Johnson v. Johnson , 2020 Ohio 1381 ( 2020 )

[Cite as Johnson v. Johnson, 2020-Ohio-1381.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STEPHEN EARLY JOHNSON, :
Plaintiff-Appellant, :
No. 108420
v. :
CLAUDE STEPHANIE JOHNSON, :
ET AL.,
:
Defendants-Appellees.
:
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: April 9, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-902590
Appearances:
Stephen Early Johnson, pro se.
Claude Stephanie Johnson, pro se.
RAYMOND C. HEADEN, J.:
Plaintiff-appellant Stephen E. Johnson (“Stephen”), pro se, appeals
the trial court’s decision granting defendant-appellee, Claude S. Johnson’s
(“Claude”) motion to dismiss pursuant to Civ.R. 12(B)(6). For the reasons that
follow, we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
I. Factual and Procedural History
In Cuyahoga C.P. No. CV-18-902590, Stephen, pro se, filed a five-
count complaint against his wife, Claude, on September 28, 2018.1 Claude, pro se,
answered the amended complaint on October 25, 2018.
The trial court conducted a case management conference on
November 1, 2018, when it set a discovery deadline for January 4, 2019, and
required the submission of dispositive motions by January 11, 2019. The trial court
also referred the case to arbitration, pursuant to Loc.R. 29 of the Court of Common
Pleas of Cuyahoga County, General Division (“Loc.R. 29”), with a request that the
arbitration be completed by January 18, 2019.2
Prior to the arbitration hearing, Stephen filed the following discovery
requests on December 28, 2018: request for admissions, request for production of
documents, and request for first set of interrogatories.
An arbitration hearing was held on January 3, 2019, and Stephen
appealed the arbitration panel’s decision on February 4, 2019. The case was
1
Stephen filed a two-count complaint on August 22, 2018, and an amended five-
count complaint on September 28, 2018. Claude answered the amended complaint and
this appeal addresses Stephen’s amended complaint.
2 The trial court’s referral to arbitration was premature since Loc.R. 29 does not
permit a referral until after all discovery is completed. Loc.R. 29, Part I(D). Due to the
parties’ failure to raise this issue with the trial court, we do not now need to consider the
alleged error on appeal. Hohmann, Boukis & Curtis Co. v. Brunn, 138 Ohio App.3d 693,
699, 742 N.E.2d 192 (8th Dist.2000).
returned to the trial court’s docket on February 6, 2019. Per a February 14, 2019
journal entry, the dispositive motion deadline was extended to March 8, 2019, and
all other dates remained the same.
On February 25, 2019, Stephen filed a motion requesting the court to
(1) deem admitted Claude’s unanswered requests for admissions, and (2) grant
Stephen’s motion for summary judgment based upon those admissions. On
February 26, 2019, Claude filed two motions: (1) a motion for extension of time to
complete discovery, and (2) a motion to dismiss in accordance with Civ.R. 12(B)(6).3
On March 11, 2019, the trial court granted Claude’s motion to dismiss
because Stephen’s complaint failed to state a claim upon which relief could be
granted.
Following the court’s granting of Claude’s Civ.R. 12(B)(6) motion,
Stephen filed this timely appeal arguing one assignment of error:
The trial court erred and abused its discretion ruling in favor of the
appellee after the appellant established for the record the appellee had
procedural[ly] defaulted by failing to timely answer the admissions as
required by Civ.R. 36(C)[.]
3Claude attached a memorandum in support of her motion to dismiss that included
a copy of the Report and Award of the Arbitrators as well as the arbitrators’ five-page award
summary. We do not consider the arbitrators’ report and award in our de novo review of
Claude’s motion to dismiss nor does the trial court’s judgment entry provide any basis to
assume the trial court considered this document when it reviewed Claude’s motion to
dismiss. Further, Claude’s motion to dismiss referenced the complaint’s allegations of
slander, libel, and theft, and we do not presume Claude intended the motion to rely
exclusively on the arbitrators’ report and award simply because she attached a copy of that
document to her motion.
II. Law and Analysis
Stephen contends that the trial court erred and abused its discretion
when it found his February 25, 2019 motion moot rather than (1) finding Claude’s
unanswered admissions deemed admitted, and (2) based upon those admissions,
granting Stephen’s motion for summary judgment. Claude’s argument is difficult to
discern, but it appears to focus on the lack of discovery prior to the arbitration
hearing and the trial court’s granting of her Civ.R. 12(B)(6) motion.
