Upload
others
View
3
Download
0
Embed Size (px)
Citation preview
IN THE COURT OF COMON PLEAS
FRANKLIN COUNTY, OHIO
JACK G. SCHMIDT )
)
Plaintiff, ) CASE NO. 13CV9703
)
v. )
)
GROSSMAN LAW OFFICES, et al. ) JUDGE REESE
)
Defendants. )
REPLY TO GROSSMAN LAW OFFICES’S AND ANTHONY R. AUTEN’S
MEMORANDUM IN OPPOSITION TO JACK G. SCHMIDT’S MOTION FOR LEAVE
TO FILE COMPLAINT
Grossman Law Offices (“Grossman”) and Anthony R. Auten (“Auten”) engaged in fraud
on the court when they improperly and without a factual basis sought and obtained a Temporary
Restraining Order (“TRO”) in a case styled Schmidt v. Schmidt, Franklin County Case No.
12DR-02-856 (the “Divorce Action”) restraining Mr. Schmidt from harassing and assaulting his
wife. Coulson v. Coulson (1983), 5 Ohio St.3d 12, 15; Booth v. Booth (10th Dist.), Franklin App.
No. 93APF11-1559 (July 21, 1994). The TRO’s language placed Mr. Schmidt at risk for
possible criminal prosecution for possessing firearms and ammunition during the time that the
TRO improperly restrained him. Rieger v. Montgomery Cty., 2009-Ohio-4125, ¶ 7; 18 U.S.C.
922(g)(8); Snell v. Snell, 2010-Ohio-2245, ¶ 34. (Exhibits G, H, I). They refused to amend the
TRO when requested. They maliciously and in bad faith requested a vocational evaluation at
Mr. Schmidt’s expenses and requested a seek work order when they knew Mr. Schmidt was
unable to do so. (Exhibits Q, R, W). They improperly, maliciously and in bad faith advised their
client to violate a court order by removing Mr. Schmidt’s equipment needed for his rehabilitation
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
2
of his near fatal heart attack from his Athens County farm. (Exhibit QQ). They refuse to return
it when asked. (Exhibit PP). They terrified Mr. Schmidt with their maliciousness, overzealous
posture and past fraudulent filings, leading to a cardiac event and a trip to the hospital.
(Complaint, ¶ 28).
Their conduct is tortious, damaging Mr. Schmidt for which he now seeks redress through
in his complaint for which he seeks leave (“current Complaint”). That the conduct occurred in
the Divorce Action does not negate its tortiousness. Tort claims are to be brought in the General
Division rather than the Domestic Relations Division. State, ex rel. Cook v. Cook (1902), 66
Ohio St. 566; Howard v. Pharis-Rine (5th Dist.), 2009-Ohio-3981.
In Schmidt v. Grossman Law Offices, Franklin Cty. Case No. 13CV003379 (the “Franklin
County case” or the “Franklin County Court”) Grossman and Auten argued that Mr. Schmidt’s
claims against them should have been redressed in the Divorce Action. Obligingly, the Franklin
County Court recast Mr. Schmidt’s claims as a request for sanctions for ethical misconduct or
frivolous conduct and dismissed the claims for lack of subject matter jurisdiction. Decision and
Entry, October 25, 2013, pp. 3-4.
