DONTAE THOMAS v. TIANA MURRY, ET AL.
No. 109287
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
January 28, 2021
[Cite as Thomas v. Murry, 2021-Ohio-206.]
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: January 28, 2021
Civil Appeal from the Cleveland Heights Municipal Court Case No. CVF1800462
Appearances:
Cavitch, Familo & Durkin Co., L.P.A., and Robert A. West, Jr.; Pina Law, L.L.C., and Leslie Pina, for appellee.
Joanne Brown, for appellants.
EILEEN T. GALLAGHER, P.J.:
{¶ 1} Defendants-appellants, Tiana Murry (“Tiana“) and Steve Thomas (“Steve“) (collectively the “appellants“), appeal from the trial court‘s denial of their
Appellants raise the following assignments of error for review:
- The trial court erred in overruling appellants’ counsel‘s objection to the admission of appellee‘s affidavit [that was] offered to contradict appellee‘s sworn deposition testimony in lieu of live testimony.
- The trial court erred in finding appellee‘s counsel did not engage in frivolous conduct.
{¶ 2} After careful review of the record and relevant case law, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
I. Procedural and Factual History
{¶ 3} In April 2018, plaintiff-appellee, Dontae Thomas (“Dontae“), filed a civil action against his older brother, Steve, and Steve‘s wife, Tiana, in the Cleveland Heights Municipal Court. The original complaint set forth claims for defamation, malicious destruction of property, malicious prosecution, aiding and abetting malicious prosecution, trespassing, and damages.
{¶ 4} The claims brought against the appellants stemmed from a verbal and physical altercation that occurred during a family birthday party hosted at Dontae‘s home in April 2017. Dontae‘s complaint alleged that the altercation between Tiana and several guests occurred after Tiana “crashed” the party despite not being invited to the gathering “due to bad blood between her and many family members.” (Original complaint at ¶ 6-7.) Once Tiana was escorted out of the party, Steve “proceeded to break all of the windows in Dontae Thomas‘s car, which was parked in the driveway.” Id. at ¶ 11.
{¶ 5} Thereafter, Dontae filed a police report, “accusing Steve of intentionally breaking the [car] windows with a bat.” Id. at 12. In turn, Tiana filed her own police report, “claiming that at least six individuals assaulted her at the birthday party.” Id. at ¶ 13. Dontae alleged that Tiana fabricated the police report and that her false statements “caused [him] to be arrested and incarcerated for four days without an attorney or opportunity for bond.” Id. at ¶ 16.
{¶ 6} During the discovery process, Dontae verified the authenticity of the responses he set forth in plaintiff‘s first set of combined answers to interrogatories, requests for admissions, and requests for production of documents. Within Dontae‘s responses, he denied numerous requests for admissions, including a request to admit that Tiana was invited to the birthday party by Dontae‘s wife, Deanna Thomas.
{¶ 7} In April 2019, Dontae filed an amended complaint, which removed Steve as a party and named Tiana as the sole defendant. In addition, the amended complaint removed the claims for malicious destruction of property and aiding in abetting in malicious prosecution, and reduced the requested damages from $15,000 to $12,000.
{¶ 8} Dontae was deposed approximately one day after the amended complaint was filed. Following his deposition, Dontae filed a second amended complaint in May 2019. The second amended complaint also named Tiana as the sole defendant and asserted claims for defamation and malicious prosecution.
{¶ 9} In June 2019, all claims levied against Steve were formally dismissed without prejudice. Approximately one month later, Dontae filed a motion to dismiss all claims against Tiana pursuant to
{¶ 10} Relevant to this appeal, the motion to dismiss stated as follows:
This Honorable Court requested that this case be settled, and plaintiff agrees. Although plaintiff contends that his case has merit, there has already been enough suffering. His relationship with his brother has been severely damaged, and pursuing complaints against his brother‘s wife would cause additional hardship for the family.
{¶ 11} In July 2019, appellants filed a joint motion for attorney fees and sanctions against counsel for Dontae, Leslie Pina (“attorney Pina“), and her employer, the Pina Law Firm, L.L.C., pursuant to
At the time of filing, attorney Pina knew the case was devoid of any underlying facts necessary to support the claims. Attorney Pina filed the lawsuit to harass Steve Thomas and Tiana Tomas nee Murry and extort money from them.
