COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68304 MICHAEL J. BARILATZ : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION PATRICIA LUKE : : Defendant-appellee : DATE OF ANNOUNCEMENT : OF DECISION : DEC. 7, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 275344 JUDGMENT : Affirmed in part; reversed in part. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Joseph J. Straka, Esq. Bradley D. Burland, Esq. Morscher & Straka Brian D. Kerns, Esq. The Brighton Bldg., Suite 56 7029 Pearl Road, Suite 310 11711 Lorain Avenue Middleburg Heights, Ohio 44130 Cleveland, Ohio 44111 -2- HARPER, J.: This cause is on appeal before this court to be heard based upon the journal entries and original papers from the Cuyahoga County Court of Common Pleas, and from the briefs and arguments of counsel. Michael Barilatz, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas which granted Patricia Luke, defendant-appellee's, motion to dismiss judgment on the pleadings. A careful review of the record compels an affirmance in part, and a reversal in part. I. On October 18, 1992, appellant married appellee in Florida and the two lived together as husband and wife. The parties filed for divorce, and those divorce proceedings are still pending in Florida. Appellee filed a Petition for Dissolution on or about September 20, 1993, in Florida. Appellant filed a motion to dismiss on jurisdictional grounds in Florida; that motion was denied. Appellant has filed other cases in Ohio: Appellant filed a divorce and restraining order in the Cuyahoga County Common Pleas Court, Division of Domestic Relations, and another case in the Lake County Common Pleas Court, Division of Domestic Relations. However, both of these cases have been dismissed on jurisdictional grounds, because the divorce case captioned Barilatz v. Barilatz (93-2682-FLO1) is still pending in Florida. -3- Appellant's complaint alleges that appellee appeared before the Deputy Clerk of the City of Cleveland Heights and made false and malicious statements. Appellee submitted an affidavit that alleged that appellant threatened appellee with a 45 caliber semi- automatic pistol, in violation of R.C. 2919.25(C) of the Ohio Revised Code. As a result of appellee's charges, appellant was removed from the marital home and incarcerated overnight by the Cleveland Heights Police Department. According to the docket entry, the Cleveland Heights Municipal Judge dismissed the case and, based on the facts alleged, referred the matter to the Cuyahoga County Grand Jury on a felonious assault charge. The grand jury handed down a "No-Bill" on the case. On or about August 15, 1994, appellant filed his complaint in the Court of Common Pleas of Cuyahoga County, alleging that various actions of the appellee constituted actionable false imprisonment and malicious prosecution. Appellee's reply was filed by November 3, 1994. Appellee filed a motion to dismiss the complaint based on appellant's insufficient pleadings. The trial court granted appellee's motion for judgment on the pleadings on November 16, 1994. The trial court entered judgment in favor of the appellee. Appellant timely appeals. II. Appellant's sole assignment of error asserts: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS, PURSUANT TO CIVIL RULE 12(C), AS MATERIAL ISSUES OF FACT EXISTED WITH RESPECT TO PLAINTIFF'S CLAIM THAT DEFENDANT ENGINEERED HIS FALSE IMPRISONMENT THROUGH FRAUDULENT MISREPRESENTATIONS. -4- In this sole assignment of error, appellant charges the trial court erred in granting appellee's motion to dismiss because there were material issues of fact which existed with respect to his complaint and the trial court failed to construe the allegations in his complaint as true. A. Civ.R. 12(C) provides a party may move for judgment on the pleadings: (1) after the pleadings are closed; and (2) but within such time as not to delay the trial, any party may move for judgment on the pleadings. The standard of review a trial court must use in ruling upon a motion for judgment on the pleadings pursuant to Civ.R. 12(C) was recently set forth in Case Western Reserve Univ. v. Friedman (1986), 33 Ohio App.3d 347, 348: A motion for judgment on the pleadings is the same as a motion to dismiss filed after the pleadings are closed and raises only questions of law. The pleadings must be construed liberally and in a light most favorable to the party against whom the motion is made, and every reasonable inference in favor of the party against whom the motion is made should be indulged. Vaught v. Vaught (1981), 2 Ohio App.3d 264, 2 OBR 293, 441 N.E. 2d 811; Peterson v. Teodosie (1973), 34 Ohio St.2d 161, 63 O.O.2d 262, 297 N.E. 2d 113. The motion should be denied if it cannot be determined from the face of the pleadings that the pleading does not state a claim upon which relief can be granted. Calhoun v. Supreme Court of Ohio (1978), 61 Ohio App.2d 1, 15 O.O. 3d 13, 399 N.E.2d 559. Judgment on the pleadings may be granted where no material factual issue exists. However, it is axiomatic that a motion for judgment on the pleadings is restricted solely to the allegations contained in those pleadings. Flanagan v. Williams (1993), 87 Ohio App.3d 768. See, also, Nelson v. Pleasant (1991), 73 Ohio App.3d -5- 479 at 481, citing Peterson v. Teodosio (1973), 34 Ohio St.2d 161 at 165-166. B. In appellant's first argument, appellant maintains that the trial court failed to construe as true his allegations that appellee caused him to be falsely imprisoned. Civ.R. 8(A)(1) requires a "short and plain statement of the claim showing that the pleader is entitled to relief." In order to sustain a claim for false imprisonment, the plaintiff must set forth the following elements: (1) the detention of the person; and (2) unlawfulness of the detention by the defendant. Mitles v. Young (1978), 59 Ohio App.2d 287; William T. Spice & Sons v. Steinruck (1863), 14 Ohio St. 27. Appellant makes the following allegations in his complaint with respect to false imprisonment: II. Defendant, through her willful, false and malicious accusations caused Plaintiff to be falsely imprisoned by the Cleveland Heights Police Department on August 16, 1993, at approximately 10:20 p.m., causing Plaintiff extreme emotional and financial distress for which Plaintiff is still under psychiatric care, and under which case he will be required to remain for an indefinite period of time. In the instant case, the trial court did not err when it granted appellee's motion for judgment on the pleadings. Assuming arguendo that the allegations of appellant's complaint are true, the complaint fails to set forth a cognizable claim for false imprisonment against the appellee. In the instant case, appellant's complaint pleads that the City of Cleveland Heights -6- imprisoned appellant. Accordingly, appellant's assignment of error is overruled. In appellant's second argument, appellant charges that appellee engaged in conduct constituting "malicious prosecution," and the trial court erred when it granted appellee's motion for judgment on the pleadings. Appellant specifically asserts the trial court failed to construe as true the allegations set forth in his complaint. Appellant alleges in his complaint: I. On August 16, 1993, Defendant appeared before a Deputy Clerk Jeff Robertson, of the City of Cleveland Heights Municipal Court, and after being duly sworn according to the law deposed and stated, with full knowledge that her statements were false and malicious, in a Complaint and Affidavit that, Michael Barilatz threatened her at approximately 7:00 p.m. on August 16, 1993, in violation of Section 2919.25(C) of the Ohio Revised Code. Defendant's willful, false, and malicious statements did cause Plaintiff to be falsely arrested, causing Plaintiff extreme emotional and financial distress. See Plaintiff's Exhibit A attached hereto. *** III. On August 17, 1993, Defendant appeared before the Cleveland Heights Municipal Court and after being duly sworn according to the law stated, with full knowledge said statements were false and malicious, that the plaintiff had threatened her and requested the Plaintiff from entering his legal residence. Defendant's willful, false, malicious, slanderous, and defamatory statements at said hearing prevented the Plaintiff from returning to his legal residence thus causing him extreme emotional and financial distress. See Plaintiff's Exhibit B. *** -7- V. Defendant, on or about November 5, 1993, willfully,intentionally, and falsely caused a continuation of the malicious prosecution of criminal proceedings against the Plaintiff by filing a Complaint and Affidavit for felonious assault, filed before the Cleveland Heights Municipal Court. The filing of the false charges of felonious assault caused the Plaintiff to again be falsely arrested and falsely imprisoned by the City of Cleveland Heights. Through Defendant's willful, intentional, and false accusations, the Plaintiff was again placed under extreme emotional and financial distress from which he may never recover. VI. The Defendant failed to appear before the Cleveland Heights Municipal Court, on two separate occasions, for the preliminary hearing in regards to her false accusations of felonious assault against the plaintiff. That by failing to appear at the hearings, as the States [sic] only witness or evidence, defendant willfully, maliciously, and with full knowledge caused a continuation of the malicious prosecution against the Plaintiff. Defendant's actions were with full knowledge false and malicious, and that in doing so the Plaintiff would be placed under continuous extreme emotional and financial distress. *** VIII. The defendant continued said false and malicious prosecution, for a period of nine (9) months, until or about May 19, 1994, the Cuyahoga County Grand Jury handed down a No- Bill, in regards to Case No. 305377, on the charges filed by, and continued by the defendant against the plaintiff. To sustain a conviction for an action for malicious criminal prosecution, the plaintiff must plead: (1) malice in the institution or the continuation of the prosecution; (2) lack of probable cause for undertaking the prosecution; and (3) the termination of the prosecution in favor of the accused. Criss v. -8- Springfield (1990), 56 Ohio St.3d 82. "[T]he tort of malicious criminal prosecution compensates the plaintiff for the damage to dignity and reputation caused by false accusation of a crime." Trussel v. General Motors Corp. (1990), 53 Ohio St.3d 142, 145. The inquiry with respect to appellant's second argument is whether appellant's complaint set forth a cognizable claim for malicious criminal prosecution. Appellant's complaint pleads malice in the initiation or continuation of the proceedings in paragraphs I, III, V, VI, VIII; appellant's complaint pleads lack of probable cause for undertaking the prosecution in paragraph I; appellant's complaint pleads the termination of the proceedings in his favor in paragraph VIII. Assuming the truth of the allegations in the complaint, as we must, the facts as alleged by the pleader are sufficient to state a claim of malicious prosecution. Accordingly, appellant's assignment of error is sustained in part. Judgment is affirmed in part and reversed in part. -9- It is ordered that the parties share equally the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas 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. LEO M. SPELLACY, P.J., AND ANN DYKE, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .