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Kim L. anderson v. Scott A. Smith

November 1, 2011

KIM L. ANDERSON, PETITIONER-APPELLANT,
v.
SCOTT A. SMITH,
RESPONDENT-APPELLEE.



APPEAL from the Franklin County Court of Common Pleas. : (C.P.C. No. 10CVH-08-11925)

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

Cite as Anderson v. Smith,

(ACCELERATED CALENDAR)

DECISION

{¶1} Petitioner-appellant, Kim L. Anderson ("appellant"), appeals from a judgment of the Franklin County Court of Common Pleas granting the motion to strike filed by respondent-appellee, Scott A. Smith ("appellee"). For the reasons that follow, we affirm.

{¶2} Appellant was convicted at a jury trial on charges of engaging in a pattern of corrupt activity, theft, forgery, money laundering, and identity fraud arising from his participation in a mortgage fraud scheme (the "criminal trial"). This court affirmed appellant's convictions in State v. Anderson, 10th Dist. No. 08AP-1071, 2009-Ohio-6566.

The Supreme Court of Ohio subsequently affirmed this court's judgment on appeal. In re Cases Held for Decision in State v. Hodge, 128 Ohio St.3d 234, 2011-Ohio-228, ¶6.

{¶3} On August 12, 2010, appellant filed with the Franklin County Court of Common Pleas a document captioned "Application to Show Cause for Civil Contempt of Court Order" ("application"). The application was not filed as part of the criminal proceeding; appellant sought to file the application as an independent case, naming appellee as the respondent. In the application, appellant asserted that appellee was the prosecutor in the criminal trial and that appellee perpetrated a fraud on the court by suborning perjured testimony from a witness at the criminal trial. The application did not include a prayer for relief, but it apparently sought civil and criminal penalties against appellee for this alleged act of contempt.

{¶4} Appellee filed a motion to strike the application pursuant to Civ.R. 12(F), arguing that the application did not constitute a complaint sufficient to commence a civil action. The trial court found that the application did not qualify as a complaint and granted the motion to strike. Appellant appeals from the trial court's judgment, assigning the following error for this court's review:

THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE PREJUDICE OF THE APPELLANT, BY DENYING HIS PETITION WITHOUT A HEARING.

{¶5} We begin by considering the procedural posture of this case. Under Civ.R. 12(F), upon a party's motion or its own initiative, a court may strike an insufficient claim or defense from a pleading. Appellee's motion to strike asserted the application did not constitute a complaint and should be stricken from the record in its entirety. The trial court's order granting the motion to strike had the effect of terminating the action by striking appellant's only claim for relief. In granting the motion to strike, the trial court concluded that the application did not qualify as a complaint under the Ohio Rules of Civil Procedure. The trial court also held that the application should be stricken because there was no private right of action for contempt capable of forming the basis for a complaint. Thus, the Civ.R. 12(F) ruling effectively functioned as a dismissal of the matter under Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted. The Supreme Court of Ohio has held that "use of Civ.R. 12(F) in lieu of Civ.R. 12(B)(6) where the issue is sufficiency of an entire complaint does not constitute reversible error based on a mere misdesignation of the appropriate motion, since the question of sufficiency is adequately raised." State ex rel. Neff v. Corrigan, 75 Ohio St.3d 12, 15, 1996-Ohio-231. Because appellee's motion to strike challenged the sufficiency of the application, we will apply the Civ.R. 12(B)(6) standard in reviewing the present appeal.

{¶6} We review de novo a trial court's dismissal of a case for failure to state a claim upon which relief could be granted. Festi v. Ohio Adult Parole Auth., 10th Dist. No. 04AP-1372, 2005-Ohio-3622, ¶9. In considering a motion to dismiss for failure to state a claim, "[t]he court must presume all factual allegations in the complaint are true and draw all reasonable inferences in favor of the non-moving party." Id. The court may only dismiss a case under Civ.R. 12(B)(6) when it " 'appear[s] beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.' " Id., quoting O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242, syllabus.

{¶7} In the application, appellant claims that appellee perpetrated a fraud on the court by suborning perjury at the criminal trial. Appellant asserts that this conduct is punishable as contempt of court. We must determine whether, assuming the allegations contained in the application are true, the trial court could issue the relief appellant seeks.

{¶8} Contempt is generally " 'conduct which brings the administration of justice into disrespect, or which tends to embarrass, impede or obstruct a court in the performance of its functions.' " Denovchek v. Bd. of Trumbull Cty. Commrs. (1988), 36 Ohio St.3d 14, 15, quoting Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, paragraph one of the syllabus. The power to punish contempt is an inherent authority of the courts. State ex rel. Lowery v. McArver, 10th Dist. No. 09AP-313, 2009-Ohio-6844, ¶7; Bank One Trust Co., N.A. v. Scherer, 10th Dist. No. 08AP-288, 2008-Ohio-6910, ¶29. Contempt may be classified as direct or indirect. "It is said that direct contempt takes place in the presence of the court, and indirect contempt is all other contempt." Cincinnati v. Cincinnati Dist. Council ...


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