After reviewing the issues and arguments, we find that Stephen is not
challenging the trial court’s finding that his February 25, 2019 motion was moot;
rather, Stephen contends that the trial court’s granting of Claude’s Civ.R. 12(B)(6)
motion to dismiss was in error.
Technically, because Claude filed her Civ.R. 12(B)(6) motion to
dismiss after she filed an answer, Claude sought a Civ.R. 12(C) motion for judgment
on the pleadings rather than a motion to dismiss. Shingler v. Provider Servs.
Holdings, L.L.C., 8th Dist. Cuyahoga No. 106383, 2018-Ohio-2740, ¶ 17, fn. 6. A
motion for judgment on the pleadings raises only questions of law that are reviewed
under a de novo standard of review. Cohen v. Bedford Hts., 8th Dist. Cuyahoga No.
101739, 2015-Ohio-1308, ¶ 7.
Claude’s motion will be reviewed under a Civ.R. 12(B)(6) standard:
The Ohio Supreme Court has held that a Civ.R. 12(C) motion for
judgment on the pleadings is to be considered as if it were a belated
motion to dismiss for failure to state a claim upon which relief can be
granted. State ex rel. Pirman v. Money (1994), 69 Ohio St.3d 591, 592,
1994 Ohio 208, 635 N.E.2d 26. Therefore, we will analyze the
[Civ.R 12(C) motion] under the same principles which we would apply
in reviewing a Civ.R. 12(B)(6) dismissal.
Black v. Coats, 8th Dist. Cuyahoga No. 85067, 2005-Ohio-2460, ¶ 6.
The test to determine whether a complaint can be dismissed pursuant
to Civ.R. 12(B)(6) is “[i]n order to dismiss a complaint for failure to state a claim
upon which relief can be granted, the court must find beyond doubt that plaintiff
can prove no set of facts warranting relief after it presumes all factual allegations in
the complaint are true, and construes all reasonable inferences in plaintiff’s favor.”
Black at ¶ 7, citing State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490, 633
N.E.2d 1128 (1994). Thus, a complaint will be dismissed, pursuant to
Civ.R. 12(B)(6), if it appears beyond doubt that the plaintiff can prove no set of facts
entitling the plaintiff to relief. Cohen at ¶ 8.
In his amended complaint, Stephen raised five counts.
A. Count 1
In Count 1, Stephen alleges Claude committed libel and slander that
are both forms of defamation. The proposed facts provided in support of these
allegations are: “Later on that day [Claude] decided to call [the] [S]econd [D]istrict
Police and make a false claim that [Stephen] threaten[ed] to kill her after [Stephen]
abandoned her at Rite Aid located in Lakewood, OH * * *.” (Amended complaint at
¶ 6.)
Defamation occurs when a publication containing a false statement is
made with some degree of fault that (1) reflects injuriously on one’s reputation, or
(2) exposes a person to public hatred, contempt, ridicule, shame or disgrace, or
(3) affects a person adversely in his or her trade, business or profession. Sullins v.
Raycom Media, Inc., 2013-Ohio-3530, 996 N.E.2d 553, ¶ 15 (8th Dist.).
To establish a claim for defamation, a plaintiff must show: (1) a false
statement of fact was made about the plaintiff, (2) the statement was
defamatory, (3) the statement was published, (4) the plaintiff suffered
injury as a proximate result of the publication, and (5) the defendant
acted with the requisite degree of fault in publishing the statement.
Id. at ¶ 15, citing Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-
4193, 978 N.E.2d 832, ¶ 77, citing Pollock v. Rashid, 117 Ohio App.3d 361, 368, 690
N.E.2d 903 (1st Dist.1996).
Defamation can occur in two forms — slander, which is spoken, and
libel, which is written. Stohlmann v. WJW TV, Inc., 8th Dist. Cuyahoga No. 86491,
2006-Ohio-6408, ¶ 8. Stephen alleged Claude committed both slander and libel.
1. Slander
In reviewing his claim of slander, Stephen alleges that (1) Claude told
the police that Stephen threatened to kill her; (2) the statement was untrue; and
(3) he suffered damages.
In Ohio, under notice pleading, a plaintiff need not prove his case at
the pleading stage. DSS Servs., L.L.C. v. Eitel’s Towing, L.L.C., 10th Dist. Franklin
No. 18AP-567, 2019-Ohio-3158, ¶ 10. A plaintiff is required under Civ.R. 8(A)(1) to
provide a short and plain statement of the claim demonstrating that the claimant is
entitled to relief. McBride v. Parker, 5th Dist. Richland No. 11 CA 122, 2012-Ohio-
2522, ¶ 27.
A plaintiff is not generally required to anticipate affirmative defenses
and allege facts within the complaint that disprove those defenses. DSS Servs. at
¶ 10. Qualified privilege is an affirmative defense to a defamation claim. Boyd v.
Archdiocese of Cincinnati, 2d Dist. Montgomery No. 25950, 2015-Ohio-1394, ¶ 37.
The qualified privilege exists for statements made to law enforcement for the
prevention or detection of crime, absent actual malice:
“‘Any communications made by private citizens to law enforcement
personnel for the prevention or detection of crime are qualifiedly
privileged and may not serve as the basis for a defamation action unless
it is shown that the speaker was motivated by actual malice.’”
Allen v. Pirozzoli, 8th Dist. Cuyahoga No. 103632, 2016-Ohio-2645, ¶ 14, quoting
Lewandowski v. Penske Auto Group, 8th Dist. Cuyahoga No. 94377, 2010-Ohio-
6160, ¶ 26, quoting Oswald v. Action Auto Body & Frame, Inc., 8th Dist. Cuyahoga
No. 71089, 1997 Ohio App. LEXIS 1642, 8 (Apr. 24, 1997). Thus, an allegedly
defamatory statement may not be actionable if the comment is privileged and was
not made with ill will or actual malice. Boyd at ¶ 36. Here, Claude did not raise
qualified privilege in her answer.4
Upon a review of the pleadings, we find that Stephen asserted that
Claude told the police he threatened to kill her after Stephen abandoned Claude at a
local drugstore. Stephen denies the veracity of the statements and claims he
suffered damages including emotional distress, poverty of inconvenience, and
missing his child’s third-grade graduation. Presuming the allegations are true and
4 Claude is not precluded from seeking to amend her answer under Civ.R. 15, if
appropriate, to incorporate qualified privilege.
construing them most strongly in Stephen’s favor, Stephen presented sufficient facts
which, if proven, could warrant him relief. We, therefore, find the trial court erred
in granting Claude’s Civ.R. 12(C) motion on the slander claim.
2. Libel
Libel, generally, is a false written publication that meets the elements
of defamation. McKee v. McCann, 2017-Ohio-7181, 95 N.E.3d 1079, ¶ 36 (8th Dist.).
Stephen does not allege any written publication resulted from Claude’s meeting with
the police. Stephen can prove no set of facts in support of his libel claim that would
entitle him to relief, and as a result, the trial court correctly dismissed the libel cause
of action under Count 1.
B. Counts 2–4
For ease of analysis, Counts 2 through 4 will be discussed collectively.
In Count 2, Stephen alleges Claude’s “negligence and frivolous filings”
caused great harm to Stephen and his relationship with his son. The complaint does
not include any facts to support negligent behavior or frivolous filings by Claude.
Count 3 of the amended complaint asserts (1) Claude breached an oral
contract to act as Stephen’s caregiver, and (2) Claude “has taken personal property
after verbally agreeing not to do so.” The complaint does not contain facts from
which the existence of an oral agreement can be inferred. The complaint is also
silent as to an agreement whereby Claude was restrained from taking personal
property.
Stephen alleges in Count 4 that Claude tampered and took personal
property without Stephen’s consent. The only statement arguably related to this
claim is Stephen’s allegation that “[d]efendant had packed up all her belongings.”
The mere recitation of legal standards, such as negligence, breach of
contract, or theft, is not sufficient to prevail on a Civ.R. 12(B)(6) motion to dismiss.
Tuleta v. Med. Mut. of Ohio, 2014-Ohio-396, 6 N.E.3d 106, ¶ 24 (8th Dist.).
Stephen’s unsupported conclusions in Counts 2-4 of his complaint were not
sufficient to withstand a motion to dismiss. Id. at ¶ 28. Accordingly, the trial court
did not err when it dismissed Counts 2–4.
C. Count 5
In Count 5, Stephen alleges Claude committed fraud when she misled
the domestic court, Cleveland school system, Second District of the Cleveland Police
Department, TSA, and family members. Specifically, Stephen alleges that Claude
spread “rumors that [Stephen] committed certain acts” and omitted portions of the
story to Claude’s advantage. One must prove the following elements for a claim of
fraud:
(1) a representation or, where there is a duty to disclose, omission of a
fact, (2) which is material to the transaction at hand, (3) made falsely,
with knowledge of its falsity, or with such utter disregard and
recklessness as to whether it is true or false that knowledge may be
inferred, (4) with the intent of misleading another into relying upon it,
(5) justifiable reliance upon the representation or concealment, and (6)
a resulting injury proximately caused by the reliance.
Cord v. Victory Solutions, L.L.C., 8th Dist. Cuyahoga No. 106006, 2018-Ohio-590,
¶ 12, citing Russ v. TRW, Inc., 59 Ohio St.3d 42, 49, 570 N.E.2d 1076 (1991).
Further, a fraud claim must be pled with particularity pursuant to Civ.R. 9(B).
Schmitz v. NCAA, 2016-Ohio-8041, 67 N.E.3d 852, ¶ 66 (8th Dist.). “This means
that a plaintiff must state “‘the time, place, and content of the false representation,
the fact misrepresented, and the nature of what was obtained or given as a
consequence of the fraud.’”” Cord at ¶ 14, quoting Carter-Jones Lumber Co. v.
Denune, 132 Ohio App.3d 430, 433, 725 N.E.2d 330 (10th Dist.1999), quoting Baker
v. Conlan, 66 Ohio App.3d 454, 458, 585 N.E.2d 543 (1st Dist.1990). Stephen
provided no detail regarding the fraud allegation except to state Claude misled the
court, school system, police department, TSA, and family members “by spreading
rumors that [Stephen] committed certain acts and leaving out parts of the story to
suit her advantage and continue to use the Justice System as a sword rather than a
shield.” (Amended complaint at 20). Because Stephen’s fraud claim was not
pleaded with the necessary particularity, the trial court properly granted dismissal
of Count 5.
Accordingly, we affirm the trial court’s dismissal of the libel claim
under Count 1 as well as Counts 2, 3, 4, and 5. We find the trial court erred in
concluding, as a matter of law, that Stephen failed to state a claim of slander for
which relief can be granted, and therefore, reverse the court’s ruling on the slander
claim under Count 1 and remand on that issue. However, we note that our holding
should not be construed as commenting on the merits of Stephen’s slander claim.
In addition to our findings regarding Claude’s motion to dismiss, we
note that once Stephen appealed the arbitrators’ report and award on February 4,
2020, that report and award was no longer binding on the parties and the case was
correctly returned to the trial court judge for a trial de novo. Loc.R. 29, Part VII (B)
and (C).
A trial de novo requires that the trial judge to proceed as if no
arbitration decision had been rendered, Finke v. Farley, 1st Dist. Hamilton No. C-
920223, 1993 Ohio App. LEXIS 4922 (July 22, 1993), citing Black’s Law Dictionary
392 (5th Ed.1979); accord Loc.R. 29, Part VII(C). “In other words, upon the filing
of an arbitration appeal, the arbitration award is effectively disregarded and the
matter is returned to the trial court for a de novo review.” (Emphasis omitted.)
Pickering v. Nationwide Mut. Fire Ins. Co., 9th Dist. Summit No. 19881, 2000 Ohio
App. LEXIS 3092, 4 (July 12, 2000).
While a trial court must afford a trial de novo following an appeal of
an arbitration report and award, the trial court is not mandated to only set the
matter for trial. Under Loc.R. 29, it is within the trial court’s discretion to grant
dispositive motions following an appeal from the arbitration report and award and
prior to holding a trial de novo. Temkin v. Lotter, 8th Dist. Cuyahoga No. 87092,
2006-Ohio-6164, ¶ 8-9 (it was within a trial court’s discretion, after an arbitration
report and award was rendered and appealed and the case was returned to the trial
court’s docket, to grant leave to file a motion for summary judgment and rule on said
motion).
The trial court had great latitude to follow its local rules, and
therefore, could consider Claude’s motion to dismiss following Stephen’s appeal of
the arbitration award and the case’s return to the trial court for a trial de novo. State
Farm Fire & Cas. Co. v. Holland, 12th Dist. Madison No. CA2007-08-025, 2008-
Ohio-4436, ¶ 32, citing Paramount Parks, Inc. v. Admiral Ins. Co., 12th Dist.
Warren No. CA2007-05-066, 2008-Ohio-1351, ¶ 37, citing Business Data Sys., Inc.
v. Gourmet Cafe Corp., 9th Dist. Summit No. 23808, 2008-Ohio-409. See also
Pollock v. Jones, 6th Dist. Lucas No. L-99-1106, 2000 Ohio App. LEXIS 2799, 13
(June 23, 2000) (“[a] trial court is vested with broad discretion in controlling its
docket and regulating the proceedings before it.”); In re T.W., 8th Dist. Cuyahoga
Nos. 88360 and 88424, 2007-Ohio-1441, ¶ 39 (“courts are to be given latitude in
following their own local rules; the enforcement of rules of court is held to be within
the sound discretion of the court”).
Here, following Stephen’s appeal from the arbitrators’ award and
report, the trial court entered an order extending the dispositive motion deadline
and subsequently ruled on Claude’s motion to dismiss — actions within the trial
court’s discretion.
Judgment is affirmed in part, reversed in part, and remanded to the
trial court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____
RAYMOND C. HEADEN, JUDGE
MICHELLE J. SHEEHAN, J., CONCURS;
SEAN C. GALLAGHER, P.J., DISSENTS WITH SEPARATE OPINION
SEAN C. GALLAGHER, P.J., DISSENTING:
I respectfully dissent. I recognize that the parties have been
representing themselves throughout the entirety of these proceedings and that the
briefing and the trial court record are a bit convoluted. Nevertheless, Stephen is
entitled to a trial de novo in light of the fact that the trial court invoked Loc.R. 29 to
refer the parties to mandatory arbitration at their initial appearance. Loc.R. 29 is
the sole authority for the trial court’s referral, but in exchange for the parties’
reluctant participation in the arbitration process, the rule permits an unsatisfied
party the opportunity to appeal the arbitration decision and award. If the appeal is
timely perfected, the rule provides that the matter shall proceed to a “trial de
novo” upon all claims. Calhoun v. Drain, 8th Dist. Cuyahoga No. 84442, 2004-
Ohio-6412, ¶ 8. There is no ambiguity. Trial courts cannot invoke the referral
portion of the rule, to the exclusion of the appeal portion after the parties endured
the mandatory arbitration process.
At the case management conference conducted five days after Claude
filed an answer to the complaint, the trial court sua sponte referred the case to
arbitration under Loc.R. 29. That referral was premature and, in large part, has
appeared to cause the parties’ confusion — Stephen’s primary argument in this
appeal focuses on his inability to conduct discovery. The local rule does not permit
a referral to arbitration until after all discovery is completed. Loc.R. 29, Part
I(D). In fact, the referral is to occur only once all issues are joined and the
matter is ready for trial. Id. This is because after the referral to arbitration, no
further motions, pleadings, or discovery is permitted by rule. Id. This complicates
the matter before us; however, it is acknowledged that neither party objected to the
trial court’s referral process.
After the report and award of the arbitrators was filed, Stephen timely
appealed the decision under Loc.R. 29, Part VII. Because he timely appealed the
report and award, Stephen was entitled to a trial de novo. Loc.R. 29, Part VII (C)
(“[a]ll cases which have been duly appealed shall be tried de novo.”); Weber
v. Castelli, 8th Dist. Cuyahoga No. 92158, 2009-Ohio-1677, ¶ 13. Further, the
arbitrators’ report and award was no longer binding or informative under the
express terms of Loc.R. 29, Part VI (B), which provides that the report and award
“shall be final and shall have the attributes and legal effect of a
verdict” unless appealed.
Instead of preparing for trial, Claude filed a motion to dismiss in
which she claimed that the arbitrators’ award in her favor required dismissal of
the complaint. Claude’s motion solely relied on the arbitrators’ decision (her entire
motion is as follows):
Plaintiff and Defendant have a divorce case pending in domestic
relations court. Prior to the divorce case, Defendant had filed a
protective order against plaintiff and plaintiff was found guilty of
domestic violence. Plaintiff and Defendant have one child which
temporary custody was granted to the Defendant pending divorce
proceedings. On September 28, 2018 Plaintiff filed a complaint against
defendant for Slander and Libel, false statement to court resulting to
plaintiff to become homeless by a protection order being granted to
Defendant and Defendant took Pictures and a futon belonging to
plaintiff.
