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Zhelezny v. Olesh

Court of Appeals of Ohio, Tenth District

September 30, 2013

Vladimir Zhelezny, Plaintiff-Appellant,
v.
Arkadiy Olesh et al., Defendants-Appellees.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 11CVC-04-5202

Jeffery K. Lucas, for appellant.

Law Office of Vadim N. Levtonyuk, LLC, and Vadim Levtonyuk, for appellees.

DECISION

CONNOR, J.

(¶ 1} Plaintiff-appellant, Vladimir Zhelezny ("appellant"), appeals from a judgment of the Franklin County Court of Common Pleas dismissing his complaint pursuant to Civ.R. 12(B) and (C).

I. FACTS AND PROCEDURAL HISTORY

(¶ 2} Defendant-appellee, Grace Evangelical Church ("Grace" or "the church"), is an Ohio nonprofit corporation. This case arises out of an ongoing dispute between appellant and the church, its Pastor Arkadiy Olesh, and various church leaders.[1] According to appellees, appellant is a disgruntled former member of the church who has engaged in various forms of public protest against the church and its pastor, which have resulted in heated arguments, threats of violence and physical confrontations. Appellees maintain that in 2008, Pastor Olesh sent appellant a letter ("ban letter") informing him that his access to the church was to be severely restricted for one year. Appellees state that, at the end of that year, a second letter was sent extending the ban another year.[2]

(¶ 3} On April 18, 2010, an unidentified deputy sheriff removed appellant from church property after an altercation with Sergey Chmil. A charge of criminal trespass was filed against appellant as a result of the incident but the prosecutor dismissed the case against appellant on September 13, 2010. Thereafter, in February 2011, appellant was involved in a physical altercation with Aleksander Shishlo while appellant was at the church.

(¶ 4} On April 26, 2011, appellant filed his complaint in this case alleging the following causes: (1) assault and battery; (2) extortion; (3) malicious prosecution; (4) violation of civil rights; (5) civil conspiracy; and (6) intentional infliction of emotional distress.[3] The complaint seeks monetary damages from the church under the doctrine of respondeat superior.

(¶ 5} Following a hearing in chambers, the trial court granted appellees' joint motion for a temporary restraining order on June 20, 2011. The order states that appellant "shall be immediately and temporarily restrained and enjoined from entering on or trespassing on the property of Grace." Although appellant initially consented to the restraining order, he subsequently moved the trial court to dissolve the order and to deny appellees' motion for a preliminary injunction. The trial court subsequently denied appellees' joint motion for a preliminary injunction on the stated grounds that appellees had not asserted a counterclaim for injunctive relief (Aug. 2, 2011 Magistrate's Decision.)

(¶ 6} On November 10, 2011, appellees filed a joint motion to dismiss the complaint pursuant to Civ.R. 12(B)(1) and (6), 12(C), 12(H)(2) and (3). On July 19, 2012, the trial court issued a "Decision and Entry Granting Defendants' Joint Motion for Judgment on the Pleadings." Therein, the trial court dismissed each of the causes alleged in the complaint. The trial court also determined that it lacked jurisdiction over several of appellant's causes of action due to the ecclesiastical abstention doctrine.

II. ASSIGNMENTS OF ERROR

(¶ 7} Appellant assigns the following as error:

[I.] The trial court commits error in granting a motion to for judgment on the pleadings pursuant to Civ. R. 12(C) when the court relies on facts not contained in the pleadings and weights the credibility of the evidence.
[II.] The trial court committed error in granting a Motion to Dismiss pursuant to Civ. R. 12(C) finding that there were insufficient operative facts when the Complaint contained the necessary operative facts to support each claim.
[III.] The trial court commits error in granting a Motion to Dismiss pursuant to Civ. R. 12(C) finding that the claims are barred by the applicable statute of limitations.

(Sic passim.)

III. STANDARD OF REVIEW

(¶ 8} Under Civ.R. 12(C), a party may file a motion for judgment on the pleadings "[a]fter the pleadings are closed but within such time as not to delay the trial." Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohi-2048, ¶ 5 (10th Dist.). In ruling on the motion for judgment on the pleadings, the court is permitted to consider both the complaint and answer. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996). When presented with such a motion, a court must construe all the material allegations of the complaint as true, and must draw all reasonable inferences in favor of the nonmoving party. Id., citing Peterson v. Teodosio, 34 Ohio St.2d 161, 165 (1973); Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581 (2001). The court will grant the motion if it finds, beyond doubt, that the plaintiff can prove no set of facts in support of the claim(s) that would entitle him or her to relief. State ex rel. Midwest Pride IV, Inc. at 570.

