[Cite as Johnson v. Johnson,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STEPHEN EARLY JOHNSON, :

Plaintiff-Appellant, : No. 108420 v. :

CLAUDE STEPHANIE JOHNSON, : ET AL., : Defendants-Appellees. :

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

Appearances:

Stephen Early Johnson, pro se.

Claude Stephanie Johnson, pro se.

RAYMOND C. HEADEN, J.:

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 Civ.R. 12(B)(6). For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion.

I. Factual and Procedural History

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.

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

Prior to the arbitration hearing, Stephen filed the following discovery

requests on December 28, 2018: request for admissions, request for production of

documents, and request for first set of interrogatories.

An arbitration hearing was held on January 3, 2019, and Stephen

appealed the arbitration panel’s decision on February 4, 2019. The case was

1 Stephen filed a two-count complaint on August 22, 2018, and an amended five- count complaint on September 28, 2018. Claude answered the amended complaint and this appeal addresses Stephen’s amended complaint.

2 The trial court’s referral to arbitration was premature since Loc.R. 29 does not permit a referral until after all discovery is completed. Loc.R. 29, Part I(D). Due to the parties’ failure to raise this issue with the trial court, we do not now need to consider the alleged error on appeal. Hohmann, Boukis & Curtis Co. v. Brunn,

,

(8th Dist. 2000). returned to the trial court’s docket on February 6, 2019. Per a February 14, 2019

journal entry, the dispositive motion deadline was extended to March 8, 2019, and

all other dates remained the same.

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 Civ.R. 12(B)(6).3

On March 11, 2019, the trial court granted Claude’s motion to dismiss

because Stephen’s complaint failed to state a claim upon which relief could be

granted.

Following the court’s granting of Claude’s Civ.R. 12(B)(6) motion,

Stephen filed this timely appeal arguing one assignment of error:

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)[.]

3Claude attached a memorandum in support of her motion to dismiss that included a copy of the Report and Award of the Arbitrators as well as the arbitrators’ five-page award summary. We do not consider the arbitrators’ report and award in our de novo review of Claude’s motion to dismiss nor does the trial court’s judgment entry provide any basis to assume the trial court considered this document when it reviewed Claude’s motion to dismiss. Further, Claude’s motion to dismiss referenced the complaint’s allegations of slander, libel, and theft, and we do not presume Claude intended the motion to rely exclusively on the arbitrators’ report and award simply because she attached a copy of that document to her motion. II. Law and Analysis

Stephen contends that the trial court erred and abused 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 Civ.R. 12(B)(6) motion.

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;

rather, Stephen contends that the trial court’s granting of Claude’s Civ.R. 12(B)(6)

motion to dismiss was in error.

Technically, because Claude filed her Civ.R. 12(B)(6) motion to

dismiss after she filed an answer, Claude sought a Civ.R. 12(C) motion for judgment

on the pleadings rather than a motion to dismiss. Shingler v. Provider Servs.

Holdings, L.L.C., 8th Dist. Cuyahoga No. 106383,

. A

motion for judgment on the pleadings raises only questions of law that are reviewed

under a de novo standard of review. Cohen v. Bedford Hts., 8th Dist. Cuyahoga No.

101739,

, ¶ 7.

Claude’s motion will be reviewed under a Civ.R. 12(B)(6) standard:

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),

,

,

. Therefore, we will analyze the [Civ.R 12(C) motion] under the same principles which we would apply in reviewing a Civ.R. 12(B)(6) dismissal.

Black v. Coats, 8th Dist. Cuyahoga No. 85067,

.

The test to determine whether a complaint can be dismissed pursuant

to Civ.R. 12(B)(6) is “[i]n order to dismiss a complaint for failure to state a claim

upon which relief can be granted, the court must find beyond doubt that plaintiff

can prove no set of facts warranting relief after it presumes all factual allegations in

the complaint are true, and construes all reasonable inferences in plaintiff’s favor.”

, citing State ex rel. Seikbert v. Wilkinson,

,

(1994). Thus, a complaint will be dismissed, pursuant to

Civ.R. 12(B)(6), if it appears beyond doubt that the plaintiff can prove no set of facts

entitling the plaintiff to relief.

.

