[Cite as Lathan v. Lathan, 2020-Ohio-5602.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
REGINALD LATHAN C.A. No. 29160
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SHARNAE LATHAN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CV 2013-07-3525
DECISION AND JOURNAL ENTRY
Dated: December 9, 2020
PER CURIAM.
{¶1} Reginald Lathan appeals from the judgment of the Summit County Court of
Common Pleas. We affirm.
I.
{¶2} In 2013, Mr. Lathan, appearing pro se, filed a complaint, which was subsequently
amended. Therein, Mr. Lathan alleged that his daughter, Sharnae Lathan, and others not relevant
to this appeal, had defamed him by falsely asserting that he had sexually abused her and others.
In 2014, Ms. Lathan filed her answer, as well as counterclaims for emotional distress and sexual
abuse. In her counterclaim, Ms. Lathan stated that, “[s]ince 1986 through present, there have been
significant periods of time in which Sharnae Lathan, as a result of the sexual and emotional abuse,
had mental disabilities which tolled any statute of limitations.” Mr. Lathan filed an answer wherein
he “denie[d] each and every allegation contained in [Ms. Lathan’s] counterclaim.” He did not
raise any affirmative defenses. In late 2014, Mr. Lathan retained counsel to represent him.
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{¶3} In September 2015, the trial court dismissed the amended complaint without
prejudice for the failure to commence the action within one year of filing the amended complaint.
Ms. Lathan’s counterclaims were not resolved. In 2016, Mr. Lathan again filed a defamation
action against Ms. Lathan and others. Ms. Lathan’s counsel moved to consolidate the matter with
the prior one in light of the still-pending counterclaims. The motion was granted.
{¶4} On July 10, 2018, Mr. Lathan filed two motions; one to dismiss the counterclaims
due to the expiration of the statute of limitations and one to seeking to amend his answer to add
the affirmative defense of the statute of limitations. Ms. Lathan opposed the motions and a hearing
was held. Ultimately, the trial court denied both motions.
{¶5} The matter proceeded to a jury trial, whereby the jury found in favor of Ms. Lathan
on Mr. Lathan’s defamation claim and in favor of Ms. Lathan on her counterclaims for intentional
infliction of emotional distress and battery. The jury awarded Ms. Lathan compensatory damages
and punitive damages on each of Ms. Lathan’s counterclaims, as well as an award of attorney fees.
{¶6} Mr. Lathan now appeals, raising four assignments of error.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
CONSTRUE THE PLEADINGS TO ESTABLISH A STATUTE OF
LIMITATIONS DEFENSE SUBJECT TO DEFENDANT’S TOLLING CLAIM[.]
{¶7} In his first assignment of error, Mr. Lathan argues the trial court erred by failing to
construe that the pleadings established a statute of limitations defense. We disagree.
{¶8} Civ.R. 8(C) provides that, “[i]n a pleading to a preceding pleading, a party shall set
forth * * * statute of limitations * * * and any other matter constituting an avoidance or affirmative
defense.” Failure to set forth an affirmative defense, other than those listed in Civ.R. 12(B), acts
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as a waiver if the defense was not raised in the pleadings or in an amendment to the pleadings.
Jim’s Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18, 20 (1998). “[T]his [C]ourt has previously
held that defenses such as * * * the statute of limitations * * * are not defenses that are specifically
permitted to be raised by Civ.R. 12(B) prior to a responsive pleading; therefore, they may not be
asserted on a motion to dismiss pursuant to Civ.R. 12(B).” Paul v. World Metals, Inc., 9th Dist.
Summit No. 20130, 2001 WL 196513, *2 (Feb. 28, 2001).
{¶9} Mr. Lathan failed to assert statute of limitations as an affirmative defense, either in
his answer to the counterclaim or in an amendment to the pleadings. Accordingly, the trial court
did not err in finding that Mr. Lathan had waived the statute of limitations defense. The fact that
Ms. Lathan asserted that the statute of limitations was tolled did not excuse Mr. Lathan’s failure
to raise the affirmative defense when he plead his answer. Even a broad interpretation of the Civil
Rules would not permit a defense to be inferred under these circumstances.
{¶10} Mr. Lathan’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING AN
AMENDMENT OF THE ANSWER TO ASSERT THE STATUTE OF
LIMITATIONS BECAUSE NO PREJUDICE COULD HAVE RESULTED TO
APPELLEE[.]
{¶11} In his second assignment of error, Mr. Lathan argues the trial court erred in denying
his motion to amend his answer to include a statute of limitations affirmative defense. We
disagree.
{¶12} The denial of leave to file an amended pleading is within the discretion of the trial
court. Hoover v. Sumlin, 12 Ohio St.3d 1, 5 (1984). Accordingly, this Court will not disturb the
denial of leave absent an abuse of discretion. An abuse of discretion means more than an error of
law or judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or
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unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the
abuse of discretion standard, a reviewing court is precluded from simply substituting its own
judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶13} As we noted above, Civ.R. 8(C) provides that, “[i]n a pleading to a preceding
pleading, a party shall set forth * * * statute of limitations * * * and any other matter constituting
an avoidance or affirmative defense.” Failure to set forth an affirmative defense, other than those
listed in Civil Rule 12(B), acts as a waiver if the defense was not raised in the pleadings or in an
amendment to the pleadings. Jim’s Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18, 20 (1998).
Mr. Lathan never asserted the statute of limitations as an affirmative defense in his responsive
pleadings to Ms. Lathan's counterclaims; furthermore, he did not seek to amend his answer as
provided by Civ.R. 15 until 2 days prior to trial.
{¶14} Civ.R. 15(A) provides:
A party may amend its pleading once as a matter of course within twenty-eight days
after serving it or, if the pleading is one to which a responsive pleading is required
within twenty-eight days after service of a responsive pleading or twenty-eight days
after service of a motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In
all other cases, a party may amend its pleading only with the opposing party's
written consent or the court's leave. The court shall freely give leave when justice
so requires.
{¶15} Although the language of Civ.R. 15(A) favors a liberal amendment policy, motions
to amend pleadings pursuant to Civ.R. 15(A) should be denied if there is a showing of bad faith,
undue delay, or undue prejudice to the opposing party. Hoover at 6; Dobbins v. Kalbaugh, 9th
Dist. Summit Nos. 20918, 20920, and 20714, 2002-Ohio-6465, ¶ 12. “Prejudice to the opposing
party is the most important factor to be considered.” Dobbins at ¶ 12. “Courts should also consider
the timeliness of the motion, although delay, by itself, should not preclude leave to amend.”
(Emphasis added.) Id. In addition, the Ohio Supreme Court has held that “‘[w]here a motion for
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leave to amend is not timely tendered and no reason is apparent to justify the delay, a trial court
does not abuse its discretion in refusing to allow the amendment.’” State ex rel. Smith v. Adult
Parole Auth., 61 Ohio St.3d 602, 603-604 (1991), quoting Meadors v. Zaring Co., 38 Ohio App.3d
97, 99 (1st Dist.1987).
{¶16} In Dobbins, a case analogous to the present case, the matter had been pending for
more than twenty-one months when the appellant filed a motion for leave to file an amended
answer in order to assert a statute of limitations defense four days prior to trial. Dobbins at ¶ 15.
In overruling the assignment of error, we noted that amendment would have prejudiced the
appellees with regard to the amount of litigation costs and fees they would need to expend, and we
concluded that “we [could not] say that the trial court abused its discretion when it denied the
Kalbaughs’ motion for leave to amend their answer filed four days prior to trial.” Id. at ¶ 16.
{¶17} In this case, over four years had passed both since Mr. Lathan first asserted his
claim by filing a defamation lawsuit against Ms. Lathan, and since Ms. Lathan filed her
counterclaim. Mr. Lathan’s motion to amend was filed only two days before trial. The delay in
this case was substantial, and in conjunction with the timing of the motion, it was unduly
prejudicial. At that late date in the litigation, substantial time and money would have been
expended. Ms. Lathan had done extensive work to develop evidence to support her counterclaim,
including the retention of two expert witnesses. Although not every delay, in and of itself, will
rise to the level of prejudicing a party, the potential prejudicial effects of a delay should be
considered, especially where the delay is substantial or undue. The particular circumstances of
each case necessitate that a trial court have discretion in making such determinations. Here, in
denying Mr. Lathan’s motion, the trial court found there would be prejudice to Ms. Lathan “at this
point in the case.”
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{¶18} We find no abuse of discretion in the trial court’s denial of Mr. Lathan’s motion to
amend. Mr. Lathan’s second assignment of error is overruled.
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
ADMITTING EXPERT OPINION TESTIMONY THAT APPELLEE WAS
BEING TRUTHFUL AS TO HER CLAIMS OF SEXUAL ASSAULT BY
APPELLANT.
