Grover v. Bartsch
| Decision Date | 17 November 2006 |
| Docket Number | No. 21413.,21413. |
| Citation | 866 N.E.2d 547,170 Ohio App.3d 188,2006 Ohio 6115 |
| Parties | GROVER et al., Appellants, v. BARTSCH et al., Appellees. |
| Court | Ohio Court of Appeals |
Robert P. Bartlett Jr. and Michele A. Murphy, Dayton, for appellees.
{¶ 1} Orrin Leigh Grover III ("Grover") and Lin Colby Grover (collectively, "the Grovers") appeal from a judgment of the Montgomery County Court of Common Pleas, which dismissed their defamation action against William Bartsch. Grover is the son of Brigadier General Orrin Leigh Grover, USAF, Ret. Lin Grover is General Grover's widow.
{¶ 2} According to the Grovers' amended complaint, Bartsch wrote a book entitled December 8, 1941: MacArthur's Pearl Harbor, which was published in July 2003. On May 22, 2003, Bartsch gave a lecture at the United States Air Force Museum in Dayton, Ohio, regarding his forthcoming book and sold numerous advance copies of the book. Grover was present at this lecture and believes that Bartsch was aware of his presence. During the lecture, Bartsch accused General Grover of unprofessional conduct and of failing to properly perform his duties as an army air force officer in time of war. The book also accused General Grover of filing false reports, of unprofessional conduct, and of failing to properly perform his duties as an army air force officer in time of war.
{¶ 3} On May 20, 2005, the Grovers brought suit against Bartsch, alleging that on May 22, 2003, he made false and defamatory statements, orally and in writing, about General Grover. Texas A & M University Press was also named as a defendant in this complaint, but it was subsequently dismissed from the litigation. The Grovers filed the amended complaint on July 5, 2005, asserting claims for defamation, libel, misrepresentation, and negligent and intentional infliction of emotional distress.
{¶ 4} Bartsch was served with the original complaint in Reston, Virginia, on May 23, 2005. On June 14, 2005, Bartsch moved to dismiss the action for lack of personal jurisdiction, pursuant to Civ.R. 12(B)(2), and for failure to state a claim upon which relief can be granted, pursuant to Civ.R. 12(B)(6). Bartsch claimed that the Grovers' claim was time-barred. On July 22, 2005, Bartsch filed a similar motion directed to the amended complaint. On the same day, Bartsch filed a motion for a protective order, which asked the court to stay discovery, including the deposition of Bartsch, pending a resolution of his motion to dismiss. The court granted the motion for a protective order.
{¶ 5} On November 28, 2005, the trial court granted Bartsch's motion to dismiss. Although the trial court concluded that it had personal jurisdiction over Bartsch, it found that the Grovers' claims were untimely. The court reasoned that all of the Grovers' claims were claims for defamation, which were subject to a one-year statute of limitations, and the amended complaint established that the original complaint was filed after the expiration of that one-year time period. The court further concluded that Ohio's tolling statute, R.C. 2305.15, was unconstitutional as applied to Bartsch. The court stated that the allegations in the amended complaint indicated that Bartsch had come to Ohio for the limited purpose of promoting his book and presenting a lecture on the book. The court thus concluded that the application of R.C. 2305.15 in this circumstance would impose an unconstitutional burden on interstate commerce.
{¶ 6} The Grovers appeal from the trial court's judgment, raising five assignments of error. We will address them in an order that facilitates our analysis.
{¶ 7} I. "The trial court improperly granted a protective order barring the plaintiffs from conducting a deposition of the defendant."
{¶ 8} In their first assignment of error, the Grovers claim that the trial court erred in granting a protective order that barred them from conducting a deposition of Bartsch. We review the trial court's decision to stay discovery for an abuse of discretion. State ex rel. Keller v. Columbus, 164 Ohio App.3d 648, 2005-Ohio-6500, 843 N.E.2d 838, ¶ 39.
{¶ 9} As an initial matter, Bartsch states that the Grovers "failed to raise the protective order at all in their Notice of Appeal, stating `[t]he Plaintiffs hereby appeal the judgment of dismissal entered in this matter on November 28, 2005.'" Bartsch's argument lacks merit. Interlocutory orders, such as most discovery orders, are merged into the final judgment. Thus, an appeal from the final judgment includes all interlocutory orders merged with it, such as the trial court's protective order. MacConnell v. Safeco Property, Montgomery App. No. 21147, 2006-Ohio-2910, 2006 WL 1574919, ¶ 49.
