Slye v. London Police Dept.Slye v. London Police Dept.
Zahid H. Siddiqi, London City Law Director, 102 South Main Street, P.O. Box 724, London, Ohio 43140, for defendants-appellees, London Police Dept., Sgt. David Litchfield, Officer Joe Cox and Monte White
Jackman & Jackman, David H. Jackman, 60 South Main Street, P.O. Box 29, London, Ohio 43140, for defendant-appellee, David K. Jackman
O P I N I O N
RINGLAND, J.
{¶1} Plaintiff-appellant, Amy J. Slye, appeals the decision of the Madison County Court of Common Pleas granting the motions for attorneys fees and expenses of defendants-appellees, the city of London Police Department, Sergeant David Litchfield,
{¶2} This action arises out of a criminal prosecution for the attempted theft of a dog. On July 2, 2007, Slye was driving down Mound Street in London with her teenage daughter and two friends in search of her teenage son, who had run away from home. According to Slye, she came upon a “very sickly” and “very skinny” dog in the gravel along the side of the street. The dog had no collar or tags and Slye was concerned for its safety. She stopped the car and asked her daughter to get out and retrieve the dog. Slye stated that she intended to take the dog to a local shelter, as she had done multiple times in the past upon coming across stray animals.
{¶3} As Slye continued down the street she noticed a “healthy looking” dog running down the driveway of a home towards the street. Similarly fearing for its safety, Slye instructed her daughter to get out of the car and “shoo” the dog back up the driveway. According to Slye, as her daughter was attempting to waive the dog away, Jackman appeared in the driveway.
{¶4} Jackman claimed that just minutes before, he had returned home from work to let his two Chihuahuas outside. According to Jackman, one Chihuahua was 19 years old and “completely blind and nearly immobile.” He characterized his other Chihuahua as young and healthy. Jackman stated that he was watching his dogs in the front yard through his kitchen window, but was distracted by a telephone call and lost sight of them.
{¶5} Jackman went outside to locate the dogs and observed Slye‘s daughter in his driveway. Jackman claimed that she was trying to call his younger dog towards her. Although the subsequent exchange was disputed at trial, it is undisputed that Jackman asked where the “other” dog was. Slye and her daughter claimed that the two dogs
{¶6} Jackman called his neighbor, Sergeant David Litchfield of the London Police Department, and reported the license plate number of Slye‘s vehicle. Jackman believed that Slye was in possession of his older dog and told Litchfield that it had been stolen. Litchfield was at the police station preparing for an undercover operation and was about to run the plate number provided by Jackman when Officer Joe Cox radioed into dispatch and reported a dispute at a nearby residence. Cox indicated that there was a car at the scene and the license plate number he provided matched the plate number of the vehicle Slye was driving. Litchfield instructed Cox to keep the car at the scene until he arrived.
{¶7} The record indicates that Slye had driven to a nearby home where she thought she might find her son. Slye called the London police after an altercation occurred between the owner of the home and one of the passengers in her vehicle. Both Cox and Litchfield arrived on the scene and Litchfield confronted Slye about the dog. Initially believing that Litchfield was the owner because he was dressed in plainclothes, Slye gave him the dog before continuing her search for her son with Officer Cox.
{¶8} Litchfield returned the dog to Jackman, who indicated that he wanted to file a criminal complaint against Slye. She was subsequently charged with attempted theft, and a bench trial was held on October 23, 2007 in the Madison County Municipal
{¶9} Subsequently, on April 15, 2008, Slye filed a two-count complaint against Jackman and the city. Slye alleged generally that the city had maliciously prosecuted her, and that Jackman had defamed her by “making and publishing false and defamatory statements about her with regard to the theft of his dog.” In response to Slye‘s complaint, on June 12, 2008, Jackman filed a motion to strike, dismiss, and for a more definite statement.
{¶10} On June 20, 2008, Slye filed a memorandum in opposition to Jackman‘s motion, and requested leave to file an amended complaint. In her amended complaint, Slye alleged that Jackman defamed her by reporting to law enforcement officers that his dog had been stolen, and in making the following remarks in his written statement provided to police: “I believe that the mother should go to jail and then to hell for screwing up her kids’ lives. I believe that the kids should go to [juvenile detention] and foster care. Keep the kids away [illegible] * * *.” Slye claimed that as a result of Jackman‘s statements, she suffered injury to her reputation, was exposed to public ridicule and lost her job in September 2007 when a background check by her new employer revealed the pending criminal charge.
{¶11} Subsequently, on August 28, 2008, the city moved for summary judgment, arguing that each of the city defendants was entitled to statutory immunity from Slye‘s claim.
{¶12} On January 14, 2009, Jackman filed a supplemental memorandum in
{¶13} In its March 13, 2009 decision, the trial court granted summary judgment in favor of the city and Jackman.2 The court found that the city defendants were immune from Slye‘s malicious prosecution claim. With regard to Slye‘s defamation claim against Jackman, the court found that Jackman‘s statements to the police were protected by absolute privilege, and that Slye failed to demonstrate that she was damaged by Jackman‘s remarks, as her claim arose “by her own statement, not from the police report submitted by [Jackman], but due to the fact of pending charges against her, a matter of public record.”
{¶14} Subsequently, on April 8, 2009, the city moved for an award of attorney fees and expenses, asserting that Slye‘s claim constituted frivolous conduct under
{¶15} Following hearings on the matter in June and August 2009, in its November 10, 2009 entry, the trial court found Slye‘s claims against the city and
{¶16} Slye appealed the trial court‘s November 10, 2009 decision, raising one assignment of error for our review:
{¶17} “THAT THE TRIAL COURT ERRED WHEN IT AWARDED ATTORNEYS’ FEES TO DEFENDANTS/APPELLEES DAVID K. JACKMAN AND THE CITY OF LONDON, FINDING THAT PLAINTIFF/APPELLANT AMY SLYE‘S CLAIMS WERE UNSUPPORTED OR UN[SUPPORTABLE] LEGALLY OR FACTUALLY, THAT HER FILINGS WERE FRIVOLOUS AND THAT DEFENDANTS/APPELLEES WERE ADVERS[E]LY AFFECTED BY HER FILINGS [sic].”
{¶18} In her sole assignment of error, Slye challenges the trial court‘s determination that her claims against Jackman and the city constituted frivolous conduct. Slye has not contested the amount of attorney fees and expenses awarded in connection with the court‘s findings.
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{¶21} “(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.
{¶22} “(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.
{¶23} “(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
{¶24} “(iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief.”
{¶25} In this case, the trial court determined that Slye‘s conduct was frivolous under
Malicious Prosecution Claim
{¶26} Slye initially contends that the trial court erred in determining that her malicious prosecution claim against the city was not warranted under existing law and lacked evidentiary support because the city defendants were entitled to statutory immunity. “Whether a claim is warranted under existing law is an objective consideration.” Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, ¶30. The test is whether “no reasonable attorney would have brought the action in light of the existing law.” Id.
{¶27} At the outset, we note that at the June 2009 hearing on the defendants’ respective motions for fees and expenses, the city argued that after filing for summary judgment in August 2008, Slye filed a motion for an extension of time to conduct additional discovery pursuant to
{¶29} With regard to her claim against the police department, it is well established that a police department is a political subdivision as defined in
{¶30} In applying the stated exceptions in
{¶32} In order for this section to apply, however, Slye must have been able to point to a statute that expressly imposes liability on political subdivisions for actions similar to those at issue in the instant case. Courts have held that because
{¶33} With respect to Slye‘s claims against Officer Cox and Sergeant Litchfield,
{¶34} Slye argues generally that there was evidence to support her assertion that Litchfield and Cox acted maliciously and in bad faith because the attempted theft charge was brought against the better judgment of law enforcement. She contends that because Jackman and Litchfield are neighbors, Litchfield ignored her statement that she thought the dog was a stray, and instead believed Jackman‘s claim that the dog had been stolen. She also appears to argue that the requisite malicious purpose and bad faith is demonstrated by Cox‘s failure to interview her after the incident.
{¶35} Despite Slye‘s contentions on appeal, based on the law and the record before this court, it is apparent that she failed to properly investigate her allegations prior to filing her claim. In her deposition, Slye testified that she had no personal knowledge of what steps, if any, Sergeant Litchfield took from the date of the alleged theft of Jackman‘s dog through the date she was served with a summons on the criminal complaint. With regard to Officer Cox, Slye testified similarly that she had no personal knowledge of his investigatory efforts, other than in providing her with a voluntary statement form. Slye also indicated that there was no reason to believe that Officer Cox was harboring any ill will towards her.
{¶36} In his affidavit in support of summary judgment, Officer Cox stated that he was the investigating officer in the case and had collected written statements from Slye,
{¶37} We similarly find that Slye‘s claim against City Law Director Monte White was unwarranted by existing law and not supported by the evidence pursuant to
{¶38} As city law director, White is considered a “quasi-judicial” officer who is entitled to absolute immunity when his actions are “intimately associated with the judicial phase of the criminal process.” Barstow at ¶25. White‘s absolute immunity would be reduced to qualified immunity only in the event that Slye could demonstrate that he was engaged in “investigative and administrative functions” in connection with her case. Id.
{¶40} In addition to the fact that the city defendants were entitled to statutory immunity, we further find that Slye‘s malicious prosecution claim lacked evidentiary support and was unwarranted, as a matter of law, because probable cause existed to initiate the criminal charge against her. The “gist” of any action for malicious prosecution is lack of probable cause. Frazier, 2008-Ohio-6064 at ¶14. “If the plaintiff cannot show lack of probable cause, the claim for malicious prosecution fails as a matter of law.” Id.
