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Reed v. Jagnow

Court of Appeals of Ohio, Seventh District

June 17, 2013

DONNIE REED, PLAINTIFF-APPELLANT,
v.
BETTY JAGNOW, et al., DEFENDANTS-APPELLEES.

Civil Appeal from Common Pleas Court, Case No. 10CV4539.

For Plaintiff-Appellant: Donnie Reed, Pro se.

For Defendants-Appellees: Attorney David Marburger Attorney Nicholas White.

Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro.

OPINION

VUKOVICH, J.

{¶1} Plaintiff-appellant Donnie Reed appeals the decision of the Mahoning County Common Pleas Court which adopted the magistrate's decision dismissing his lawsuit against defendant-appellee The Youngstown Vindicator, et alia because it was not filed within the one-year statute of limitations for defamation actions. Appellant argues that his case should not have been dismissed under the statute of limitations because the statute was tolled due to a letter he sent, a federal lawsuit he filed, and his imprisonment. For a multitude of reasons, appellant's arguments are without merit, and the trial court's decision is affirmed.

STATEMENT OF THE CASE

{¶2} On December 3, 2010, appellant filed a pro se complaint against The Youngstown Vindicator, Betty Jagnow, Mark Brown, and Peter Milliken in their individual and representative capacities for the Vindicator. Appellant claimed that during the summer of 2008, while he was on trial for a fatal shooting, the defendants published articles that defamed him and prevented him from having a fair criminal trial. Specifically, he alleged that the Vindicator delved into the facts of the case instead of reporting on events occurring in court, reported facts not proven by a jury, made him appear guilty before trial, attempted to disparage his character by making him out to be Anti-American and "some sort of mafia hit-man, " and made the victim appear to be "some sort of war hero." He also stated that they failed to rectify their misstatements once he notified them of their mistakes.

{¶3} The defendants filed a timely answer which denied the allegations and raised the statute of limitations as their first affirmative defense. Appellant filed a response to the answer, which filing does not exist under the civil law of this state. See Civ.R. 7(A). On February 2, 2011, the defendants filed a Civ.R. 12(C) motion for judgment on the pleadings, asking the court to dismiss the case because the one year statute of limitations for defamation actions had long since run.

{¶4} On May 16, 2011, the magistrate issued a decision granting the defendant's motion and dismissing the case. Appellant was provided the standard notice about filing objections within 14 days and the waiver that results from any failure to timely object. Appellant filed a request for additional time to file objections. He was granted until July 7, 2011.

{¶5} Instead of objecting, however, appellant filed various other documents. For instance, on June 7, he filed a Civ.R. 55(A) motion for default judgment. On August 17, he filed a motion to amend his complaint without stating what amendment he would make relevant to the statute of limitations issue. Then, on September 8, 2011, appellant filed a motion to vacate judgment under Civ.R. 60(B). He alleged that he was not served with the dismissal motion and stated that there was insufficient process under Civ.R. 12(B)(4), which deals with the failure of service of the complaint upon the defendant.

{¶6} On October 12, 2011, the magistrate issued a decision pointing out that no judgment exists of record from which a motion to vacate judgment could be filed. The magistrate also stated that appellant's motion for default judgment was untimely and the reasons for its filing were unclear as the defendants had filed an answer. The magistrate noted how appellant was granted an extension of time to file objections to the magistrate's dismissal order and that he failed to take advantage of said extension by filing objections. Finally, the magistrate explained that the defendants' motion to dismiss was certified as being mailed to appellant and that this was sufficient to deem a party served with a motion, noting that certified mailing is not required once the complaint has been served. The magistrate concluded that the motion to vacate was denied.

{¶7} On December 15, 2011, appellant filed another motion for relief from judgment under Civ.R. 60(B), reiterating his arguments regarding the alleged failure to serve him with the motion to dismiss and asserting excusable neglect in failing to respond to the dismissal motion. He also stated that he was objecting to the last magistrate's decision and claimed that his time for objecting was indefinitely tolled because the decision was not mailed out by the clerk until October 21 instead of within three days as instructed.

{¶8} The defendants responded by pointing out that appellant set forth no arguments regarding the statute of limitations and thus no basis for reconsideration of the magistrate's prior decisions. Appellant filed a reply which again failed to reference the statute of limitations issue besides a vague suggestion that his original complaint was filed in the wrong venue (which he did not explain) and removed to the lower court (which it was not, it was filed directly there by appellant).

{¶9} On June 28, 2012, the magistrate denied appellant's motion for relief, stating that appellant's claims were time-barred. The magistrate also noted that appellant failed to object to the magistrate's original dismissal order.

{¶10} On July 12, 2012, appellant filed objections to the magistrate's decision. Regarding the statute of limitations, he again made reference to the original incorrect venue of the action, suggesting that some prior filing preserved the statute of limitations. He admitted that the discovery rule does not apply to defamation actions. He urged that any irregularities in his various filings be overlooked because he is pro se and incarcerated.

{¶11} On October 12, 2012, the trial court overruled appellant's objections, adopted the magistrate's decision, and entered judgment. The court stated that appellant failed to timely object to the original magistrate's decision dismissing the action. In any event, the court concluded that appellant's claims were time-barred. Appellant filed a timely notice of appeal from that judgment entry.

MOTION TO DISMISS APPEAL

{¶12} Appellees initially ask that we dismiss the appeal, claiming that appellant's brief was late. Appellees note that on November 29, 2012, we denied appellant's motion for an extension of time to file the record on appeal with transcripts as there had been no hearing. Our order stated that his brief was due 20 days after the clerk's transmission of the record to this court. The record was then filed on December 6. Appellant's brief was certified by him as being mailed on December 12 and was time-stamped December 28, 2012. ...


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