Schmidt v. Cuyahoga Cty. Bd. of Elections-Poll Worker Dept.

2011 Ohio 5278

• Court: Ohio Court of Appeals
• Decided: October 13, 2011
• Docket: 96578
• Status: Published

Opinion

[Cite as Schmidt v. Cuyahoga Cty. Bd. of Elections-Poll Worker Dept., 2011-Ohio-5278.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96578

JUDITH M. SCHMIDT PLAINTIFF-APPELLANT

vs.

CUYAHOGA COUNTY BOARD OF ELECTIONS-POLL WORKER DEPARTMENT DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-743897

BEFORE: Rocco, J., Boyle, P.J., and Keough, J.

RELEASED AND JOURNALIZED: October 13, 2011 2

FOR APPELLANT

Judith M. Schmidt, pro se 11114 Detroit Avenue - Apt. 101 Cleveland, Ohio 44102

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Reno J. Oradini, Jr. Assistant County Prosecutor th 8 Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

KENNETH A. ROCCO, J.:

{¶ 1} Plaintiff-appellant, Judith M. Schmidt (“appellant”), appeals the trial court’s

dismissal of her complaint against defendant-appellee, the Cuyahoga County Board of

Elections Poll Worker Department (“appellee”). We affirm.

{¶ 2} On December 20, 2010, appellant filed a complaint against appellee

alleging malicious prosecution when appellee failed to hire her as a poll worker. On

January 19, 2011, appellee filed a motion to dismiss for failure to state a claim upon

which relief can be granted pursuant to Civ.R. 12(B)(6). The trial court granted

appellee’s motion and dismissed the case. 3

{¶ 3} Appellant now appeals and presents the following three assignments of

error for our review:

{¶ 4} “1. The Defendant’s Answer of my original Complaint and Judge

Brian Corrigan’s reason for dismissal seem to me as if they did not read my

Complaint.

{¶ 5} “2. As it was, I asked for a trial by jury before Judge Corrigan

dismissed by Case in Lower Court (US Constitution Amendment 7 and 11, etc.)

{¶ 6} “3. We had to have mediation before the Defendant seemed to know

any reason for my Complaint.”

{¶ 7} In her first assignment of error, appellant essentially argues that the trial

court erred in dismissing her complaint pursuant to Civ.R. 12(B)(6). We disagree.

{¶ 8} A trial court must dismiss a complaint for failure to state a claim upon

which relief can be granted when it appears beyond doubt that the plaintiff can prove no

set of facts entitling him to recovery from the defendant. O’Brien v. Univ. Community

Tenant’s Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753. As a matter of law, the trial

court must accept all the allegations of the complaint as true. Greeley v. Miami Valley

Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981. The allegations

must be examined to determine if they support any basis for recovery, even on legal

theories not specifically mentioned. Rogers v. Targot Telemarketing Serv. (1990), 70

Ohio App.3d 689, 591 N.E.2d 1332. However, plaintiff must set forth in his pleadings 4

the necessary elements of his claim against the defendants. See, e.g., Zuber v. Ohio

Dept. of Ins. (1986), 34 Ohio App.3d 42, 516 N.E.2d 244; Kordi v. Minot (1987), 40 Ohio

App.3d 1, 531 N.E.2d 318.

{¶ 9} The Ohio Supreme Court has set forth the elements of a cause of action for

malicious prosecution as follows: 1) malicious institution of prior proceedings against the

plaintiff by the defendant; 2) lack of probable cause for the filing of the prior lawsuit; 3)

termination of the prior proceedings in plaintiff’s favor; and, 4) seizure of the plaintiff’s

person or property during the course of the prior proceedings. Robb v. Chagrin Lagoons

Yacht Club, Inc., 75 Ohio St.3d 264, 1996-Ohio-189, 662 N.E.2d 9, syllabus.

{¶ 10} In her complaint, appellant alleged that the instructor did not adequately

prepare her for the poll workers’ examination. More specifically, appellant asserted that

the instructor lectured too rapidly, did not cover all the material, failed to adequately

answer questions, and distracted appellant. As a result, appellant maintains she was not

hired as a poll worker, wasted more than four hours of time, and was “defaced” [sic] in

front of others. None of appellant’s allegations, even if taken as true, establish any of

the elements needed to support a claim of malicious prosecution, or any other claim under

the law. Accordingly, the trial court properly dismissed appellant’s case. Appellant’s

first assignment of error is overruled. 5

{¶ 11} Having determined that the trial court appropriately dismissed the case

pursuant to Civ.R. 12(B)(6), we need not address appellant’s remaining two assignments

of error.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________ KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR