶ 28} In Count 5, Stephen alleges Claude committed fraud when she misled the domestic court, Cleveland school system, Second District of the Cleveland Police Department, TSA, and family members. Specifically, Stephen alleges that Claude spread “rumors that [Stephen] committed certain acts” and omitted portions of the story tо Claude‘s advantage. One must prove the following elements for a claim of fraud:
(1) a representation or, where there is a duty to disclose, omission of a fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance.
Cord v. Victory Solutions, L.L.C., 8th Dist. Cuyahoga No. 106006, 2018-Ohio-590, ¶ 12, citing Russ v. TRW, Inc., 59 Ohio St.3d 42, 49, 570 N.E.2d 1076 (1991).
{¶ 29} Accordingly, we affirm the trial court‘s dismissal of the libel claim under Count 1 as well as Counts 2, 3, 4, and 5. We find the trial court erred in concluding, as a matter of law, that Stephen failed to state a claim of slander for which relief can be granted, and therefore, reverse the court‘s ruling on the slander claim under Count 1 and remand on that issue. However, we note that our holding should not be construed as commenting on the merits of Stephen‘s slander claim.
{¶ 30} In addition to our findings regarding Claude‘s motion to dismiss, we note that once Stephen appealed the arbitrators’ report and award on February 4,
{¶ 31} A trial de novo requires that the trial judge to proceed as if no arbitration decision had been rendered, Finke v. Farley, 1st Dist. Hamilton Nо. C-920223, 1993 Ohio App. LEXIS 4922 (July 22, 1993), citing Black‘s Law Dictionary 392 (5th Ed.1979); accord Loc.R. 29, Part VII(C). “In other words, upon the filing of an arbitration appeal, the arbitration award is effectively disregarded and the matter is returned to the trial court for a de novo review.” (Emphasis omitted.) Pickering v. Nationwide Mut. Fire Ins. Co., 9th Dist. Summit No. 19881, 2000 Ohio App. LEXIS 3092, 4 (July 12, 2000).
{¶ 32} While a trial court must afford a trial de novo following an appeal of an arbitration report and award, the trial court is not mandated to only set the matter for trial. Under Loc.R. 29, it is within the trial court‘s discretion to grant dispositive motions following an appeal from the arbitration report and award and prior to holding a trial de novo. Temkin v. Lotter, 8th Dist. Cuyahoga No. 87092, 2006-Ohio-6164, ¶ 8-9 (it was within a trial court‘s discretion, after an arbitration report and award was rendered and appealed and the case was returned to the trial court‘s docket, to grant leave to file a motion for summary judgment and rule on said motion).
{¶ 33} The trial court had great latitude to follow its local rules, and therefore, could consider Claude‘s motion to dismiss following Stephen‘s appeal of
{¶ 34} Here, following Stephen‘s appeal from the arbitrators’ award and report, the trial court entered an order extending the dispositive motion deadline and subsequently ruled on Claude‘s motion to dismiss - actions within the trial court‘s discretion.
{¶ 35} Judgment is affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
RAYMOND C. HEADEN, JUDGE
MICHELLE J. SHEEHAN, J., CONCURS;
SEAN C. GALLAGHER, P.J., DISSENTS WITH SEPARATE OPINION
SEAN C. GALLAGHER, P.J., DISSENTING:
{¶ 36} I respectfully dissent. I recognize that the parties have been representing themselves throughout the entirety of these proceedings and that the briefing and the trial court record are a bit convoluted. Nevertheless, Stephen is entitled to a trial de novo in light of the fact that the trial court invoked Loc.R. 29 to refer the parties to mandatory arbitration at their initial appearance. Loc.R. 29 is the sole authority for the trial court‘s referral, but in exchange for the parties’ reluctant participation in the arbitration process, the rule permits an unsatisfied party the opportunity to appeal the arbitration decision and award. If the appeal is timely perfected, the rule provides that the matter shall proceed to a “trial de novo” upon all claims. Calhoun v. Drain, 8th Dist. Cuyahoga No. 84442, 2004-Ohio-6412, ¶ 8. There is no ambiguity. Trial courts cannot invoke the referral portion of the rule, to the exclusion of the appeal portion after the parties endured the mandatory arbitration process.
{¶ 37} At the case management conferеnce conducted five days after Claude filed an answer to the complaint, the trial court sua sponte referred the case to
{¶ 38} After the report and award of the arbitrators was filed, Stephen timely appealed the decision under Loc.R. 29, Part VII. Because he timely appealed the report and award, Stephen was entitled to a trial de novo. Loc.R. 29, Part VII (C) (“[a]ll cases which have been duly appealed shall be tried de novo.“); Weber v. Castelli, 8th Dist. Cuyahoga No. 92158, 2009-Ohio-1677, ¶ 13. Further, the arbitrators’ report and award was no longer binding or informative under the express terms of Loc.R. 29, Part VI (B), which provides that the report and award “shall be final and shall have the attributes and legal effect of a verdict” unless appealed.
{¶ 39} Instead of preparing for trial, Claude filed a motion to dismiss in which she claimed that the arbitrators’ award in her favor required dismissal of the complaint. Claude‘s motion solely relied on the arbitrators’ decision (her entire motion is as follows):
Plaintiff and Defendant have a divorce case pending in domestic relations court. Prior to the divorce case, Defendant had filed a protective order against plaintiff and plaintiff was found guilty of domestic violence. Plaintiff and Defendant have one child which temporary custody was granted to the Defendant pending divorce proceedings. On September 28, 2018 Plaintiff filed a complaint against defendant for Slander and Libel, false statement to court resulting to plaintiff to become homeless by a protection order being granted to Defendant and Defendant took Pictures аnd a futon belonging to plaintiff.
The case was referred for Arbitration on January 3, 2019.
The Arbitration panel finds against Plaintiff on all claims. (See attached Exhibit. A) Therefore, Defendant asks this Honorable Court to dismiss this case with prejudice. Costs to Plaintiff.
There were no other arguments presented for the trial court‘s consideration.
{¶ 40} The arbitrators’ report and award was of no legal significance in consideration of the timely appeal and the matter being returned to the assigned triаl court judge for trial. Loc.R. 29, Part VII (B). Further, the report could not be relied upon by the trial court in considering the arguments raised in the motion to dismiss. In light of the fact that the motion to dismiss was entirely based upon the report and award of the arbitrators, the trial court erred in granting the motion to dismiss for any reason.
{¶ 41} The majority concludes that Loc.R. 29 is inconsistent with the Rules of Civil Procedure, and therefore, the de novo trial requirement is unenforceable.
{¶ 42} Loc.R. 29, Part VII (A)(1) provides that “[t]he filing of a single appeal shall be sufficient to require a de novo trial of the entire case on all issues and as to all parties.” (Emphasis added.) The trial court expressly relied on Loc.R. 29 in referring Stephen‘s claims to mandatory arbitration without the consent of the parties. Stephen properly appealed the unfavorable arbitration deсision under Loc.R. 29, an appeal that is mandated by the Ohio Supreme Court. Under Loc.R. 29, Part VII(A)(1) as adopted by the Cuyahoga County Court of Common Pleas, the trial court was required to conduct a trial de novo on all claims and all issues. We should not condone the trial court ignoring its own rules, especially when those rules were the sole source of authority to force the mandatory arbitration upon the unwilling plaintiff. It is one thing to permit trial сourts some latitude in enforcing deadlines within their local rules, see, e.g., In re T.W., 8th Dist. Cuyahoga Nos. 88360 and 88424, 2007-Ohio-1441, at ¶ 39; it is another altogether to permit trial courts to ignore their own rule requiring a trial de novo upon a party‘s timely perfecting an appeal from an unsolicited arbitration proceeding.