In his amended complaint, Stephen raised five counts.

A. Count 1

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.)

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 (2) exposes a person to public hatred, contempt, ridicule, shame or disgrace, or

(3) affects a person adversely in his or her trade, business or profession. Sullins v.

Raycom Media, Inc.,

,

, ¶ 15 (8th Dist.).

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.,

, 2012-Ohio-

4193,

, ¶ 77, citing Pollock v. Rashid,

,

(1st Dist. 1996).

Defamation can occur in two forms — slander, which is spoken, and

libel, which is written. Stohlmann v. WJW TV, Inc., 8th Dist. Cuyahoga No. 86491,

. Stephen alleged Claude committed both slander and libel.

1. Slander

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.

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,

. A plaintiff is required under Civ.R. 8(A)(1) to

provide a short and plain statement of the claim demonstrating that the claimant is

entitled to relief. McBride v. Parker, 5th Dist. Richland No. 11 CA 122, 2012-Ohio-

2522, ¶ 27. A plaintiff is not generally required to anticipate affirmative defenses

and allege facts within the complaint that disprove those defenses. DSS Servs. at

¶ 10. Qualified privilege is an affirmative defense to a defamation claim. Boyd v.

Archdiocese of Cincinnati, 2d Dist. Montgomery No. 25950,

, ¶ 37.

The qualified privilege exists for statements made to law enforcement for the

prevention or detection of crime, absent actual malice:

“‘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,

, ¶ 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,

, 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.

. Here, Claude did not raise

qualified privilege in her answer.4

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

4 Claude is not precluded from seeking to amend her answer under Civ.R. 15, if appropriate, to incorporate qualified privilege. construing them most strongly in Stephen’s favor, Stephen presented sufficient facts

which, if proven, could warrant him relief. We, therefore, find the trial court erred

in granting Claude’s Civ.R. 12(C) motion on the slander claim.

2. Libel

Libel, generally, is a false written publication that meets the elements

of defamation. McKee v. McCann,

,

(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

For ease of analysis, Counts 2 through 4 will be discussed collectively.

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.

Count 3 of the amended complaint 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

property. Stephen alleges in Count 4 that Claude tampered and took personal

property without Stephen’s consent. The only statement arguably related to this

claim is Stephen’s allegation that “[d]efendant had packed up all her belongings.”

The mere recitation of legal standards, such as negligence, breach of

contract, or theft, is not sufficient to prevail on a Civ.R. 12(B)(6) motion to dismiss.

Tuleta v. Med. Mut. of Ohio,

,

, ¶ 24 (8th Dist.).

Stephen’s unsupported conclusions in Counts 2-4 of his complaint were not

sufficient to withstand a motion to dismiss. Id. at ¶ 28. Accordingly, the trial court

did not err when it dismissed Counts 2–4.

C. Count 5

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 to 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,

,

¶ 12, citing Russ v. TRW, Inc.,

,

(1991). Further, a fraud claim must be pled with particularity pursuant to Civ.R. 9(B).

Schmitz v. NCAA,

,

, ¶ 66 (8th Dist.). “This means

that a plaintiff must state “‘the time, place, and content of the false representation,

the fact misrepresented, and the nature of what was obtained or given as a

consequence of the fraud.’””

, quoting Carter-Jones Lumber Co. v.

Denune,

,

(10th Dist. 1999), quoting Baker

v. Conlan,

,

(1st Dist. 1990). Stephen

provided no detail regarding the fraud allegation except to state Claude misled the

court, school system, police department, TSA, and family members “by spreading

rumors that [Stephen] committed certain acts and leaving out parts of the story to

suit her advantage and continue to use the Justice System as a sword rather than a

shield.” (Amended complaint at 20). Because Stephen’s fraud claim was not

pleaded with the necessary particularity, the trial court properly granted dismissal

of Count 5.

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.

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, 2020, that report and award was no longer binding on the parties and the case was

correctly returned to the trial court judge for a trial de novo. Loc.R. 29, Part VII (B)

and (C).

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 No. C-

920223,

(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,

, 4 (July 12, 2000).

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,

(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).

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 the arbitration award and the case’s return to the trial court for a trial de novo. State

Farm Fire & Cas. Co. v. Holland, 12th Dist. Madison No. CA2007-08-025, 2008-

Ohio-4436, ¶ 32, citing Paramount Parks, Inc. v. Admiral Ins. Co., 12th Dist.

Warren No. CA2007-05-066,

, citing Business Data Sys., Inc.

v. Gourmet Cafe Corp., 9th Dist. Summit No. 23808,

. See also

Pollock v. Jones, 6th Dist. Lucas No. L-99-1106,

, 13

(June 23, 2000) (“[a] trial court is vested with broad discretion in controlling its

docket and regulating the proceedings before it.”); In re T.W., 8th Dist. Cuyahoga

Nos. 88360 and 88424,

(“courts are to be given latitude in

following their own local rules; the enforcement of rules of court is held to be within

the sound discretion of the court”).

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.

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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_____ RAYMOND C. HEADEN, JUDGE

MICHELLE J. SHEEHAN, J., CONCURS; SEAN C. GALLAGHER, P.J., DISSENTS WITH SEPARATE OPINION

SEAN C. GALLAGHER, P.J., DISSENTING:

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.

At the case management conference conducted five days after Claude

filed an answer to the complaint, the trial court sua sponte referred the case to arbitration under Loc.R. 29. That referral was premature and, in large part, has

appeared to cause the parties’ confusion — Stephen’s primary argument in this

appeal focuses on his inability to conduct discovery. The local rule does not permit

a referral to arbitration until after all discovery is completed. Loc.R. 29, Part

I(D). In fact, the referral is to occur only once all issues are joined and the

matter is ready for trial.

This is because after the referral to arbitration, no

further motions, pleadings, or discovery is permitted by rule.

This complicates

the matter before us; however, it is acknowledged that neither party objected to the

trial court’s referral process.

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,

. 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.

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 and 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.

The arbitrators’ report and award was of no legal significance in

consideration of the timely appeal and the matter being returned to the assigned

trial 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.

The majority concludes that Loc.R. 29 is inconsistent with the Rules

of Civil Procedure, and therefore, the de novo trial requirement is

unenforceable. Rule 15(A) of the Rules of Superintendence for the courts of

Ohio expressly permits courts to adopt a plan for mandatory arbitration of civil

cases. Under Rule 15(A)(2), however, every plan for mandatory arbitration of civil

cases adopted by the common pleas court shall be filed with the Ohio Supreme Court and must include language requiring the ability to appeal the mandatory

arbitration. Loc.R. 29 authorizes mandatory arbitration in Cuyahoga County.

Thrower v. Bolden, 8th Dist. Cuyahoga No. 97813,

. “It is well

settled that Loc.R. 29 is constitutional and consistent with Sup.R. 15.”

citing Kuenzer v. Teamsters Union Local 507,

,

(1981); Cavalry Invests., L.L.C. v. Dzilinski, 8th Dist. Cuyahoga No. 88769, 2007-

Ohio-3767.

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 decision 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 courts some latitude in enforcing deadlines

within their local rules, see, e.g., In re T.W., 8th Dist. Cuyahoga Nos. 88360 and

88424,

; 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. In light of the fact that Claude’s motion to dismiss was entirely based

on the arbitration decision that bore no force or effect following Stephen’s timely

appeal, the motion to dismiss (whether considered as a Civ.R. 12(B)(6) or 12(C))

should have been denied. The majority’s implication that the trial court

could sua sponte review the complaint, independent of Claude’s motion, is contrary

to all notions of due process. Because Stephen appealed the unfavorable decision

following the mandatory arbitration, the trial court was required to conduct a trial

de novo on all claims and upon all issues. Calhoun, 8th Dist. Cuyahoga No. 84442,

, at ¶ 7 (“Absent any evidence of a party’s waiver of the right to

appeal, the trial court shall conduct a trial de novo on all issues once a party has

timely appealed the arbitrators’ award. Loc.R. 29 Part VIII(A)(1) & (C).”) Stephen’s

argument regarding the lack of discovery and his unanswered requests for

admissions all stem from the premature referral to arbitration. Thus, the issues are

inextricably intertwined. I would reverse the decision of the trial court and remand

for the trial de novo on all claims and all issues that Loc.R. 29, Part VII(A)(1) and

(C) requires.