FILED COURT OF COMHOH! PLEAS, i ) yin 2605 SEP 29 AH 10: Gh bts tie . MONTGOMERY Co.. Glto IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CRYSTAL STAPLETON * CASE NO. 06-7181 (Judge Davis) Plaintif£ vs. * ANSWER OF DEFENDANT JUDSON G. MCMILLIN WITH JUDSON G. McMILLIN JURY DEMAND ENDORSED HEREON Defendant * FIRST DEFENSE PARTIES, JURISDICTION AND VENUE 1, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of the complaint 2. Defendant admits that he was a resident of Montgomery County and also admits that he is no longer a resident of Ohio and is now a resident of Brookville, Indiana. Defendant is without knowledge or information sufficient to forma belief as to the truth of the remaining allegations contained in paragraph 2 of the complaint 3. Defendant admits the allegations contained in paragraph 3 of the complaint. 4. Defendant admits the allegations contained in paragraph 4 of the complaint. FACTS 5. Defendant admits the allegations contained in paragraph 5 of the complaint. 6. Defendant McMillin admits that he was a prosecutor for a portion of 2005 and also admits that he was assigned to Case No, 2005 CR 974. Defendant denies that he was a prosecutor during the entire year of 2005 as alleged in paragraph 6 of the complaint PREUND, FREEZE & ARNOLD 2 Legal Professional Association10. aL 12 13 14 as. 16 a7. Defendant McMillin admits that the defendant in Case No. 2005 CR 974 was John C. Gonzalez. Defendant McMillin further admits that Crystal Stapleton was the complaining witness against John C. Gonzalez in Case No. 2005 CR 974. Defendant McMillin is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 7 of the complaint Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 of the complaint. Defendant denies the allegations contained in paragraph 9 of the complaint Defendant denies the allegations contained in paragraph 10 of the complaint Defendant denies the allegations contained in paragraph 11 of the complaint Defendant denies the allegations contained in paragraph 12 of the complaint Defendant denies the allegations contained in paragraph 13 of the complaint Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 14 of the complaint. Defendant denies the allegations contained in paragraph 15 of the complaint. EIRST CAUSE OF ACTION Legal Malpractice Defendant admits, denies and is without knowledge of the allegations incorporated by reference into paragraph 16 of the complaint as hereinabove set forth. Defendant denies the allegations contained in paragraphs 17 through 22 of the complaint FREUND, FREEZE & ARNOLD ‘A Legal Professional Assocation1s. as. 20 2. 22. 23 2a. 25 OND CAUSE OF ACTION Intentional Infliction of Emotional Distress Defendant admits, denies and is without knowledge of the allegations incorporated by reference into paragraph 23 of the complaint. Defendant denies the allegations contained in paragraphs 24 through 26 of the complaint. THIRD CAUSE OF ACTION Breach of Fiduciary Duty Defendant admits, denies and is without knowledge of the allegations incorporated by reference into paragraph 27 of the complaint as hereinabove set forth Defendant denies the allegations contained in paragraphs 28 through 31 of the complaint SECOND DEFENSE Plaintif£ fails to state a claim upon which re. granted £ may be THIRD DEFENSE All or part of the complain statute of limitations. is barred by the applicable EFENSE Plaintiff's claims are barred by the doctrine of prosecutorial immunity. FIFTH DEFENSE The claim and/or claims asserted against defendant McMillin are frivolous as defined by Ohio Revised Code § 2323.51 and this defendant is entitled to attorney fees and expenses as a result thereof FREUND, FREEZE & ARNOLD A Legal Professional Assocation26. 27, 28. 29. 30. an. EFENS! The client of defendant McMillin, at all times relevant, was the State of Ohio. Defendant McMillin’s duties and obligations as an Assistant Montgomery County Prosecuting Attorney was to prosecute the charges brought against Mr. Gonzalez by way of an indictment resulting from Grand Jury proceedings, Crystal Stapleton was a material witness. As a matter of fact, she was the complaining witness. H_DEFENSE There never was an attorney/client relationship between defendant McMillin and Crystal Stapleton. Defendant’s duty was to the people of Montgomery County, Ohio and the State of Ohio. There never was any attorney/client relationship nor any other legal relationship between the plaintiff and defendant McMillin. Therefore, defendant McMillin did not owe any fiduciary duty to Stapleton. DEFENSE The involvement between plaintiff Stapleton and defendant McMillin outside his role as Assistant Prosecutor occurred after defendant McMillin left the employment at the prosecutor's office. This involvement was voluntary and the plaintiff is therefore estopped and has waived any claims such as those asserted in the complaint. PENSE Plaintiff has failed to mitigate her damages. DEFENSE In the alternative, in the event the plaintiff suffered any emotional distress, the emotional distress occurred as a result of the alleged criminal conduct of Gonzalez as opposed to the contact plaintiff had with defendant McMillin EVENTH _D! In the event plaintiff’s claims fall within defendant McMillin’s prosecutorial role, her claims are limited by the defenses, immunities, and damage limitations more fully set forth in § 2744.01 et seq, Ohio Revised Code. PREUND, FREEZE & ARNOLD ‘A Legal Professional AssecationJURY DEMAND Now comes the defendant, Judson G. Kcmillin, and demands a trial by jury as to all issues. 0012183) FREUND, FREEZE & ARNOLD One Dayton Centre 1 South Main Street, Suite 1800 Dayton, OH 45402-2017 (937) 222-2424 (937) 222-5369 Fax adetmerotfalaw.com Attorney for Defendant PROOF OF SERVICE This will certify that a copy of the foregoing was mailed by ordinary mail to counsel for plaintiff, Dwight D. Brannon, 130 West Second Street, Suite 900, Dayton, OH 45402, this 29 day of September, 2006. FREUND, FREEZE & ARNOLD al Professional Assocation