2022 Ohio 3257
Ohio Ct. App.2022Background
- Miami Township zoning inspector Alex Carlson issued a Notice of Violation to Darren Powlette alleging his property was being used/advertised as a bed-and-breakfast without a conditional-use certificate.
- Carlson swore to a misdemeanor complaint (May 1, 2018); that complaint was conditionally dismissed (Nov. 26, 2018) on terms including that Powlette remove bed-and-breakfast advertising.
- Carlson swore to a second criminal complaint (Dec. 7, 2018). Powlette was convicted after a bench trial but this court later reversed that conviction (holding advertising alone did not prove unlawful "use" during the charged period).
- Powlette sued Carlson for malicious prosecution, alleging Carlson acted with actual malice and without probable cause (including that Carlson failed to investigate and filed the second complaint in retaliation for Powlette’s media comments).
- Carlson moved for judgment on the pleadings asserting statutory immunity under R.C. Chapter 2744 and that Powlette failed to plead lack of probable cause or malice. The trial court granted judgment on the pleadings; Powlette appealed.
- The appellate court affirmed, holding Powlette failed to plead facts showing lack of probable cause or malice and that Carlson was entitled to statutory immunity for actions within his official role as zoning inspector.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Powlette sufficiently pleaded lack of probable cause and malice to state malicious prosecution | Powlette: Carlson did no investigation, had no evidence that Powlette violated the dismissal condition, and filed the second complaint in retaliation for Powlette’s media comments | Carlson: He only turned over investigatory materials to the prosecutor; prosecutor filed charges; the bench trial and prosecutor’s involvement support probable cause | Held: Pleadings do not allege facts from which lack of probable cause or malice can reasonably be inferred; dismissal proper |
| Whether Carlson’s actions were outside the scope of employment or done with malicious purpose (R.C. 2744.03(A)(6) exception) | Powlette: Alleged malice and intentional conduct (retaliation) removes immunity exception | Carlson: Acted within official duties as zoning inspector enforcing zoning code; no allegation of conduct rising to malicious purpose, bad faith, wanton or reckless conduct | Held: Carlson acted within scope and did not pleadably engage in malicious purpose/bad faith/wanton or reckless conduct; statutory immunity applies |
| Whether reversal of conviction establishes favorable termination for malicious prosecution | Powlette: Appellate reversal satisfies favorable termination element | Carlson: Reversal does not speak to Carlson’s state of mind or probable cause; prosecutor’s decision and trial court proceedings support probable cause | Held: The reversal satisfies the termination element but Powlette still failed to plead lack of probable cause or malice, so claim fails |
Key Cases Cited
- State v. Powlette, 162 N.E.3d 172 (prior appellate decision reversing conviction) (discusses factual record about advertising, intent, and timing)
- Trussel v. GMC, 559 N.E.2d 732 (Ohio 1990) (elements of malicious prosecution)
- Argabrite v. Neer, 75 N.E.3d 161 (Ohio 2016) (statutory immunity inquiry distinct from merits; R.C. 2744 framework)
- Anderson v. Massillon, 983 N.E.2d 266 (Ohio 2012) (definitions of wanton, willful, and reckless conduct)
- Fabrey v. McDonald Village Police Dept., 639 N.E.2d 31 (Ohio 1994) (requirements for showing wanton misconduct/transformation of negligence)
- Zivich v. Mentor Soccer Club, 696 N.E.2d 201 (Ohio 1998) (willful misconduct involves intent to do wrongful acts)
- Universal Concrete Pipe Co. v. Bassett, 200 N.E. 843 (Ohio 1936) (wanton misconduct definition and consciousness of conduct causing probable injury)
- Coterel v. Reed, 72 N.E.3d 1159 (Ohio App. 2016) (de novo review of immunity; scope-of-employment analysis)