Howard v. Condon

2022 Ohio 255

• Court: Ohio Court of Appeals
• Decided: January 31, 2022
• Docket: 2021-L-058
• Status: Published

Opinion

[Cite as Howard v. Condon, 2022-Ohio-255.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

DEVIN D. HOWARD, CASE NO. 2021-L-058

Plaintiff-Appellant, Civil Appeal from the -v- Court of Common Pleas

PATRICK J. CONDON, Trial Court No. 2020 CV 001214 Defendant-Appellee.

OPINION

Decided: January 31, 2022 Judgment: Affirmed

Devin D. Howard, pro se, PID# A770-357, Lake Erie Correctional Institution, 501 Thompson Road., P.O. Box 8000, Conneaut, OH 44030 (Plaintiff-Appellant).

Lisa M. Zaring and Lindsay M. Upton, Montgomery Jonson, LLP, 600 Vine Street, Suite 2650, Cincinnati, OH 45202 (for Defendant-Appellee).

JOHN J. EKLUND, J.

{¶1} Appellant, Devin Howard, appeals the trial court’s Civ.R. 12(B)(6) dismissal

of his defamation case against Appellee, Judge Patrick J. Condon.

{¶2} Prior to this lawsuit, Judge Condon presided over a criminal trial in which

Appellant was a defendant. For the following reasons, we affirm.

{¶3} During the prosecution’s cross-examination of Appellant in the criminal trial,

the following conversation took place:

Q: I’m just asking you a question. Did you go to the Wickliffe

Title Bureau? A: Do I still have the privilege of the Fifth Amendment as it

pertains to another pending case?

The Court: Mr. Howard, you don’t have another pending

case. Answer the question.

{¶4} Subsequently, Appellant brought this civil action for money damages,

arguing that Judge Condon’s statement at the criminal trial was defamatory.

{¶5} Judge Condon filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a

claim upon which relief may be granted.

{¶6} The trial court granted the motion to dismiss, holding that Judge Condon

has judicial immunity from civil liability.

{¶7} ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED AS A MATTER

OF LAW IN SUSTAINING DEFENDANT-APPELLEE’S CIV. R. 12(B)(6) MOTION.”

{¶8} “An appellate court's standard of review for a trial court's actions regarding

a motion to dismiss is de novo.” State ex rel. Malloy v. Girard, No. 2006-T-0019 11th

Dist. Trumbull, 2007-Ohio-338, ¶ 8. We review the motion as if it were brought for the

first time. Id.

{¶9} “Dismissal of a complaint for failure to state a claim upon which relief can

be granted is appropriate if, after all factual allegations of the complaint are presumed

true and all reasonable inferences are made in relator's favor, it appears beyond doubt

that relator can prove no set of facts warranting relief.” Clark v. Connor, 82 Ohio St.3d

309, 311, 695 N.E.2d 751 (1998).

{¶10} Judicial immunity provides that judicial officers are exempt from civil liability

for actions taken in his or her judicial capacity. Howard v. Supreme Ct. of Ohio, Nos.

Case No. 2021-L-058 04AP–1093, 04AP–1272, 10th Dist. Franklin 2005-Ohio-2130, ¶ 12. “Ohio law is clear

that a plaintiff claiming to have been injured by judicial action within the scope of the

judge's jurisdiction has no civil action against the judge for recovery of damages.” Id.

“Indeed, a judge is immune for actions taken within the judge's official capacity even if

those actions were in error, in excess of authority, or malicious.” Id.

{¶11} “Factors to consider in determining whether a judge's act is judicial include

(1) the nature of the act itself, and whether it is a function normally performed by a judge,

and (2) the expectation of the parties, and whether he or she dealt with the judge in his

or her judicial capacity.” Id. at ¶ 13. “A judge will be liable only if (1) the judge acted in a

clear absence of all jurisdiction, or (2) the action at issue was not judicial in nature,

meaning not normally performed by a judge.” Id.

{¶12} Here, Appellant contends that the trial court erred in granting Judge

Condon’s Civ.R. 12(B)(6) motion to dismiss because judicial immunity does not apply.

Appellant asserts that Judge Condon’s statement (“Mr. Howard, you don’t have another

pending case”) was not a judicial act because the statement was “argumentative” and

placed Appellant “in a dire need to defend his credibility” to the jury. Yet, Judge Condon’s

statement was judicial in nature because he was presiding over the criminal trial and

responding to Appellant’s inquiry as to whether the Fifth Amendment privilege from

another case applied. Even if Judge Condon’s response were incorrect, “a judge is

immune for actions taken within the judge's official capacity even if those actions were in

error, in excess of authority, or malicious.” Id. at ¶ 12. Thus, Judge Condon has judicial

immunity from civil liability in this instance. Since judicial immunity applies, there are no

facts upon which relief may be granted.

Case No. 2021-L-058 {¶13} In Appellee’s brief, Judge Condon makes several additional arguments

regarding why granting his Civ.R. 12(B)(6) motion to dismiss was appropriate. However,

pursuant to 11th Dist. Local Rule 16(C)(4), if an appellee is defending a judgment on

grounds other than that relied on by the trial court, but does not wish to change the

judgment, the alternative grounds must be set forth separately in a cross assignment of

error. Judge Condon did not assert the alternative defenses in cross-assignments of

error. Thus, we need not address them.

{¶14} Appellant’s assignment of error is without merit, and the judgment of the

Lake County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

Case No. 2021-L-058