No. 99-T-0073. | Ohio Ct. App. | May 30, 2000
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *706
The facts giving rise to the instant appeal are as follows. On April 19, 1996, a small column appeared in the "Weekly Almanac" section of a local newspaper called the Weekly Villager. The item purported to be a wedding announcement describing the April 12, 1996 nuptials between a man named Richard Swartz and a woman named Cathy Brasko. It named the members of the wedding party, described the participants' attire, and stated that the happy couple would be residing in Pebble Beach, California following a honeymoon trip to Augusta, Georgia.
At the time the wedding announcement appeared, Richard Schwartz ("Schwartz") was the Law Director of the City of Newton Falls, Ohio. In this capacity, Schwartz advised the members of the city council on all legal matters, while simultaneously acting as the city prosecutor. Kathy King ("King") was *707 employed as the city clerk when the column was printed in theWeekly Villager. As the city clerk, King maintained the Newton Falls public records and recorded the minutes of city council meetings. In addition, King served as the secretary for Dennis Kirkland ("Kirkland"), the Newton Falls City Manager.
When the wedding announcement was published in the newspaper, Schwartz immediately recognized himself as the man being referred to in the article as the alleged groom. Although the column spelled the man's surname as "Swartz," it gave other details that were unmistakably referencing Schwartz. For instance, Schwartz had served as a golf caddy for a member of the Ladies' Professional Golf Association prior to becoming the Newton Falls Law Director, and the announcement listed the groom's occupation as "professional caddy." Moreover, several of the wedding guests named in the article were Schwartz's colleagues in private law practice. King also saw certain clues that led her to conclude that she was the purported bride referenced in the wedding announcement. For example, her maiden name was "Brasko," which was the name employed in the article.
In reality, Schwartz and King had not married. Indeed, King was already married to someone else. After the relevant issue of the Weekly Villager circulated, Schwartz discussed the wedding announcement with King and Kirkland. During this conversation, Schwartz opined that appellant could be the person responsible for the publication of the column describing the fictitious nuptials. Appellant was a former member of the Newton Falls City Council who had disagreed with Schwartz over a variety of matters pertaining to the administration of the city's affairs. Moreover, appellant had made disparaging comments about Schwartz in the past, including remarks directed toward Schwartz's previous career as a golf caddy.
Following this conversation, Schwartz, King, and Kirkland investigated the background of the bogus column. After speaking with staff members at the Weekly Villager, the trio obtained an original two-page handwritten document containing the false information. The newspaper had drafted the wedding announcement based on this submission from an unknown person.
Subsequently, King searched through the Newton Falls city records and discovered a handwritten letter from appellant to Kirkland dated December 9, 1993. The letter was in reference to a tree-trimming contract that appellant had entered into with Newton Falls. Upon inspection, it was immediately apparent that the handwriting on the false submission to the Weekly Villager bore a very strong resemblance to the penmanship displayed in appellant's 1993 letter to Kirkland. *708
Both written instruments were presented to a forensic document examiner for scientific handwriting analysis. Based on his inspection, the forensic examiner concluded without question that the same person had written both documents.
Thereafter, Schwartz and King decided to pursue a criminal charge against appellant for violating R.C.
Thereafter, appellant filed a civil action for malicious criminal prosecution on June 23, 1997. His complaint named Schwartz, King, and Kirkland as defendants.3 They filed a joint answer in response.
Following time for discovery, appellees filed a motion for summary judgment on May 3, 1999. Appended to the motion were affidavits from Schwartz, King, and Kirkland in which each person averred that he or she reasonably believed that the false news item in the Weekly Villager had been submitted by appellant and that the initiation of the criminal proceedings had been undertaken without any malice. Appellees also submitted copies of the various documents at issue. Pursuant to the motion, appellees set forth two grounds upon which they claimed to be entitled to judgment as a matter of law: (1) appellant failed to produce any evidence supporting at least one element of his claim for malicious criminal prosecution; and (2) appellees were entitled to governmental immunity under R.C. Chapter 2744.
Appellant filed a brief in opposition to the motion which included a copy of the criminal complaint filed against him as an attachment. He also submitted three depositions that had been taken from Schwartz, King, and Kirkland, respectively.
On June 4, 1999, the trial court granted appellees' motion for summary judgment. In doing so, the trial court agreed that appellant could not prove a necessary element of his claim. Because it ruled that appellees were entitled to *709 summary judgment on this basis alone, the trial court did not address their claim of immunity.
From this judgment, appellant filed a timely notice of appeal with this court. He now asserts the following assignment of error:
"The Trial Court improperly granted summary judgment to defendants. The Trial Court made impermissible factual determinations and failed to construe the evidence in the record in the light most favorable to the plaintiff."
