Court of Appeals of Ohio, Eighth District, Cuyahoga
HAYES W. ROWAN, Plaintiff-Appellant,
MICHAEL SCHAFFER, Defendant-Appellee.
Appeal from the Cuyahoga County Common Pleas Court Case No.
W. Rowan, pro se.
Michael L. Thal, for appellee.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, PRESIDING JUDGE
1} Hayes W. Rowan appeals the dismissal of his
complaint, in which it was alleged that Michael Schaffer
uttered defamatory statements sometime before April 12, 2017.
Rowan claimed that the defamation or negligent infliction of
emotional distress resulted in his being shunned from his
religious community. The trial court dismissed the action
under Civ.R. 12(B)(6) concluding that Rowan failed to state a
claim for relief of negligent infliction of emotional
distress and that the claims for defamation were barred by
the applicable statute of limitations as a matter of law. We
2} Rowan met with a religious leader within his
church on April 12, 2017. At that time, Rowan claims to have
been advised that Schaffer called Rowan
"dangerous," "frightening," and an
"intermeddler," and as a result of those
statements, Rowan was "shunned" or ostracized by
the members of his religious community. Rowan asserted
that the shunning, which was alleged to have been caused by
Schaffer's defamation, occurred sometime in 2014-2015.
This is fatal to Rowan's claims. If the shunning Rowan
complains of occurred as a result of the defamatory
statements as alleged in the complaint, the statements must
have been uttered during the 2014-2015 time frame. The
underlying complaint was filed in April 2018.
3} A defamation claim is governed by a one-year
statute of limitations under RC. 2305.11(A) and accrues at
the time the alleged defamatory statement is first published
to a third party. Hester v. Case W. Res. Univ., 8th
Dist. Cuyahoga No. 107492, 2019-Ohio-1991, ¶ 11, citing
T.S. v. Plain Dealer, 194 Ohio App.3d 30,
2011-Ohio-2935, 954 N.E.2d 213, ¶ 7 (8th Dist.). There
is no equitable tolling of the statute of limitations for
defamation. Kienow v. Cincinnati Children's Hosp.
Med. Ctr., 1st Dist. Hamilton No. C-140720,
2015-Ohio-4396, ¶ 8; Reed v. Jagnow, 7th Dist.
Mahoning No. 12 MA 201, 2013-Ohio-2546, ¶ 25; Cramer
v. Fairfield Med. Ctr., 182 Ohio App.3d 653,
2009-Ohio-3338, 914 N.E.2d 447, ¶ 70 (5th Dist.). The
mere fact that the subject of the alleged defamation does not
discover the statements until after the running of the
statute of limitations is of no legal consequence.
Kienow. Rowan does not challenge the weight of
authority on this point but instead appeals to equity to seek
4} Rowan contends that he could not have filed the
defamation claim until he became aware of the statements, and
thus, the limitations period should not preclude his claims.
That is the inherent result of any statute of limitations
that is not subject to equitable tolling. Ohio courts have
considered, and rejected, that policy consideration with
respect to defamation. It is well settled that the discovery
rule does not toll the one-year limitations period for
defamation claims. Rowan has not presented any basis for
diverging from prior pronouncements of black letter law in
Ohio. App.R 16(A)(7). The trial court did not err in
dismissing Rowan's defamation claim as being time-barred.
After full consideration of the factual allegations set forth
in Rowan's complaint and the arguments Rowan advanced
before the trial court and in the appellate briefing, we hold
that the trial court did not err in concluding the alleged
defamatory statements were uttered over a year before the
complaint was filed, and the complaint was filed well outside
the statute of limitations.
5} In addition, the trial court did not err by
dismissing the negligent infliction of emotional distress
claim. Negligent infliction of emotional distress is a term
of legal art. Although Rowan included the claim in the
caption of his complaint, the substantive portion is devoid
of any allegations constituting negligent infliction of
emotional distress as the claim is recognized in Ohio.
