Barstow v. Waller, 2004 Ohio 5746 (OH 10/26/2004)
| Decision Date | 26 October 2004 |
| Docket Number | Case No. 04CA5. |
| Citation | 2004 Ohio 5746 |
| Parties | Douglas A. Barstow, et al., Plaintiffs-Appellants, v. Richard M. Waller, et al., Defendants-Appellees. |
| Court | Ohio Supreme Court |
Douglas A. Barstow, Jerry L. Barstow, Rhonda L. Norris, and Terry E. Born, II, Logan, Ohio, pro se appellants.
Linda L. Woeber and Hope A. Smith, Montgomery, Rennie & Jonson, Cincinnati, Ohio, for Appellees the Honorable Judges Richard M. Wallar and Thomas H. Gerken.
Randall L. Lambert, Lambert, McWhorter & Bowling, Ironton, Ohio, for Appellee Larry Beal.
Michael J. Collins and John C. Nemeth, John C. Nemeth & Associates, Columbus, Ohio, for Appellee Herman Carson.
Robert L. Lilley, City of Logan Law Director, Logan, Ohio, and W. Charles Curley, Keener, Doucher, Curley & Patterson, Columbus, Ohio, for Appellees City of Logan, City of Logan Police Department, and Rachelle Flemming.
DECISION AND JUDGMENT ENTRY
{¶1} Douglas Barstow, Jerry Barstow, Rhonda Norris, and Terry Born, II, appeal a judgment of the Hocking County Court of Common Pleas that (1) granted the motion to dismiss filed by Judge Richard Wallar1 and Judge Thomas Gerken and (2) granted the motions for summary judgment filed by Prosecutor Larry Beal, Herman Carson, and the City of Logan, the Logan Police Department, and Officer Rachelle Flemming. First, appellants argue that the trial court erred in concluding that Judge Wallar and Judge Gerken are immune from suit. However, it is apparent from the face of appellants' complaint that Judge Wallar and Judge Gerken were acting within their jurisdiction when they set Douglas Barstow's bail. Because the Judges were acting within their jurisdiction, they have absolute immunity from suit.
{¶2} Second, appellants argue that the trial court erred in concluding that Prosecutor Beal is immune from suit. However, Prosecutor Beal's decision to maintain the prosecution against Douglas Barstow is intimately associated with the judicial phase of the criminal process. Therefore, Prosecutor Beal has absolute immunity from suit.
{¶3} Third, appellants argue that the trial court erred in concluding that the City of Logan and the Logan Police Department are immune from liability. However, none of the exceptions to immunity contained in R.C. 2744.02(B) applies in the present case. Therefore, the City of Logan and the Logan Police Department are immune from liability.
{¶4} Fourth, appellants argue that the trial court erred in concluding that Officer Flemming is immune from liability. Officer Flemming supported her motion for summary judgment with an affidavit showing that she did not act maliciously, wantonly, or recklessly. Appellants, on the other hand, offered no Civ.R. 56 evidence regarding this issue. Because appellants failed to demonstrate a genuine issue concerning Officer Flemming's immunity, the trial court properly granted summary judgment to Officer Flemming.
{¶5} Finally, appellants argue that the trial court erred in granting summary judgment to Herman Carson on their legal malpractice claim. Herman Carson supported his motion for summary judgment with an affidavit stating that he did not deviate from the applicable standard of care. Appellants, however, failed to provide opposing expert testimony demonstrating that Herman Carson breached a duty to Douglas Barstow. This failure to provide opposing expert testimony was fatal to appellants' legal malpractice claim.
{¶6} In addition to challenging the merits of the court's decision, appellants raise two additional arguments. First, appellants argue that the trial court erred in granting the defendants' motions without a hearing. However, our review of the record indicates that appellants never requested an oral hearing on the defendants' motions. Thus, the court did not err in failing to hold one. Second, appellants argue that the trial court violated their constitutional right to a jury trial by granting the defendants' motions. However, the proper granting of a motion for summary judgment does not abridge an individual's constitutional right to a trial by jury. Moreover, the dismissal of a claim under Civ.R. 12(B)(6) renders moot the right to a jury trial in a civil matter. Because appellants' arguments all lack merit, we affirm the trial court's judgment.
{¶7} In October 2001, a fourteen-year-old female informed her school guidance counselor that Douglas Barstow had raped her. The guidance counselor immediately notified the Logan Police Department. After investigating the girl's allegations, Officer Rachelle Cook (nka Flemming) arrested Douglas Barstow. Barstow's mother, Rhonda Norris, posted his bond.
{¶8} Subsequently, the prosecutor filed complaints against Douglas Barstow for rape, corruption of a minor, and gross sexual imposition. The Logan Police rearrested Barstow and Judge Richard Wallar set Barstow's bail at $100,000. In November 2001, the grand jury indicted Douglas Barstow on charges of rape, corruption of a minor, and gross sexual imposition. Four days later, Judge Thomas Gerken set Barstow's bail at $500,000.
{¶9} Douglas Barstow initially retained Attorney Herman Carson to defend him. In February 2002, however, he fired Mr. Carson2 and retained Attorney Charles Knight. One month later, Douglas Barstow's case proceeded to trial. At the conclusion of the trial, the jury acquitted Barstow of all charges.
{¶10} In October 2002, Douglas Barstow, Jerry Barstow, Rhonda Norris, and Terry Born, II, filed a pro se complaint against Judge Richard Wallar, Judge Thomas Gerken, Prosecutor Larry Beal, Herman Carson, and the City of Logan, the Logan Police Department, and Officer Rachelle Flemming (City Defendants). In their complaint, appellants set forth various claims, including false arrest, malicious prosecution, and legal malpractice. One month later, Judges Wallar and Gerken filed a motion to dismiss for failure to state a claim upon which relief can be granted. In their motion, the Judges argued that they were immune from suit since they were acting within their jurisdiction. In April 2003, Prosecutor Beal filed a motion for summary judgment, arguing that he was immune from suit since his actions were "intimately associated with the judicial phase of the criminal process." One month later, the City Defendants filed a motion for summary judgment, arguing that they were immune from liability under R.C. 2744.02 and 2744.03. Finally, Attorney Carson filed a motion for summary judgment. In his motion, Carson argued that the appellants could not prove their claim for legal malpractice. To support his argument, Carson attached an affidavit stating that he did not deviate from the applicable standard of care for criminal defense. Appellants subsequently filed a "response" to the defendants' motions. However, appellants' response lacked Civ.R. 56 evidence.
{¶11} In March 2004, the trial court granted the defendants' motions. Appellants now appeal that decision. In their brief, appellants do not set forth traditional assignments of error as required by App.R. 16. Instead, appellants' brief includes a "Statement of Issues Presented for Review." We have chosen to treat these "issues presented" as appellants' assignments of error:
"ASSIGNMENT OF ERROR NO. 1 — The lower court erred in dismissing the case without trial or hearing. ASSIGNMENT OF ERROR NO. 2 — The lower court abused its discretion by granting Defendants' motions for summary judgment.
ASSIGNMENT OF ERROR NO. 3 — The lower court abused its discretion by granting Defendants' motion to dismiss.
ASSIGNMENT OF ERROR NO. 4 — The lower court erred in granting immunity. ASSIGNMENT OF ERROR NO. 5 — The lower court erred by denying Plaintiffs due process."
{¶12} For the sake of clarity, we will address appellants' assignments of error out of order. We begin by addressing appellants' third and fourth assignments of error. Here, appellants argue that the trial court erred in granting the motion to dismiss filed by Judge Wallar and Judge Gerken. Specifically, appellants argue that the court erred in concluding that Judge Wallar and Judge Gerken are immune from suit. They argue that the Judges "acted outside their jurisdiction."
{¶13} Civ.R. 12(B)(6) provides that a court may grant a motion to dismiss a complaint for "failure to state a claim upon which relief can be granted." A Civ.R. 12(B)(6) motion to dismiss is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 1992-Ohio-73, 605 N.E.2d 378. A court may grant a motion to dismiss for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Taylor v. London, 88 Ohio St.3d 137, 139, 2000-Ohio-278, 723 N.E.2d 1089, quoting O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 327 N.E.2d 753, syllabus. See, also, Wilson v. Ohio (1995), 101 Ohio App.3d 487, 491, 655 N.E.2d 1348. In ruling on a Civ.R. 12(B)(6) motion, the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1989), 40 Ohio St.3d 190, 193, 532 N.E.2d 753. Appellate review of a trial court's dismissal under Civ.R. 12(B)(6) presents a question of law, which we review de novo. Roll v. Edwards, 156 Ohio App.3d 227, 235, 2004-Ohio-767, 805 N.E.2d 162; Noe v. Smith (2000), 143 Ohio App.3d 215, 218, 757 N.E.2d 1164.
{¶14} In their complaint, appellants allege that Municipal Court Judge Richard Wallar acted outside his jurisdiction when he set bail on felony charges. They allege that Judge Wallar acted outside his jurisdiction to protect his deputy clerk and himself from embarrassment and scandal. Thus, they allege that Judge Wallar is guilty of "cover-up and conspiracy." As for Judge Gerken, appellants allege that he violated Douglas...
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