{¶ 12} A hearing was held to address the motion in September 2019. At the hearing, Steve provided a brief recount of the incident at Dontae‘s home and expressed that he and Dontae “had a little misunderstanding about somethings,” including the damages caused to Dontae‘s vehicle. Steve testified that, before the original complaint was filed in April 2018, he and Dontae “settled” the matter after
{¶ 13} Tiana briefly testified at the hearing, stating that she was invited to the birthday party by Dontae‘s wife. She further testified that she does not recall being asked to leave the party.
{¶ 14} Finally, attorney Pina was called by defense counsel to testify as if on cross-examination. Attorney Pina maintained that Dontae intentionally included Steve in the original complaint but conceded that Dontae struggled with whether to maintain the action against his brother. Attorney Pina testified that “the original complaint was everything my client wanted in the complaint.” (Tr. 63.) However, she explained that Dontae became increasingly conflicted about continuing the action against Steve and was concerned he would “never speak to [his] brother again.” (Tr. 42.) Eventually, attorney Pina amended the complaint after Dontae notified her that he settled the matter with Steve and wished to remove him from the case. Attorney Pina was questioned about several email correspondences with opposing counsel and admitted that she had advised opposing counsel that Dontae intended to remove Steve from the complaint as early as January 2019 — several months before Steve was dismissed from the case.
{¶ 15} Regarding Tiana, attorney Pina conceded that she eventually learned that Tiana “probably was invited” to the party held at Dontae‘s home. (Tr. 62.) When she filed the trespass claim, however, Dontae was not aware his wife had invited Tiana to his birthday party. Attorney Pina maintained that she made an independent investigation prior to filing the original complaint and that her independent investigation showed that she was justified in filing a lawsuit that included a trespass claim. She expressed that amendments to the original complaint were made as she gathered additional information.
{¶ 16} On direct examination, attorney Pina explained that she and Dontae executed an engagement letter in March 2018, based on Dontae‘s intention to pursue a civil action against both Steve and Tiana. Attorney Pina stated that she discussed the facts and allegations with Dontae prior to filing a complaint and that Dontae was aware an action was being filed against Steve and Tiana.
{¶ 17} Relevant to this appeal, attorney Pina testified that she personally read, reviewed, and filed the original complaint on Dontae‘s behalf with a good-faith belief that there were good grounds to support each of the asserted claims. She reiterated that she did not file the original complaint for the purpose of delay and that she investigated the relevant facts and law before initiating the action against Steve and Tiana.
{¶ 18} Attorney Pina was questioned further about the decision to remove Steve from the complaint. She reiterated that Dontae‘s decision to dismiss Steve from the action occurred after the original complaint was filed — “at some point
{¶ 19} Attorney Pina was also questioned about certain discovery materials, including plaintiff‘s first set of answers to interrogatories, request for admissions, and requests for production of documents. Attorney Pina testified that she reviewed the posed discovery requests with Dontae, and that he signed a verification sheet on January 25, 2019. In relevant part, Dontae was asked to state with particularity the basis of his allegation in the complaint that “Steve Thomas proceeded to break all of the windows in Dontae Thomas‘s car, which was parked in the driveway.” (Tr. 85.) Dontae‘s response to the posed interrogatory was “Steve admitted.” (Tr. at id.)
{¶ 20} At the conclusion of the hearing, the trial court admitted several exhibits, including (1) time-stamped copies of the pleadings, (2) a copy of Dontae‘s deposition testimony, (3) copies of certain email correspondences, (4) copies of Dontae‘s verified responses to discovery requests, and (5) Dontae‘s affidavit.
{¶ 21} In November 2019, the trial court denied appellants’ motion for attorney fees and sanctions, stating, in pertinent part:
[T]he court finds that defendants failed to meet their burden in establishing that plaintiff‘s counsel willingly violated
Civ.R. 11 . Furthermore, based upon a review thereof, the court finds that neitherplaintiff‘s nor plaintiff‘s counsel‘s conduct rose to the level of that which is frivolous under R.C. 2323.51 . Therefore, sanctions are not warranted and Defendants’ motion for attorney fees and sanctions pursuant toCiv.R. 11 andR.C. 2323.51 is denied.