Clearly, the Franklin County Court was not dismissing tort claims. Such an interpretation
defies logic. The Domestic Relations Division’s jurisdiction is limited to domestic relations
matters, which do not include contract, tort or other collateral claims between spouses. State ex
rel. Judson v. Spahr (1987), 33 Ohio St.3d 111; Zeigler v. Zeigler (5th Dist.), Licking Cty. Case
No. 98-CA-00054 (Nov. 3, 1998); Lisboa v. Karner (8th Dist.), 167 Ohio App.3d 359, 2006-
Ohio-3024, ¶¶ 6; Mitchell v. Mitchell (11th Dist.), 2008-Ohio-833, ¶ 60; Tanagho v. Tanagho
(10th Dist.), Franklin Cty. App. No. 92AP-1190, (Feb. 23, 1993), 1993 WL 50950, at *2. The
equitable powers of the Domestic Relations Court extend only to determine the rights of the
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
3
parties to alimony and a division of property. Griste v. Griste (1960), 171 Ohio St. 160,
paragraph two of the syllabus. Tort and other actions, even between divorcing spouses, are to be
brought in the General Division. Griste v. Griste (1960), 171 Ohio St. 160, paragraph two of the
syllabus; Shearer v. Shearer (1985), 18 Ohio St.3d 94, 97 LeCrone v. The Ohio Bell Telephone
Co. (10th Dist. 1963), 120 Ohio App. 129; Howard v. Pharis-Rine (5th Dist.), 2009-Ohio-3981;
Koepke v. Koepke (6th Dist. 1989), 52 Ohio App.3d 47, 49; Pyle v. Pyle (8th Dist. 1983), 11
Ohio App.3d 31. The Domestic Relations Division has no jurisdiction to determine the rights of
third parties to divorce actions. State ex rel. Ross v. O'Grady, Franklin Cty. App No. 94APD03-
443, (Sept. 27, 1994), unreported, 1994 WL 532056. The Domestic Relations Court is without
jurisdiction to award money damages. State, ex rel. Cook v. Cook (1902), 66 Ohio St. 566;
Davis v. Spriggs (5th Dist.), 2010-Ohio-5802, ¶ 35; Gibson v. Gibson (4th Dist. 1993), 87 Ohio
App.3d 426, 428; Howard v. Pharis-Rine (5th Dist.), Licking Cty. App. No. 08 CA 001114 (Aug.
10, 2009), 2009-Ohio-3981, ¶ 20. No jury is available in the domestic relations division. Civ.R.
75(C). Certainly the Franklin County Court knew of the Divorce Court’s restricted jurisdiction.
A tort, on the other hand, is a collateral claim to a divorce action that must be brought in
the proper court or division. Cook, 66 Ohio St. at 573; Judson, 33 Ohio at 114; Koepke, 52 Ohio
App.3d at 49; Howard, 2009-Ohio-3981, ¶16. Indeed, looking at the substance of the claims, the
Franklin County Court declared they “arose out of what transpired during the divorce
proceedings . . . as opposed to an event ancillary to the divorce action” and dismissed them on
that basis. The instant claims are tort claims that cannot now be confused with claims arising out
of the Divorce Action as that case is completed.
I. GROSSMAN AND AUTEN LACK STANDING TO APPEAR
Grossman and Auten file their Memorandum In Opposition to Jack G. Schmidt Jr.’s
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
4
Motion for Leave to File Complaint (“Memo Contra”) in a case styled Prime Equipment Group,
Inc. v. Jack G. Schmidt, Jr. Defendants Grossman and Auten were never parties to that action
and have no standing to file anything in that case. Notably, nothing in R.C. 2323.52(F) allows
for the filing of responsive memoranda or a hearing to an application for leave to file complaint.
There is as yet no case, as none has been filed. Therefore, there are, as yet, no defendants.
Accordingly, neither Grossman nor Auten have standing nor the right to appear at a hearing to
present arguments on Mr. Schmidt’s application. Mr. Schmidt objects to their Memo Contra and
their appearance and requests that their Memo Contra be stricken and that they be prohibited
from presenting any argument at any hearing on his Motion for Leave to File Complaint. The
matter to be decided is strictly a legal issue well within the purview of the court. There is
absolutely no reason for any nonparty or other person or entity to opine as to whether the
proposed complaint meets the requirements for filing pursuant to R.C. 2323.52(F).
II. PREVIOUS DISMISSALS OF MR. SCHMIDT’S CLAIMS WERE NOT ON THE
MERITS.
Importantly, Mr. Schmidt’s claims in the Franklin County case and Schmidt v. Grossman
Law Offices, Athens Cty. Case No. 13CI0103 (the “Athens County case”) were not dismissed
on the merits. Schmidt v. Grossman Law Offices, et al. (10th Dist.), 2014-Ohio-4227, ¶ 10 (Exh.
Z to Complaint). As Grossman and Auten readily admit, a dismissal for lack of subject matter
jurisdiction is other than on the merits pursuant to Civ.R. 41(B)(4).
A. Res Judicata
Not surprisingly, Grossman and Auten once again try to recast Mr. Schmidt’s claims as
nontorts by declaring they have “their roots” in Mr. Schmidt’s divorce case. Tortious conduct
can and does arise out of domestic relations cases. When it does, especially where, as here, it
involves third parties, it must be brought in the General Division regardless of where it finds it
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
5
roots. Tanagho (10th Dist.), 1993 WL 50950, at *2; Lisboa (8th Dist.), 2006-Ohio-3024, ¶ 6.
Grossman and Auten claim that res judicata (claim preclusion) bars Mr. Schmidt’s
current Complaint because he admits that he previously filed these claims. Although true, the
Franklin County Court rejected out of hand that Mr. Schmidt’s previously filed claims were torts.
“Accordingly, the Court finds it does not have subject matter jurisdiction over the instant action.”
Decision and Entry at p. 3-4.
Clearly and by its own determination, the court never dismissed Mr. Schmidt’s tort
claims in the Franklin County case. It dismissed “claims arising out of the conduct of the
Defendants in the Domestic Relations Court,” non-torts over which it lacked subject matter
jurisdiction. Decision and Entry at p. 4. Mr. Schmidt agrees that the nontort claims the Franklin
County court says it dismissed, apparently seeking recourse for ethics and frivolous conduct
violations in the Divorce Action are a matter of res judicata. Those, however, are not the tort
claims brought in the current Complaint. Grossman and Auten cannot have it both ways. They
argued in the Franklin County case that Mr. Schmidt’s claims were not torts and prevailed. They
cannot now say that the Franklin County case claims were torts and seek to apply the doctrine of
res judicata. Now that the Divorce Action is completed, there can be no confusion but that Mr.
Schmidt’s current claims are torts, apparently never before brought and never before dismissed,
for which he seeks redress in the form of damages.
Generously, Grossman and Auten offer the solace that Mr. Schmidt can refile his claims
in “some court”, presumably one with subject matter jurisdiction, but not this court. Where, pray
tell, would that be? In the Domestic Relations Court where torts are disallowed and they were
not and could not be made parties? State ex rel. Ross v. O’Grady, Franklin Cty. App. No.
94APD03-443 (Sept. 27, 1994); Tanagho v. Tanagho, Franklin Cty. App. No. 92AP-1190 (Feb.
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
6
23, 1993); Wareham v. Wareham, Franklin Cty. App. No. 78AP-118 (Dec. 14, 1978) citing Levy
v. Levy, Franklin App. No. 77AP-918 (May 2, 1978). Their argument is nonsensical.
A. Collateral Estoppel
Nor does Grossman’s and Auten’s collateral estoppel (issue preclusion) argument
assist them.
The doctrine of issue preclusion, also known as collateral estoppel, holds that a
fact or a point that was actually and directly at issue in a previous action, and was
passed upon and determined by a court of competent jurisdiction, may not be
drawn into question in a subsequent action between the same parties or their
privies, whether the cause of action in the two actions be identical or different.
Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240, 52 N.E.2d 67,
paragraph three of the syllabus
Fort Frye Teachers Ass'n, OEA/NEA v. State Employment Relations Bd., 1998-Ohio-435, 81
Ohio St. 3d 392, 395, 692 N.E.2d 140, 144.
To successfully assert collateral estoppel, the moving party must prove the
following: (1) The non-moving party was a party, or in privity with a party, to the
prior action; (2) There was a final judgment on the merits in the prior action; (3)
The operative issue was necessary to the final judgment; and (4) The operative
issue in the prior action is identical to the issue in the subsequent action.
Lewis v. Cleveland, 2011-Ohio-347, ¶ 13. Grossman and Auten’s collateral estoppel argument
fails because there was never a final judgment on the merits as to Mr. Schmidt’s abuse of process
and other tort claims in any of the previous litigation. The 10th District has already declared this.
Schmidt v. Grossman Law Offices, et al. (10th Dist.), 2014-Ohio-4227, ¶ 9. (Exhibit Z). The
matter that is subject to res judicata and collateral estoppel is the 10th Districts ruling that the
Franklin County court’s dismissal of Mr. Schmidt’s claims was not on the merits.
B. Cited Case Authority
None of the cases Grossman and Auten cite assist them in their res judicata and collateral
estoppel arguments. State ex rel. Ohio Housing Finance Agency v. Harding, 2014-Ohio-1187,
¶¶ 3, 5 involves a cognovit note where the court granted judgment pursuant to an attorney’s
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
7
confession of liability. The judgment was on the merits and no issue of subject matter
jurisdiction was raised.
