Simpson v. Voiture Nationale La Societe Des Quarante Hommes

[Cite as Simpson v. Voiture Nationale La Societe Des Quarante Hommes, 2021-Ohio-2131.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

CHARLES SIMPSON :
:
Plaintiff-Appellant : Appellate Case No. 29016
:
v. : Trial Court Case No. 2020-CV-2123
:
VOITURE NATIONALE LA SOCIETE : (Civil Appeal from
DES QUARANTE HOMMES, et al. : Common Pleas Court)
:
Defendants-Appellees :

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OPINION

Rendered on the 25th day of June, 2021.

...........

CHARLES SIMPSON, Atty. Reg. No. 0007339, 157 Lammes Lane, New Carlisle, Ohio
45344
Plaintiff-Appellant, Pro Se

KEVIN A. BOWMAN, Atty. Reg. No. 0068223, 130 West Second Street, Suite 900,
Dayton, Ohio 45402
Attorney for Defendants-Appellees, Brannon & Associates and Plaintiffs-
Appellees, Grande Voiture D’Ohio La Societe Des 40 Hommes Et 8 Chevaux

EDWARD J. DOWD, Atty. Reg. No. 0018681 and CHRISTOPHER T. HERMAN, Atty.
Reg. No. 0076894, 8163 Old Yankee Street, Suite C, Dayton, Ohio 45458
Attorneys for Defendants-Appellees, Voiture Nationale La Societe Des Quarante
Hommes

.............

TUCKER, P.J.
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{¶ 1} Charles Simpson appeals from the Montgomery County Court of Common

Pleas’ entry of judgment on the pleadings against him on several causes of action in his

complaint and its dismissal of those claims with prejudice. The judgment dismissed an

additional cause of action without prejudice. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} Simpson is a licensed attorney in Ohio. According to the complaint, he is

“an officer and director of the corporation previously known as Montgomery County

Voiture No. 34, La Societe des 40 Hommes et 8 Chevaux (hereinafter “Voiture 34”) now

known as Huber Heights Veterans Club, Inc.,” and he “serves the corporation as its legal

counsel and represents the corporation in legal transactions and litigation."

{¶ 3} In May 2020, Simpson filed a complaint for “Violations of Civil Rights,

Defamation, Injuries and Damages” against Grande Voiture D'Ohio La Societe des 40

Hommes et 8 Chevaux (“Ohio Voiture”), Voiture Nationale, La Societe des Quarante

Hommes et Huit Chevaux (Voiture Nationale), and Brannon & Associates.1

{¶ 4} The defendants filed answers and, subsequently, motions for judgment on

the pleadings. Simpson filed responses opposing the motions.

{¶ 5} On January 7, 2021, the trial court granted the motions for judgment on the

pleadings. The court stated:

1
Voiture Nationale and Ohio Voiture are the national-level and state-level organizations
of a veterans’ charitable organization known as the “40 and 8.” Amended Answer, p. 1.
Both are charitable, non-profit organizations comprised of current and former members
of the United States Armed Services. Id. Voiture 34 was the local-level arm thereof.
Brannon & Associates is a Dayton law firm that represents Ohio Voiture.
 -3-

With respect to Mr. Simpson’s claims of defamation, civil rights violations

under 42 U.S.C. 1983, and his stand-alone claims of identity fraud,

extortion, coercion, and interfering with civil rights, the Court finds that there

is no conceivable set of facts under which Mr. Simpson could recover and

that these claims cannot be pled in another way; thus, dismissal of these

claims is with prejudice. However, with respect to Mr. Simpson’s claim of

civil recovery for criminal acts under R.C. 2307.60 and/or R.C. 2307.611,

the Court finds that these claims could be pled in such a way that Mr.

Simpson may be entitled to relief, and thus the dismissal of this claim is

without prejudice.

Order Granting Judgment on the Pleadings (Jan. 7, 2021). 2

{¶ 6} Simpson appeals.

