Coleman v. BeachwoodColeman v. Beachwood
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-653392
RELEASED: October 22, 2009
Kathy W. Coleman, Pro Se
3901 Silsby Road
University Heights, OH 44118
ATTORNEY FOR APPELLEES CITY OF BEACHWOOD, BEACHWOOD LAW DIRECTOR MARGARET ANNE CANNON, BEACHWOOD PROSECUTOR THOMAS GREVE, AND BEACHWOOD DETECTIVE ALLAN BAUMGARTNER
Nick C. Tomino
Tomino & Latchney, L.L.C., L.P.A.
803 East Washington Street, Suite 200
Medina, OH 44256
ATTORNEYS FOR APPELLEES CITY OF SHAKER HEIGHTS AND MARGARET ANNE CANNON
Matthew T. Fitzsimmons, III
R. Christopher Yingling
L. James Juliano, Jr.
Nicola, Gudbranson & Cooper, LLC
Landmark Office Towers
Republic Building, Suite 1400
25 West Prospect Avenue
Cleveland, OH 44115
ATTORNEYS FOR APPELLEE MYRNA R. GILL
John J. Reagan
Brian D. Sullivan
Reminger & Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, OH 44115
N.B. This entry is an announcement of the court‘s decision. See
MELODY J. STEWART, J.:
{¶ 1} In this appeal, plaintiff-appellant Kathy W. Coleman appeals pro se from the judgment of the Cuyahoga County Court of Common Pleas that granted 1) the motion for summary judgment of defendants-appellees the city of Beachwood, Beachwood Law Director Margaret Anne Cannon, Beachwood Prosecutor Thomas Greve, and Beachwood Detective Allan Baumgartner (hereinafter Beachwood), 2) the motion for a more definite statement of defendants-appellees the city of Shaker Heights and Shaker Heights Law Director Margaret Anne Cannon (hereinafter Shaker Heights), and 3) the motion for judgment on the pleadings of defendant-appellee Myrna Gill. For the reasons stated below, we affirm in part and reverse in part.
{¶ 2} In October 2006, Coleman filed an action for monetary damages against Shaker Heights, Beachwood, and Myrna Gill on numerous claims including malicious prosecution, аbuse of process, and intentional infliction of emotional distress. The claims arose out of the city of Beachwood‘s prosecution of appellant in the Shaker Heights Municipal Court on charges of telephone harassment following a criminal complaint filed by Gill.
{¶ 4} Gill filed a motion for judgment on the pleadings on August 26, 2008. Appellant requested and was granted an extension of time until September 25, 2008 to respond to the motion. On August 29, 2008, Beachwood filed a motion for summary judgment on all claims. On September 25, 2008, appellant filed a request for an extension of time to respond to both motions. The trial court denied this request. Appellant failed to respond to either motion. On October 9, 2009, the trial court granted both mоtions and entered judgment in favor of Gill and Beachwood on all of appellant‘s claims thereby terminating the action. Appellant timely filed this appeal raising four assignments of error for our review.1
{¶ 5} In her first and second assignments of error, appellant contends that the trial court erred in not granting her additional time to respond to Gill‘s motion for judgment on the pleadings and Beachwood‘s motion for summary judgment. Appellant argues that her request for an extension of time was based upon “just cause” and therefore, the trial court‘s refusal was unreasonable.
{¶ 7} The record reflects that Gill filed her motion for judgment on the pleadings on August 26, 2008. Appellant had seven days to respond. Appellant requested and was granted additional time, until September 25, 2008, to file her response to that motion. Beachwood filed their motion for summary judgment on August 29, 2008. Appellant‘s response to that motion was due within 30 days. As a result, when appellant filed her second request for additional time to respond on September 25, 2008, she was facing deadlines on both motions.
{¶ 8} Appellant argues that her second request for an extension of time to respond to Gill‘s motion was for “just cause.” However, the record reflects that the trial court granted the first extension of time upon appellant‘s claim that she needed the additional time because she was facing an August 30, 2008 deadline on a newspaper article she was writing. Appellant‘s second request is premised largely upon the same newspaper article and on other personal issues relating to events that occurred many weeks earlier in a criminal case against her in the Lyndhurst Municipal Court. Appellant points to nothing in the record that demonstrates that the trial court acted in an arbitrary, unreasonable, or
{¶ 9} Included in appellant‘s September 25, 2008 motion for a second extension of time is a brief request for an unspecified extension of time to respond to Beachwood‘s summary judgment motion. In addition to the previously stated reasons for needing more time, appellant stated a need to secure counsel and a claim that defendants had ignored her timely requests for discovery.
