Case Information
*1
[Cite as
Zhelezny v. Olesh
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Vladimir Zhelezny, :
Plaintiff-Appellant, : v. : No. 12AP-681
(C.P.C. No. 11CVC-04-5202) Arkadiy Olesh et al., :
(REGULAR CALENDAR) Defendants-Appellees. :
D E C I S I O N
Rendered on September 30, 2013 Jeffery K. Lucas , for appellant.
Law Office of Vadim N. Levtonyuk, LLC , and Vadim Levtonyuk , for appellees.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J. Plaintiff-appellant, Vladimir Zhelezny ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas dismissing his complaint pursuant to Civ.R. 12(B) and (C).
I. FACTS AND PROCEDURAL HISTORY Defendant-appellee, Grace Evangelical Church ("Grace" or "the church"), is
an Ohio nonprofit corporation. This case arises out of an ongoing dispute between appellant and the church, its Pastor Arkadiy Olesh, and various church leaders. [1] According to appellees, appellant is a disgruntled former member of the church who has engaged in various forms of public protest against the church and its pastor, which have resulted in heated arguments, threats of violence and physical confrontations. Appellees maintain that in 2008, Pastor Olesh sent appellant a letter ("ban letter") informing him that his access to the church was to be severely restricted for one year. Appellees state that, at the end of that year, a second letter was sent extending the ban another year. [2] On April 18, 2010, an unidentified deputy sheriff removed appellant from church property after an altercation with Sergey Chmil. A charge of criminal trespass was filed against appellant as a result of the incident but the prosecutor dismissed the case against appellant on September 13, 2010. Thereafter, in February 2011, appellant was involved in a physical altercation with Aleksander Shishlo while appellant was at the church. On April 26, 2011, appellant filed his complaint in this case alleging the
following causes: (1) assault and battery; (2) extortion; (3) malicious prosecution; (4) violation of civil rights; (5) civil conspiracy; and (6) intentional infliction of emotional distress. [3] The complaint seeks monetary damages from the church under the doctrine of respondeat superior. Following a hearing in chambers, the trial court granted appellees' joint
motion for a temporary restraining order on June 20, 2011. The order states that appellant "shall be immediately and temporarily restrained and enjoined from entering on or trespassing on the property of Grace." Although appellant initially consented to the restraining order, he subsequently moved the trial court to dissolve the order and to deny appellees' motion for a preliminary injunction. The trial court subsequently denied appellees' joint motion for a preliminary injunction on the stated grounds that appellees had not asserted a counterclaim for injunctive relief. (Aug. 2, 2011 Magistrate's Decision.) On November 10, 2011, appellees filed a joint motion to dismiss the complaint pursuant to Civ.R. 12(B)(1) and (6), 12(C), 12(H)(2) and (3). On July 19, 2012, the trial court issued a "Decision and Entry Granting Defendants' Joint Motion for Judgment on the Pleadings." Therein, the trial court dismissed each of the causes alleged in the complaint. The trial court also determined that it lacked jurisdiction over several of appellant's causes of action due to the ecclesiastical abstention doctrine.
II. ASSIGNMENTS OF ERROR Appellant assigns the following as error:
[I.] The trial court commits error in granting a motion to for judgment on the pleadings pursuant to Civ. R. 12(C) when the court relies on facts not contained in the pleadings and weights the credibility of the evidence.
[II.] The trial court committed error in granting a Motion to Dismiss pursuant to Civ. R. 12(C) finding that there were insufficient operative facts when the Complaint contained the necessary operative facts to support each claim.
[III.] The trial court commits error in granting a Motion to Dismiss pursuant to Civ. R. 12(C) finding that the claims are barred by the applicable statute of limitations.
(Sic passim.)
III. STANDARD OF REVIEW Under Civ.R. 12(C), a party may file a motion for judgment on the pleadings
"[a]fter the pleadings are closed but within such time as not to delay the trial."
Franks v.
Ohio Dept. of Rehab. & Corr
.,
{¶ 9}
A motion for judgment on the pleadings tests the allegations of the
complaint and presents a question of law.
Peterson
at 166, citing
Conant v. Johnson
, 1
Ohio App.2d 133 (4th Dist.1964). Thus, our review of a decision to grant judgment on the
pleadings is de novo.
See Rayess v. Educational Comm. for Foreign Med. Graduates
, 134
Ohio St.3d 509,
claims that involved purely ecclesiastical matters, our review is also de novo.
Crosby-
Edwards v. Ohio Bd. of Embalmers and Funeral Dirs.,
IV. LEGAL ANALYSIS For purposes of clarity, we will consider appellant's assignments of error out
of order. In appellant's third assignment of error, appellant contends that the trial court erred in ruling that the statute of limitations barred his claims for assault and battery. We agree with the trial court. Assault is the willful threat or attempt to harm or touch another offensively,
which threat or attempt reasonably places the other in fear of such contact.
Smith v. John
Deere Co.,
Except as provided in division (B) of this section and unless a different limitation is prescribed by statute, a civil action may be commenced only within the period prescribed in sections 2305.04 to 2305.22 of the Revised Code. If interposed by proper plea by a party to an action mentioned in any of those sections, lapse of time shall be a bar to the action. Where defendant's answer asserts a statute of limitations defense, such a
defense is available as grounds for a motion to dismiss brought pursuant to Civ.R. 12(C).
See e.g.
,
Rayess; Anetomang v. OKI Sys. Ltd.,
10th Dist. No. 10AP-1182,
assault and/or battery , or the threat of such contact, accrued more than one year before plaintiff filed his complaint. Thus the allegations of plaintiff's complaint conclusively establish that such claims are barred by the applicable statute of limitations. Appellant now argues that a different limitations period applies inasmuch as the facts underlying his claims of assault and battery also support his other claims for relief. Appellant, however, does not cite any legal precedent that would justify the application of a longer statutory period. In short, we hold the applicable statute of limitations is the one found in R.C. 2305.11. [4] Thus, the trial court did not err in applying the one-year limitations period and dismissing all but the most recent of appellant's claims for assault and battery. For the foregoing reasons, appellant's third assignment of error is
overruled. In appellant's first assignment of error, appellant contends that the trial
court erred when it relied on matters outside the pleadings in granting appellees' motion for judgment on the pleadings. Specifically, appellant contends that the trial court erroneously relied on the "ban letter" in dismissing his claim of malicious prosecution and his timely filed claim for assault and battery. The court agrees.
A. Assault and Battery
Civ.R. 12(C) requires a determination that no material factual issues exist
and that the movant is entitled to judgment as a matter of law.
Coleman v. Beachwood,
8th Dist. No. 92399,
in February 2011, that he was trespassing on church property and that it was possible that a church employee would forcibly eject him from the premises. In dismissing the claim pursuant to Civ.R. 12(C), the court determined that plaintiff either "consented to the possibility of removal from the premises," or "assumed the risk of physical contact" and dismissed appellant's remaining claim for assault and battery. (July 19, 2012 Decision and Entry, 6.) In making this determination, the trial court expressly relied on the text of the ban letters. (July 19, 2012 Decision and Entry, 4.) Although the ban letters are part of the trial court record as exhibits to the
deposition testimony of Valentina Olesh, the ban letters are not referenced in the pleadings, nor are they attached as exhibits thereto. Appellant does not acknowledge in his complaint that he was banned from the church nor does he specifically state that his membership was revoked. While it is reasonable to infer from the facts set forth in the complaint that appellant's right to access the church grounds was restricted in some fashion for a period of time, he still refers the Grace Evangelical Church as "his church." (Complaint, 27.) Consequently, in the context of ruling upon a motion for judgment on the pleadings, the trial court erred when it expressly relied on the ban letters in concluding that appellant knew he was banned from the church in February 2011. Moreover, when the facts alleged in the pleadings are viewed in appellant's favor, there is no support for a finding either of primary assumption of the risk or consent. Primary assumption of the risk is a defense typically applied in a negligence case involving recreational or sporting activities. See Marchetti v. Kalish , 53 Ohio St.3d 95 (1990); Gallagher v. Cleveland Browns Football Co. , 74 Ohio St.3d 427, 431 (1996); 2 Restatement of the Law 2d, Torts, Section 10, at 892 (1977). Appellant alleges at paragraph 45 of the complaint that "[o]n or about February, 2011, Shishlo made unwelcome and unwarranted physical contact on plaintiff by pushing him hard inside of Grace." Such an allegation, if believed, permits an inference that the physical contact by Shishlo in February 2011, was non-consensual. Based upon the facts alleged in the complaint, we hold that the trial court erred when it granted Shishlo's motion for judgment on the pleadings as to the timely filed claim of battery. Appellant's first assignment of error is sustained as it relates to appellant's
timely filed claim for assault and battery arising from the February 2011, altercation with Shishlo.
B. Malicious Prosecution In both appellant's first and second assignments of error, he takes exception to the trial court's dismissal of his claim for malicious prosecution. Appellant argues in his first assignment of error that the trial court erred when it considered the ban letters in ruling upon appellees' motion for judgment on the pleadings, and in his second assignment of error appellant argues that the trial court erred when it concluded that his complaint fails to state a claim for relief. We will consider these assignments of error together as they relate to the malicious prosecution. The claims of malicious criminal prosecution allows the complainant to seek
redress for harm to complainant's dignity and reputation occasioned by the misuse of
criminal proceedings.
Froehlich v. Ohio Dept. of Mental Health,
114 Ohio St.3d 286,
trespass that allegedly occurred on April 18, 2010. The trial court dismissed appellant's claim for malicious prosecution because he failed to allege sufficient facts to permit an inference of either the lack of probable cause or the existence of malice. In making its ruling, the court expressly relied upon the ban letters. (Trial Court Decision, 8.) The trial court determined that on April 18, 2010, appellant entered upon church property with knowledge the he was in violation of the ban letter. (Trail Court Decision, 8.) As noted above, the trial court erred when it considered the contents of the ban letters in dismissing appellant's claim of assault and battery pursuant to Civ.R. 12(C). The same is true of the dismissal of the malicious prosecution claim. The trial court erred when it expressly relied upon the text of the ban letters in finding that appellant knowingly trespassed on the date in question. The material allegations of the complaint are as follows:
55. Usher told Plaintiff that if he called police regarding the threat of physical harm on April 18, 2010, that he would tell police that Plaintiff was committing criminal trespass and would have him prosecuted.
56. Plaintiff did call 911 regarding the threat of physical harm on April 18, 2010.
57. Usher did tell Franklin County Deputy John Doe that Plaintiff was not allowed on the Property of Grace, that he was committing criminal trespass.
58. Usher made these statements despite having knowledge that Plaintiff was invited and Usher stating to Plaintiff that he was allowed to attend.
* * *
98. Plaintiff told prosecutor that he had called 911 at the church because he was threatened by a member of Grace.
99. Plaintiff told prosecutor that he had a recording of the incident that was confiscated by the Franklin County Sheriff's department.
100. Plaintiff told prosecutor that he had permission to attend church.
101. Prosecutor continued the prosecution of Plaintiff despite her knowledge of these facts in the Prior Litigation.
102. Pastor, Usher, Asst. Pastor, John Doe and Board, jointly and severally, encouraged Prosecutor to continue prosecution of Plaintiff.
103. Prosecutor and Pastor, Usher, Asst. Pastor, John Doe and/or Board had discussions with Prosecutor and they conspired to continue the prosecution against Plaintiff.
104. Prosecutor, shortly before trial, for unknown reasons, dismissed the charges against Plaintiff.
105. Prosecutor had a lack of bases or probable cause to continue the prosecution of Plaintiff.
(Complaint, ¶ 55-58, 98-105.) "Probable cause" is a " 'reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.' " Melanowski at paragraph one of the syllabus, quoting Ash v. Marlow , 20 Ohio 119 (1851). Where plaintiff establishes lack of probable cause, "the legal inference may be drawn that the proceedings were actuated by malice." Id. The conduct should be weighed in view of his situation and of the facts and circumstances which he knew or was reasonably chargeable with knowing at the time he made the criminal complaint. Id. The relevant allegations of the complaint, when viewed in appellant's favor,
support the inference of the want of probable cause. Indeed, the complaint alleges that on April 18, 2010, appellant was forcibly removed from the church at the behest of appellees even though appellees had "invited" him to church on that date and knew he "had permission to attend church." (Complaint, 58, 100.) If accepted as true, appellant's allegations gives rise to a cognizable claim of malicious prosecution. And, where the want of probable cause is shown on the face of the
complaint, the existence of malice may be inferred. Melanowski. See also, Gates v. Kroger, 10th Dist. No. 90AP-837 (April 30, 1991). In Criss v. Springfield Twp ., 56 Ohio St.3d 82 (1990), the Supreme Court of Ohio stated:
The requirement of malice turns directly on the defendant's state of mind. Malice is the state of mind under which a person intentionally does a wrongful act without a reasonable lawful excuse and with the intent to inflict injury or under circumstances from which the law will infer an evil intent. For purposes of malicious prosecution it means an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice
(Citations omitted.) Id. at 84-85. Appellant claims that appellees initiated and continued to support the
prosecution of a criminal trespass against appellant even though appellees had invited
appellant to the church, clearly permits an inference of an evil intent or improper
purpose.
See Coleman v. Beachwood
, 8th Dist. No. 92399,
malicious prosecution inasmuch as a governmental official filed the criminal complaint against appellant, not appellees. In support of this argument, appellees filed a motion in this court on December 5, 2012, asking us to take judicial notice that the complaint in Franklin County Municipal Court case No. 2010 CRB 008377, was filed by an "Officer complainant." Under Ohio law, "a private citizen can be held liable for malicious
prosecution even where criminal charges were filed by police authorities."
See, e.g., Wallace v. Noel
, 6th Dist. No. WD-09-032,
in part as it relates to the claim of malicious prosecution and the first assignment of error is sustained in part as to appellant's claim for malicious prosecution and his remaining claim of assault and battery. In the remainder of appellant's second assignment of error, he argues that
the trial court erred when it dismissed several of his claims both on jurisdictional grounds pursuant to Civ.R. 12(C). We will consider the jurisdictional issue first.
C. Subject-Matter Jurisdiction Appellant argues that the trial court erred when it dismissed his claims of civil rights violations, intentional infliction of emotional distress, and civil conspiracy on the grounds that the conduct of the church is not subject to judicial scrutiny pursuant to the ecclesiastic abstention doctrine, also known as the doctrine of church autonomy. The trial court determined that it lacked jurisdiction of appellant's claims for civil conspiracy and intentional infliction of emotional distress because the claim "presents ecclesiastical questions that are inappropriate for this Court to consider." (July 19, 2012 Decision and Entry, 10-11). One of the stated grounds for dismissal of appellant's civil rights claim was that "the church's disciplinary decision to ban plaintiff from their religious organization is an ecclesiastical question that is inappropriate for this Court to review." (July 19, 2012 Decision and Entry, 10.) The First Amendment of the United States Constitution provides that
" 'Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof.' "
Ogle v. Church of God
, 153 Fed.Appx. 371, 375 (6th Cir.2005),
quoting First Amendment to United States Constitution. The United States Supreme
Court has held that in matters involving questions of discipline, or of faith, or
ecclesiastical rule, custom, or law, the Free Exercise Clause requires that no civil court
interfere with the determinations of the church's highest adjudicatory authority before
which the matter has been heard.
Id.