{¶41} Probable cause is defined as “a reasonably strong suspicion supported by facts and circumstances sufficiently strong in themselves to warrant a prudent person in believing an accused person had committed or was committing an offense.” State v. Ratcliff (1994), 95 Ohio App.3d 199, 205. Whether the accused actually committed a crime is not pertinent to a probable cause determination. Frazier at ¶15.
{¶42} As previously discussed, in conducting his investigation into the matter, Officer Cox collected voluntary statements from Jackman, Slye, Slye‘s daughter, and two additional witnesses. In his statement, Jackson claimed that he had asked Slye and her daughter whether they saw another dog. He stated that both Slye and her daughter told him that there was “no other dog.” In addition, Jackman‘s neighbor, James Seward,
{¶43} As a result of the foregoing, we find that Slye‘s pursuit of the malicious prosecution claim against the city constituted frivolous conduct pursuant to
Defamation Claim
{¶44} Slye also contends that the trial court erred in determining that her defamation claim against Jackman was frivolous.
{¶45} A defamation claim consists of the following elements: “(1) a false and defamatory statement; (2) about the plaintiff; (3) published to a third party without privilege; (4) with fault or negligence by the defendant; (5) that was either defamatory per se or caused special harm to the plaintiff.” Coyne v. Stapleton, Clermont App. No. 2006-10-080, 2007-Ohio-6170, fn. 2, quoting Rosenbaum v. Chronicle Telegram, Lorain App. Nos. 01 CA0079896, 01 CA007908, 2002-Ohio-7319, ¶24. On appeal, Slye argues that her defamation claim was centered on Jackman‘s voluntary statement provided to police, in which he wrote, in part, that he believed “the mother should go to jail and then to hell for screwing up her kids lives * * *.”
{¶46} In its decision finding that Slye‘s claim was frivolous, the trial court determined that Jackman‘s written statement was protected by absolute privilege pursuant to the Ohio Supreme Court‘s decision in M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 1994-Ohio-316. In DiCorpo, the supreme court determined that an
{¶47} However, our research has revealed that other courts have questioned the applicability of the doctrine of absolute privilege to statements made to police officers. In Scott v. Patterson, Cuyahoga App. No. 81872, 2003-Ohio-3353, the Eighth Appellate District determined that a statement made to the police is not the same as a statement made to a prosecuting attorney, as one made to police triggers an investigation of an alleged crime, and therefore does not constitute a “judicial proceeding” contemplated by the holding in DiCorpo. See, also, Olsen v Wynn, Ashtabula App. No. 95-A-0078, 1997 WL 286181 (trial court erred in holding that statements made to law enforcement personnel were protected by absolute privilege). Therefore, we cannot say, as a matter of law, that at the time Slye asserted her defamation claim against Jackman, it was legally groundless.
{¶48} Nevertheless, the record indicates that even after allowing a reasonable opportunity for further investigation of her allegations, it became readily apparent that Slye‘s claim lacked evidentiary support. In her deposition, Slye testified as follows:
{¶49} “Q. Now, you have alleged in your complaint that [Jackman] has been
{¶50} “Well, the way that I see it, I took them almost a month from the time it happened till I was subpoenaed to figure out what they were going to charge me with. That‘s one.
{¶51} “Secondly, in his police statement, the last line of his police statement is, I think Amy Slye should go to jail and then go to hell for what she‘s teaching her children; and again shows malice. I lost a sixteen-dollar-an-hour job. I‘m now working at McDonald‘s for eight, because he ruined a career.
{¶52} “And everybody I‘ve ever talked to just is jaw-dropped at the audacity of bringing charges against me for trying to rescue a dog.”
{¶53} However, Slye further testified that her offer of employment was rescinded in September 2007 on the basis of the criminal charge itself, a matter of public record. There is no evidence to indicate that she lost her job as a direct result of Jackman‘s statement to the police. In addition, when asked if there were other writings made by Jackman that impinged on her character, Slye testified, “not that I know of. I don‘t know.”
{¶54} As the trial court noted in its decision granting Jackman‘s motion for fees and expenses, following her July 2008 deposition, Slye was quickly apprised of the lack of evidentiary support for her allegations. Nevertheless, she continued to prosecute her claim, forcing Jackman to incur legal fees and expenses in filing a motion for summary judgment. As a result, we find no error in the trial court‘s determination that there was no evidence to support the allegations in her complaint, and that her conduct was frivolous pursuant to
{¶55} Based on the foregoing, Slye‘s sole assignment of error is overruled.
BRESSLER, P.J., and HENDRICKSON, J., concur.