(¶ 9} A motion for judgment on the pleadings tests the allegations of the complaint and presents a question of law. Peterson at 166, citing Conant v. Johnson, 1 Ohio App.2d 133 (4th Dist.1964). Thus, our review of a decision to grant judgment on the pleadings is de novo. See Ray ess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, ¶ 18, citing Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5.

(¶ 10} Insofar as the trial court determined that it did not have jurisdiction of claims that involved purely ecclesiastical matters, our review is also de novo. Crosby-Edwards v. Ohio Bd. of Embalmers and Funeral Dirs., 175 Ohio App.3d 213, 2008-Ohio-762, ¶ 21 (10th Dist.). Furthermore, when a trial court determines its subject-matter jurisdiction, it is not confined to the allegations of the complaint and it may consider any pertinent evidentiary materials in ruling upon a motion to dismiss. See, e.g., Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 110 (1990); Southgate Dev. Corp. v. Columbia Gas Transmission Corp., 48 Ohio St.2d 211 (1976).

IV. LEGAL ANALYSIS

(¶ 11} For purposes of clarity, we will consider appellant's assignments of error out of order. In appellant's third assignment of error, appellant contends that the trial court erred in ruling that the statute of limitations barred his claims for assault and battery. We agree with the trial court.

(¶ 12} Assault is the willful threat or attempt to harm or touch another offensively, which threat or attempt reasonably places the other in fear of such contact. Smith v. John Deere Co., 83 Ohio App.3d 398, 406 (10th Dist.1993). Battery is an intentional contact with another that is harmful or offensive. Love v. Port Clinton, 37 Ohio St.3d 98, 99 (1988); Clime v. M.M.S. Investments, Inc., 10th Dist. No. 91AP-543 (Oct. 8, 1991). "A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results." Love at 99, citing Restatement of Law 2d, Torts, Section 13, at 25 (1965).

(¶ 13} R.C. 2305.03(A) provides:

Except as provided in division (B) of this section and unless a different limitation is prescribed by statute, a civil action may be commenced only within the period prescribed in sections 2305.04 to 2305.22 of the Revised Code. If interposed by proper plea by a party to an action mentioned in any of those sections, lapse of time shall be a bar to the action.

(¶ 14} Where defendant's answer asserts a statute of limitations defense, such a defense is available as grounds for a motion to dismiss brought pursuant to Civ.R. 12(C). See e.g., Rayess; Anetomang v. OKI Sys. Ltd., 10th Dist. No. 10AP-1182, 2012-Ohio-822. The statute of limitations for assault and battery is one year. See R.C. 2305.111. See also Stafford v. Columbus Bonding Ctr., 177 Ohio App.3d 799, 810 (10th Dist.2008). The trial court determined that the statute of limitations barred many of the claims of assault and battery alleged in the complaint. In fact, the trial court found that the only timely filed claim arose out an altercation between appellant and Aleksander Shishlo that allegedly occurred in February 2011. We agree.

(¶ 15} Upon review of the complaint, it is clear that each of the allegations of assault and/or battery, or the threat of such contact, accrued more than one year before plaintiff filed his complaint. Thus the allegations of plaintiffs complaint conclusively establish that such claims are barred by the applicable statute of limitations. Appellant now argues that a different limitations period applies inasmuch as the facts underlying his claims of assault and battery also support his other claims for relief Appellant, however, does not cite any legal precedent that would justify the application of a longer statutory period. In short, we hold the applicable statute of limitations is the one found in R.C. 2305.11.[4] Thus, the trial court did not err in applying the one-year limitations period and dismissing all but the most recent of appellant's claims for assault and battery.

(¶ 16} For the foregoing reasons, appellant's third assignment of error is overruled.

(¶ 17} In appellant's first assignment of error, appellant contends that the trial court erred when it relied on matters outside the pleadings in granting appellees' motion for judgment on the pleadings. Specifically, appellant contends that the trial court erroneously relied on the "ban letter" in dismissing his claim of malicious prosecution and his timely filed claim for assault and battery. The court agrees.

A. Assault and Battery

(¶ 18} Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law. Coleman v. Beachwood, 8th Dist. No. 92399, 2009-Ohio-5560, ¶ 17, citing Burnside v. Leimbach, 71 Ohio App.3d 399, 403 (10th Dist.1991). " 'Under Civ.R. 12(C), 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 ...


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