{¶ 22} Appellants now appeal from the trial court‘s judgment.
II. Law and Analysis
A. Admission of Dontae‘s Affidavit
{¶ 23} In their first assignment of error, appellants argue the trial court committed reversible error by permitting Dontae to submit an affidavit in lieu of live testimony. Appellants contend that the affidavit directly contradicted Dontae‘s prior deposition testimony and was material to the issue of sanctions. Thus, appellants assert that they were improperly deprived of the opportunity to cross examine Dontae in person.
{¶ 24} Throughout their motion for attorney fees and sanctions, appellants argue that attorney Pina pursued legal claims against Steve without Dontae‘s permission. In support of this claim, appellants rely on portions of Dontae‘s deposition testimony, including his statement that he was not aware he filed a civil complaint against Steve and did not know Steve was still a named defendant because he told attorney Pina that the case was settled between him and Steve.
{¶ 25} In response to appellants’ motion for attorney fees and sanctions, attorney Pina submitted an affidavit from Dontae, wherein he avers, in relevant part:
11. Following my arrest, I reached out to attorney Leslie Pina requesting that she represent me in defense of the criminal charges.
12. On or about April 10, 2018, the criminal charges were dismissed.
13. On March 15, 2018, I retained, on a contingency basis, attorney Pina to bring a civil action against Steve Thomas and Tiana Murry. A copy of the March 15, 2018 engagement letter is attached as Exhibit 1.
14. On April 11, 2018, a complaint was filed on my behalf by attorney Pina in the above captioned matter. A time/date stamped copy of the complaint is attached as Exhibit 2.
15. Prior to the filing of the complaint, attorney Pina and I discussed the parties and the claims against each of the parties that would be asserted in the complaint.
16. I had a good faith basis for each of the allegations and claims against Steve Thomas and Tiana Murry and the complaint was not brought merely to harass or maliciously injure Steve Thomas or Tiana Murry.
17. Prior to the filing of the complaint, I knew of, consented to, and authorized the claims and allegations asserted against Steve Thomas and Tiana Murry in the complaint.
18. Prior to the filing of the complaint, I was provided a copy of the complaint by attorney Pina, I read the complaint and, to the best of my knowledge, information and belief, I had good grounds to support the allegations and claims asserted in the complaint and none were asserted for the purpose of harassment or delay.
19. A little over a year after filing the complaint, on April 25, 2019, an amended complaint was filed on my behalf by attorney Pina in the above captioned matter. A time/date stamped copy of the first amended complaint is attached as Exhibit 3.
20. In the year between the filing of the complaint and the first amended complaint, I resolved things with my brother, Steve Thomas, and no longer wanted to pursue an action against him.
21. The first amended complaint removed Steve Thomas as a party, removed the claims against Steve Thomas * * * and reduced the damages from $15,000 to $12,000.
* * *
23. It was through the deposition of Steve Thomas and Tiana Murry, along with subsequent conversations with my wife * * * that I learned Tiana Murry had been invited to the birthday party.
24. On May 28, 2019, an amended complaint was filed on my behalf by attorney Pina in the above captioned matter. A time/date stamped copy of the amended complaint is attached as Exhibit 4.
25. The second amended complaint removed the trespass claim against Tiana Murry and reduced the damages from $12,000 to $10,000.
(Dontae‘s affidavit at ¶ 11-25.)
{¶ 26} Over appellants’ objection, the trial court accepted the affidavit for review, stating:
So unless I didn‘t see it, I didn‘t see [Dontae] being subpoenaed to be here. I‘m going to accept the affidavit as to the motion that‘s pending. I‘ll take it for what it‘s worth.
(Tr. 99.)
{¶ 27} Generally, the admission of evidence “lies within the broad discretion of the trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62. This court‘s review is limited to determining whether the trial court‘s evidentiary rulings were unreasonable, arbitrary, or unconscionable. State v. Barnes, 94 Ohio St.3d 21, 23, 759 N.E.2d 1240 (2002).
{¶ 28}
(A) In open court. At trial or hearing, the witnesses’ testimony shall be taken in open court unless a statute, the Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.
(B) Evidence on a motion. When a motion relies on facts outside the record, the court may hear the matter on affidavits or may hear it wholly or partly on oral testimony or on depositions.
{¶ 29}
[t]he rule grants the judge specific authority to direct the type of evidence he will hear on a motion. * * * Thus, it seems obvious that the judge, in his discretion, may allow the facts to be presented for the purpose of a motion either wholly or partly by affidavit, oral testimony or deposition or any combination thereof.
Webb v. James, 46 N.C.App. 551, 555, 265 S.E.2d 642 (1980); Bucholz v. Hutton, 153 F.Supp. 62, 66 (D.Mont.1957) (stating
{¶ 30} Upon review of the record, we find the trial court did not abuse its discretion by permitting attorney Pina to submit Dontae‘s affidavit in support of the brief in opposition. In this case, appellants’ motion for attorney fees and sanctions required the trial court to determine whether attorney Pina engaged in frivolous conduct in light of the facts and information provided to her at the time she filed the original complaint on Dontae‘s behalf. In its discretion, the trial court found that it
{¶ 31} Moreover, to the extent appellants allege that Dontae‘s affidavit amounted to a “sham” because it contradicted his former deposition testimony, we are unpersuaded. We recognize that the Ohio Supreme Court has held that an affidavit contradicting former deposition testimony, characterized as a “sham affidavit,” cannot, without explanation, create a genuine issue of fact sufficient to defeat a motion for summary judgment. Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237, 934 N.E.2d 913, ¶ 1, fn.1; see also Turner v. Turner, 67 Ohio St.3d 337, 617 N.E.2d 1123 (1993), paragraph one of the syllabus (an affidavit inconsistent with deposition testimony does not support a grant of summary judgment). The court explained that the “sham affidavit” rule prevents a party from surviving summary judgment simply “‘by allowing one of its witnesses to contradict his [or her] own prior testimony.‘” Id. at ¶ 36, quoting Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 521 (7th Cir.1988). This case, however, does not involve a motion for
{¶ 32} Appellants’ first assignment of error is overruled.
B. Attorney Fees and Sanctions
{¶ 33} In their second assignment of error, appellants argue the trial court erred in determining that attorney Pina “did not engage in sanctionable conduct under
{¶ 34} Two separate mechanisms are provided in Ohio law for an aggrieved party to seek attorney fees for frivolous conduct —
{¶ 35} In this case, appellants sought sanctions under both
1. R.C. 2323.51
{¶ 36} A motion for sanctions under
{¶ 37}
(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.
(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.
(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.
(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.
{¶ 38}
{¶ 39} A
a. R.C. 2323.51(A)(2)(a)(i)
{¶ 40} In this case, appellants’ motion for sanctions predominately argued that attorney Pina pursued this lawsuit for the purpose of harassing or maliciously injuring both Tiana and Steve. See
{¶ 41} Analysis of whether a complaint was filed with malicious intent under
{¶ 42} Undoubtedly, Dontae testified during his deposition that (1) he did not approve a complaint naming Steve as a defendant, (2) he and Steve resolved the issue privately, (3) he and his wife did not ask Tiana to leave the birthday party, and (4) he does not believe Steve was a false witness against him. However, viewing the record in its entirety, it is evident that Dontae‘s testimony contained various inconsistencies and reflected a general misunderstanding of the procedural status of his case. In this regard, it is important to note that Dontae was questioned
{¶ 43} As discussed, Dontae executed an affidavit in an effort to clarify his deposition testimony. In relevant part, Dontae averred that (1) he retained attorney Pina to bring a civil action against Steve Thomas and Tiana Murry; (2) he and attorney Pina discussed the parties and the claims against each of the parties that would be asserted in the complaint; (3) he had a good-faith basis for each of the allegations and claims against Steve and Tiana; (4) the complaint was not brought merely to harass or maliciously injure Steve or Tiana; (5) he read and reviewed the original complaint before it was filed; (6) he authorized attorney Pina to file the original complaint against Steve and Tiana; (7) he resolved things with Steve and no longer wanted to pursue an action against him after the original complaint had been filed; and (8) he learned Tiana had been invited to the birthday party after the original complaint had been filed.
{¶ 44} While Dontae expressed confusion regarding the status of his case during his deposition, appellants have failed to demonstrate that attorney Pina acted without the authority of her client. Rather, the evidence adduced during the sanctions hearing reflects that Dontae executed a retention letter with attorney Pina for the purpose of pursuing legal action against both Steve and Tiana based on their conduct during, and subsequent to, the altercation at his home. Attorney Pina further testified that she personally reviewed the complaint with Dontae, and her statements are corroborated by Dontae‘s verified discovery responses that were executed well after the original complaint was filed against Steve and Tiana. Attorney Pina concedes that Dontae ultimately determined to withdraw his claims against Steve. However, she maintains, and Dontae‘s affidavit confirms, that the decision to remove Steve from the case was made after the original complaint was filed. Under these circumstances, we find appellants have not presented credible evidence that attorney Pina filed the original complaint against Steve and/or Tiana for the purpose of harassing or maliciously injuring either of the defendants.
{¶ 45} Alternatively, appellants argue that “even if [this court] were to accept attorney Pina‘s claim that she had her client‘s permission to file the action, she certainly did not have Dontae‘s permission to maintain the lawsuit for as long as she did.” Appellants note that attorney Pina notified opposing counsel of Dontae‘s intent to dismiss the case against Steve in January 2019, but he was not removed from the case until April 2019. We are unpersuaded by appellants’ position. While attorney Pina did not immediately dismiss the claims against Steve, the record
{¶ 46} Deferring to the trial court‘s factual determinations and assessment of credibility, we are unable to conclude that the trial court abused its discretion in determining that the original complaint was not filed for the purpose identified in
b. R.C. 2323.51(A)(2)(a)(ii) and (iii)
{¶ 47} Finally, appellants’ motion for sanctions pursued recourse under
{¶ 48} As stated, frivolous conduct implicated by
{¶ 49} In turn,
{¶ 51} With
i. Defamation
{¶ 52} In the original complaint, Dontae set forth a claim of defamation against Tiana and Steve. Dontae alleged that Tiana made false statements to the police that caused him to be arrested and incarcerated for four days. The original complaint further alleged that Steve “collaborated with [Tiana] by publishing the false story and by volunteering as the sole witness for [Tiana‘s] defamatory claims and fabricated police report.” (Original complaint ¶ 17.) The amended complaint and second amended complaint restated the defamation claim against Tiana, while excluding Steve as a named defendant.
{¶ 53} “‘[D]efamation occurs when a publication contains a false statement made with some degree of fault, reflecting injuriously on a person‘s reputation[.]‘” Lewandowski v. Penske Auto Group, 8th Dist. Cuyahoga No. 94377, 2010-Ohio-6160, ¶ 25, quoting Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 9. To establish the prima facie case of defamation, “‘a plaintiff must show (1) a false statement of fact was made about the plaintiff; (2) the statement was defamatory; (3) the statement was published; (4) the plaintiff suffered injury as a
{¶ 54} On appeal, appellants argue, pursuant to
{¶ 55} In the context of a defamation claim that is predicated on a report of criminal conduct to the police, the distinction between the doctrines of absolute privilege and qualified privilege is significant. The Supreme Court of Ohio explained the rationale for affording privilege to certain statements, and clarified the distinction between the qualified and absolute privilege as follows:
Upon certain privileged occasions where there is a great enough public interest in encouraging uninhibited freedom of expression to require the sacrifice of the right of the individual to protect his reputation by civil suit, the law recognizes that false, defamatory matter may be published without civil liability. * * *
Such privileged occasions have by long judicial history been divided into two classes — occasions absolutely privileged and those upon which the privilege is only a qualified one. The distinction between
these two classes is that the absolute privilege protects the publisher of a false, defamatory statement even though it is made with actual malice, in bad faith and with knowledge of its falsity; whereas the presence of such circumstances will defeat the assertion of a qualified privilege. * * *
M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 505, 634 N.E.2d 203 (1994), quoting Bigelow v. Brumley, 138 Ohio St. 574, 579-580, 37 N.E.2d 584 (1941).
{¶ 56} Consistent with the appellants’ position on appeal, several appellate districts have concluded that “absolute privilege should apply to those who report criminal activity to police officers” if the statements “bear some reasonable relation to the activity reported.” Lasater v. Vidahl, 2012-Ohio-4918, 979 N.E.2d 828, ¶ 9 (9th Dist.); Brown v. Chesser, 4th Dist. Vinton No. 97 CA 510, 1998 Ohio App. LEXIS 352, 4 (Jan. 16, 1998).
{¶ 57} Contrary to the forgoing precedent, however, this court has determined that statements to police officers are entitled only to a qualified privilege, and not an absolute privilege, because such statements are not made in the context of a judicial proceeding. Scott v. Patterson, 8th Dist. Cuyahoga No. 81872, 2003-Ohio-3353, ¶ 11-12. See also Mango v. Columbus, S.D.Ohio Nos. 2:19-cv-3120 and 2:19-cv-5282, 2020 U.S. Dist. LEXIS 161340, 48 (Sept. 3, 2020) (noting that Scott is consistent with a majority of state courts that extend qualified rather than absolute immunity to persons making statements to police about alleged crimes). Thus, this court has explained that
“‘[a]ny communications made by private citizens to law enforcement personnel for the prevention or detection of crime are qualifiedly
privileged and may not serve as the basis for a defamation action unless it is shown that the speaker was motivated by actual malice.‘”
(Emphasis added.) Allen v. Pirozzoli, 8th Dist. Cuyahoga No. 103632, 2016-Ohio-2645, ¶ 14, quoting Lewandowski, 8th Dist. Cuyahoga No. 94377, 2010-Ohio-6160, at ¶ 26, quoting Oswald v. Action Auto Body & Frame, Inc., 8th Dist. Cuyahoga No. 71089, 1997 Ohio App. LEXIS 1642, 8 (Apr. 24, 1997). In other words, a qualified privilege may be defeated if a claimant proves with convincing clarity that the speaker acted with actual malice. Jacobs v. Frank, 60 Ohio St.3d 111, 573 N.E.2d 609 (1991), paragraph two of the syllabus. In the context of a qualified privilege, “actual malice” is defined as “acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity.” Lewandowski at ¶ 26.
{¶ 58} After careful consideration, we find Dontae‘s defamation claim was warranted under existing law. While the factual basis supporting the defamation claim relies on a report of criminal activity to the Cleveland Heights police, Dontae maintained throughout the proceedings that, as a result of the knowingly false statements to the police, he was arrested for acts he did not commit. For this reason, the defamation claim unambiguously alleged that Tiana provided an incriminating statement to the police, with Steve‘s collaboration, with knowledge that the defamatory statement was false. We interpret the language set forth in the amended complaint as an assertion that the statement was made with actual malice, thereby avoiding the preclusive effect of qualified privilege. See id. at ¶ 29; Johnson, 8th Dist. Cuyahoga No. 108420, 2020-Ohio-1381, at ¶ 21. Under these circumstances,
ii. Malicious Destruction of Property
{¶ 59} In the original complaint, Dontae pursued a claim for malicious destruction of property against Steve, alleging:
Steve Thomas intentionally and maliciously bashed in and destroyed all of Dontae Thomas‘s car windows. Dontae Thomas filed a complaint with the Cleveland Heights Police.
(Original complaint ¶ 19.) The claim was subsequently removed from the action, and Steve was no longer named as a defendant in the amended and second amended complaints.
{¶ 60} Relying on
{¶ 61} Ohio courts routinely recognize civil actions for injury to personal property. As set forth in
{¶ 62} In this case, the record demonstrates that Dontae‘s car windows were damaged during the physical altercation at his home. Dontae was required to replace his car windows and believed Steve intentionally caused the property damage based on information provided by third parties. As such, Dontae filed a criminal police report, “asserting that my brother, Defendant Steve Thomas, intentionally broke the windows of my car.” (Dontae‘s affidavit at ¶ 7.) Based on the foregoing information, which was provided to attorney Pina at the time the original complaint was filed, we find the trial court did not abuse its discretion when it determined Dontae‘s claim did not lack evidentiary support and could have been brought by a reasonable attorney. Regardless of Dontae‘s characterization of Steve‘s conduct as malicious, Dontae was permitted to pursue a civil action against Steve to recover damages for the injury to his personal property.