, citing
Watson v. Jones,
restricted appellant's access to the church for a period of one year due to appellant's "unacceptable and offensive behavior," on December 14, 2008, and for "previous incidents." In December 20, 2009, Pastor Olesh extended the restrictions for another year for the stated reason that appellant did not behave "in a Christian manner" on December 19, 2009. The ecclesiastic abstention doctrine precludes the court from adjudicating the merit of the pastor's decision. The record, however, does not contain any evidence that the ban was extended beyond December 2010. A property owner has a privilege to use force to eject a trespasser. See, e.g. ,
Hartwig v. Robinson, 3d Dist. No. 15-97-03 (Oct. 9, 1997); 1 Restatement of the Law 2d, Torts, Section 77 (1965). However, given the absence of evidence to support a finding that Pastor Olesh extended the ban into 2011, the court is unable to sustain the trial court's determination. See Leyland v. Blataric, 9th Dist. No. CA-741 (Dec. 29, 1977) (the question whether the plaintiff was a trespasser and whether defendant used excessive force is generally questions for the jury). Appellant's claims of malicious prosecution and civil conspiracy may also be
decided independent of any ecclesiastical matters. The issue whether appellees had probable cause to prosecute appellant for trespassing depends on whether appellant was invited to the church on April 18, 2010, as he claims in the complaint. The merit of appellant's assertion can be determined without reference to the governing documents of the church and without a determination of the merits of the ban. Furthermore, to the extent that the incidents of April 18, 2010, and
February 2011 form the factual basis of appellant's claims for intentional infliction of emotional distress and civil conspiracy, the present record shows that those claims can be resolved without the need for an examination of purely ecclesiastical issues. For these reasons, we hold that the trial court erred when it determined that it was without jurisdiction of the common law claims of civil conspiracy and intentional infliction of emotional distress.
D.
the government and the private party's conduct so that the conduct may be fairly
attributed to the state itself.
See Clellan v. Wildermuth,
10th Dist. No. 11AP-452, 2011-
Ohio-6390, ¶ 24, citing
Roe v. Franklin Cty.,
85. Grace, Pastor, John Doe and Board denied Plaintiff the right to question the Pastor's actions that were in contradiction to the governing document of Grace.
86. Grace, Pastor, John Doe and Board actions were intentionally taken against the Plaintiff violated the governing document of Grace.
87. Grace, Pastor, John Doe and Board refused to allow an outside Pastor to review the actions of Grace, Pastor, John Doe and Board as an independent arbitrator and said refusal by Grace, Pastor and Board violate the governing document of Grace.
88. Pastor and Grace, by way of Pastor's actions, made remarks against Plaintiff during church services causing extreme embarrassment to Plaintiff. In order for appellant to state a free claim, he must allege that appellees
conspired with the sheriff and prosecutor to substantially burden the practice of his religion by preventing him from engaging in a sincerely held religious belief without any reasonable justification related to a legitimate public interest. See Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.2008). Here, appellant alleges that the criminal prosecution "denied [him] free exercise of religion" and "denied [him] free exercise of his right to peacefully assemble." (Complaint, ¶ 123, 124.) He does not, however, allege that appellees' prosecution of the criminal trespass charge has prevented him from practicing his faith in another church or prevented him from peacefully assembling with willing church members outside of church property. There is no contention that law governing criminal trespass is facially
biased. However, the Free Exercise Clause, like the Establishment Clause, extends
beyond facial discrimination.
See Church of the Lukumi Babalu Aye, Inc. v. Hialeah,
508
U.S. 520, 534 (1993). The clause " 'forbids subtle departures from neutrality,' "
Id.
,
quoting
Gillette v. United States,
401 U.S. 437, 452 (1971), and "covert suppression of
particular religious beliefs."
Id.,
quoting
Bowen v. Roy,
entitled to stop associating with someone who abandons it.
Paul v. Watchtower Bible
and Tract Soc. of New York, Inc.,
and prosecutor to initiate and continue an unwarranted criminal prosecution against appellant was motivated by appellees' hostility to appellant's free exercise rights. Thus, the court must determine whether appellant has the right to worship at Grace and to associate with other Grace members at church functions. In so doing, the trier of fact must also determine whether appellees have the right to exclude appellant from the church and its functions. We do not believe that the trier of fact can make the necessary determination without re-examining the merits of appellees' decision to ban appellant from the church. Such an examination certainly requires an interpretation of the church's governing documents as they relate to church disciplinary issues. When viewed in this light, it becomes evident that a ruling upon the merits of appellant's civil rights claim will result in a prohibited judicial review of a church disciplinary decision. In short, even if we were to find that appellees were acting under color of
state law, we hold that the trial court is without jurisdiction over appellant's civil rights claim. Accordingly, the trial court did not err when it dismissed the civil rights claim due to the lack of subject-matter jurisdiction.
E. Judgment on the Pleadings Appellant's second assignment of error also contends that the trial court erred by dismissing his claims for intentional infliction of emotional distress, civil conspiracy and respondeat superior. [6]
F. Emotional Distress
A claim for intentional infliction of emotional distress requires proof of all
of the following elements: (1) the actor either intended to cause emotional distress or
knew or should have known that actions taken would result in serious emotional distress
to the plaintiff; (2) the actor's conduct was so extreme and outrageous as to go beyond all
possible bounds of decency and was such that it can be considered as utterly intolerable in
a civilized community; (3) the actor's actions were the proximate cause of the plaintiff's
psychic injury; and (4) the mental anguish suffered by the plaintiff is serious and of a
nature that no reasonable person could be expected to endure it.
Clellan
at ¶ 41, citing
Ashcroft v. Mt. Sinai Med. Ctr.
,
intentional infliction of emotional distress because the tortuous conduct alleged in the
complaint was either ecclesiastical in nature or it was not extreme and outrageous. With
respect to the requirement that the conduct alleged be "extreme and outrageous," the
Supreme Court of Ohio has cited Restatement of the Law 2d, Torts, Section 46d, at 71, 73
(1965), which provides that "[t]he liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities."
Clellan
at ¶ 42,
citing
Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of
Am.
,
complaint alleges facts which, if admitted, would permit an inference of extreme and
outrageous conduct.
Treinen v. Village of Greenhills
, S.D. Ohio No. L1805941 (June 29,
2006), citing
Miller v. Currie,
50 F.3d 373, 377-78 (6th Cir.1995).
See also Rogers v.
Targot Telemarketing Servs.,
ecclesiastic issues in support of the claim for intentional infliction of emotional distress. [7] However, even if we disregard such allegations in the analysis, we still believe that the remaining allegations state a claim for relief. Construing the relevant allegations in appellant's favor, it is reasonable to conclude that a collective decision by appellees to prosecute appellant on false criminal charges in 2010, and to commit assault and battery upon appellant in 2011, is extreme and outrageous conduct. See Coleman at ¶ 29 (allegation that defendant had falsely accused plaintiff of telephone harassment and had threatened to publish plaintiff's psychological records in the criminal prosecution precluded a judgment on the pleadings as to intentional infliction of emotional distress). Accordingly, the trial court erred when it granted appellees' motion for judgment on the pleadings as to the claim for intentional infliction of emotional distress.
G. Civil Conspiracy
Civil conspiracy is considered an intentional tort.
Morrow v. Reminger &
Reminger Co., L.P.A
.,
to intentionally inflict emotional distress upon Plaintiff" (Complaint, 122); and that "Grace, Pastor, * * * and Board determined a course of action against Plaintiff's interest." (Complaint, ¶ 79.) The portions of the complaint quoted above, combined with the allegations
relevant to each of the individual claims for relief, permit the inference of a civil conspiracy. Indeed, an agreement among appellees to maliciously prosecute appellant for a criminal trespass in 2010, commit an assault and battery upon appellant in February 2011, and to inflict serious emotional distress upon appellant, arguably states a claim for civil conspiracy. Accordingly, we hold that the trial court erred when it dismissed appellant's claim of a civil conspiracy pursuant to Civ.R. 12(C). For the foregoing reasons, appellant's second assignment of error is
sustained as to the claims for relief sounding in malicious prosecution, intentional infliction of emotional distress, and civil conspiracy. [8]
H. Respondeat Superior
Under the doctrine of respondeat superior
,
an employer is vicariously liable
for the torts that employees commit within the scope of their employment.
