Pheils v. PalmerPheils v. Palmer
David Palmer, et al., pro se.
Timothy C. James for appellant Ok Sun Palmer.
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HANDWORK, P.J.
{¶ 1} This cause comes before the court on appeal from a judgment of the Lucas County Court of Common Pleas.
{¶ 3} In 1995, Pheils instituted the instant defamation action against appellants. Appellee claimed that appellants made the defamatory statements with actual malice. Appellee also sought compensatory and punitive damages for intentional infliction of emotional distress, and civil conspiracy. He also asserted that David Palmer trespassed upon appellee‘s property. David Palmer filed counterclaims against appellee alleging claims of malicious prosecution, fraud, and defamation.
{¶ 4} After a jury trial, the court entered judgment in favor of appellee, awarding him $110,000 on the defamation claim, $10,000 on the civil conspiracy claim, and $800 on the claim of the infliction of intentional emotional distress. The jury also awarded Pheils $120,000 in punitive damages. The jury further found in favor of appellee on the claims raised by appellants. Final judgment was entered by the common pleas court on December 23, 1997.
{¶ 6} “I. TRIAL COURT ERRED WHEN IT ADMITTED SURVEILLANCE EVIDENCE AT THE TRIAL REGARDING APPELLANT DAVID PALMER.”
{¶ 7} “II. TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S RULE 60(B) MOTION FOR RELIEF FROM JUDGMENT.”
{¶ 8} “III. TRIAL COURT ERRED WHEN IT GRANTED APPELLEE‘S MOTION IN LIMINE.”
{¶ 9} “IV. TRIAL COURT ERRED WHEN IT FAILED TO GRANT APPELLANT‘S MOTION FOR A NEW TRIAL.”
{¶ 10} “V. TRIAL COURT VIOLATED APPELLANT‘S DUE PROCESS RIGHTS TO A FAIR TRIAL.”
{¶ 11} “VI. TRIAL COURT LACKED JURISDICTION TO RULE ON APPELLANT‘S RULE 60(B) MOTION FOR RELIEF FROM JUDGMENT.”
{¶ 12} OK Sun Palmer filed a separate brief on appeal and maintains that the court below committed as error:
{¶ 13} “I. THE TRIAL COURT ERRED WHEN IT ADMITTED SURVEILLANCE EVIDENCE REGARDING APPELLANT, OK SUN PALMER.”
{¶ 14} “II. The TRIAL COURT ERRED WHEN IT DID NOT GRANT APPELLANT‘S MOTION FOR A NEW TRIAL BECAUSE THE EVIDENCE DEMONSTRATES APPELLANT, OK SUN PALMER, DID NOT PARTICIPATE IN
{¶ 15} “III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S ORIGINAL AND SUPPLEMENTAL 60(B) MOTION FOR RELIEF FROM JUDGMENT.”
{¶ 16} Appellants’ Assignments of Error Nos. I address the same issue and shall, therefore, be considered together. In both of these assignments of error, appellants contend that the trial court abused its discretion in allowing, over appellants’ objection, the testimony of appellee‘s private investigator, Michael Mullin, into evidence. This testimony related to OK Sun‘s mobility. They also argue that the court below abused its discretion in admitting a videotape of OK Sun made by Mullin into evidence. The objection to the testimony and the videotape was that it was untimely and that it was irrelevant to the question of whether OK Sun participated in the creation and distribution of the fliers to the point that it caused her unfair prejudice. The trial court overruled the objection holding:
{¶ 17} “I think it goes to the credibility of both Mr. and Mrs. Palmer. I think it would be best--having seen it before. I think you have had plenty of time to take—the tape had been noticed to the Defendant some time ago. You have had time really to depose this fellow. His testimony should be no surprise because he testified in a prior case.”
{¶ 19} “WANTED FOR BEING A CROOKED ATTORNEY
{¶ 20} “DAVID R. PHIELS, JR.
{¶ 21} “GUILTY OF FRAUD, GROSS INCOMPETENCE, CHARGING AN EXCESSIVE FEE, PERJURY AND EXTORTION.”
{¶ 22} Other fliers stated that appellee was the “KING OF SLEAZE” and earned this title the “OLD FASHIONED WAY.”
{¶ 23} Appellee testified that these fliers were put on the mailbox at his residence, taped on the windows of his automobile and his office, and posted on utility poles throughout Wood and Lucas Counties. He also stated that the fliers were placed in his neighbors’ mailboxes. Pheils further indicated, through the testimony of his former associate, Dale Crandall, and a photograph, that the fliers were even taped to OK Sun‘s van. Moreover, appellee maintained that appellants sent letters to individuals claiming that Pheils committed, among other things, perjury, extortion, fraud, and deception.
