Marshall v. Ginther , 2022 Ohio 2699 ( 2022 )

[Cite as Marshall v. Ginther, 2022-Ohio-2699.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Stephanie Marshall, :
Plaintiff-Appellant, : No. 21AP-664
(C.P.C. No. 21CV-6160)
v. :
(REGULAR CALENDAR)
Andrew Ginther, :
Defendant-Appellee. :
D E C I S I O N
Rendered on August 4, 2022
On brief: Stephanie Marshall, pro se. Argued: Stephanie
Marshall.
On brief: Zach Klein, City Attorney, and Andria C. Noble, for
appellee. Argued: Andria C. Noble.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Plaintiff-appellant, Stephanie Marshall, appeals from a judgment of the
Franklin County Court of Common Pleas, dismissing her complaint against defendant-
appellee, City of Columbus Mayor Andrew Ginther.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant filed a complaint against appellee on September 29, 2021, alleging
malicious prosecution and abuse of process in connection with appellee's prosecution of
case No. 2016-EVH-60329 filed in the Franklin County Municipal Court. The relevant
factual allegations in the complaint are as follows:
This case starts out as a land contract between I, stephanie
marshall, and OH SEVEN LLC, later to be known as AMC,
LLC, in 2012. james hinkle, the current owner, was never in a
contract with OH SEVEN LLC/AMC LLC.
No. 21AP-664 2
Then in 2015, I, stephanie marshall, went to court with OH
SEVEN LLC,/AMC LLC. We settled out of court, and then
james hinkle became the sole owner of 101 Meek Ave,
Columbus, Oh 43222, the property in the case, on March 31,
2017.
During this time case 2013EVH060213 was handled by
Kroflich, Kristen M and closed on 10/02/2014 captioned ENV
CIVIL DISMISSED WITHOUT PREJUDICE.
The case was later reopened by Stephen Dunbar with OH
SEVEN LLC/AMC LLC. When james h. hinkle came into
ownership of the property, the prosecutor on the case
voluntarily released OH SEVEN LLC/AMC LLC from the case.
The judgement was appealed from the trial on 1-16-2020. For
case 20-AP-79, I had been dismissed by the environmental
court via The City of Columbus' Brief of Appellee, on page 5,
"At said hearing, the court orally granted Hinkle's motion to
dismiss Marshall."
They reopened the case against me for a status conference
even though I was removed from the case and am not the
lawful owner of the property 101 Meek Ave, Columbus, Ohio
43222.
(Sic passim.) (Sept. 29, 2021 Pl.'s Compl. at 2-3.)
{¶ 3} There is no dispute that the trial court found that the real property in question
was a public nuisance, and fined Hinkle $50 for every day the property was out of
compliance with the code. Appellant was not fined. The trial court subsequently found
Hinkle in contempt, which lead to the appeal. This court affirmed the judgment of
contempt against Hinkle and remanded the case for further proceedings. Columbus v.
ACM Vision, V, LLC, 10th Dist. No. 20AP-79, 2021-Ohio-925. Appellant was not a party to
the appeal.1
{¶ 4} The basis of appellant's malicious prosecution claim in the present case is her
allegation that, on remand, the city "reopened the case against me for a status conference
1 The decision in Columbus v. ACM Vision, V, L.L.C., 10th Dist. No. 20AP-79, 2021-Ohio-925 contains the
following reference to appellant: On January 22, 2018, the trial court conducted an environmental injunction
hearing. By entry filed on that date, the trial court found the real property to be a public nuisance. The court
ordered the remaining defendants (i.e., appellant and Marshall) to bring the property into compliance and the
court authorized the city to enter upon the real property to abate the nuisance. On September 3, 2019,
Marshall filed a pro se motion seeking her removal as a party to the case based on her assertion that she did
not have any legal or lawful responsibilities with respect to the real property as of March 31, 2017. Id. at ¶ 4-
5.
No. 21AP-664 3
even though I was removed from the case and am not the lawful owner of the property 101
Meek Ave, Columbus, Ohio 43222." (Pl.'s Compl. at 3.) The basis of the abuse of process
claim is service upon appellant of a notice of status conference in case No. 2016-EVH-
60329.
{¶ 5} Appellee moved the trial court for dismissal of the complaint, arguing that
the complaint failed to state a claim upon which relief may be granted and, alternatively,
the statute of limitations barred appellant's claims arising out of the 2013 litigation. On
November 19, 2021, the trial court concluded the complaint failed to state a claim for
malicious prosecution arising out of the 2016 case because appellant did not allege seizure
of her person or property, and because the complaint was barred by the one-year statute of
limitations. The trial court further concluded the complaint failed to state a claim for abuse
of process because appellant acknowledged that the suit was initially commenced against
her with probable cause, and she did not allege facts to support an inference of an ulterior
motive for continuing the case against her. Accordingly, the trial court granted appellee's
motion and dismissed appellant's complaint with prejudice.
{¶ 6} Appellant appealed to this court from the November 19, 2021, judgment.
II. ASSIGNMENT OF ERROR
{¶ 7} Appellant assigns the following as trial court error:
[1.] The assignment of error rests on the courts in the abuse of
the process of transferring the assigned trial judge: Judge Frye
to Judge Lynch.
III. LEGAL ANALYSIS
{¶ 8} In appellant's sole assignment of error, appellant claims that the trial court
erred and committed an abuse of process by transferring the case from Judge Frye to Judge
Lynch. Appellant's assignment of error lacks merit.
{¶ 9} We customarily conduct a de novo review of a trial court's judgment granting
a motion to dismiss for failure to state a claim upon which relief can be granted. Prime
Invests., LLC v. Altimate Care, LLC, 10th Dist. No. 20AP-526, 2022-Ohio-1181, ¶ 12, citing
Foreman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 9. In
conducting such a review, we affirm the judgment if it appears, beyond doubt, that the
No. 21AP-664 4
plaintiff can prove no set of facts entitling him to relief. Prime Invests., LLC at ¶ 11, citing
Hostacky v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 21AP-349, 2021-Ohio-4464, ¶ 4.
Here, however, appellant's assignment of error and her argument in support of her
assignment of error, focus exclusively on the alleged transfer of the case from Judge Frye
to Judge Lynch. Consequently, appellant's assignment of error is not directly related to the
merits of the trial court's judgment.
{¶ 10} Appellant claims that reversible error occurred because Judge Lynch issued
the decision granting appellee's motion to dismiss, even though Judge Frye was initially
assigned to the case. Both the record in this case and the applicable rules of court belie
appellant's claim.
{¶ 11} Pursuant to Ohio Sup.R. 36.011(A), "each multi-judge general, * * * division
of a court of common pleas; * * * shall adopt the individual assignment system for the
assignment of all cases to judges of the court or division, as applicable." Pursuant to Ohio
Sup.R. 36.011(B), "[c]ases shall be assigned pursuant to the individual assignment system
* * * [by] a court of common pleas, when a complaint or petition is filed with the clerk of
court." Under Ohio Sup.R. 4.01(C), one of the duties of the Administrative Judge is to
"assign cases to individual judges of the court."
{¶ 12} For cases pending in Franklin County, Ohio, the applicable local rule is Loc.R.
31 of the Court of Common Pleas of Franklin County, General Division, which provides in
relevant part:
31.01 General: All cases shall be assigned on a single
assignment basis. Each case shall be assigned to a specific judge
when filed and shall remain with that assigned judge until
reassignment or final disposition. All decisions relating to the
case shall be made by the assigned judge.
***
B. Transfer or re-assignment of cases: Nothing in this rule shall
prevent the transfer of a either a civil or criminal case(s) from
one assigned judge to another. Such a transfer shall specify the
reason(s) for the transfer and shall be approved by the
Administrative Judge.
{¶ 13} The original scheduling order generated by the Franklin County Clerk of
Court on September 29, 2021, the same date appellant filed her complaint, identifies Judge
No. 21AP-664 5
Lynch as the judge assigned to the case. Every entry, order, or judgment filed in the case
subsequent to appellant's September 29, 2021, complaint, identifies Judge Lynch as the
judge assigned to the case. There is no order or entry in the record either assigning or
reassigning this case to Judge Frye. Thus, the record fails to support appellant's claim that
the case was assigned to Judge Frye.
{¶ 14} We note that Judge Frye is mistakenly identified as the assigned judge in the
caption of appellee's motion to dismiss and by both parties in subsequent memoranda
submitted in connection with the motion. The motion to dismiss and related memoranda
are the only instances in the record where "Judge Frye" is mentioned. Under the applicable
rules of court, the mistaken identification of the assigned judge in motions or memoranda,
filed by the parties, cannot effect a reassignment of a case to a different judge, as the
reassignment of a civil case is reserved to the Administrative Judge. Ohio Sup.R. 4.01(C);
Loc.R. 31(B) of the Court of Common Pleas of Franklin County, General Division.
Accordingly, appellant's assignment of error is legally and factually unsupportable.
{¶ 15} Moreover, even if we were to agree with appellant that the case was
wrongfully transferred to Judge Lynch, which it was not, appellant does not claim Judge
Lynch erred in ruling on the merits of appellee's motion to dismiss. Thus, she cannot
establish reversible error. See Civ.R. 61.
{¶ 16} For the foregoing reasons, appellant's sole assignment of error is overruled.
IV. CONCLUSION
{¶ 17} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER, P.J., and NELSON, J., concur.
NELSON, J., retired, of the Tenth Appellate District, assigned
to active duty under the authority of the Ohio Constitution,
Article IV, Section 6(C).
_____________