Herb v. Loughlin

[Cite as Herb v. Loughlin, 2013-Ohio-5149.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STEVEN M. HERB : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
KEITH S. LOUGHLIN, ET AL. : Case No. 13-CA-30
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2011CV330
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 18, 2013
APPEARANCES:
For Plaintiff-Appellant For Keith S. Loughlin
RAYMOND L. EICHENBERGER ROBERT C. BUCHBINDER
7620 Slate Ridge Boulevard 500 South Front Street, Suite 1200
Reynoldsburg, OH 43068 Columbus, OH 43215
For Newark Area Soccer Association
CARL A. ANTHONY
65 East State Street
Suite 800
Columbus, OH 43215
Licking County, Case No. 13-CA-30 2
Farmer, P.J.
{¶1} In January of 2010, appellant, Steven Herb, accused appellee, Keith
Loughlin, of having an affair with his wife, Randi Herb (Carroll). Appellee was the
soccer coach of the Herbs' son, and worked for appellee, Newark Area Soccer
Association (hereinafter "NASA"). Following a verbal dispute, appellee Loughlin
received a civil protection order against appellant on April 21, 2010. Although not
included in the civil protection order, appellant believed he could attend his
son's soccer games that were being coached by appellee Loughlin.
{¶2} On October 9, 2010, appellant attended his son's soccer game being
coached by appellee Loughlin. Appellee Loughlin called the police which caused
appellant to be arrested in light of his violating the civil protection order. An amended
judgment entry was filed on October 14, 2010, permitting appellant to attend his son's
soccer games as long as he made no contact with appellee Loughlin. Any charges
against appellant were dismissed.
{¶3} On March 7, 2011, appellant filed a complaint against appellees for
negligence, negligent infliction of intentional harm, intentional infliction of emotional
harm, false imprisonment, abuse of process, and malicious prosecution. On May 11,
2011, appellee State Farm Fire and Casualty Company was granted leave to intervene
in order to seek a declaratory judgment as to its duty to defend and indemnify appellee
Loughlin under his condominium policy. On October 11, 2011, appellee State Farm
filed a motion for summary judgment. Appellees Loughlin and NASA filed motions for
summary judgment on December 1, 2011.
Licking County, Case No. 13-CA-30 3
{¶4} On December 12, 2011, appellant filed a Civ.R. 56(F) motion to stay
appellees' summary judgment motions because of two pending discovery motions. By
decision and order filed January 12, 2012, the trial court denied appellant's two
discovery motions and denied appellant's Civ.R. 56(F) motion. By judgment entry filed
January 30, 2012, the trial court granted summary judgment to appellees.
{¶5} Appellant filed an appeal and this court reversed in part, finding the trial
court prematurely determined the motions for summary judgment. Herb v. Loughlin, 5th
Dist. Licking No. 12-CA-11, 2012-Ohio-4351. Upon remand, the trial court gave
appellant a chance to respond and on March 8, 2013, again granted summary judgment
to appellees.
{¶6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶7} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION WHEN IT FAILED TO RULE THAT THE OCTOBER, 2011 (SIC)
CORRECTED JUDGMENT ENTRY WAS EITHER A NUNC PRO TUNC ENTRY OR A
CIVIL RULE 60(A) CORRECTED ENTRY THAT RELATED BACK AND PERMITTED
APPELLANT HERB TO ATTEND HIS SON'S SOCCER GAME ON OCTOBER 9,
2010."
II
{¶8} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION WHEN IT RULED FACTUALLY IN THE DECISION GRANTING THE
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT THAT THE SOCCER GAME
Licking County, Case No. 13-CA-30 4
HAD CONCLUDED ON OCTOBER 10, 2010 AND THAT PLAINTIFF HERB HAD NO
RIGHT TO BE AT THE SOCCER FIELD AT THE TIME THAT HE WAS ARRESTED."
III
{¶9} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION IN FINDING THAT THE PLAINTIFF'S COMPLAINT FAILED TO STATE
VALID CAUSES OF ACTION UNDER THE VARIOUS FACT SITUATIONS IN THE
CASE AT BAR."
IV
{¶10} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION WHEN IT RULED THAT THE PLAINTIFF HAD NO VIABLE CAUSE OF
ACTION AGAINST DEFENDANT NEWARK AREA SOCCER ASSOCIATION OTHER
THAN UNDER THAT DEFENDANT'S VICARIOUS LIABILITY AS THE EMPLOYER OF
DEFENDANT LOUGHLIN, AND THAT NASA WAS NOT LIABLE UNDER
RESPONDENT SUPERIOR. THE PLAINTIFF HAD INDEPENDENT CAUSES OF
ACTION AGAINST DEFENDANT NASA.
I
{¶11} Appellant claims the trial court erred in not accepting the amended
judgment entry of October 14, 2010 as controlling. Appellant claims the amended
judgment entry was a proper nunc pro tunc entry under Civ.R. 60(A) and related back to
the original April 21, 2010 judgment entry/civil protection order, therefore his actions on
October 9, 2010 were not in violation of the order. We disagree.
{¶12} Civ.R. 60(A) states in pertinent part: "Clerical mistakes in judgments,
orders or other parts of the record and errors therein arising from oversight or omission
Licking County, Case No. 13-CA-30 5
may be corrected by the court at any time on its own initiative or on the motion of any
party and after such notice, if any, as the court orders." As explained in State v. Zack,
9th Dist. Lorain No. 11CA009955, 2011-Ohio-4882, ¶ 6:
"[N]unc pro tunc entries are limited in proper use to reflecting what
the court actually decided[.]" State ex rel. Fogle v. Steiner (1995), 74 Ohio
St.3d 158, 164. That is, they "record[ ] what the trial court did but failed to
record in the journal entry." State v. Plant, 9th Dist. No. 24118, 2008-
Ohio-4424, at ¶ 7. For that reason, a nunc pro tunc entry will relate back
in time to the date of the journal entry it corrects. State v.
McClanahan, 9th Dist. No. 25284, 2010–Ohio–5825, at ¶ 8; Petition for
Inquiry into Certain Practices (1948), 150 Ohio St. 393, 398.
{¶13} On April 1, 2010, a magistrate issued a civil protection order, ordering
appellant to stay at least 500 feet away from appellee Loughlin, but included a soccer
game exception so that appellant could attend his son's soccer games. The trial court
affirmed the magistrate's order on April 21, 2010, but excluded the soccer game
exception. The trial court's October 14, 2010 amended judgment entry modified the 500
feet provision and permitted appellant to attend his son's soccer games. Although
Civ.R. 60(A) allows corrections and relieves a party from errors in a judgment, it does
not affect the validity of a trial court's ruling in a prior judgment.
{¶14} All parties were notified of the trial court's April 21, 2010 judgment
entry/civil protection order. Herb depo. at 107. Although appellant took some action
Licking County, Case No. 13-CA-30 6
about attending his son's soccer games by calling the trial court's office, he did not file
any motion or an appeal on the decision. Herb depo. at 214, 219. No action was taken
until the October 14, 2010 amended judgment entry.
{¶15} There is some validity to the argument that the trial court's language in the
April judgment entry/civil protection order adopted the entire magistrate's opinion which
included the soccer game attendance exception. However, as we note in Assignments
of Error II and III, the attendance exception did not apply to appellant's actions on
October 9, 2010 because the soccer game was over, and appellant was at appellee
Loughlin's place of employment and was no longer physically present where the game
had been played.
{¶16} Assignment of Error I is denied.
{¶17} The following three assignments of error claim the trial court erred in
granting summary judgment to appellees. Summary Judgment motions are to be
resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme
Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St. 3d 447, 448, 1996-
Ohio-211:
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any
material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing such
evidence most strongly in favor of the nonmoving party, that conclusion is
Licking County, Case No. 13-CA-30 7
adverse to the party against whom the motion for summary judgment is
made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St. 3d 509, 511,
628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50
Ohio St. 2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
{¶18} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35 (1987).
II, III
{¶19} Appellant claims the trial court erred in granting summary judgment to
appellee Loughlin as genuine issues of material fact exist. We disagree.
{¶20} In his complaint filed March 7, 2011, appellant set forth claims of
negligence, negligent infliction of intentional harm, intentional infliction of emotional
harm, false imprisonment, abuse of process, and malicious prosecution. All claims
against appellee NASA were derivative claims based on respondeat superior except for
claims of independent liability which will be discussed in Assignment of Error IV.
{¶21} The complaint alleged that appellant did not violate the terms of the civil
protection order and his attendance at his son's October 9, 2010 soccer game was
permitted by the order. Appellant alleged appellee Loughlin initiated a call to the police
claiming a violation of the order and as a result, appellant was falsely arrested and
incurred damages.
Licking County, Case No. 13-CA-30 8
{¶22} Pursuant to Civ.R. 36, the trial court deemed admitted appellees'
admissions propounded to appellant. We addressed this decision in the prior appeal
(Herb v. Loughlin, 5th Dist. Licking No. 12-CA-11, 2012-Ohio-4351) at ¶ 40-41:
On May 17, 2011, appellant filed his replies to the admissions.
There were thirteen admissions in toto. Admissions 1 through 10 involved
the civil protection order between appellant and appellee Laughlin (sic), its
authenticity, as well as admissions on the Common Pleas Court case file.
Appellant denied these requests based upon the fact that the attached
copies were not properly authenticated, and further stated, "[t]he contents
of Court Entries and Orders speak for themselves and are only subject to
interpretation by the Court." No objections were filed. Appellant's
statements in his replies in fact admitted the validity of the civil protection
order and the trial court's judgment entries.
Upon review, we find no error in admitting admissions 1 through 10.
{¶23} The deemed admissions were as follows:
{¶24} 1) Authenticity of the magistrate's April 1, 2010 civil protection order,
attached as Exhibit A.
{¶25} 2) The April 1, 2010 order was an ex parte order issued by the magistrate.
{¶26} 3) Authenticity of the trial court's April 21, 2010 judgment entry, attached
as Exhibit B.
{¶27} 4) The April 21, 2010 judgment entry modified the magistrate's order.
Licking County, Case No. 13-CA-30 9
{¶28} 5) Appellant received the April 21, 2010 judgment entry.
{¶29} 6) Appellant had the right to request changes to the April 21, 2010
judgment entry.
{¶30} 7) The April 21, 2010 judgment entry was the order in effect on October 9,
2010.
{¶31} 8) The April 21, 2010 judgment entry did not specifically state that
appellant was permitted to attend his son's soccer games, including the one on October
9, 2010.
{¶32} 9) The April 21, 2010 judgment entry was not changed or amended until
after appellant's arrest on October 9, 2010.
{¶33} 10) Authenticity of the trial court's October 14, 2010 amended judgment
entry, attached as Exhibit C.
{¶34} The magistrate's language from the April 1, 2010 civil protection order,
absent from the trial court's April 21, 2010 judgment entry, was as follows: "IT IS
FURTHER ORDERED: [NCIC 08] Respondent may be present at his son's soccer
games, so long as he has NO contact with Petitioner." The trial court's April 21, 2010
judgment entry stated the following in pertinent part:
2. RESPONDENT SHALL NOT ENTER the residence, school, business,
place of employment, or day care centers of the protected persons named
in this order, including the buildings, grounds and parking lots at those
locations. [NCIC 03]
Licking County, Case No. 13-CA-30 10
5. RESPONDENT SHALL STAY AWAY from protected persons named in
this order, and shall not be present within 500 feet or ------------- (distance)
of protected persons, wherever protected persons may be found, or any
place the Respondent knows or should know the protected persons are
likely to be, even with protected persons' permission. If Respondent
accidentally comes in contact with protected persons in any public or
private place, Respondent must depart immediately. This order includes
encounters on public and private roads, highways, and thoroughfares.
[NCIC 04]
{¶35} The gravamens of appellant's causes of actions are that he was lawfully at
his son's October 9, 2010 soccer game under the language of the magistrate's civil
protection order, and all parties as a course of conduct had acquiesced to his presence
at previous soccer games.
{¶36} In its March 7, 2013 judgment entry, the trial court specifically found all of
appellant's claims had to do with his actions "after" the soccer game:
On October 9, 2010, Herb attended his son's soccer match on the
property of NASA. Herb's son played on a team coached by Loughlin,
who had obtained a civil protection order against Herb on April 21, 2010.
After the soccer match Loughlin called police to inform them that Herb was
violating the civil protection order. Police arrived on the scene and placed
Herb under arrest. Herb was confined in the county jail for two days
Licking County, Case No. 13-CA-30 11
pending his initial court appearance. Charges for violating the order were
subsequently dropped.
***
Even assuming, however, Herb had permission to attend the game
on October 9, 2010, and Loughlin was aware of this permission, Loughlin
did not call police simply because Herb attended the soccer match. It is
undisputed that after the match had ended, Herb did not leave the
premises. Instead he proceeded to NASA's offices, Loughlin's place of
employment, for a parents meeting without knowing what the purpose of
the meeting was. Id. at 139. The Magistrate's instructions at the
protection order hearing on which Herb relies state that Herb would only
be allowed to attend practices and games. Id. at Ex. 8. The Magistrate
made it clear that any behavior outside of this would be construed as a
violation of the order. Id. Thus, even were the Court to imply this
permission, Herb was still in violation of the order by attempting to attend
the meeting at NASA's offices, Loughlin's place of employment, and
Loughlin acted within his rights when he called the police.
{¶37} The April 21, 2010 judgment entry/civil protection order in effect at the
time of appellant's arrest, October 9, 2010, did not specifically state that appellant was
permitted to attend his son's soccer games. A clear reading of the entry states that
appellant was not permitted at appellee Loughlin's place of employment (NASA's
building) or within 500 feet of appellee Loughlin. In his deposition, appellant claimed he
Licking County, Case No. 13-CA-30 12
was permitted to attend soccer activities i.e., after-game events. Herb depo. at 214.
Even if we accept ambiguity in the trial court's April 21, 2010 judgment entry vis-à-vis
the magistrate's April 1, 2010 civil protection order and the contention that all parties
understood that appellant was permitted to attend soccer games, the magistrate's
express language contained in the civil protection order hearing transcript at 88
(attached to Herb depo. as Exhibit 8) refutes appellant's "activities" argument:
Okay, well what I'm going to do is I'm going to keep the Temporary
Order in affect, however, I'm going to amend the 500 feet with an
exception that you can go take Scot (sic) to soccer, but you still cannot
have any contact with Mr. Loughlin. That means, you can't even wave to
him, but you can be there. You can support your son, you can drop him
off, you can pick him up. Whether you converse with your wife or not,
that's up to you. But, you cannot make eye contact with Mr. Loughlin.
Okay.
{¶38} In a statement given to the Newark Police Department (attached to Herb
depo. as Exhibit 16), witness Ken Siegfried stated the following:
I attended my son's soccer game @ the NASA complex on 10-9-10
@ 2:30. During the game I noticed Steve on the sidelines, watching.
After the game, most parents moved over to the club house for a meeting.
Licking County, Case No. 13-CA-30 13
During the game Keith was on the opposite sideline coaching the Team in
plain sight.
When the meeting started Keith approached the parents, Steve
was only 8-10 feet away from Keith. Both should have seen each other
clearly.
{¶39} Appellant admitted in his deposition and in his affidavit attached to his
memorandum contra to the summary judgment motions that after the soccer game
concluded, he walked off the field and accompanied other parents to the patio of
NASA's office building to await an announcement. Herb depo. at 104-105, 133, 138-
139. Appellant stated he never saw appellee Loughlin, but admitted he was at his place
of employment where the parents meeting was to be conducted, in violation of the
language of both the April 1, 2010 civil protection order and the April 21, 2010 judgment
entry/civil protection order. Appellant was confronted on the patio by the police and
arrested on NASA's premises. All the attached statements to the police report, as well
as appellant's own admissions, agree that the soccer game was over and appellant was
at appellee Loughlin's place of employment.
{¶40} In construing the evidence most favorably to appellant, we find material
issues of fact do not exist regarding appellant's violation of the judgment entry/civil
protection order.
{¶41} Upon review, we find the trial court did not err in granting summary
judgment to appellee Loughlin and appellee NASA on the respondeat superior claims.
Licking County, Case No. 13-CA-30 14
{¶42} We also note at appellant's deposition, which concluded beyond the
discovery cutoff date set by the trial court, appellant was unable to establish any
monetary or emotional distress medical expenses or name any expert witnesses. Herb
depo. at 24, 30, 33.
{¶43} Assignments of Error II and III are denied.
IV
{¶44} Appellant claims the trial court erred in granting summary judgment to
appellee NASA as it had a duty to control the acts of its employee, appellee Loughlin,
and should have removed him from coaching his son. We disagree.
{¶45} In his complaint filed March 7, 2011 at ¶ 46-47, appellant claimed appellee
NASA owed him separate independent liability:
At all time relevant herein, Defendant was an employee of
Defendant Newark Area Soccer Association, and was acting within the
course and scope of his duties with Newark Area Soccer Association.
Defendant Newark Area Soccer Association knew or should have
known of the behavior of Defendant Loughlin in regard to the Plaintiff, and
had a duty to control his immoral, careless, intentional, threatening and
reckless behavior.
{¶46} Apart from the respondeat superior arguments discussed above, appellant
argues he has distinct causes of action against appellee NASA. Without attempting to
cull out the particulars of appellant's theory of independent liability, we find appellant's
Licking County, Case No. 13-CA-30 15
claims to be baseless. In his deposition, appellant admitted he did not have any
evidence that appellee NASA "funded this assault" against him, and he did not have any
knowledge or proof that appellee NASA participated in appellee Loughlin's call to the
police on October 9, 2010. Herb depo. at 154-156, 226-227, 231.
{¶47} Upon review, we find the trial court did not err in granting summary
judgment to appellee NASA.
{¶48} Assignment of Error IV is denied.
{¶49} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, P.J.
Wise, J. and
Delaney, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. John W. Wise
_______________________________
Hon. Patricia A. Delaney
SGF/sg 1018
[Cite as Herb v. Loughlin, 2013-Ohio-5149.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STEVEN M. HERB :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
KEITH S. LOUGHLIN, ET AL. :
:
Defendants-Appellees : CASE NO. 13-CA-30
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to
appellant.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. John W. Wise
_______________________________
Hon. Patricia A. Delaney