2021 Ohio 2394
Ohio Ct. App.2021Background
- Michael Gemperline was elected Liberty Township trustee (took office Jan. 1, 2018) and voted to request a county EMS proposal in Oct. 2018.
- Opponents gathered signatures and filed a removal complaint (R.C. 3.07) on July 2, 2019 alleging he sought to replace township EMS with Delaware County EMS; the removal action was later voluntarily dismissed.
- Gemperline sued the petitioners in Delaware County Common Pleas (amended complaint filed Sept. 18, 2020) asserting abuse of process, intentional infliction of emotional distress (IIED), and defamation.
- Defendants moved under Civ.R. 12(B)(6) to dismiss; the trial court granted the motion on Dec. 15, 2020.
- On appeal the Fifth District reversed as to abuse of process (holding the amended complaint gave sufficient notice of an ulterior purpose and damages) but affirmed dismissal of IIED and defamation for failure to plead required facts (serious anguish and actual malice, respectively); the case was remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Abuse of process: whether the amended complaint states a claim | Gemperline alleged the removal action was used to damage him financially, politically (timed to hurt an election), and to coerce political compliance—thus an ulterior purpose and resulting damages | Removal was filed properly with probable cause; complaint lacked factual allegations showing a further improper act or perversion of process | Reversed: complaint alleged sufficient operative facts to give fair notice of ulterior purpose, perversion of process, and damages; dismissal improper at 12(B)(6) stage |
| IIED: whether plaintiff pleaded extreme and outrageous conduct and severe mental anguish | Gemperline asserted defendants intended to cause emotional distress and that he suffered severe emotional and physical harm | Allegations are conclusory; plaintiff failed to plead facts showing distress of a severity no reasonable person could endure | Affirmed: complaint contains only unsupported conclusions about severe distress and lacks facts to meet IIED element of serious mental anguish |
| Defamation: whether plaintiff (a public official) pleaded actual malice | Gemperline contended statements accusing him of wanting to replace EMS were false and defamatory; he alleged defendants knew they were false | Defendants relied on statements being tied to his public vote and statements by another trustee; plaintiff failed to plead facts showing defendants knew statements were probably false | Affirmed: as a public official, Gemperline must plead actual malice with convincing clarity; complaint only alleges conclusions and lacks facts showing defendants had a high degree of awareness of probable falsity |
Key Cases Cited
- Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294 (1994) (sets elements for abuse of process)
- Clermont Envtl. Reclamation Co. v. Hancock, 16 Ohio App.3d 9 (1984) (abuse of process requires improper use of process, not merely its initiation)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (public officials must prove actual malice to recover for defamation)
- St. Amant v. Thompson, 390 U.S. 727 (1968) (reckless disregard requires high degree of awareness of probable falsity)
- Ashcroft v. Mt. Sinai Med. Ctr., 68 Ohio App.3d 359 (1990) (elements of intentional infliction of emotional distress)
- A & B–Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1 (1995) (definition and scope of defamatory statements)
- O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975) (standard for Civ.R. 12(B)(6) review)