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Davis v. Remy

Court of Appeals of Ohio, Fourth District

December 22, 2003

ALTON DAVIS, Plaintiff-Appellant,
v.
TERESA REMY, Defendant-Appellee.

James T. Boulger, Chillicothe, Ohio, for appellant.

William N. Eachus, Gallipolis, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

William H. Harsha, Judge

{¶1} Alton Davis appeals a judgment of the Jackson County Common Pleas Court granting Teresa Remy's motion to dismiss. He contends his complaint adequately sets forth claims for both malicious prosecution and intentional infliction of emotional distress. Accepting the allegations in Davis's complaint as true, we are unable to conclude that he can prove no set of facts entitling him to recovery. Thus, the trial court erred in granting Remy's motion and we reverse and remand this cause for further proceedings.

{¶2} In March 2002, Alton Davis filed a complaint against his ex-wife, Teresa Remy, alleging malicious prosecution and intentional infliction of emotional distress. In June 2002, Remy filed her answer. As one of many defenses, Remy claimed that Davis had failed to state a claim upon which relief could be granted. Two days after filing her answer, Remy filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief could be granted. She claimed that the official records of the criminal cases had been sealed and therefore, under R.C. 2953.52(B)(3), the proceedings in those cases were deemed not to have occurred. She argued that Davis could not rely on the six criminal cases to support his complaint if the proceedings were deemed not to have occurred. Within her memorandum in support, Remy referred to "Exhibit A" as an attachment. While the record does not contain a copy of the attached exhibit, it appears from the context of her memorandum that it is a copy of the order sealing the records.[1]

{¶3} In April 2003, the court granted Remy's motion and dismissed Davis's complaint. Davis now appeals and raises the following assignment of error: "The trial court erred to the prejudice of the plaintiff in dismissing a complaint for failure to state a claim upon which relief could be granted when the complaint in question sets forth a statement of two claims and a set of facts consistent with those claims which demonstrate that the plaintiff is entitled to relief."

{¶4} Although Remy characterized her motion as a motion to dismiss under Civ.R. 12(B)(6), she had already filed her answer. Civ.R. 12(B) permits a defendant to raise the defense of failure to state a claim upon which relief can be granted either in the responsive pleading or by motion. If, however, the defendant opts to raise the defense by motion, the motion must be made "before pleading if a further pleading is permitted." Civ.R. 12(B). Here, Remy filed her Civ.R. 12(B)(6) motion two days after filing her answer.

{¶5} Where a defendant raises "failure to state a claim" in her answer and subsequently files a motion to dismiss, that motion may be treated as a Civ.R. 12(C) motion for judgment on the pleadings. See, e.g., State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 592, 1994-Ohio-204, 635 N.E.2d 26; State ex rel. Midwest Pride IV., Inc. v. Pontious, 75 Ohio St.3d 565, 569, 1996-Ohio-459, 664 N.E.2d 931 (both treating an untimely Civ.R. 12(B)(6) motion as a motion for judgment on the pleadings. Here we do not consider the motion as untimely because the defense was raised in the answer. Rather, it is simply mischaracterized.). The standard applied to a Civ.R. 12(C) motion is the same as a Civ.R. 12(B)(6) motion. Sabolsice v. Armm Coal Co. (June 28, 1989), Lawrence App. No. 1874. However, whereas a Civ.R. 12(B)(6) motion must be judged on the face of the complaint, a Civ.R. 12(C) motion permits consideration of the complaint and answer. Pontious, 75 Ohio St.3d at 569.

{¶6} Under Civ.R. 12(C), a dismissal is appropriate "where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief." Id . at 570. Thus, a court should grant such a motion only if there is no possible reading of the complaint that states a claim for relief. If there is some possible set of facts by which the complainant might state a valid claim for relief, the court should not grant the motion. See Fink, Greenbaum & Wilson, Guide to Ohio Rules of Civil Procedure (2000) 12-10, Section 12:3. A Civ.R. 12(C) motion cannot be granted unless there are no disputes of material fact and the movant is entitled to judgment as a matter of law. Pontious, 75 Ohio St.3d at 570. Thus, we independently review the motion as a matter of law to determine if it was properly granted.

{¶7} The first count of Davis's complaint asserts a claim for malicious prosecution. The elements of malicious criminal prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the defendant. Trussell v. Gen. Motors Corp. (1990), 53 Ohio St.3d 142, 145, 559 N.E.2d 732, syllabus.

{¶8} In his complaint, Davis alleged that Remy caused six criminal complaints to be filed against him. He alleged that Remy acted with malice in instituting the proceedings and that "she knew the report she was making was false". Additionally, he alleged that Remy "understood that there was no probable cause to believe that the plaintiff had committed any of the alleged crimes." Finally, Davis's complaint alleged that a jury found him not guilty of three charges and the state dismissed the other three charges.

{¶9} The second count of Davis's complaint asserts a claim for intentional infliction of emotional distress. In order to establish an action for the intentional infliction of emotional distress, a plaintiff must show: "* * *(1) that 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) that the actor's conduct was so extreme and outrageous as to go "beyond all possible bounds of decency" and was such that it must be considered as "utterly intolerable in a civilized community"; (3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and (4) that the mental anguish suffered by plaintiff is serious and of a nature that "no reasonable man could be expected to endure it"." (Citations omitted.) Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 463 N.E.2d 98. See, also, Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 453 N.E.2d 666, syllabus.

{¶10} In his complaint, Davis alleged that Remy engaged in acts intended to cause him extreme emotional distress. He alleged that she made false reports to law enforcement officers thereby causing the institution of six criminal charges against him. He also alleged that she spread rumors throughout the community that he had sexually abused their daughter. His complaint alleged that Remy's conduct was extreme, outrageous, and beyond all possible bounds of decency. Furthermore, he alleged that Remy's actions caused him extreme stress and mental anguish "of a seriousness in nature that no reasonable person should be expected to endure."

{¶11} In her motion, Remy argued that Davis's complaint did not state a claim for either malicious prosecution or intentional infliction of emotional distress because the records of the criminal proceedings that formed the basis of the claims had been sealed and the proceedings were deemed not to have occurred. However, Remy's argument requires consideration of evidence outside the pleadings, namely evidence establishing that the records of the six criminal proceedings have been sealed. A court is not permitted to consider evidence outside the pleadings when ruling on a Civ.R. 12(C) motion for judgment on the pleadings. Euvrard v. The Christ Hosp. (2001), 141 Ohio App.3d 572, 575, 752 N.E.2d 326; State ex rel. Montgomery v. Purchase Plus Buyer's Group, Inc., Franklin App. No. 01AP-1073, 2002-Ohio-2014. Under Civ.R. 12(C), a trial court's inquiry is restricted solely to the allegations in the pleadings. Euvrard; Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 402, 594 N.E.2d 60. Moreover, unlike a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim, a Civ.R. 12(C) motion for judgment on the pleadings cannot be ...


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