Cook v. Criminger, 2005 Ohio 1949 (OH 4/27/2005)

• Decision Date: 27 April 2005
• Docket Number: C. A. No. 22313.
• Citation: 2005 Ohio 1949
• Parties: William B. Cook, Appellant, v. Bobby J. Criminger, et al., Appellees.
• Court: Ohio Supreme Court

Page 1

2005 Ohio 1949

William B. Cook, Appellant, v. Bobby J. Criminger, et al., Appellees.

C. A. No. 22313.

Court of Appeals of Ohio, Ninth District, Summit County.

Dated: April 27, 2005.

Appeal from Judgment entered in the Court of Common Pleas County of Summit, Ohio Case No. CV 2004 03 1531.

William Cook, P. O. Box 24624, Lyndhurst, Ohio 44124, Appellant.

Roger M. Synenberg, Attorney at Law, 55 Public Square, Suite 1200, Cleveland, Ohio 44113, for Appellees.

DECISION AND JOURNAL ENTRY

BAIRD, Judge.

{¶1} Appellant, William B. Cook, appeals from the judgment of the Summit County Court of Common Pleas, which granted summary judgment in favor of appellees, Bobby J. Criminger and Chris Jackson, as against appellant. This Court affirms.

I.

{¶2} On February 11, 1998, appellant filed a complaint in the United District Court for the Northern District of Ohio ("the federal case") against Cleveland State University ("CSU"), alleging that CSU interfered with appellant's property rights in violation of certain provisions of the United States and Ohio Constitutions. Specifically, appellant alleged in the federal case that CSU deprived him of his right to substantive due process, procedural due process and equal protection under the law. The federal case proceeded to bench trial before the Honorable Lesley Wells, and on July 10, 2000, Judge Wells issued a judgment entry and findings of fact and conclusions of law in regard to appellant's February 11, 1998 complaint. In relevant part, Judge Wells concluded as a matter of law that appellant had failed to establish that CSU violated his right to equal protection. Judge Wells entered judgment in favor of CSU as against appellant.

{¶3} In the instant case, on March 12, 2004, appellant filed a complaint against appellees, Bobby Criminger and Chris Jackson, asserting that at all times relevant to the allegations, appellees were upper level employees of CSU. Appellant asserted four counts in his complaint. Counts I, II, and III, respectively, accused appellees of perjury, conspiracy to obstruct justice, and theft. Count IV alleged "a violation of equal protection complained of by [appellant] in his original complaint to the Wells court."

{¶4} Appellees timely filed a motion for summary judgment in the trial court. Nearly one month later, appellant filed a response in opposition to appellees' motion for summary judgment, as well as appellant's amended complaint. Appellant did not request leave to file his amended complaint.

{¶5} On August 16, 2004, the trial court issued a judgment entry, granting appellees' motion for summary judgment as against appellant. The trial court ruled that summary judgment for appellees was appropriate in regard to Counts I, II and III, because those counts alleged violations of criminal law, which cannot form the basis of a civil lawsuit. The trial court further ruled that summary judgment for appellees was appropriate in regard to Count IV, because appellant's equal protection claim was barred by the doctrine of res judicata. The trial court also ordered appellant's amended complaint stricken, because it was filed in contravention of Civ.R. 15(A). Appellant timely appeals, setting forth eight assignments of error for review. This Court addresses the assignments of error out of order for ease of review.

II. SEVENTH ASSIGNMENT OF ERROR

"Cook files an amended complaint and defense files an objection to that amended complaint stating cook did not ask leave of court. Cook is pro-se. where is it written that judge unruh cannot grant leave of court without cook [SIC] asking for leave of court, especially to a pro-se wanting justice. [sic] do you agree?"

{¶6} Appellant argues that the trial court abused its discretion, when it did not grant appellant, a pro se litigant without the benefit of legal training, leave to file his amended complaint. This Court disagrees.