{¶ 10} The Grovers first argue that there was no basis under Civ.R. 26(C) for granting the motion for a protective order and that Bartsch did not confer with them to resolve the matter. In his motion for a protective order, Bartsch sought to stay discovery pending the resolution of his motion to dismiss. Considering that the motion to dismiss was based on the allegations in the complaint and might dispose of the litigation, the trial court acted within its discretion when it granted the stay of discovery. Although Bartsch did not comply fully with Civ.R. 26(C), the trial court acted reasonably when it granted Bartsch's motion for a protective order.
{¶ 11} Second, the Grovers argue that they were not given an opportunity to respond to Bartsch's motion for a protective order. Bartsch's motion for a protective order was filed on July 22, 2005. As part of the motion, Bartsch sought to stay his deposition, which was scheduled for July 28 and 29, 2005. The court ruled on the motion on July 28, 2005. Although the Grovers had a limited period of time to respond prior to the court's decision, any later decision by the court would have been ineffective because the deposition would have already occurred.
{¶ 12} Finally, the Grovers claim that "since the statute of limitations is a factual defense properly asserted on summary judgment, the Plaintiffs [were] at a minimum entitled to inquire into the facts that relate to that defense." The court did not rule on Bartsch's motion to dismiss until November 28, 2005. At no time during the months prior to November 28, 2005, did the Grovers request discovery in order to defend against the motion to dismiss. To the contrary, the Grovers claimed that the court was required to restrict itself to the pleadings because Bartsch had failed to file any affidavits in support of its Civ.R. 12(B)(6) motion to dismiss. The Grovers expressly argued against the trial court's converting the motion to dismiss into one for summary judgment. If the Grovers believed that they required discovery to defend against the motion, a timely motion would have allowed the trial court to decide whether its prior stay should be vacated. See MacConnell, Montgomery App. No. 21147, 2006-Ohio-2910, 2006 WL 1574919, at ¶ 50-51 (addressing a Civ.R. 56(F) motion). In the absence of such a motion, the Grovers cannot now complain that the trial court should have allowed discovery to permit them to respond adequately to the statute-of-limitations defense raised in the motion to dismiss.
{¶ 13} The first assignment of error is overruled.
{¶ 14} II. "The trial court improperly decided the motion to dismiss based on factual matters."
{¶ 15} In their second assignment of error, the Grovers assert that the trial court improperly considered factual matters outside the pleadings in deciding Bartsch's motion to dismiss.
{¶ 16} A motion to dismiss a complaint for failure to state a claim upon which relief can be granted, pursuant to Civ.R. 12(B)(6), tests the sufficiency of a complaint. In order to prevail, such a complaint must demonstrate that the plaintiff can prove no set of facts entitling him to relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, at syllabus. The court must construe the complaint in the light most favorable to the plaintiff, presume all of the factual allegations in the complaint to be true, and make all reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. We review de novo the trial court's granting of a Civ.R. 12(B)(6) motion to dismiss.
{¶ 17} As an initial matter, the Grovers claim that the trial court should not have addressed Bartsch's statute-of-limitations defense in a motion to dismiss. They argue that as an affirmative defense, the timeliness of the complaint is more properly raised in a motion for summary judgment. Although a summary judgment is often used to resolve statute-of-limitations issues, the court may resolve the matter in a Civ.R. 12(B)(6) motion when the relevant facts are pleaded in the complaint.
{¶ 18} In their amended complaint, the Grovers alleged that Bartsch gave a lecture at the United States Air Force Museum on May 22, 2003, regarding his forth-coming book. They further alleged, The Grovers filed their original complaint on May 20, 2005. Bartsch was served with the original complaint at 2109 South Bay Lane in Reston, Virginia, on May 23, 2005.
{¶ 19} On appeal, the Grovers challenge the trial court's statement that "Mr. Bartsch left Ohio two days after the lecture and book promotion, never returned to Ohio, and currently resides in Reston, Virginia." They contend that the trial court thereby improperly found that Bartsch was not a resident of Ohio and that he was a resident of Reston, Virginia. The Grovers argue that ...
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