The case was referred for Arbitration on January 3, 2019.
The Arbitration panel finds against Plaintiff on all claims.
(See attached Exhibit. A) Therefore, Defendant asks this Honorable
Court to dismiss this case with prejudice. Costs to Plaintiff.
There were no other arguments presented for the trial court’s consideration.
The arbitrators’ report and award was of no legal significance in
consideration of the timely appeal and the matter being returned to the assigned
trial court judge for trial. Loc.R. 29, Part VII (B). Further, the report could not be
relied upon by the trial court in considering the arguments raised in the motion to
dismiss. In light of the fact that the motion to dismiss was entirely based upon the
report and award of the arbitrators, the trial court erred in granting the motion to
dismiss for any reason.
The majority concludes that Loc.R. 29 is inconsistent with the Rules
of Civil Procedure, and therefore, the de novo trial requirement is
unenforceable. Rule 15(A) of the Rules of Superintendence for the courts of
Ohio expressly permits courts to adopt a plan for mandatory arbitration of civil
cases. Under Rule 15(A)(2), however, every plan for mandatory arbitration of civil
cases adopted by the common pleas court shall be filed with the Ohio Supreme Court
and must include language requiring the ability to appeal the mandatory
arbitration. Loc.R. 29 authorizes mandatory arbitration in Cuyahoga County.
Thrower v. Bolden, 8th Dist. Cuyahoga No. 97813, 2012-Ohio-3956, ¶ 11. “It is well
settled that Loc.R. 29 is constitutional and consistent with Sup.R. 15.” Id.,citing Kuenzer v. Teamsters Union Local 507, 66 Ohio St.2d 201, 420 N.E.2d 1009(1981); Cavalry Invests., L.L.C. v. Dzilinski, 8th Dist. Cuyahoga No. 88769, 2007-
Ohio-3767.
Loc.R. 29, Part VII (A)(1) provides that “[t]he filing of a single appeal
shall be sufficient to require a de novo trial of the entire case on all issues and as to
all parties.” (Emphasis added.) The trial court expressly relied on Loc.R. 29 in
referring Stephen’s claims to mandatory arbitration without the consent of the
parties. Stephen properly appealed the unfavorable arbitration decision under
Loc.R. 29, an appeal that is mandated by the Ohio Supreme Court. Under Loc.R. 29,
Part VII(A)(1) as adopted by the Cuyahoga County Court of Common Pleas, the trial
court was required to conduct a trial de novo on all claims and all issues. We should
not condone the trial court ignoring its own rules, especially when those rules were
the sole source of authority to force the mandatory arbitration upon the unwilling
plaintiff. It is one thing to permit trial courts some latitude in enforcing deadlines
within their local rules, see, e.g., In re T.W., 8th Dist. Cuyahoga Nos. 88360 and
88424, 2007-Ohio-1441, at ¶ 39; it is another altogether to permit trial courts to
ignore their own rule requiring a trial de novo upon a party’s timely perfecting an
appeal from an unsolicited arbitration proceeding.
In light of the fact that Claude’s motion to dismiss was entirely based
on the arbitration decision that bore no force or effect following Stephen’s timely
appeal, the motion to dismiss (whether considered as a Civ.R. 12(B)(6) or 12(C))
should have been denied. The majority’s implication that the trial court
could sua sponte review the complaint, independent of Claude’s motion, is contrary
to all notions of due process. Because Stephen appealed the unfavorable decision
following the mandatory arbitration, the trial court was required to conduct a trial
de novo on all claims and upon all issues. Calhoun, 8th Dist. Cuyahoga No. 84442,
2004-Ohio-6412, at ¶ 7 (“Absent any evidence of a party’s waiver of the right to
appeal, the trial court shall conduct a trial de novo on all issues once a party has
timely appealed the arbitrators’ award. Loc.R. 29 Part VIII(A)(1) & (C).”) Stephen’s
argument regarding the lack of discovery and his unanswered requests for
admissions all stem from the premature referral to arbitration. Thus, the issues are
inextricably intertwined. I would reverse the decision of the trial court and remand
for the trial de novo on all claims and all issues that Loc.R. 29, Part VII(A)(1) and
(C) requires.