{¶7} This Court has held that "pro se civil litigants are bound by the same rules and procedures as those litigants who retain counsel." Jones Concrete, Inc. v. Thomas (Dec. 22, 1999), 9th Dist. No. 2957-M. We continued that pro se civil litigants "are not to be accorded greater rights and must accept the results of their own mistakes and errors." Id., citing Kilroy v. B.H. Lakeshore Co. (1996), 111 Ohio App.3d 357, 363 (holding that pro se litigants are "presumed to have knowledge of the law and of correct legal procedure and [are] held to the same standard as all other litigants"). Therefore, this Court does not demand that the trial court should have accorded appellant any greater leniency in regard to appellant's proper procedural management of his case.

{¶8} Civ.R. 15(A) provides, in relevant part:

"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served ***. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of the court shall be freely given when justice so requires. ***"

{¶9} Appellant filed his amended complaint after appellees filed their dispositive motion, without written consent of appellees, and without requesting leave of court to do so. Because appellant never requested leave to file an amended complaint, the trial court did not deny such a motion, thereby mooting any need for an analysis of whether the trial court abused its discretion. See, Miller-Wagenknecht v. Midland Mut. Life Ins. Co. (May 4, 1994), 9th Dist. No. 16457. In the absence of any request by appellant for leave to amend his complaint, the trial court did not err when it ordered the amended complaint stricken from the record. Appellant's seventh assignment of error is overruled.

FIRST ASSIGNMENT OF ERROR

"Judge unruh states `while the plaintiff refers the court to various statutory provisions which provide that there may be civil recovery for criminal actions, these statutes all provide that there must first be a criminal action.' [] it was the Actions of the defendants, which may have been criminal, that caused the harm. i am neither a prosecutor or [sic] an attorney. pg. 4 that statement is incorrect; no criminal action is necessary to recover in a civil action. do you agree?"

{¶10} Appellant appears to argue that the trial court erred by granting summary judgment to appellees in regard to Counts I, II and III in the complaint, because a criminal conviction is not necessary to allow a civil litigant to recover damages. This Court disagrees.

{¶11} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the nonmoving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12.

{¶12} Pursuant to Civ.R. 56(C), summary judgment is proper if:

"(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 party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

{¶13} To prevail on a motion for summary judgment, the party moving for summary judgment must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Once a moving party satisfies its burden of supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the moving party's pleadings. Rather, the nonmoving party has a reciprocal burden of responding by setting forth specific facts, demonstrating that a "genuine triable issue" exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 449.

{¶14} Appellant accused appellees of three criminal offenses in Counts I, II and III of his complaint. Based on the alleged crimes, appellant sought compensatory, punitive, and treble damages, plus costs.

{¶15} "Criminal violations are brought not in the name of the individual party but rather by, and on behalf of, the state of Ohio or its subdivisions." Biomedical Innovations, Inc. v. McLaughlin (1995), 103 Ohio App.3d 122, 126, citing Atlantic & Great W. Ry. Co. v. Dunn (1869), 19 Ohio St. 162, 172. Therefore, it was not appropriate for appellant to bring claims for civil damages premised upon alleged violations of criminal statutes. Biomedical Innovations, Inc., 103 Ohio App.3d at 126. Further, appellant's reliance on R.C. Chapter 2307 is misplaced, as there is no evidence that appellees were ever charged, let alone convicted, of the criminal acts alleged by appellant. Under these circumstances, no genuine issue of material fact exists, and summary judgment for appellees was appropriate in regard to Counts I, II and III in the complaint. Appellant's first assignment of error is overruled.

{¶16} The second, third, fourth, fifth and sixth assignments of error all address the trial court's granting of summary judgment regarding Count IV on the basis of res judicata, and will be addressed by this Court together.

SECOND ASSIGNMENT OF ERROR

"Without explaining what change in facts have occurred, the plaintiff asserts that neither res judicata nor collateral estoppel is applicable "[w]here there has been a subsequent change in facts which would have been relevant to resolution of material issue involved in prior action". [sic] pg. 5 both defendants gave false testimony at federal trial. (Called Fraud). that fraud was self serving...