Hurst v. MooreHurst v. Moore
For Appellant/Cross-Appellee
MARK E. HURST, Pro Se
470 New Haven Avenue
Newark, OH 43055
For Appellees/Cross-Appellants
DANIEL DOWNEY
400 South Fifth Street
Suite 200
Columbus, OH 43215
{¶1} Appellant and cross-appellant both appeal the January 5, 2017 judgment entry of the Licking County Court of Common Pleas.
Facts & Procedural History
{¶2} In 2008, appellant-cross appellee Mark Hurst (“Hurst“) was convicted of: pandering obscenity involving a minor in violation of
{¶3} On February 12, 2012, the trial court issued a judgment entry reclassifying Hurst as a sexually oriented offender. Hurst again registered for purposes of SORN. Hurst was incarcerated from December 18, 2012 through July 9, 2013 for violating his parole.
{¶4} On December 20, 2012, whilе Hurst was in prison, this Court issued a decision finding the portion of Hurst‘s sentence classifying him as a sexually oriented offender void because his convictions did not subject him to classification as a sexual offender at the time they were committed. Thus, this Court vacated Hurst‘s classification as a sexually oriented offender. State v. Hurst, 5th Dist. Licking No. 12-CA-20, 2012-Ohio-6075.
{¶5} On August 15, 2016, though Hurst was not classified as a “sexually oriented оffender,” or subject to any sexual offender registration requirements, appellee-cross-
{¶6} On January 6, 2016, Hurst filed a complaint for defamation against Moore for publishing his information on the National Sexual Offender Registry. On February 3, 2016, Moore filed a motion to dismiss, arguing Hurst failed to plead a defamatory statеment and arguing Moore was immune from liability. In a March 18, 2016 judgment entry, the trial court found that while the Licking County Sheriff‘s Office and the Licking County Sheriff were immune from Hurst‘s claims, the motion to dismiss with regards to Moore was denied because it was not clear Hurst could prove no set of facts that would entitle him to relief against Moore.
{¶7} On October 28, 2016, Moore filed a motion for summary judgment. Moore first argued he was immune from suit pursuant to
{¶8} The trial court issued a judgment entry on January 5, 2017. The trial court found since Hurst did not come forth with any evidence of special harm or damages, there was no defamation per quod. As to defamation per se, the trial court found Hurst‘s inclusion on the registry did not subject him to ridicule, hatred, contempt, or injure him beyond what he would be subject to because of his convictions. The trial court concluded
{¶9} Hurst appeals the January 5, 2017 judgment entry of the Licking County Court of Common Pleas and assigns the following as error:
{¶10} “I. THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION, AND USED A UNSUSTAINABLE, TOTALLY UNRELATED CASE TO SUPPORT ITS JUDGMENT AND GRANT SUMMARY JUDGMENT TO APPELLEE.
{¶11} “II. THE COURT SHOWED BIAS AND PREJUDICE TOWARD A PRO SE LITIGANT.”
{¶12} Moore also filed an appeal of the trial court‘s July 5, 2017 judgment entry and assigns the following as error:
{¶13} “I. DESPITE CORRECTLY AWARDING SUMMARY JUDGMENT IN FAVOR OF CROSS-APPELLANT, THE TRIAL COURT ERRED IN FAILING TO ALSO FIND THAT CROSS-APPELLANT WAS IMMUNE FROM SUIT PER
{¶14} “II. DESPITE CORRECTLY AWARDING SUMMARY JUDGMENT IN FAVOR OF CROSS-APPELLANT, THE TRIAL COURT ERRED IN FAILING TO ALSO FIND THAT CROSS-APPELLANT WAS IMMUNE FROM SUIT PER
Summary Judgment Standard
{¶15}
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue оf material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed mostly strongly in the party‘s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
{¶16} A trial court should nоt enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affeсts the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist. 1999).
{¶17} When reviewing a trial court‘s decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
{¶18} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrаte the absence of a genuine issue of fact on a material element of the non-moving party‘s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the burden shifts to the non-moving party to set forth specific facts demonstrating a genuine issue of material fact does exist. Id. The non-moving party may not rest upon the allegations and denials in the pleadings, but instead must submit sоme evidentiary materials showing a genuine dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).
I.
{¶19} In his first assignment of error, Hurst argues the trial court erred in granting Moore‘s motion for summary judgment.
{¶20} To survive a summary judgment on his defamation claim, Hurst was required to establish five elements necessary to a claim for defamation: (1) a false and defamatory statement of fact; (2) about the plaintiff; (3) published without privilege to a third party; (4) with fault of at least negligence on the part of the defendant; and (5) which was either defamatory per se or caused special harm to the plaintiff. Davis v. Johnson, 5th Dist. Richland No. 07 CA 40, 2007-Ohio-6567.
{¶21} There are two types of defamation, defamation per se and defamation per quod. Defamation per quod refers to a communication that is caрable of being interpreted as defamatory, i.e., it must be determined by the interpretation of the listener, through
{¶22} In this case, Hurst has not alleged any special damages or harm. Accordingly, we find the trial court did not err in finding the statements were not defamatory per quod.
{¶23} For a communication to be defamatory per se, it must be actionable upon the very words spoken without regard to the interpretation of the listenеr, i.e., it is actionable on its face. A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 651 N.E.2d 1283 (1995). A statement is defamatory per se if, on its face, it reflects upon his character in such a manner that would cause him to be ridiculed, hated, or held in contempt, or in a manner that will injure him in his trade or profession. A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 651 N.E.2d 1283 (1995); Croskey v. Universal Health Services, 5th Dist. Richland No. 09 CA 37, 2009-Ohio-5951.
{¶24} The trial court found this case analogous to King v. Semi Valley Sound, LLC, 9th Dist. Summit No. 25655, 2011-Ohio-3567, and stated the inclusion of Hurst on the registry did not subject him to ridicule, hatred, contempt, or injure him beyond what he would be subject to because of his convictions.
{¶25} However, we find the King case is factually different from the instant case. In King, the appellant admitted he was a sex offender, but alleged the use of the word
{¶26} In the King case, the court stated that, “being publicly identified as a sex offender, regardless of registration status, is likely to cause a person to be subjected to ridicule, hatred, and contempt.” Id. However, the court found that being falsely identified as a sex offender who had to “register” would not cause King to be subjected to ridicule, hatred, or contempt, or injure him in his trade or profession beyond what he would be subjected to simply being identified as a sex offender. Id.
{¶27} In this case, Hurst‘s argument is not simply that the only false word is the word “registered.” Rather, Hurst contends it is defamatory to designate him a “registered sex offender” since his convictions did not subject him to classification as a sex offender at the time they were committed. Hurst did not admit he was a sex offender as King did. In State v. Hurst, 5th Dist. Licking No. 12-CA-20, 2012-Ohio-6075, we vacated and found void the рortion of Hurst‘s sentence classifying him as a sexually oriented offender. Accordingly, we find there are genuine issues of material fact as to whether Moore‘s entering of Hurst‘s information into the National Sex Offender Registry website subjected Hurst to ridicule, hatred, or contempt, or injure him in his trade or profession when the portion of Hurst‘s sentence classifying him as a sexually oriented offender was vacated and found void.
{¶28} The trial court also found Moore was entitled to summary judgment because he presented no evidence of damages. However, when a statement is defamatory per se, some damages are presumed. Northeast Ohio Elite Gymnastics Training Center, Inc.
{¶29} Accordingly, Hurst‘s first assignment of error is sustained.
II.
{¶30} In his second assignment of error, Hurst contends the trial court showed bias towards him because he was a pro se litigant.
{¶31} It is well-established that, pursuant to
{¶32} Disqualification proceedings are not initiated in the court of appeals and are not subject to review by the court of appeals. Beer v. Griffith, 54 Ohio St.2d 440, 377 N.E.2d 775 (1978). Thus, an appellate court lacks the authority to pass upon the disqualification of а common pleas court judge. State v. Ramos, 88 Ohio App.3d 394, 623 N.E.2d 1336 (Ohio App. 9th Dist 1993).
{¶33} Accordingly, Hurst‘s second assignment of error is overruled.
Cross-Appeal I. & II.
{¶34} In his cross-assignments of error, Moore contends the trial court did not err in granting him summary judgment, but erred in granting his motion for summary
{¶35}
{¶36} Among the list of identified governmental functions is “the provision * * * of police * * * services or protection” and the “enforcеment * * * of any law.”
{¶37} An employee‘s immunity remains intact as a defense to any civil claims unless a plaintiff can prove under
{¶38} Hurst has not directed this Court to any statutory provisions imposing liability upon Moore by a section of the Revised Code. Thus, our determination as to whether Moore may have been exempt from immunity is subject to the provisions of
{¶39} Chapter 2744 does not define the type of employee acts that fall “manifestly outside the scope of employment or official responsibilities” under
{¶40} In an affidavit attached to his motion for summary judgment, Moore avers that since April 18, 2015, his job duties include registering individuals with Ohio‘s Sexual Offender or Child-Victim Offender Notice database. The affidavit of Jeremy Wells (“Wells“), an officеr with the Adult Parole Authority, states that matters regarding a parolee‘s SORN registration are referred to the sheriff‘s office of the county where the parolee resides. In his deposition, Hurst testified he met with Moore at the Sheriff‘s Office on August 19, 2015 and that he never met with Moore prior to August 19, 2015 or after August 19, 2015. Other than the separately filed deposition of Hurst, none of the items
{¶41} Hurst alleges Moore acted with malicious purpose, in bad faith, or in a wanton or reckless manner. “Malice” refers to the willful and intentional design to do injury, or the intention or desirе to harm another, usually seriously, through conduct which is unlawful or unjustified.” Curry v. Blanchester, 12th Dist. Clinton Nos. CA2009-08-010, CA2009-08-012, 2010-Ohio-3368. “Bad faith” embraces more than bad judgment or negligence and involves a “dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive, ill will partaking of the nature of fraud, or an actual intent to mislead or deceive another.” Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962).
{¶42} The Ohio Supreme Court has stated that “wanton misconduct” is the “failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability harm will result.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266 (2012). Reckless conduct is “characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstаnces and is substantially greater than negligent conduct.” Id.
{¶44} Additionally, Moore submitted Rule 56 evidence that prior to ordering Hurst to register, he investigated the matter. In his affidavit, Moore avers: the Licking County Sheriff‘s Office typically receives notice of registration requirements of resident sex offenders through two sources, judgment entries from the trial court or from the Ohio Attorney General‘s Office SORN entries; the SORN records evidenced that on December 21, 2012, Stephen Brown from the Ohio Attorney General‘s Office entered into SORN that Hurst was a “sexually oriented offender” and thusly required to register for SORN purposes; during his investigation, he discovered the Ohio Attorney General‘s most recent SORN entry from December 21, 2012 provided Hurst must register for SORN purposes as no trial court judgment entries nor Attorney General SORN entries had been issued after December 21, 2012; and to confirm the accuracy of the Attorney General‘s entry, he
{¶45} Hurst did not submit any Rule 56 evidence to controvert the assertions in Moore‘s affidavit. Further, Hurst cites no evidence in the record to support a conclusion that Moore had intended to harm him, failed to exercise due care in performing his investigatory duties, or acted with a conscious disregard of or indifference to a known or obvious risk when performing his duties. See Miller v. Central Ohio Crime Stoppers, Inc., 10th Dist. Franklin No. 07AP-669, 2008-Ohio-669; Hunt v. Morrow County, Ohio, 5th Dist. Morrow No. 08 CA 13, 2009-Ohio-4313.
{¶46} Based on the Civil Rule 56 evidenсe in the record, there is no material dispute of fact as to malice, bad faith, wanton, or reckless misconduct. Accordingly, we find Moore is entitled to statutory immunity pursuant to
{¶47} In cоnclusion, we find the trial court erred in dismissing Hurst‘s defamation claim via summary judgment. However, we also find the trial court erred in finding Moore was not entitled to statutory immunity pursuant to
By Gwin, P.J.,
Wise, John, J., and
Baldwin, J., concur