{¶19} In his third assignment of error, Mr. Lathan argues the trial court erred by admitting
expert testimony as to the truth of her claims of sexual assault, and points to exhibits A, B, C-1,
C-2, and C-3 as collectively identifying him as having sexually abused Ms. Lathan.
{¶20} In his brief to this Court, Mr. Lathan states that exhibit A (a Social Security
disability determination document) and exhibit B (a domestic violence civil protection order) were
not authenticated in accordance with Evid.R. 902, but fails to elucidate any argument to that effect.
Evid.R. 902 pertains to self-authentication, providing that “[e]xtrinsic evidence of authenticity as
a condition precedent to admissibility is not required” with respect to certain documents. In
making this generalized claim, Mr. Lathan fails to identify any section or aspect of the rule that
has not been satisfied. We will not attempt to speculate what error Mr. Lathan believes occurred,
and refrain from developing his argument for him. “It is the duty of the appellant, not this [C]ourt,
to demonstrate his assigned error through an argument that is supported by citations to legal
authority and facts in the record.” State v. Taylor, 9th Dist. Medina No. 2783-M, 1999 WL 61619,
*3 (Feb. 9, 1999). See also App.R. 16(A)(7). “It is not the obligation of an appellate court to
search the record for evidence to support an appellant's claim of an alleged error.” In re J.S., 9th
Dist. Summit No. 28154, 2016–Ohio–5120, ¶ 12.
{¶21} With regard to exhibits C-1, C-2, and C-3 (letters from a licensed independent
social worker who treated Ms. Lathan for the purposes of applying for disability benefits), Mr.
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Lathan claims that their “cumulative impact” was to put before the jury evidence that Ms. Lathan
was “telling the truth.” Mr. Lathan fails to support this argument as required by the Rules of
Appellate Procedure.
{¶22} App.R. 16(D) provides, in pertinent part: “If reference is made to evidence, the
admissibility of which is in controversy, reference shall be made to the pages of the transcript at
which the evidence was identified, offered, and received or rejected.” An appellate court may
decline to address any alleged error if the appellant has failed to comply with Rule 16 of the Ohio
Rules of Appellate Procedure. Arn v. Arn, 9th Dist. Summit No. 21078, 2003–Ohio–3794, at ¶ 15.
Absent compliance with these procedures, this Court is unable to perform its proper reviewing
function as Mr. Lathan’s brief does not direct us to any objection to the introduction of the disputed
evidence. We reiterate that it is an appellant’s duty to demonstrate his assigned error through an
argument that is supported by citations to legal authority and facts in the record; it is not the
function of this Court to construct a foundation for his claims. Ohio Edison Co. v. Williams, 9th
Dist. Summit No. 23530, 2007-Ohio-5028, ¶ 9.
{¶23} Finally, Mr. Lathan directs us to the testimony of Dr. Eileen Goldman, a family
practice physician who treated Ms. Lathan from approximately 2003 through 2013. He first points
to the testimony of Dr. Goldman on direct examination by opposing counsel indicating that she
and the opposing counsel were personal friends and that Dr. Goldman was counsel’s physician.
Though noting that such a relationship raises questions, Mr. Lathan fails to assign any error to the
trial court on this basis.
{¶24} Mr. Lathan next points to the following testimony, arguing that Dr. Goldman should
not have been permitted to offer an opinion as to the truth of Ms. Lathan’s claims:
Q. At any point did you question the accuracy of what [Ms. Lathan] was telling
you about what she claimed her father had done?
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MR. ALEXANDER: Objection.
THE COURT: overruled.
***
A. No.
{¶25} The decision of whether to admit evidence rests in the sound discretion of the court
and will not be disturbed absent an abuse of that discretion. Wightman v. Consol. Rail Corp., 86
Ohio St.3d 431, 437 (1999). An abuse of discretion signifies more than merely an error in
judgment; instead, it involves “perversity of will, passion, prejudice, partiality, or moral
delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). When applying the
abuse-of-discretion standard, an appellate court may not substitute its judgment for that of the trial
court. Id.