Heller v. Prepaid Legal Serv., Inc., 2013-Ohio-680, ¶ 18, actually favors Mr. Schmidt. It
holds that, as here, a dismissal for lack of subject matter jurisdiction is other than on the merits
pursuant to Civ.R. 41(B)(4) and is not res judicata. A review of the decisions in both the
Franklin County case and the Athens County case as well as the 10th District Decision in Schmidt
v. Grossman Law Offices, et al. (10th Dist.), 2014-Ohio-4227 makes clear that all courts declined
to exercise jurisdiction due to the pending Divorce Action. None of the courts in any way
indicated that the Domestic Relations Division could ever have subject matter jurisdiction over
Grossman and Auten in the Divorce Action.
The jurisdictional determination that leads to res judicata or collateral estoppel is one in
which the court determines that it can never have subject matter jurisdiction over the claim.
As a result, res judicata dictated that the Jefferson County Court likewise rule it
lacked subject matter jurisdiction over the Board, as the Franklin County Court
determined the Board was a state agency, over which a common pleas court
lacks jurisdiction. (Emphasis added).
Diagnostic & Behavioral Health Clinic, Inc. v. Jefferson Cty. Mental Health, Alcohol & Drug
Addiction Bd., 2002-Ohio-1567, ¶ 14. The Franklin County Court and Athens County Court
decision to dismiss due to the pending Divorce Action made no such ruling. The Divorce Action
is now completed. Accordingly, any question regarding a lack of jurisdiction to entertain Mr.
Schmidt’s tort actions has been cured. Id. at ¶ 14. Importantly, Grossman and Auten offer no
authority for the proposition that the Domestic Relation Division had personal jurisdiction over
them in the Divorce Action.
As was the case in Diagnostic & Behavioral Health, supra, “[t]he res judicata effect of a
dismissal for lack of subject matter jurisdiction is limited to the jurisdictional issue serving as a
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
8
basis for the dismissal.” Ohio Nat'l Life Ins. Co. v. United States, (C.A.6, 1990), 922 F.2d 320,
325. Id. at ¶ 17. In the Franklin County case, the res judicata issue serving as a basis for the
dismissal was the supposed ethics and frivolous conduct it deemed the Domestic Relations Court
had jurisdiction to address. Decision and Entry at p. 2.
III. THE ATHENS COUNTY CASE
This same analysis set forth above applies to the Athens County case. There the court
specifically stated that it was following the reasoning of the Franklin County Court.
Accordingly, the claims dismissed were, apparently, nontorts and neither res judicata or
collateral estoppel apply.
IV. FAILURE TO STATE A CLAIM
A. Absolute Immunity
Grossman’s and Auten’s “failure to state a claim” argument is far too premature and not
yet ripe for adjudication in this nonexistent case that has yet to be filed. Rather, the place and
time to address a Civ.R. 12(B)(6) failure to state a claim Motion is after the complaint has been
filed and before the judge to whom it is assigned. Nevertheless, in an overabundance of caution,
Mr. Schmidt will address this argument.
Bad faith defeats an attorney’s immunity defenses. Bad faith exists when an attorney
falsifies an affidavit and files it in court. Pheils v. Garber-Lawrence Pub. Group, Inc. (6th Dist.
Dec. 10, 1993), Lucas App. No. L-92-418, *14. Grossman and Auten have no immunity
absolute or otherwise as a result of their bad faith conduct.
Absolute immunity applies to litigants, witnesses and their counsel for liable, slander, or
defamation claims only. Harsh v. City of Franklin, 2011-Ohio-2428, ¶¶ 17-18; Seminatore v.
Dukes, 2004-Ohio-6417, ¶¶ 25-26; Fiori v. Plating Technology, 2004-Ohio-6611, ¶ 5. Mr.
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
9
Schmidt’s current Complaint brings no such claims. Grossman and Auten enjoy no such
immunity for their malicious conduct taken in bad faith for Mr. Schmidt’s abuse of process,
intentional infliction of emotional distress and negligent infliction of emotional distress claims.
Grossman and Auten used the domestic relations process for an improper purpose to obtain a
collateral advantage. Robb v. Chagrin Lagoons (1996), 75 Ohio St.3d 264, 271. Through
coercion and intimidation they sought to so demoralize Mr. Schmidt and compromise his
physical and mental health in his already vulnerable state that they could easily obtain his money
and property. They are no better than thugs with a law degree. The venue may be more pleasant
and the clothing superior, but the conduct is the same.