II. Analysis

{¶ 7} The sole assignment of error asserted by Simpson is:

THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTIONS

FOR JUDGMENT ON THE PLEADINGS.

{¶ 8} Simpson contends the trial court had no basis for rendering judgment against

him.

{¶ 9} Civ.R. 12(C) provides: “After the pleadings are closed but within such time

as not to delay the trial, any party may move for judgment on the pleadings.”

2
The court noted its decision did not address whether the claims for civil recovery for
criminal acts would be barred by the doctrine of res judicata or the applicable statute of
limitations.
 -4-

“Determination of a motion for judgment on the pleadings is restricted solely to the

allegations in the pleadings and any writings attached to the complaint.” Offill v. State

Farm Fire & Cas. Co., 2d Dist. Montgomery No. 25079, 2012-Ohio-6225, ¶ 14, citing

Peterson v. Teodosio, 34 Ohio St.2d 161, 165, 297 N.E.2d 113 (1973). “The trial court

may grant a judgment on the pleadings where no material factual issue exists and one

party is entitled to a judgment in his favor as a matter of law.” (Citations omitted.) Vaught

v. Vaught, 2 Ohio App.3d 264, 265, 441 N.E.2d 811 (12th Dist.1981). We review the trial

court’s decision to grant judgment on the pleadings de novo. Inskeep v. Burton, 2d Dist.

Champaign No. 2007-CA-11, 2008-Ohio-1982, ¶ 7, citing Dearth v. Stanley, 2d Dist.

Montgomery No. 22180, 2008-Ohio-487.

{¶ 10} With this standard in mind, we turn first to the trial court’s decision to enter

judgment on the pleadings and dismiss Simpson’s claim of identity fraud. Simpson’s

complaint asserted that the defendants committed identity fraud in violation of R.C.

2313.49, which provides, in pertinent part, that “[n]o person, without the express or

implied consent of the other person, shall use, obtain, or possess any personal identifying

information of another person with intent to * * * [h]old the person out to be the other

person [or] [r]epresent the other person's personal identifying information as the person's

own personal identifying information.” R.C. 2313.49(B)(1-2)

{¶ 11} The allegations set forth in the complaint relevant to this cause of action

stated:

[Voiture 34] was previously affiliated with the 40 & 8 organization but

terminated that affiliation on June 1, 2015. The Defendants, through their

agents and representatives, on multiple occasions, have used the personal
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identifying information of the corporation and have held [Ohio Voiture] out

to be the corporation and represent that the name of the corporation is [Ohio

Voiture’s] name. Such actions constitute identity fraud and are prohibited

by ORC 2913.49. Plaintiff is a person injured by defendant’s acts of

identity fraud.

{¶ 12} Taking this allegation as true, Simpson has, at most, alleged that the

defendants improperly misappropriated the name of Voiture 34. However, Simpson did

not allege any basis for bringing an action in his name rather than that of the corporation.

He did not cite any statute which would have provided him with standing to bring such an

action, nor did he allege he was a shareholder in the corporation so as to give him the

right to bring a shareholder’s derivative action. Also, there was no allegation that the

corporation had authorized him to bring such an action on its behalf or in his name.

Further, there was no allegation the defendants, in any manner, obtained, possessed or

used Simpson’s personal information. Other than a conclusory statement, Simpson also

did not make any allegation to indicate how the alleged fraud caused him damages. In

other words, there was no basis to find that Simpson had standing to bring an action on

behalf of Voiture 34 or that he personally suffered any injury capable of redress for identity

fraud. Thus, we conclude the trial court did not err in rendering judgment against

Simpson on this claim.

{¶ 13} We next address the claim of defamation. “Defamation is a false

publication causing injury to a person's reputation, or exposing the person to public

hatred, contempt, ridicule, shame or disgrace or affecting him adversely in his trade or

business.” Harsh v. Franklin, 2d Dist. Montgomery No. 24331, 2011-Ohio-2428, ¶ 17,
 -6-

quoting Matalka v. Lagemann, 21 Ohio App.3d 134, 136, 486 N.E.2d 1220 (10th

Dist.1985). “The essential elements of a defamation action * * * are that the defendant

made a false statement of fact, that the false statement was defamatory, that the false

defamatory statement was published, that the plaintiff was injured, and that the defendant

acted with the required degree of fault.” Id., citing Celebrezze v. Dayton Newspapers,

Inc., 41 Ohio App.3d 343, 346-347, 535 N.E.2d 755 (8th Dist.1988).

{¶ 14} Simpson’s claim of defamation centers solely on his allegation that the

defendants, during the course of four legal proceedings filed by Simpson, represented

that Simpson was “not authorized to bring those actions on behalf of Voiture 34.” In

relation thereto, Simpson further alleged:

4. * * * Each action was filed by Plaintiff on behalf of Voiture 34 as its

attorney. Fraudulent representations that Plaintiff did not have authority to

bring the actions, made in each action by Defendants, interfered with and

prevented Plaintiff from performing and completing his rights, privileges and

duties as an attorney at law.

5. Defendants have sought to invalidate various legal documents, acts and

proceedings performed by Plaintiff and have acted, by intimidation and

threat to deter, prevent and deprive Plaintiff from exercising his rights,

privileges and duties as an attorney at law.

6. Defendants’ [sic] have, with purpose of obtaining a valuable benefit,

uttered and threatened calumny against the Plaintiff[.] Defendants have

exposed Plaintiff to contempt and ridicule and have damaged Plaintiff’s

personal and business reputations and have subjected Plaintiff to
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deprivation of his, [sic] rights, privileges and duties as a licensed attorney

at law. Defendants have caused Plaintiff substantial injury and loss in time,

effort, stress and monetary expenses.

{¶ 15} The trial court found the defamation claim barred by absolute privilege. We

agree. “Statements made ‘in a written pleading or brief, or in an oral statement to a judge

or jury in open court, [are] absolutely privileged if [they have] some reasonable relation to

the judicial proceeding in which [they] appea[r].’” Morrison v. Gugle, 142 Ohio App.3d

244, 259, 755 N.E.2d 404 (10th Dist.2001), quoting Michaels v. Berliner, 119 Ohio App.3d

82, 87, 694 N.E.2d 519 (9th Dist.1997). Accord Harsh v. Franklin, 2d Dist. Montgomery

No. 24331, 2011-Ohio-2428, ¶ 18. In Newman v. Univ. of Dayton, 2d Dist. Montgomery

No. 28815, 2021-Ohio-1609, this court stated:

As a matter of public policy, the doctrine of absolute privilege in a

judicial proceeding protects parties from defamation claims based upon any

statement that “bears some reasonable relation to the judicial proceeding in

which it appears.” Surace v. Wuliger, 25 Ohio St.3d 229, 495 N.E.2d 939,

940 (1986), paragraph one of the syllabus. Alternatively termed a

“litigation privilege,” that form of protection “provides absolute immunity to

parties, witnesses, lawyers, and judges from future lawsuits for statements

made during and relevant to judicial proceedings.” (Emphasis sic.) Reister

v. Gardner, Ohio Slip Opinion No. 2020-Ohio-5484, __ N.E.3d __ , ¶ 8. For

the privilege to apply, the statement at issue “must be pertinent and material

to the matter in hand,” meaning that “it must tend to prove or disprove the

point to be established, and have substantial importance or influence in
 -8-

producing the proper result.” Surace at 231, quoting Mauk v. Brundage, 68

Ohio St. 89, 97, 67 N.E. 152 (1903). “Whether or not the occasion gives the

privilege is a question of law for the court.” Id., quoting Mauk at 97-98; see

also Modler v. Modler, 2d Dist. Montgomery No. 18206, 2000 WL 1162033,

*3 (Aug. 18, 2000).

(Footnote omitted.) Id. at ¶ 38.

{¶ 16} There is no allegation that any statements made by the defendants

regarding Simpson’s authority to file or prosecute the four legal proceedings were not

reasonably related to issues in those proceedings. Thus, we find no error in the

dismissal of this claim with prejudice.

{¶ 17} Next, we address Simpson’s claim that the defendants violated his civil

rights. The entirety of Simpson’s allegations regarding this claim state:

7. Defendants actions are prohibited by 42 U.S.C. 1983 * * * and ORC

2921.45.

***

9. Plaintiff says that his civil rights have been violated by Defendants * * *.

{¶ 18} 42 U.S.C. 1983 provides remedies for persons whose federal rights have

been violated by governmental officials. Morrison v. Horseshoe Casino, 2020-Ohio-

4131, 157 N.E.3d 406 (8th Dist.). “To prevail on a claim under Section 1983, a plaintiff

must prove two essential elements: (1) that he or she was deprived of a right, privilege,

or immunity secured by the United States Constitution or federal law and (2) the

deprivation was caused by a person acting under color of state law.” Id., quoting

Meekins v. Oberlin, 8th Dist. Cuyahoga No. 107636, 2019-Ohio-2825, ¶ 39.
 -9-

{¶ 19} In their motions for judgment on the pleadings, the defendants argued that

Simpson’s claim failed because none of the defendants were public actors operating

under color of state law. In response, Simpson argued that the defendants were

“persons acting under color of state law” based upon their statuses as licensed attorneys,

which made them “officers of the court.”

{¶ 20} We first note that the pleadings in this action identify Ohio Voiture and

Voiture Nationale as corporations and/or charitable organizations. Neither were

identified as attorneys, and Simpson made no allegation to support a finding that they

were attorneys. Simpson’s pleadings also fail to establish how they may have otherwise

acted under color of state law. Thus, we conclude the trial court did not err in dismissing

this claim with prejudice as to Ohio Voiture and Voiture Nationale.

{¶ 21} Further, as noted by the trial court, “[l]awyers who participate in the trial of

private state court litigation are not state functionaries acting under color of state law

within the meaning of the Federal Civil Rights Acts.” See Skolnick v. Martin, 317 F.2d

855, 857 (7th Cir.1963), citing Cooper v. Wilson, 309 F.2d 153 (6th Cir.1962). As stated

by the Supreme Court of the United States in Cammer v. United States, 350 U.S. 399, 76

S.Ct. 456, 100 L.Ed. 474 (1956):

It has been stated many times that lawyers are “officers of the court.” One

of the most frequently repeated statements to this effect appears in Ex parte

Garland,[ 71 U.S. 333, 378, 18 L.Ed. 366 (1866)]. The Court pointed out

there, however, that an attorney was not an “officer” within the ordinary

meaning of that term. Certainly nothing that was said in Ex parte Garland or

in any other case decided by this Court places attorneys in the same
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category as marshals, bailiffs, court clerks or judges. Unlike these officials

a lawyer is engaged in a private profession, important though it be to our

system of justice. In general he makes his own decisions, follows his own

best judgment, collects his own fees and runs his own business. The word

“officer” as it has always been applied to lawyers conveys quite a different

meaning from the word “officer” as applied to people serving as officers

within the conventional meaning of that term.

(Footnote omitted.) Id. at 405.

{¶ 22} Based upon this reasoning, we find the trial court did not err in dismissing

the claim for violation of 42 U.S.C. 1983 made against Brannon & Associates.

{¶ 23} R.C. 2921.45(A) provides, “[n]o public servant, under color of the public

servant's office, employment, or authority, shall knowingly deprive, or conspire or attempt

to deprive any person of a constitutional or statutory right.” However, as noted by the

trial court, this statute does not create a private cause of action. Thus, we find no error

in the trial court’s decision to dismiss with prejudice any claims made under this statute.