Osborne v.
Lyles
,
sexual conduct with a parishioner's spouse was an independent self-serving act that did
not facilitate or promote characteristic church activity, and that the church was not
subject to liability under the doctrine of respondeat superior
. Id.
at 59-60. The Supreme
Court concluded that intentional acts of the employee must be characteristic of the
church's activities or reasonably foreseeable.
Id
.
See also Mirick v. McClellan,
1st Dist.
No. C-930099 (Apr. 27, 1994). Similarly, in
DiPietro v. Lighthouse Ministries,
159 Ohio
App.3d 766,
including Pastor Olesh, Assistant Pastor Aleksander Shishlo, and the church board, to commit tortuous acts upon appellant, it is permissible to infer that the intentional conduct was either characteristic of the church's activities or reasonably foreseeable. Whether appellant can prove his allegations is not for this court to determine in the review of a ruling under Civ.R. 12(C). Indeed, "the issue of intentional conduct being within the employee's scope of employment is ordinarily a fact-dependent determination." Osborne at 330.
V. CONCLUSION Having determined that the trial court erred by dismissing appellant's
claims of intentional infliction of emotional distress, malicious prosecution and civil conspiracy on jurisdictional grounds, and having further determined that the trial court erred by granting appellees' motion for judgment on the pleadings as to the timely filed claim for assault and battery, the claim of malicious prosecution, the claim for intentional infliction of emotional distress, and the claim for civil conspiracy, we sustain in part appellant's first and second assignments of error and overrule appellant's third assignment of error. The judgment of the Franklin County Court of Common Pleas is reversed
and the cause is hereby remanded for further proceedings consistent with this decision.
Judgment reversed; cause remanded.
KLATT, P.J., and DORRIAN, J., concur.
_________________
Notes
[1] The named defendants-appellees are: Grace Evangelical Church; Pastor Arkadiy Olesh; Assistant Pastor, Aleksander Shishlo; church usher Vasily Shishlo; church secretary Genadiy Shishlo; and church members, Sergey Chmil, Vladimir Chmil, and Yuriy Olesh ("appellees"). Although the complaint also identifies as defendants, City of Columbus, City Attorney, and Deputy John Doe, the governmental defendant are no longer parties herein.
[2] Evidentiary materials in support of appellees' statements of fact are not part of the pleadings in this case and shall not be considered by the court in reviewing the merits appellees' motion for judgment on the pleadings.
[3] Appellant does not appeal the trial court's dismissal of the extortion claim.
[4] Moreover, the applicable statute of limitations for a civil conspiracy is the statute applicable to the
underlying cause of action.
Cully v. St. Augustine Manor,
8th Dist. No. 67601 (Apr. 20, 1995);
Davis v.
Clark Cty. Bd. of Commrs.
, 2d Dist. No. 2011-CA-84,
[5] Appellant's second assignment of error does not specifically reference this claim but appellant argues that the trial court erred by dismissing it and appellees have responded to the argument. Accordingly, we will consider the dismissal of appellant's civil rights claim in this appeal.
[6] Having concluded that the trial court did not err when it held that it lacked subject-matter jurisdiction of appellant's civil rights claim, we need not further address that claim. Appellant's claim of malicious prosecution was addressed earlier in this decision.
[7] See Complaint, ¶ 85-88.
[8] T he applicable statute of limitations for a civil conspiracy is the statute applicable to the underlying cause
of action.
Cully v. St. Augustine Manor,
8th Dist. No. 67601 (Apr. 20, 1995);
Davis v. Clark Cty. Bd. of
Commrs.
, 2d Dist. No. 2011-CA-84,