{¶26} Even if an abuse of discretion exists, however, it results in reversible error only if
“the error affects the substantial rights of the adverse party or the ruling is inconsistent with
substantial justice.” Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, at ¶
35, citing O'Brien v. Angley, 63 Ohio St.2d 159, 164-165 (1980). “In order to determine whether
substantial justice has been done, the reviewing court must weigh the prejudicial effect of the error
and determine that the trier of fact probably would have made the same decision even if the errors
had not occurred.” Hazard v. Klein, 9th Dist. Summit No. 23148, 2007-Ohio-367, ¶ 12.
{¶27} Mr. Lathan fails to elaborate any argument that would indicate that Dr. Goldman’s
testimony affected his substantial rights or was inconsistent with substantial justice. He thus fails
to show any prejudice that would support reversal on these grounds. Although we recognize the
potential for prejudicial effect, we find nothing to support the theory that the jury would have
decided the case differently without the testimony in question. Therefore, even if the trial court
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erred in admitting the testimony, we conclude the trier of fact would have reached the same result
absent its inclusion.
{¶28} Mr. Lathan’s third assignment of error is overruled.
ASSIGNMENT OF ERROR FOUR
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
ADMITTING TESTIMONY OF SIMILAR ACTS WITNESSES[.]
{¶29} In his fourth assignment of error, Mr. Lathan argues the trial court erred by allowing
the testimony of two witnesses (in order of their testimony, “Witness A” and “Witness B”) who
“testified as to acts they deemed sexual against them by appellant.” Mr. Lathan argues this
testimony was not relevant and should have been excluded because any probative value was
substantially outweighed by the danger of unfair prejudice.
{¶30} Mr. Lathan’s complaint filed in September of 2016 alleges: “All of the statements
of [Ms. Lathan] made to and/or published on the internet and in the various forums as asserted
herein, accusing plaintiff of sexually molesting her or anybody else are false, slanderous, libelous
and defamatory.” The complaint therefore sets forth a cause of action for defamation based, in
part, upon statements made accusing Mr. Lathan of sexually molesting not only Ms. Lathan, but
others as well.
{¶31} As to the testimony of Witness A, Mr. Lathan failed to offer a timely objection to
the testimony at trial. The “failure to timely advise a trial court of possible error, by objection or
otherwise, results in a [forfeiture] of the issue for purposes of appeal.” Goldfuss v. Davidson, 79
Ohio St.3d 116, 121 (1997). With regard to Witness B, although Mr. Lathan objected to the
testimony as constituting “similar acts” evidence, counsel for Ms. Lathan stated to the trial court
the testimony was being offered because the incidents that the witness testified about had been
information that the witness had shared with Ms. Lathan, which in turn Ms. Lathan had included
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within her public statements that were the subject of Mr. Lathan’s defamation claims.
Accordingly, the trial court overruled Mr. Lathan’s objection. Mr. Lathan’s fourth assignment of
error fails to address this the trial court’s rationale for overruling his objection, and he offers no
argument that would indicate that the trial court erred in overruling his objection on that basis.
{¶32} Mr. Lathan’s fourth assignment of error is overruled.
III.
{¶33} Mr. Lathan’s assignments of error are overruled. The judgment of the Summit
Count Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
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TEODOSIO, P. J.
SCHAFER, J.
CONCUR.
CARR, P. J.
DISSENTING.
{¶34} I respectfully dissent from the judgment of the majority as I would sustain Mr.
Lathan’s second assignment of error.
{¶35} While it is true that “Civ.R. 8(C) requires that in a responsive pleading, a party must
‘set forth affirmatively * * * statute of limitations * * * and any other matter constituting an
avoidance or affirmative defense[,]’” Radio Parts Co. v. Invacare Corp., 178 Ohio App.3d 198,
2008-Ohio-4777, ¶ 9 (9th Dist.), quoting Civ.R. 8(C), “‘[i]n the real world * * * failure to plead
an affirmative defense will rarely result in [forfeiture]’ because of the protection of Civ.R. 15(A).”
Radio Parts Co. at ¶ 9, quoting Hoover v. Sumlin, 12 Ohio St.3d 1, 5 (1984).
{¶36} Civ.R. 15(A) states:
A party may amend its pleading once as a matter of course within twenty-eight days
after serving it or, if the pleading is one to which a responsive pleading is required
within twenty-eight days after service of a responsive pleading or twenty-eight days
after service of a motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In
all other cases, a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court shall freely give leave when justice
so requires.
{¶37} “Accordingly, a party’s initial failure to plead a defense ‘should prevent its later
assertion only if that will seriously prejudice the opposing party.’” Radio Parts Co. at ¶ 10, quoting
Hoover at 5. Thus, “the language of Civ.R. 15(A) favors a liberal amendment policy and a motion
for leave to amend should be granted absent a finding of bad faith, undue delay or undue prejudice
to the opposing party.” Gasper v. Bank of America, N.A., 9th Dist. Medina No. 17CA0091-M,
12
2019-Ohio-1150, ¶ 16, quoting Hoover at 6. “Prejudice to the opposing party is the most important
factor to be considered.” Dobbins v. Kalbaugh, 9th Dist. Summit Nos. 20918, 20920, 20714,
2002-Ohio-6465, ¶ 12. And while “[c]ourts should also consider the timeliness of the motion, * *
* delay, by itself, should not preclude leave to amend.” Id. “Indeed, even after the trial, Civ.R.
15(B) * * * would permit the amendment of the pleadings to reflect issues which were tried,
explicitly or implicitly, with the consent of the parties.” (Footnote omitted. Emphasis in original.)
Hoover, 12 Ohio St.3d at 5.
{¶38} Here, Mr. Lathan did fail to include the affirmative defense of statute of limitations
and did not move to amend his pleading to include the defense until days before the trial began.
Thus, the delay is substantial. Notwithstanding, I would conclude that the trial court abused its
discretion in denying the motion for leave to amend in light of the unique facts before the Court.
{¶39} In her counterclaim, while undeniably not required to do so, Ms. Lathan did
specifically raise the issue of the statute of limitations. She stated that “[s]ince 1986 through
present, there have been significant periods of time in which Sharnae Lathan, as a result of the
sexual and emotional abuse, had mental disabilities which tolled any statute of limitations.” In his
pro se answer, Mr. Lathan “denie[d] each and every allegation contained in [Ms. Lathan’s]
counterclaim.” No motions for summary judgment were filed in the matter. Mr. Lathan did raise
the issue of statute of limitations in his trial brief, filed April 4, 2018. Then on July 10, 2018, Mr.
Lathan filed a motion to amend his answer to include a statute of limitations affirmative defense
and a motion to dismiss based upon the statute of limitations. Ms. Lathan opposed both motions.
{¶40} At the hearing on the motions, Mr. Lathan informed the trial court that “it came to
[his] attention, when [he was] doing the trial briefs in this matter, that the defense was asserting
that there’s no statute of limitations in the case. And so – no statute of limitations issue in the case.
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So what we tried [to] do is to correct the record so that it’s clear that there is a statute of limitations
issue in play in this case.” Because Ms. Lathan raised the tolling of the statute of limitations in
her counterclaim, Mr. Lathan thought the record was clear that the statute of limitations would be
an issue. When he learned that the defense was asserting otherwise, he moved to amend the
answer.
{¶41} Mr. Lathan pointed out that Ms. Lathan should not be prejudiced by the amendment
because she was aware of the potential statute of limitations issue at the time she filed her
counterclaims and that she planned to argue tolling to avoid the statute of limitations. Notably,
one of the exhibits mentioned in Ms. Lathan’s trial brief was a letter from a social worker detailing
that Ms. Lathan was in the process of recovering repressed memories of abuse. Accordingly, it
would appear from the record that Ms. Lathan had at her disposal evidence to defend against a
statute of limitations challenge. Thus, it seems the time and expense Ms. Lathan expended in
discovery would not all be wasted if Mr. Lathan was permitted to raise the statute of limitations
defense.
{¶42} While the trial court found that the motion was not timely, particularly in light of a
prior scheduling order, the scheduling order does not appear to address motions pursuant to Civ.R.
15(A); instead, the order addresses trial-related motions and dispositive motions. Based upon the
record before this Court, including the discussion of the tolling of the statute of limitations in Ms.
Lathan’s counterclaim, I can only conclude that Ms. Lathan would not be prejudiced by the
addition of the statute of limitations defense as she would “face[] no obstacles by the amendment
which [she] would not have faced had the original pleading raised the defense.” Hoover, 12 Ohio
St.3d at 6.
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{¶43} Given the foregoing, I would conclude it is unnecessary to resolve the merits of the
remaining assignments of error, as I would sustain Mr. Lathan’s second assignment of error.
Accordingly, I respectfully dissent from the judgment of the majority.
APPEARANCES:
JAMES ALEXANDER, JR., Attorney at Law, for Appellant.
ROBERT M. GIPPIN, Attorney at Law, for Appellee.