6} In Ohio, in order to prove such a claim, the
plaintiff must present evidence that "(1) the plaintiff
was a bystander; (2) the plaintiff reasonably appreciated the
peril which took place, whether or not the victim suffered
actual physical harm; and (3) the plaintiff suffered serious
emotional distress as a result of this cognizance or fear of
peril." Walker v. Firelands Community Hosp.,
170 Ohio App.3d 785, 2007-Ohio-871, 869 N.E.2d 66, ¶ 59
(6th Dist), citing Paugh v. Hanks, 6 Ohio St.3d 72,
80, 451 N.E.2d 759 (1983). The elements of the claim are
simply inapplicable to the claims of defamation and the
factual allegations of shunning that Rowan discussed in the
complaint. Rowan failed to state a claim for relief
cognizable under Ohio law, and Rowan presents no authority
upon which we could conclude otherwise. App.R 16(A)(7). The
trial court did not err by dismissing the negligent
infliction of emotional distress claim.
7} It appears that Rowan is confusing the
stand-alone claim of negligent infliction of emotional
distress with a measure of damages for emotional distress.
Rowan does not dispute that for the legal claim of negligent
infliction of emotional distress to be implicated, the
plaintiff must have witnessed or experienced a dangerous
accident or been subjected to an actual physical peril.
Inskeep v. W. Res. Transit Auth., 7th Dist. Mahoning
No. 12 MA 72, 2013-Ohio-897, ¶ 25. Inasmuch as
Rowan's claims for emotional distress damages could be
construed to be a measure of legal damages stemming from the
alleged defamation, from which the entire complaint is
factually derived, those claims must also fail based on the
statute of limitations as previously addressed. Because no
claim for defamation can be advanced based on the
untimeliness of the filing, any damages stemming from the
defamation also fail as a matter of law.
8} Finally, Schaffer seeks to sanction Rowan for the
filing of a frivolous appeal under App.R. 23 and Loc.App.R
23. Loc.App.R. 23 permits this court to find a party to be a
vexatious litigator "[i]f a party habitually,
persistently, and without reasonable cause engages in
frivolous conduct[, ]" which is defined to include an
appeal or original action in the appellate court that
"is not reasonably grounded in fact or warranted by
existing law." Schaffer cites a multitude of trial and
appellate court filings initiated by Rowan. It must first be
noted that our local rule is limited to the filing of
frivolous appeals or motions within that appeal. A
party's conduct before the trial court is a matter within
the discretion of the trial court. Although Schaffer sought
to declare Rowan a vexatious litigator under R.C. 2323.52,
the trial court denied Schaffer's motion, and that
decision has not been placed before us. With respect to the
habitual aspect of Rowan's appellate filings, although
Schaffer cites five previous appeals over a 16-year period
that Rowan filed in this district, four of those ended in
dismissal based on various procedural grounds or upon
Rowan's own motion. In the fifth case, it was concluded
that there were reasonable grounds for the appeal. Rowan
v. McLaughlin, 8th Dist. Cuyahoga No. 85665,
2005-Ohio-3473. We decline to invoke our Loc.App.R. 23 relief
to declare Rowan a vexatious litigator based on habitual
conduct under these circumstances.
9} Under App.R. 23, if a court of appeals determines
that an appeal is frivolous, it may require the appellant to
pay reasonable expenses of the appellee, including attorney
fees and costs. We do find the current appeal is not
reasonably grounded in fact or warranted by existing law or
good faith arguments to modify existing law. On this basis,
Rowan shall be responsible for the court costs associated
with this appeal. We empathize with Schaffer having to pay
the costs associated with defending this action; however, the
briefing filed by Schaffer was minimal and resulted in an
affirmance of the trial court's expedited proceedings. We
do caution, however, that should Rowan file any future
motions or appeals in this district, the failure to present
arguments warranted by the existing law or good faith
arguments for the extension, modification, or reversal of the
existing law could subject him to financial sanctions and to
being declared a vexatious litigator under Loc.App.R. 23.
State v. Pruitt, 8th Dist. Cuyahoga No. 101736,
2015-Ohio-1949, ¶ 7. As it stands, we decline to award
sanctions against Rowan in light of the particular facts of
10} The decision of the trial court is affirmed, and
the motion for sanctions and to declare ...