{¶ 24} Next, Simpson alleged “Defendants’ actions are prohibited by * * * O.R.C.

2905.11, O.R.C. 2905.12, [and] ORC 2913.19 * * *.” We first note that R.C. 2913.19

does not exist, thus, the trial court did not err in rendering judgment on this claim.

{¶ 25} R.C. 2905.11 and R.C. 2905.12 are criminal statutes prohibiting extortion

and coercion, respectively. The trial court cited George v. State, 10th Dist. Franklin No.

10AP-4, 2010-Ohio-5262, for the proposition that, “[i]n absence of a specific provision to

the contrary, criminal statutes generally do not create a private cause of action, but give

rise only to a right of prosecution by the state.” (Citations omitted.) Id. at ¶ 32. The
 -11-

trial court also cited First Fed. Bank of Ohio v. Angelini, 3d Dist. Crawford No. 3-11-16,

2012-Ohio-2136, ¶ 6, which states, “Ohio law does not recognize a civil action for

extortion[,]” and Heskett v. Van Horn Title Agency, Inc., 10th Dist. Franklin No. 06AP-549,

2006-Ohio-6900, ¶ 26, which states that a claim of coercion is not a “cognizable civil

cause of action.” Based upon the cited cases, we agree with the trial court’s decision to

dismiss these claims with prejudice.

{¶ 26} Finally, we address Simpson’s claims for recovery under R.C. 2307.60 and

R.C. 2307.611. He alleged those statutes permitted him to recover damages for his

claims of identity fraud, interference with civil rights, coercion and extortion.

{¶ 27} R.C. 2307.60 states: “Anyone injured in person or property by a criminal act

has, and may recover full damages in, a civil action unless specifically excepted by law,

may recover the costs of maintaining the civil action and attorney's fees if authorized by

any provision of the Rules of Civil Procedure or another section of the Revised Code or

under the common law of this state, and may recover punitive or exemplary damages if

authorized by section 2315.21 or another section of the Revised Code.” R.C. 2307.611

provides that a person who brings a civil action under R.C. 2307.60 for violations of the

crime of identity fraud may recover damages.

{¶ 28} The trial court dismissed Simpson’s claims under R.C. 2307.60 and R.C.

2307.661, finding that he failed “to allege sufficient facts” to support his claims that he

suffered damages for defendants’ alleged criminal acts of identity fraud, extortion,

coercion, and interfering with civil rights. The trial court dismissed these claims without

prejudice.

{¶ 29} Actions dismissed without prejudice are not final, appealable orders
 -12-

because “a dismissal ‘other than on the merits' does not prevent a party from refiling[.]”

(Citation omitted.) State ex rel. DeDonno v. Mason, 128 Ohio St.3d 412, 2011-Ohio-

1445, 945 N.E.2d 511, ¶ 2. Accord Ebbets Partners, Ltd. v. Day, 171 Ohio App.3d 20,

2007-Ohio-1667, 869 N.E.2d 110, ¶ 12 (2d Dist.). Thus, we have no jurisdiction to review

this issue on appeal.

{¶ 30} Based upon our review of the record herein, we conclude the trial court did

not err, as a matter of law, in granting judgment on the pleadings on several of Simpson’s

claims and dismissing them with prejudice. To the extent some of his claims were

dismissed without prejudice, we have no basis for addressing them in this appeal.

Accordingly, the sole assignment of error is overruled.

III. Conclusion

{¶ 31} Simpson’s assignment of error being overruled, the judgment of the trial

court is affirmed.

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WELBAUM, J. and EPLEY, J., concur.

Copies sent to:

Charles Simpson
Kevin A. Bowman
Edward J. Dowd
Christopher T. Herman
Hon. Mary Lynn Wiseman