{¶ 10} However, the record reflects that appellant used this same argument four months earlier to secure additional time to respond to a Shaker Heights motion. Appellant offers no reason why she was unablе to secure counsel during that time and gives no estimate of how much time she needed to secure counsel.
{¶ 11} “One of the overriding goals of
{¶ 12} ”
{¶ 13} Under the circumstances presented in this case, we find that appellant has failed to establish that the trial court abused its discretion by denying her requests for extensions of time. Appellant‘s first and second assignments of error are overruled.
{¶ 14} For her third assignment of error, appellant asserts that the trial court erred in granting Gill‘s motion for judgment on the pleadings.
{¶ 15} Appellate review of the grant of a
{¶ 16} Unlike a motion for summary judgment where the parties are permitted to submit certain evidentiary materials for the court‘s review, the determination of a motion for judgment on the pleadings is restricted solely to the
{¶ 17}
{¶ 18} The trial court granted Gill judgment on the pleadings on appellant‘s claims of malicious prosecution, abuse of process, and intentional infliction of emotional distress.
{¶ 19} “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), 56 Ohio St.3d 82, 84. In order to sustain a claim for malicious prosecution, the plaintiff must set forth the following elements: (1) malice in instituting or continuing the prosecution, (2) lack of
{¶ 20} Appellant‘s pro se complaint states the following allegations with respect to the claim of malicious prosecution against Gill:
{¶ 21} “14. In August and December 2004 Defendant Gill filed criminal complaints with Defendant Beachwood City Police Department, * * * wherein she alleged that Plaintiff Coleman harassed her by telephone since she stop [sic] seeing her in October 2003, although she later admitted in court that she lied and had seen Plaintiff numerous times up to March 2004. * * *”
{¶ 22} “15. In February 2005 a complaint of telephone harassment was filed by Gill with the Beachwood police wherein Defendant Gill claims Plaintiff Coleman called her on four occasions when she allegedly told her not to. A warrant was issued for Plaintiff Coleman‘s arrest * * *.”
{¶ 23} “* * *”
{¶ 24} “20. Plaintiff Coleman was acquitted * * * on the misdemeanor charge of telecommunications harassment on October 28, 2005.”
{¶ 25} “* * *”
{¶ 26} “22. [T]he special prosecutor found that Gill lied as to the criminal complaint and during the criminal trial.”
{¶ 28} To assert a claim for intentional infliction of emotional distress, a plaintiff is required to show that “(1) defendant intended to cause emotional distress, or knew or should have known that actions taken would result in serious emotional distress; (2) defendant‘s conduct was extreme and outrageous; (3) defendant‘s action proximately caused plaintiff‘s psychic injury; and (4) the mental anguish plaintiff suffered was serious.” Sultaana v. Giant Eagle, Cuyahoga App. No. 90924, 2008-Ohio-3658, ¶25, citing Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833.
{¶ 29} In her complaint, appеllant alleges that Gill‘s actions caused her to suffer irreparable harm and undue injury. She states that Gill had counseled her in the past. She alleges that Gill intentionally lied to the police about her, filed a false criminal complaint of telephone harassment, and threatened that appellant‘s clinical records would be made public in the criminal prosecution. She claims serious emotional injury as well as injury to her reputation and opportunity for job advancement. These allegations, accepted as true for this analysis, are sufficient
{¶ 30} In order to assert a claim of abuse of process, a plaintiff must allege: “(1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process.” Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 298, 1994-Ohio-503.
{¶ 31} A review of the pleadings finds that appellant‘s abuse of process claim must fail as a matter of law. Appellant‘s entire action is premised upon there being a lack of probable cause for the criminal prosecution against her. All of her factual allegations claim that Gill intentionally lied in her complaint, that Beachwood knew she was lying and, therefore, no probable cause existed to prosecute her for telecommunications harassment under the claim that she called Gill when told not to. Accordingly, the trial court did not err in granting Gill judgment on this claim.
{¶ 32} Appellant‘s third assignment of error is sustained as to the malicious prosecution and intentional infliction of emotional distress claims, and overruled as to the abuse of process claim.
{¶ 33} Appellant‘s fourth assignment of error asserts that the trial court erred in granting summary judgment in Beachwood‘s favor. We review the granting of summary judgment under a de novo standard. No deference is afforded to the
{¶ 34} Summary judgment is appropriate when, looking at the evidence as a whole: (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) construing the evidence most strongly in favor of the nonmoving party, it appears that reasonable minds could only conclude in favor of the moving party.
{¶ 35} The party moving for summary judgment carriеs an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107. “When a motion for summary judgment is made and supported as provided in
{¶ 37} Beachwood moved for summary judgment on appellant‘s claims of malicious prosecution, abuse of process, and intentional infliction of emotional distress. They asserted in their motion that there was probable cause to institute the criminal prosecution, that they acted at all times in their official capacity and without malice or bad faith and, that they are each immune from liability pursuant to
{¶ 38} The criminal prosecution against appellant was brought under Ohio‘s telecommunications harassment statute that provides in pertinent part that “no person shall knowingly make or cause to be made a telecommunication, * * *, to another, if the caller * * * knowingly makes the telecommunication to the recipient of the telecommunication, to another person at the premises to which the telecommunication is made, or to those premises, and the recipient or another person at those premises previously has told the caller not to make a telecommunication to those premises or to any persons at those premises.”
{¶ 40} The affidavit further states that Baumgartner did not file criminal charges against appellant; that he believed in good faith that probable cause existed for Gill‘s complaint; that there was no malicious purpose or bad faith behind his actions; and, that he did not act in a wanton or reckless manner. He states he forwarded Gill‘s information to Prosecutor Greve who authorized and approved the filing of criminal charges. On February 18, 2005, Gill signed a sworn complaint and affidavit in the Shaker Heights Municipal Court. A copy of the complaint was attached to the affidavit.
{¶ 41} In Greve‘s affidavit, he statеs: that he acted at all times in his official capacity as prosecutor; he reviewed the information regarding Gill‘s complaint and determined that there was probable cause to file telecommunications harassment charges against appellant; and, he authorized and approved the filing of a sworn complaint by Gill.
{¶ 43} As previously stated, the elements of the tort of malicious criminal prosecution are (1) malice in instituting or continuing the prosecution; (2) lack of probable cause; and (3) termination of the prosecution in favor of the accused.
{¶ 44} “In actions for malicious prosecution, while malice is an essential element, the want of probable cause is the real gist of the action.” Melanowski v. Judy (1921), 102 Ohio St.153, 156. Probable cause has been defined as “[a] reasonable ground of suspicion, supported by circumstances 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.” Id. “The person instituting the criminal proceeding is not bound to have evidence sufficient to insure a conviction but is required only to have evidence sufficient to justify an honest belief оf the guilt of the accused.” Brown v. Crestmont Cadillac, Cuyahoga App. No. 87460, 2006-Ohio-5734, citing, Epling v. Pacific Intermountain Exp. Co. (1977), 55 Ohio App.2d 59, 62.
{¶ 45} Defendants moved for summary judgment on the grounds that there was probable cause to prosecute appellant on a charge of telephone harassment. They supported their motion with evidence of Gill‘s statements to police, telephone records showing calls from appellant‘s phone to Gill‘s office, and Gill‘s
{¶ 46} Appellant failed to rebut this evidence with specific facts showing the existence of a genuine issue of material fact. Appellant‘s assertion that defendants are “lying” is insufficient to meet her burden of showing that there was a genuine issue for trial.
{¶ 47} As to the abuse of process claim, we find that appellant‘s claim fails as a matter of law with regard to Beachwood fоr the same reason it fails as to Gill. Appellant simply alleges no facts in her complaint that the criminal charges were filed in proper form and with probable cause, which are essential elements of this claim.
{¶ 48} A claim for intentional infliction of emotional distress requires a showing of serious emotional distress. Sultaana, supra, at ¶25. Serious emotional distress has been defined as “emotional injury which is both severe and debilitating.” Paugh v. Hanks (1983), 6 Ohio St.3d 72, at paragraph 3a of the syllabus. A plaintiff claiming sevеre and debilitating emotional injury must present some evidence in support of his or her claim, such as expert evidence or lay witness testimony, to prevent summary judgment in favor of the defendant. Sultaana at ¶26, citing Motley v. Flowers & Versagi Court Reporters, Inc. (Dec. 11, 1997), Cuyahoga App. No. 72069.
{¶ 50} In аddition to arguing that there is no evidence to support appellant‘s claims, the city of Beachwood, Baumgartner, Greve, and Cannon argue that they are immune from liability. We agree.
{¶ 51} Under
{¶ 52} Only if an exception applies will a political subdivision be stripped of its immunity. Walsh at ¶12. The exceptions are enumerated in
{¶ 54} Appellant argues that
{¶ 55} Judgment affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
It is ordered that the parties bear their own costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
MELODY J. STEWART, JUDGE
CHRISTINE T. McMONAGLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR