STEVEN STAKICH ET AL., Plaintiff-Appellant, v. NANCY MARGARET RUSSO ET AL., Defendant-Appellee.
Case No. 20 CA 109392
IN THE COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT CUYAHOGA COUNTY
April 1, 2021
[Cite as Stakich v. Russo, 2021-Ohio-1098.]
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
Civil Appeal from the Court of Common Pleas of Cuyahoga County, Ohio Case No. CV-11-753281. Judges of the Seventh District Court of Appeals Sitting by Assignment.
JUDGMENT: Affirmed
Atty. Robert A. Marcis, 409 Kenilworth Road, Bay Village, Ohio 44140, for Plaintiff-Appellant and
Atty. Robert P. Ducatman, Atty. Christopher M. McLaughlin, Atty. Lisa B. Gates, Jones Day, 901 Lakeside Avenue, Cleveland, Ohio 44114, for Defendant-Appellee.
{¶1} Defendant-appellant, Steven Stakich, appeals from a Cuyahoga County Common Pleas Court judgment granting summary judgment in favor of plaintiff-appellee, Nancy Margaret Russo, on Stakich‘s claims for malicious prosecution and intentional infliction of emotional distress.
{¶2} During the fall of 2009, Stakich took walks through his neighborhood, singing along to his favorite songs. Stakich sometimes marched and sung military cadences during his walks. The neighborhood where Stakich walked included Russo‘s home. Russo is a judge and had reported being stalked during this time. She believed that she had heard a person shouting threats outside her home, including “the judge must die.” A special protection order was placed on Russo‘s residence.
{¶3} The Cuyahoga County Sheriff‘s Office identified Hayes Rowan as a person of interest after witnesses identified Rowan being in the area at the time of the incident. Rowan also had a past history of making threats against judges. In September of 2009, Russo positively identified Rowan in a lineup.
{¶4} On September 4, 2009, Russo heard someone chanting very loudly from the street while she was on the second floor of her home. She looked out of her window and saw a white man marching past her home. Russo recalled hearing the words, “We need gunslingers in this town for justice to be served.” Feeling threatened by this conduct, she reported the incident to the sheriff‘s department. Stakich admitted that he had walked past Russo‘s home and that he was familiar with a song entitled “Gunslinger” with the lyrics “Tired ol’ judge got roughed up too * * * I think we need a gunslinger. Somebody tough to tame this town. I think we need a gunslinger. There‘ll be justice as around.”
{¶5} Similarly, on October 5, 2009, Russo again observed a white man marching past her home. Russo again called the sheriff‘s department and reported the incident. This time however, the sheriff‘s department stopped the man while he was walking and questioned him regarding the incident. Stakich identified himself. A deputy questioned Stakich and subsequently released him.
{¶7} On November 16, 2009, a sheriff‘s deputy went to the Berkshire Condominiums and viewed the footage from the property‘s surveillance camera. On the footage, the deputy saw a man matching the description provided by Russo enter the building. Two building employees identified the man in the video as Stakich. Later, the deputy and two colleagues visited Stakich and questioned him regarding the incident. Stakich admitted that he would walk around the neighborhood singing lyrics that could be seen as threatening. Stakich was placed into custody on a 72-hour investigative hold. While he was in custody, Stakich again admitted to the conduct.
{¶8} The sheriff‘s department initially presented the case to the City of Cleveland Prosecutor‘s Office, but the City declined to press charges. The sheriff‘s department presented the case to the Cuyahoga County Prosecutor‘s Office. The Cuyahoga County Prosecutor‘s Office decided to present the case to a grand jury. The grand jury indicted Stakich for menacing by stalking and the case was assigned to a trial court. The trial court dismissed the criminal charges without prejudice and instead instituted a civil protection order.
{¶9} On April 14, 2011, Stakich filed a complaint for malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, and abuse of process against Russo, Deputy Vincent Scalmato, and Cuyahoga County. All three defendants sought to be dismissed and/or moved for judgment on the pleadings. The trial court denied in part and granted in part said motions. The court dismissed Cuyahoga County as a defendant and dismissed several of the causes of actions against Scalmato and Russo. The trial court found however, that there were sufficient allegations to allow the intentional infliction of emotional distress and malicious prosecution claims against Russo and Scalmato to continue.
{¶11} On remand, Russo filed another motion for summary judgment, claiming that this court‘s decision in Scalmato‘s appeal entitled her to summary judgment. The trial court accepted this argument and granted summary judgment in favor of Russo stating:
Upon review of the case, its extensive history, and most importantly, the decision by the Court of Appeals relative to an Appeal of the denial of a Motion for Summary Judgment filed by codefendant Deputy Scalmato, this Court finds that said Court of Appeals decision becomes the law of this case. There are no facts before this Court raising a genuine issue of material fact in controversy upon which reasonable minds could differ and said defendant, Nancy Margaret Russo, is entitled to a judgment as a matter of law.
{¶12} This appeal now follows. Stakich raises three assignments of error. All three assignments of error assert that summary judgment was improper.
{¶13} An appellate court reviews a summary judgment ruling de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus, we shall apply the same test as the trial court in determining whether summary judgment was proper.
{¶14} A court may grant summary judgment only when (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party. Mercer v. Halmbacher, 9th Dist. Summit No. 27799, 2015-Ohio-4167, ¶ 8;
{¶15} Stakich‘s first assignment of error states:
THE TRIAL COURT ERRED WHEN, ON THE BASIS OF THE LAW OF THE CASE DOCTRINE, IT GRANTED SUMMARY JUDGMENT ON BOTH THE COUNT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND THE COUNT OF MALICIOUS PROSECUTION.
{¶16} Stakich argues that the trial court should not have applied the law-of-the-case doctrine in granting summary judgment to Russo. He contends that all issues related to Russo were unaffected by Scalmato‘s appeal. Moreover, Stakich asserts that while Scalmato may have had probable cause to arrest him, this did not excuse Russo‘s actions of making false claims against him.
{¶17} The law-of-the-case doctrine provides that legal questions resolved by a reviewing court in a prior appeal remain the law of that case for any subsequent proceedings at both the trial and appellate levels. Giancola v. Azem, 153 Ohio St.3d 594, 2018-Ohio-1694, 109 N.E.3d 1194, ¶ 1, citing Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). The rule ensures consistent results in a case, avoids endless litigation by settling the issues, and preserves the constitutional structure of superior and inferior courts. Id. at ¶ 14.
{¶18} Here, the law of the case doctrine relates to our decision that there was probable cause to arrest Stakich. Stakich argues that this decision was unrelated to the suit against Russo. Russo argues that this decision applies to the suit against her.
{¶19} In our previous decision, we found that Scalmato, who arrested Stakich, had probable cause for the arrest. Stakich, 2019-Ohio-1237, at ¶ 35. We also found that Scalmato was protected by qualified immunity. Id. at ¶ 36.
{¶20} The law-of-the case doctrine applies only to a limited extent here. The basis for our finding in Stakich, 2019-Ohio-1237, that Scalmato had probable cause to
{¶21} As will be seen in Stakich‘s second and third assignments of error, these facts are undisputed. For that reason, the trial court did not err in applying the law-of-the-case doctrine. Accordingly, Stakich‘s first assignment of error is without merit and is overruled.
{¶22} Stakich‘s second assignment of error states:
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT RUSSO ON STEVEN STAKICH‘S CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.
{¶23} In this assignment of error, Stakich first states that we need not review this assigned error because the trial court relied only on the law-of-the-case doctrine. Nonetheless, Stakich goes on to argue that if we do consider this assignment of error, genuine issues of material fact exist that would prevent summary judgment. He asserts that Russo used her contacts as a judge to have him charged.
{¶24} To establish a claim for intentional infliction of emotional distress, a plaintiff must prove (1) the defendant intended to cause, knew, or should have known that his actions would result in serious emotional distress; (2) the defendant‘s actions were so extreme and outrageous that they went beyond all possible bounds of decency and can be considered completely intolerable; (3) the defendant‘s actions proximately caused psychological injury to the plaintiff; and (4) the plaintiff suffered serious mental anguish that no reasonable person could be expected to endure. Ashcroft v. Mt. Sinai Med. Ctr., 68 Ohio App.3d 359, 366, 588 N.E.2d 280 (8th Dist. 1990).
{¶25} Stakich makes much of the fact that the Cleveland City Prosecutor decided not to press charges against him. But this does not create a genuine issue of material fact as Stakich suggests.
{¶27} Whether conduct is “extreme and outrageous” is initially a question of law for the court. Morrow v. Reminger & Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 48 (10th Dist.). The reporting of a crime is “ordinary and reasonable” behavior and should not be considered “outrageous” as is required to prove a claim of intentional infliction of emotional distress. Matthias v. Wendy‘s of Pearl, Inc., 8th Dist. Cuyahoga No. 71721, 1997 WL 578918, *4 (Sept. 18, 1997).
{¶28} In this case Russo‘s report of undisputed perceived threatening activity outside of her home cannot be considered extreme and outrageous conduct. Therefore, the trial court properly concluded that no genuine issue of material fact precluded summary judgment on Stakich‘s intentional infliction of emotional distress claim.
{¶29} Accordingly, Stakich‘s second assignment of error is without merit and is overruled.
{¶30} Stakich‘s third assignment of error states:
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT RUSSO ON STEVEN STAKICH‘S CLAIM FOR MALICIOUS PROSECUTION.
{¶31} In his third assignment of error, Stakich again states that we need not review this assigned error because the trial court relied only on the law-of-the-case doctrine. But he goes on to argue there was enough evidence to avoid summary judgement on his claim of malicious prosecution.
{¶32} To establish a claim for malicious prosecution, the plaintiff must prove (1) malice in initiating or continuing the prosecution, (2) a lack of probable cause, and (3) the termination of the prosecution in favor of the accused. Thomas v. Murry, 8th Dist. Cuyahoga No. 109287, 2021-Ohio-206, ¶ 64, citing Frazier v. Clinton Cty. Sheriff‘s Office, 12th Dist. Clinton No. CA2008-04-015, 2008-Ohio-6064, ¶ 14.
{¶34} In this case, Russo reported that she saw a white male marching past her house yelling or chanting threatening lyrics on September 4, 2009. (Russo Dep. 16-19). Specifically, she heard the words, “the judge must die” and “we have gunslingers in this town.” (Russo Dep. 17-19, 21, 23-24). Stakich admitted that he walked past Russo‘s house on that day. (Stakich Dep.II 153). He did not remember what he was singing at the time but conceded that he was familiar with the above quoted lyrics and stated that he “may have” been singing it that day. (Stakich Dep.II 149-152).
{¶35} Russo next reported that she saw a white male walk past her home on October 5, 2009, shouting and his behavior frightened her. (Russo Dep. 21, 63). Stakich admitted that he took his “usual” walk that day past Russo‘s home and that he was singing. (Stakich Dep.II 79, 84).
{¶36} Finally, Russo stated that on November 14, 2009, she heard the same voice from the earlier incidents outside of her house. (Russo Dep. 23). She again observed a man stomping his feet, marching, and yelling like a “militia person.” (Russo Dep. 23). She heard the man yell, “the judge must die.” (Russo Dep. 23). Stakich admitted that he walked past Russo‘s house that day and that he was singing as he walked past. (Stakich Dep.II 161-162, 207). He acknowledged that he was singing “The Last Wild American,” which contains the lyrics, “There‘s a price on your head” and “They‘ll kill you if they can.” (Stakich Dep.II 152, 169, 208). He conceded that those lyrics could be considered threatening. (Stakich Dep.II 168, 211).
{¶37} Russo reported these incidents to the sheriff‘s department and charges were ultimately filed by the Cuyahoga County Prosecutor‘s Office. Stakich cannot demonstrate the necessary lack of probable cause for a malicious prosecution claim. Both parties point to other evidence regarding the proceedings that ensued. But this claim comes down to the facts that Stakich admitted to walking past Russo‘s house on the three
{¶38} Moreover, Stakich cannot prove that the termination of the previous proceedings in his favor. The dismissal of the criminal case against him was “without prejudice.” (Motion for Summary Judgment 2, Ex. B-3). Thus, the prosecutor could seek to charge Stakich at a later date. Additionally, the dismissal of the criminal case was in exchange for Stakich agreeing to a civil protection order in favor of Russo against him. (Motion for Summary Judgment 2, Ex. B-4).
{¶39} For these reasons, the trial court correctly found that there was no genuine issue of material fact to prevent summary judgment on Stakich‘s malicious prosecution claim.
{¶40} Accordingly, Stakich‘s third assignment of error is without merit and is overruled.
{¶41} For the reasons stated above, the trial court‘s judgment is hereby affirmed.
Waite, J., concurs.
Robb, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.