In his lone assignment of error, appellant posits that the trial court erred by granting summary judgment. When considering a motion for summary judgment, a trial court must employ the standard set forth in Civ.R. 56(C). In order to prevail, the moving party must establish that: (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmovant. Civ.R. 56(C); Leibreich v. A.J.Refrigeration, Inc. (1993),
If the moving party meets its initial burden under Civ.R. 56(C), then the nonmoving party has a reciprocal burden to respond, by affidavit or as otherwise provided in the rule, in an effort to demonstrate that there is a genuine issue of fact suitable for trial. If the nonmoving party fails to do so, then the trial court may enter summary judgment against that party. Civ.R. 56(E). An appellate court applies a de novo standard of review when determining whether a trial court properly granted summary judgment. Lake Cty. Gen. Health Dist. v. Quirk (May 14, 1999), Lake App. No. 98-L-107, unreported, at 2, 1999 WL 315402;Burkholder v. Straughn (June 26, 1998), Trumbull App. No. 97-T-0146, unreported, at 6, 1998 Ohio App. LEXIS 2895.
The tort of malicious criminal prosecution is the right to recover damages for the harm caused to a defendant in a criminal case by the misuse of criminal actions. Criss v. Springfield Twp. (1990),
In the case sub judice, the trial court found that appellant could prove the third element of his claim, to wit: termination of the prosecution in his favor. Although appellant was never actually tried in a court of law and acquitted of criminal culpability, the dismissal of the charge on a procedural ground obviously inured to his benefit. Based on the fact that appellant was not convicted of violating R.C.
With regard to the second element of the tort, the trial court simply assumed for the sake of argument that appellees were malicious when instituting the prosecution. Despite this, the trial court granted summary judgment in favor of appellees based on its determination that they had offered evidence demonstrating the existence of probable cause. As a result, the burden shifted to appellant to demonstrate that a genuine issue of material fact existed as to this element. The trial court determined that appellant offered no evidence of an absence of probable cause, thereby making the grant of summary judgment appropriate.
Upon review, we agree with the trial court's judgment.4 Even assuming arguendo that appellant could establish the other two elements of his claim, he offered absolutely no evidence demonstrating that appellees initiated the criminal proceedings against him without having probable cause.
In the context of an action for malicious criminal prosecution, probable cause may be defined as a reasonable ground of suspicion, supported by circumstances *711
sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged. Huber v. O'Neill (1981),
While the existence of probable cause is usually a question for the jury, the trial court can decide the issue where the evidence is such that reasonable minds could come to but one conclusion. Portis,
On appeal, appellant contends that a reasonable fact finder could conclude that appellees acted without first having probable cause. We disagree. Appellees' conduct must be examined in light of the facts and circumstances which they knew or reasonably should have known at the time the criminal action was instituted. In the case at bar, the facts and circumstances surrounding the publication of the false wedding announcement were compelling. They were such that a cautious person would have been warranted in the belief that appellant committed the offense. The evidence pointing towards appellant as the supplier of the false news item included the nature of the bogus information, the prior discord between appellant and Schwartz, and the report of the forensic examiner opining that the handwritten wedding announcement submitted to the Weekly Villager and appellant's 1993 letter to Kirkland were penned by the same person.5
In both his brief in opposition to the motion for summary judgment and his appellate brief before this court, appellant rather speciously argues that there is no proof that the 1993 letter retrieved from the Newton Falls city records was actually written by him, as opposed to somebody else. As previously indicated, however, appellant never submitted an affidavit in the summary judgment *712 exercise denying that the letter was penned by him and bore his signature. Quite simply, there is nothing evidential in the record which even suggests that this letter was not, in fact, written by appellant. Furthermore, even appellant conceded the obvious similarities in writing style between the letter and the handwritten document containing the false wedding information which was submitted to the Weekly Villager.
In summary, although the existence of probable cause is usually a jury question, the trial court must decide it where the evidence is such that reasonable minds could come to but one conclusion. In the present case, appellant offered no evidence demonstrating a lack of probable cause, and the trial court properly granted summary judgment for appellees on this ground alone. Consequently, we need not address the issue of governmental immunity.
Based on the foregoing analysis, the assignment of error is not well-taken. Accordingly, the judgment of the trial court is affirmed.
__________________________________ JUDGE JUDITH A. CHRISTLEY
FORD, P.J., O'NEILL, J., concur.
"No person shall contribute or furnish any statement, allegation, or news item to a newspaper, knowing that such statement, allegation, or news item is untrue. Prosecution under this section shall be upon complaint of such newspaper company or of any person injured in property, person, or reputation by the publication of such statement, allegation, or news item."
Upon closer reading of the entry along with a review of the summary judgment materials, it is apparent that the trial court was simply responding to an argument that appellant advanced in the court below. Specifically, appellant maintained in his brief in opposition to the motion for summary judgment that even though the handwriting on the false submission to the Weekly Villager may have matched the penmanship on the 1993 letter, there was no proof that he actually wrote that letter to Kirkland. However, appellant never submitted an affidavit denying authorship of the 1993 letter, and the trial court quite cogently noted that there was no other evidence to suggest that he did not write the letter bearing his signature. Thus, we believe that the trial court did not really weigh and evaluate conflicting issues of fact. Rather, the trial court was attempting to indicate that appellant did not offer any evidence tending to prove that appellees instituted the criminal prosecution without probable cause because appellees reasonably believed that the 1993 letter bearing appellant's signature was, indeed, written by him.