Willitzer v. McCloud (1983), 6 Ohio St.3d 447 actually favors Mr. Schmidt. In Willitzer,
Dr. McCloud lied to the in testimony and reports before the Industrial Commission about the
conditions of claimants the Industrial Commission sent to him for evaluation of injuries covered
by Worker’s Compensation. The Supreme Court of Ohio declined to grant absolute immunity to
him for his substandard examinations, notwithstanding that his report and testimony to the
Industrial Commission were privileged under the doctrine of witness immunity. Id. at 450. The
court recognized as essential a damages remedy to injured claimants in such situations.
Thus, while the physician is immune from liability for damages as a result of his
submitting false or defamatory statements as to the medical condition of the
individual examined, the physician may be held liable for damages on a theory
akin to malpractice by virtue of his failure to conduct an adequate and complete
examination
Willitzer v. McCloud (1983), 6 Ohio St.3d 447, 451. As in Willitzer, Grossman and Auten lied in
their documents filed in the Divorce Action. As in Willitzer, a damages remedy is essential to
the injured party. Grossman’s and Auten’s conduct was done in bad faith, which defeats their
immunity defense. Pheils v. Garber-Lawrence Pub. Group, Inc. (6th Dist. Dec. 10, 1993), Lucas
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
10
App. No. L-92-418, *14. While Grossman and Auten may be immune from civil suit for
defamation, libel and slander, they have no immunity for abuse of process and other claims.
B. Qualified Immunity
Falsification of affidavits filed in court is bad faith that defeats Grossman’s and Auten’s
affirmative defense of qualified immunity. Scholler v. Scholler, (1984), 10 Ohio St.3d 98,
paragraph 1 of the syllabus. Moreover, malice is implied by Grossman’s and Auten’s statements
regarding Mr. Schmidt. Pheils v. Garber-Lawrence Pub. Group, Inc. (6th Dist. Dec. 10, 1993),
Lucas App. No. L-92-418, *14. Ahlbreck v. Joelson, Lucas Cty. App. No. L-96-418 (6th Dist.
Aug. 8, 1997) did not rule that an attorney is immune from liability where he acts with his
client’s knowledge and authority. It ruled that an attorney may only be held liable to third parties
if he has acted maliciously. Id at 7. Here both Grossman and Auten have so acted.
C. Mootness
Grossman and Auten misrepresent to the court that Mr. Schmidt’s current claims “arose
solely out of actions in the Divorce Action.” Of course, they must so state to justify their
spurious argument that Mr. Schmidt’s claims are somehow subject to res judicata. Following
Grossman’s and Auten’s arguments to its logical conclusions, Mr. Schmidt was to bring his
claims against them in the Divorce Action because the claims supposedly arise “solely out of
actions in the Divorce Action.” Somehow this was to be done despite the fact that the Domestic
Relations Division has no subject matter jurisdiction over torts, cannot award damages, had no
provision for a jury and cannot obtain jurisdiction over nonparties Grossman and Auten. The
suggestion is absurd.
It may well be so that “the Domestic Relations Court has already addressed and
determined all of the parties’ rights and responsibilities regarding the Divorce Action.” Such a
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
11
resolution involves Domestic relations matters only, which are the rights of the parties to
alimony and property division. It has no application to the torts between Mr. Schmidt and
Grossman and Auten who were nonparties to the Divorce Action.
D. Abuse of Process
Again misstating the facts, Grossman and Auten claim Mr. Schmidt has stated no ulterior
purpose other than filing a Motion for a Temporary Restraining Order based on lies to deprive
Mr. Schmidt of participation in his gun related activities. Grossman’s and Auten’s conduct and
purpose, however, was much more nefarious.
Their ulterior purpose was to use the Domestic Relations TRO processes (1) to embarrass
him publically before his peers and to cause damage to his reputation, credibility, business and
personal interests; (2) to embarrass him and cause damage to his relationship with his children;
(3) to reduce and keep him in a physically and emotionally vulnerable medical state; (4) to extort
money and force him to pay Ms. Gasbarro’s debt for which he had no liability; and (5)
improperly to force him to relinquish his rights to the marital property. Executive Builders, Inc.
v. Trisler (Ind. Ct. App. 2000), 741 N.E.2d 351; Kumar v. Bornstein, (2d Dist. 2004), 354
Ill.App.3d 159; Givens v. Mullikin ex rel. Estate of McElwaney (Tenn. 2002), 75 S.W.3d 383;
Crackel v. Allsate Ins. Co. (Ct. App. Div. 2 2004), 208 Ariz. 252, 92 P.3d 882, Sands v. Living
Word Fellowship, 34 P.3d 955 (Alaska 2001); Almerico v. Dale, 927 So. 2d 586 (La. Ct. App.
5th Cir. 2006); Blank v. Securx, Inc. (1997), 123 Ohio App.3d 248, 255; Thompson v. R & R
Service Systems, Inc. v. Cook (June 19, 1997), Franklin App. No. 96APE10-1277, 96APE10-
1278, unreported, at p. 14; Chain v. Internatl. City Bank and Trust Co. (E.D. La. 1971), 333
F.Supp. 463, 466. None of these objectives is a legitimate purpose to be achieved in a domestic
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
12
relations case. Nor can the court in a domestic relations action issue an order accomplishing
these goals.
“Where a pleading ties a party's actions to the elements of a claim, but fails to
state in detail the facts underlying the claim, that pleading has not failed to ‘state a
claim upon which relief can be granted,’ pursuant to Civ.R. 12(B)(6).
Clermont Environmental Reclamation Co. v. Hancock (1984), 16 Ohio App.3d 9, 12;
Blank v. Securx, Inc. (1997), 123 Ohio App. 3d 248, 256, 704 N.E.2d 21, 26. Certainly, the
Complaint recites facts that, if taken as true, properly pleads abuse of process.
E. Intentional Infliction of Emotional Distress
Let’s see, Grossman and Auten filed a false affidavit with the court in the Divorce Action
alleging that Mr. Schmidt harasses and assaults his wife. (Exhibit B, C). This places Mr. Schmidt
at risk for possible criminal prosecution for possessing firearms and ammunition during the time
that he was inappropriately subject to the TRO. Rieger v. Montgomery Cty., 2009-Ohio-4125, ¶
7. 18 U.S.C. 922(g)(8); Snell v. Snell, 2010-Ohio-2245, ¶ 34. (Exhibits G, H, I). They
maliciously and in bad faith request a vocational evaluation at Mr. Schmidt’s expenses and
request a seek work order when they know that Mr. Schmidt cannot work. (Exhibits Q, R, W).
They improperly, maliciously and in bad faith advise their client to the remove Mr. Schmidt’s
property from the Athens location negatively impacting his recover from his near fatal heart
attack. (Exhibit QQ). They refuse to return it when asked. (Exhibit PP). They advise Ms.
Gasbarro to quit her job for which Mr. Schmidt receives health care benefits during his recovery
from a near fatal heart attack. They terrify Mr. Schmidt with their malicious, overzealous
posture and past fraudulent filings, leading to a cardiac event and a trip to the hospital.
(Complaint, ¶ 28).
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
13
Somehow, Grossman and Auten posit that such conduct is not extreme and outrageous
within the meaning of Yeager v. Local Union 20 Teamsters Chauffeurs Warehousemen &
Helpers of America (1983), 6 Ohio St.3d 369. A jury may well find differently. Threats and
menacing remarks and conduct leading to deleterious physical consequences are the very types
of conduct Yeager states supports an intentional infliction of emotional distress claim. Id. at 369.
Grossman’s and Auten’s conduct is so outrageous that they would risk possible contempt
complete with jail implications, economic sanctions, the loss of Auten’s law license and civil
prosecution to place sufficient pressure on Mr. Schmidt to accede to their demands. That is
extreme and outrageous. Stockdale v. Baba, (10th Dist.), 2003-Ohio-4366, ¶ 48. Certainly the
Complaint recites facts that, if taken as true, properly pleads intentional infliction of emotional
distress.
F. Negligent Infliction of Emotional Distress
Grossman and Auten somehow claim that their conduct as set forth above does not meet
the elements of negligent infliction of emotional distress because he was not a bystander. To the
contrary, Mr. Schmidt was absolutely a bystander, watching as his own family, business and
personal relationships were destroyed through Grossman’s and Auten’s lies to the Domestic
Relations Court, maliciously zealous conduct in the Divorce Action and advice that Ms.
