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Darris v. Whitelow

December 4, 2008

YVONNE S. DARRIS, PLAINTIFF-APPELLANT,
v.
BARBARA J. WHITELOW, DEFENDANT-APPELLEE.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 07 CVC 10 14166).

The opinion of the court was delivered by: Tyack, J.

OPINION

(REGULAR CALENDAR)

{¶1} Charles and Barbara Whitelow married in 1971. Although they continue to be married, they apparently separated in 1986, when Mr. Whitelow began a relationship with Yvonne S. Darris. Ms. Darris and Mr. Whitelow continued in this relationship until 2005. When Mr. Whitelow broke off the relationship, Ms. Darris sued him for breach of contract to marry. These parties reached a settlement agreement, and Ms. Darris dismissed the complaint, but during the pendency of the litigation, Mrs. Whitelow claims that Ms. Darris began placing harassing telephone calls to her. Mr. Whitelow filed a police report with the Columbus Division of Police. Mrs. Whitelow filed a criminal complaint with the Columbus City Attorney in September 2005. The Franklin County Municipal Court ultimately dismissed the charge against Ms. Darris on March 27, 2006.

{¶2} More than one and one-half years after the telephone harassment charges against her were dismissed, Ms. Darris filed a civil complaint against Mrs. Whitelow for malicious prosecution, abuse of process, emotional distress, and defamation. Mrs. Whitelow answered the complaint arguing that Ms. Darris' claims were barred by the limitation period in R.C. 2305.11, which requires that claims for defamation and malicious prosecution be filed within one year. Ms. Darris also moved for judgment on the pleadings. The trial court granted judgment for Mrs. Whitelow, and dismissed the case with prejudice. This appeal concerns that dismissal. Ms. Darris assigns four errors for our consideration:

[I.] THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE'S MOTION FOR JUDGMENT ON THE PLEADINGS[.]

[II.] THE TRIAL COURT ERRED IN DENYING PLAIN-TIFF/APPELLANT'S MOTION FOR LEAVE TO AMEND HER COMPLAINT[.]

[III.] THE TRIAL COURT ERRED IN DISMISSING PLAIN-TIFF/APPELLANT'S COMPLAINT WITH PREJUDICE[.]

[IV.] THE TRIAL COURT ERRED IN DENYING PLAIN-TIFF/APPELLANT'S MOTION FOR RECONSIDERATION.

{¶3} Despite Ms. Darris' assigned errors, the primary issue in this appeal is whether the claims were barred by the applicable statutes of limitation.

{¶4} The Supreme Court of Ohio has held that the mere allegation that an act is negligent as opposed to intentional and malicious does not automatically modify the applicable statute of limitations and make an intentional act into a negligent act. Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, 536, 629 N.E.2d 402. Still, the allegations in the original complaint must be taken as true, since the motion to dismiss was a Civ.R. 12(B) motion to dismiss. See, generally, Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753.

{¶5} All the allegations in the original complaint are for intentional and/or malicious acts. Thus, R.C. 2305.11 bars those claims. Addressing the claims individually, malicious prosecution has a one-year statute of limitations, with the claim accruing upon the dismissal of the charge. The allegedly false charge was dismissed on March 27, 2006. The civil case was not filed until October 2007, well over one year later.

{¶6} Abuse of process also has a one-year statute of limitations, which also expired no later than March 2007. The October 2007 filing was again past the allowable date for filing.

{ΒΆ7} The third claim in the complaint was labeled "tortious infliction of emotional distress," alleging that Mrs. Whitelow knew or should have known the criminal filing would cause Ms. Darris extreme emotional distress. The mental element alleged makes the claim intentional infliction of emotional distress, which also ...


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