Heidi Thomann Tewarson v. Michael J. Simon, C.A.

• Decision Date: 03 January 2001
• Docket Number: 01-LW-0054,99CA007526
• Citation: Heidi Thomann Tewarson v. Michael J. Simon, C.A., 01-LW-0054, 99CA007526 (Ohio App. Jan 03, 2001)
• Parties: HEIDI THOMANN TEWARSON, Appellant v. MICHAEL J. SIMON, C.A.
• Court: Ohio Court of Appeals

HEIDI THOMANN TEWARSON, Appellant v. MICHAEL J. SIMON,

No. 99CA007526

01-LW-0054 (9th)

Court of Appeals of Ohio, Ninth District Lorain

January 3, 2001

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE NO. 99CV121730

OPINION

BATCHELDER Presiding Judge.

Appellant, Heidi Thomann Tewarson, appeals the judgment of the Lorain County Court of Common Pleas. We affirm in part and modify the trial court's judgment entry.

I.

Mr Fritz Simon was a highly decorated veteran of WWI and was seriously wounded during the war. Due to his wounds, he lost his sight and ability to sense smells. Mrs. Minni Simon and Mr. Simon were married on May 16, 1934. Both Mr. and Mrs. Simon were German. They were also Jewish, and hence, became targets of the anti-Semitic policies that were set in motion by the rise of Hitler and the N.S.D.A.P. In 1942, Mr. Simon and Mrs. Simon were transported to the German concentration camp known in German as Theresienstadt. Theresienstadt (located near Terezin in what is now the Czech Republic) was a "model" ghetto located near Prague. It was used, at times, to create a false image that the Jews being held in the camps were being treated well. The facts, however, were much different, with most internees either dying of disease due to mistreatment and malnutrition or being deported to death camps. At the time she was deported to Theresienstadt, Mrs. Simon was pregnant with Michael J. Simon, appellee.

Michael J. Simon was born on January 8, 1943 in Theresienstadt. He is the youngest living Holocaust survivor, being one of five children of the approximately 200 children born in Theresienstadt to survive. After their release from Theresienstadt, Mr. Simon, Mrs. Simon, and Michael Simon immigrated to the United States.

Mrs. Simon kept diaries from the N.S.D.A.P.'s rise to power in the 1930's through her internment in Theresienstadt. After he recuperated from his injuries in WWI, Mr. Simon studied law in Germany. He kept diaries from that point through his internment in Theresienstadt. Mr. and Mrs. Simon brought their diaries and certain other artifacts from their internment in Theresienstadt with them to the United States.

Upon the death of his parents, Michael Simon inherited the diaries and other artifacts, which included Michael Simon's medical records, personal correspondence between his mother and her sister Else Zacharias in New York, letters and notes on scraps of paper through which Mr. and Mrs. Simon had communicated while in Theresienstadt, correspondence between Ms. Zacharias and Heinrich Bruning, former chancellor of Germany, who became a professor at Harvard University, concerning Ms. Zacharias's efforts to obtain visas for Mr. and Mrs. Simon, and numerous medals from Mr. Simon's service in WWI, identity cards, badges, photographs, and other personal items.

Michael Simon, wishing to understand what his parents and, indeed, himself experienced, sought to have the diaries translated as he was not highly fluent in written German. Moreover, although his father's diaries were originally in Braille, his mother had transcribed them into German longhand, while her diaries were still in their original format consisting of archaic German shorthand. While Michael Simon could read some of his father's diaries, he could not read any of the archaic shorthand in his mother's diaries. To the end of having the diaries translated, he contacted several organizations which conduct research about the Holocaust and eventually, contacted the German language department at Oberlin College ("Oberlin"). Michael Simon initially hired some German Language students to translate parts of the diaries but in early 1996 he met with Ms. Tewarson regarding the complete translation of the diaries. Michael Simon agreed to give Ms. Tewarson the diaries to be translated so that he could determine whether to have them published and what parts should be omitted due to their personal nature. His mother's diaries would have to be transcribed from archaic German shorthand into modern German and then translated into English, while his father's diaries could be translated directly into English. Ms. Tewarson could largely accomplish the translations herself but she would have to hire someone to transcribe the shorthand into modern German.

Michael Simon turned possession of the diaries and artifacts over to Ms. Tewarson in early 1996. He soon moved to Los Angeles, California to pursue his career but kept in contact with Ms. Tewarson via letter and fax. Michael Simon repeatedly requested to be kept apprised of Ms. Tewarson's progress in translating the diaries; however, Ms. Tewarson only responded with general information regarding her progress. As the correspondence became more heated, she included more information, and by June 1998, she had sent Michael Simon portions of the transcriptions/translations of the diaries. On June 25, 1998, Ms. Tewarson sent Michael Simon a written contract regarding the rights to and publication of the contents of the diaries. Michael Simon refused to sign the contract. He soon demanded the return of the diaries and other artifacts from Ms. Tewarson.

On August 21, 1998, Ms. Tewarson filed a complaint in the Lorain County Court of Common Pleas seeking declaratory judgment regarding her rights to the original documents and materials entrusted to her by Michael Simon and her rights to the transcriptions and translations of the original documents along with other materials that were the product of her own scholarship. On November 20, 1998, Michael Simon filed an answer and a counterclaim for replevin of his parents' original documents and materials and for an injunction preventing Ms. Tewarson from publishing any research, books, papers, theses, and the like, formed as a result of the entrustment of the original documents and materials to her. The case was tried to the bench on November 16, 1999. On November 17, 1999, the trial court entered judgment in favor of Michael Simon finding, inter alia, that no oral contract between him and Ms. Tewarson existed as to publication and, accordingly, that Ms. Tewarson had no right to publish the transcriptions and translations of the diaries or retain the originals. This appeal followed.

II.

Ms. Tewarson asserts five assignments of error. We will address each assignment of error in turn, consolidating the first three and last two assignments of error to facilitate review.

A. JURISDICTION

First Assignment of Error

The Judgement [sic] issued was beyond the subject matter jurisdiction of the Court of Common Pleas of Lorain County.

Second Assignment of Error

The Judgment of the Trial Court, based solely upon state contract law, is in error since it determined and limited Appellant's rights in an area pre-empted by Federal law.

Third Assignment of Error

The Judgement [sic] of the Trial Court is inconsistent with Federal Copyright law.

Ms Tewarson avers that the trial court lacked subject matter jurisdiction over the instant action because it is one that sounds in copyright, and therefore, the trial court's judgment must be vacated. Further, she asserts that the trial court's order improperly relies on state law that has been preempted by federal law and that the trial court misconstrued federal law. We disagree to the extent that her complaint and Michael Simon's counterclaim sound in contract and, specifically, regarding that portion of the trial court's order which depends upon the interpretation and enforcement of the alleged contract. However, we modify the trial court's holding in so far as we find that it determines the parties' rights under copyright law.

"The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases." Section 1338(a), Title 28, U.S. Code. "[T]he statutory phrase 'arising under the Constitution, laws, or treaties of the United States' has resisted all attempts to frame a single, precise definition for determining which cases fall within, and which cases fall outside, the original jurisdiction of the district courts." Franchise Tax Bd. v. Constr. Laborers Vacation Trust (1983), 463 U.S. 1, 8, 77 L.Ed.2d 420, 430.

We are guided in our determination of whether jurisdiction is vested in the state or federal court by the "well-pleaded complaint" rule. Id. at 9-10, 77 L.Ed.2d at 430-31. Jurisdiction is vested in the federal courts only where a federal question is presented on the face of the complaint. Id. The party bringing the action is the "master of the claim." Caterpillar Inc. v. Williams (1987), 482 U.S. 386, 392, 96 L.Ed.2d 318, 327. Moreover, a defendant cannot create jurisdiction by pleading a counterclaim that presents a federal question. Rath Packing Co. v. Becker (C.A.9, 1975), 530 F.2d 1295, 1303, affirmed (1977), 430 U.S. 519, 51 L.Ed.2d 604.

The converse is also true. A plaintiff cannot defeat removal to federal court by artfully pleading a federal claim as a state claim and in such an instance a court should recharacterize the complaint accordingly. Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394, 397, 69 L.Ed.2d 103, 108, fn. 2. However, the artfully pleaded complaint doctrine only applies in areas of law where the plaintiff's state law claim has been completely preempted by federal law. Metro. Life Ins. Co. v. Taylor (1987), 481 U.S. 58, 63-64, 95 L.Ed.2d 55, 63.

Ms Tewarson asserts, first, that the trial court lacked jurisdiction because jurisdiction over matters of copyright is vested solely with the federal district courts. While this is...