Gasbarro deprive Mr. Schmidt of his property integral to his recovery and loss of his health care
insurance while treating for a heart attack. Grossman and Auten (1) negligently engaged in
conduct; (2) it was reasonably foreseeable that such conduct would cause Mr. Schmidt severe
emotional distress; and (3) the conduct did, in fact, cause severe emotional distress.
“[T]he gravity of appellant's injury and the inherent humanitarianism of our
judicial process and its responsiveness to the current needs of justice dictate that
appellant be afforded a chance to present [her] case to a jury * * *.” Sinn v. Burd
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
14
(1979), 486 Pa. 146, 174, 404 A.2d 672, quoting Niederman, supra, 436 Pa. at
page 404, 261 A.2d 84.
Schultz v. Barberton Glass Co. (1983), 4 Ohio St. 3d 131, 135. Certainly the Complaint
recites facts that, if taken as true, properly pleads intentional infliction of emotional distress.
CONCLUSION
As the above demonstrates, the conduct of Grossman and Auten was
reprehensible, not worthy of that of an attorney licensed to practice law in the state of Ohio and
no better than thuggery. They lied to the court placing Mr. Schmidt at risk for possible federal
criminal prosecution. They refused to correct the matter when requested. They maliciously and
in bad faith requested a vocational evaluation at Mr. Schmidt’s expenses and requested a seek
work order when they knew Mr. Schmidt was unable to do so. They improperly, maliciously and
in bad faith advised their client to violate a court order by removing equipment integral to Mr.
Schmidt’s rehabilitation from a near fatal heart attack. They refuse to return it when asked. They
advised Ms. Gasbarro to quit her job taking away Mr. Schmidt’s health insurance during his
recovery. They terrified Mr. Schmidt with their maliciousness, overzealous posture and past
fraudulent filings, leading to a cardiac event and a trip to the hospital. They did this (1) to
embarrass him publically before his peers and to cause damage to his reputation, credibility,
business and personal interests; (2) to embarrass him and cause damage to his relationship with
his children; (3) to reduce and keep him in a physically and emotionally vulnerable medical
state; (4) to extort money and force him to pay Ms. Gasbarro’s debt for which he had no liability;
and (5) improperly to force him to relinquish his rights to the marital home. This is more than
just bad strategy, even if successful. This is tortious misconduct for which Mr. Schmidt has
viable claims against them.
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com
15
For the foregoing reasons, Mr. Schmidt respectfully requests this Honorable Court to
grant his Motion for Leave to File his Complaint.
Respectfully submitted,
/s/ Dianna M. Anelli____________________
Dianna M. Anelli (0062973)
The Anelli Law Firm, LLC
3010 Hayden Road
Columbus, OH 43230
P: 614-228-7710
F: 614-340-3140
Attorney for Plaintiff, Jack G. Schmidt
CERTIFICATE OF SERVICE
The undersigned certifies that copies of the foregoing were filed electronically through
the court’s e-filing system on March 17, 2016. Notice of the filing will be sent to all parties or
their counsel by operation of the court’s electronic filing system and via electronic mail pursuant
to Civ.R. 5(B)(2)(f) to:
William D. Kloss, Jr. Timothy S. Rankin
Tyler B. Pensyl Onda, LaBuhn, Rankin & Boggs Co., L.P.A.
Vorys, Sater, Seymour and Pease LLP 35 N. Fourth Street, Suite 100
52 East Gay Street, P. O. Box 1008 Columbus, OH 43215
Columbus, OH 43216
Counsel for Grossman Law Office Counsel for Timothy S. Rankin, Onda, LaBuhn,
And Anthony R. Auten Rankin & Boggs Co., L.P.A., Gina Gasbarro
Michael Gasbarro and Prime Equipment Group,
Inc.
/s/ Dianna M. Anelli____________________
Dianna M. Anelli (0062973)
Attorney for Plaintiff, Jack G. Schmidt
Schmidt v Grossman Law Offices, Anthony R. Auten, Timothy S. Rankin, Onda, Labuhn, Rankin & Boggs, LLC, Gina Gasbarrro, Michael Gasbarro, Prime EquipmentGroup, Inc. @ schmidtvgrossmanlawoffices.com