{¶ 24} According to appellee, OK Sun, who was seriously injured as a result of the 1987 automobile accident and had difficulty walking, not only participated in the creation of the fliers, but also, helped her husband in the distribution of the same. At trial, OK
{¶ 25} At trial, Mullin narrated during the playing of the surveillance tape, which shows OK Sun picking up a large rock, carrying two filled shopping bags plus her cane, and, on a third occasion, getting out of a car and carrying shopping bags without any difficulty. On cross-examination, appellants’ attorney questioned Mullen on the issue of whether he ever saw OK Sun engage in any strenuous activities, such as running, jumping, mowing the grass, heavy lawn work, or riding a bike. Mullen answered: “No Sir.”
{¶ 26} “Relevant evidence” is that evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
{¶ 28} In his Assignment of Error No. III, David Palmer maintains that the trial court erred in granting appellee‘s motion in limine limiting the introduction of any evidence of fraud and/or perjury committed by appellee with regard to the costs and fees that he charged appellants in cases occurring prior to May 5, 1995. In addition, the court granted the motion in limine as to any acts, e.g., divulging attorney-client confidences prior to that date.
{¶ 29} A motion in limine is a preemptive trial tactic that obtains a ruling to exclude or limit the use of certain evidence which the movant believes to be improper, and is made in advance of the actual presentation of the evidence to the trier of fact. State v. Winston (1991), 71 Ohio App.3d 154, 158. “The motion asks the court to exclude the evidence unless and until the court is first shown that the material is relevant
{¶ 30} Here, those matters that appellant sought to include are bits and pieces of other cases, some of which did not involve appellants, that appellants wanted to use to attack appellee‘s credibility on the issue of defamation. According to appellants, these documents, e.g., “fraudulent” time sheets prepared and submitted by appellee in a 1991 case, would establish that the statements published by appellants were true as to appellee‘s excessive and/or fraudulent costs and fees. None of the documents, including portions of court transcripts and depositions, submitted by appellants are either authenticated original documents or sworn to and/or certified copies of the originals. See
{¶ 31} In his Assignment of Error No. VI, Palmer asserts that the trial court erred in overruling appellants’
{¶ 32} We reject David Palmer‘s argument for two reasons. First, this issue was never raised in appellants’ motion for relief from judgment or in David Palmer‘s supplemental motion for relief from judgment and is, therefore, waived on appeal. Mason v. Meyers, 140 Ohio App.3d 474, 477, 2000-Ohio-1698 (Citations omitted.). Furthermore, we conclude that the tracking and confirmation sheet is insufficient evidence to establish that appellants’ alleged affidavit of prejudice was filed in the Ohio Supreme Court on August 20, 2008, thereby precluding the trial judge from entering his judgment at a later point on that same date. Accordingly, David Palmer‘s Assignment of Error No. VI is found not well-taken.
{¶ 33} In her Assignment of Error No. III, OK Sun Palmer contends that the trial court committed reversible error when it denied appellants’ motion for relief from judgment predicated on newly discovered evidence. David Palmer raises the same issue in his Assignment of Error No. II.
{¶ 34} In the case before us, appellee‘s claims were based upon the allegation that appellants defamed him by publishing materials that claimed he was guilty of fraud,
{¶ 35} On November 13, 1998, appellants’ filed their motion for relief from judgment. Appellants based their motion on
{¶ 36} Appellants timely appealed the trial court‘s original judgment to this court. As a consequence, the common pleas court lost its jurisdiction to rule on the pending motion for relief from judgment. The Palmers filed for bankruptcy in August 1998. This case was not reinstated on our docket court until 2008. On June 25, 2008, we remanded this cause to the trial court for the purpose of obtaining a ruling on the
{¶ 37} On August 15, 2008, appellants submitted a “supplemental” motion for relief from judgment in which they raised new “evidence” that the common pleas court
{¶ 38} In order to prevail on a motion to vacate made pursuant to
{¶ 39} A motion for relief from judgment, under
{¶ 40} “Newly discovered evidence refers to evidence in existence at the time of trial of which the aggrieved party is excusably ignorant.” Dunham v. Dunham, 171 Ohio App.3d 147, 2007-Ohio-1167, ¶ 109. As applied here, the judgment for costs in the amount of $11,211.12 was entered in Pheils and Associates v. Palmer, supra, on December 17, 1997. Id. ¶ 1. In support of their motion for relief from judgment, appellants submitted (1) exhibits of the costs incurred by appellee; and (2) time sheets allegedly reflecting attorney fees that appellee received in Pheils and Associates v. Palmer. According to appellants, the costs incurred and attorney fees submitted did not relate to that case and were, therefore, evidence of the truth of the statements made by appellants in the materials that they created and distributed. Nonetheless, the record of this cause does not contain any affidavits or other documents averring that these are true and accurate copies of these documents or swearing that these costs were allegedly related to other lawsuits-some involving these parties and some involving other individuals-that date back to 1991. Moreover, many of these materials existed at the time that judgment was entered in this case and, with due diligence, could have been discovered for the purposes of filing a motion for a new trial within 14 days of that entry. Indeed, some of these materials were those precluded from entry into evidence at trial by
{¶ 41} In addition, appellants failed to provide any explanation for the 11 month delay in filing the original motion for relief from judgment and the 10 plus year delay in filing their supplemental motion. Even though a party has a potential right to file a motion to vacate a judgment up to one year after the entry of judgment, the motion is subject to the “reasonable time” requirement. Adomeit v. Baltimore, 39 Ohio App.2d at 106. A reasonable time is determined under the facts of each case. Novak v. CDT Development Corp., 8th Dist. No. 83655, 2004-Ohio-2558, ¶ 12. In the absence of an explanation of the reason for a delay, the Eighth District court of Appeals found delays of four months or less unreasonable under
{¶ 43}
{¶ 44} OK Sun Palmer claims that appellee failed to prove that David Palmer was acting as her agent because he failed to establish that she had the requisite control over her husband‘s actions; therefore, the trial court should have granted her motion for a new trial. We disagree. Appellee‘s theory of the case against both OK Sun and David Palmer
{¶ 45} The elements of a civil conspiracy claim under Ohio law are: (1) a malicious combination of two or more persons, (2) resulting in injury to person or property, and (3) an unlawful act independent from the actual conspiracy. Berardi‘s Fresh Roast, Inc. v. PMD Enterprises, 8th Dist. No. 90822, 2008-Ohio-5470, ¶ 45. The unlawful act alleged in this case was defamation. Defamation is a false publication either spoken or written that injures a person‘s reputation. Dale v. Ohio Civ. Serv. Emp. Assn. (1991), 57 Ohio St.3d 112, 117. To prove defamation, the injured party must show that: (1) a false and defamatory statement was made about plaintiff; (3) the statement was published without privilege to a third party; (4) it was made with fault of at least negligence on the part of the defendant; and (5) it was either defamatory per se or caused special harm to the plaintiff. Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc. (1992), 81 Ohio App.3d 591, 601 (Citation omitted.).
{¶ 46} It is undisputed that fliers were created and published attacking appellee‘s character, claiming, inter alia, that he was a “crook,” that he committed fraud and perjury, and that he charged excessive attorney fees. These fliers were introduced into evidence at trial. This was defamation per se because it reflected upon appellee‘s character in such a manner that it injured him in his trade or profession. Becker v. Toulmin (1956), 165 Ohio St. 549, 553. There is also no issue as to whether appellee suffered damages as a result of the defamation. The sole question, therefore, is whether evidence was offered to
{¶ 47} A civil conspiracy is “a malicious combination of two or more persons to injure another, in person or property, in a way not competent for one alone.”
{¶ 48} Minarik v. Nagy (1963), 8 Ohio App.2d 194, 196. The element of a “malicious combination to injure” does not require a showing of an express agreement between defendants, but only a common understanding or design, even if tacit, to commit an unlawful act. Gosden v. Louis (1996), 116 Ohio App.3d 195, 219. (Citations omitted.) The element of malice is “inferred from or imputed to a common design by two or more persons to cause harm to another by means of an underlying tort, and need not be proven separately or expressly.” Gosdon, supra, at 219-220.
{¶ 49} In the present case, the evidence offered at trial showed that David Palmer is unemployed. In addition, testimony was adduced from David and OK Sun indicating that the couple‘s home, as well as all of the parties’ funds, were held solely in the name of OK Sun. She further attested, however, that David Palmer exercises the control over those funds, but that she does not sign any documents, including checks, presented to her by her husband unless he provides “an explanation.” OK Sun and David also acknowledged that she owned the van that was used to transport the fliers for distribution. Evidence offered at trial demonstrated that some of these fliers were posted on the van itself. While OK Sun agreed that she would ride in the van, she denied ever doing so when any fliers were posted thereon. Nonetheless, an exhibit entered into evidence at
{¶ 50} In his Assignment of Error No. IV, David Palmer challenges the court‘s denial of appellants’
{¶ 51} Finally, in his Assignment of Error No. V, David Palmer contends that the trial judge, the Honorable Richard McQuade, violated his due process rights to a fair trial. In particular, he claims that the judge displayed “actual bias” toward appellants. The Due Process Clause of the
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, P.J. _______________________________
JUDGE
Thomas J. Osowik, J. _______________________________
John R. Willamowski, J. JUDGE
CONCUR. _______________________________
JUDGE
Judge John R. Willamowski, Third District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.