iii. Malicious Prosecution
{¶ 63} In the original complaint, Dontae set forth a claim for malicious prosecution against Tiana. Dontae alleged that as a result of Tiana‘s false statements
{¶ 64} The claim of malicious criminal prosecution allows the complainant to seek redress for harm to complainant‘s dignity and reputation occasioned by the misuse of criminal proceedings. Froehlich v. Ohio Dept. of Mental Health, 114 Ohio St.3d 286, 2007-Ohio-4161, 871 N.E.2d 1159, ¶ 9, citing Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142, 559 N.E.2d 732 (1990). In order to establish a claim for malicious prosecution, a plaintiff must prove (1) malice in initiating or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. Frazier v. Clinton Cty. Sheriff‘s Office, 12th Dist. Clinton No. CA2008-04-015, 2008-Ohio-6064, ¶ 14. “The absence of probable cause is the gist of an action for malicious prosecution, and malice may be inferred from the absence of probable cause.” Brand v. Geissbuhler, 8th Dist. Cuyahoga No. 70565, 1997 Ohio App. LEXIS 709, 14 (Feb. 27, 1997).
{¶ 65} Under Ohio law, a “private person who initiates or procures the institution of criminal proceedings against another is not subject to liability unless the person against whom the criminal proceedings were initiated proves all * * * of the above-listed elements” of malicious prosecution. Ash v. Ash, 72 Ohio St.3d 520, 522, 651 N.E.2d 945 (1995). See also Patterson, 8th Dist. Cuyahoga No. 81872, 2003-Ohio-3353, at ¶ 12 (“a private individual may be held civilly liable for the initiation of a criminal proceeding only if the information is false or if the individual‘s desire to have the proceedings initiated was the determining factor in the commencement of the prosecution.“), citing Archer v. Cachat, 165 Ohio St. 286, 287-88, 135 N.E.2d 404 (1956).
{¶ 66} Contrary to the arguments presented by the appellants, our review is not concerned with whether there were sufficient facts for Dontae to prevail on his claim. “A party‘s conduct is not frivolous simply because a claim is not well-grounded in fact or impervious to dispute.” Conneaut, Ohio v. Buck, 11th Dist. Ashtabula No. 2014-A-0053, 2015-Ohio-2593, ¶ 35. In this case, the basis of the malicious prosecution claim was that Tiana falsely accused Dontae of participating in her assault, that there was absence of probable cause where Tiana made the accusations knowing that they were false, and that the false accusations were a determining factor in the decision to initiate criminal proceedings against Dontae. Although Dontae did not specifically assert that Tiana acted with “actual malice,” the pleadings were sufficient for the trial court to determine that the malicious prosecution claim was supported by factual allegations and presented a legal theory that is warranted in law. We find no abuse of discretion.
iv. Civil Trespass
{¶ 67} In the original and amended complaint, Dontae pursued a civil trespass claim against Tiana, alleging as follows:
Tiana Murry knew she was neither invited nor welcomed at the party
on Revere Rd., the home of Dontae Thomas and family; nevertheless, she “crashed” the party. Her trespass resulted in intentional disruption and assault of guests at the otherwise peaceful party.
Her trespass caused physical and/ or emotional damage to guests as well as warrants issued for the arrest of six guests, including his wife, Deanna Thomas.
(Original complaint ¶ 28-29; amended complaint ¶ 21-23.) In May 2019, the trespass claim was removed from the action upon the filing of the second amended complaint.
{¶ 68} On appeal, appellants argue that the civil trespass claim relied on false factual assertions and, therefore, was frivolously filed. Appellants reference portions of Dontae‘s deposition testimony, including his admissions that (1) he never told Tiana not to come to his home, (2) he did not ask Tiana to leave his home when he saw her at the party, and (3) to his knowledge, his wife did not ask Tiana to leave the party.
{¶ 69} “Trespass is the unlawful entry upon the property of another.” Chance v. BP Chems., Inc., 77 Ohio St.3d 17, 24, 670 N.E.2d 985 (1996). Thus, the elements of trespass are “(1) an unauthorized intentional act, and (2) entry upon land in the possession of another.” Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 716, 622 N.E.2d 1153 (4th Dist.1993).
{¶ 70} We recognize that, based upon Dontae‘s own deposition testimony, the original and amended complaints’ factual assertion that Tiana “crashed” the party was ultimately discovered to be inaccurate. However, “frivolous conduct is not
{¶ 71} In this case, we find there was, at the very least, minimal evidence supporting the elements of the civil trespass claim pursued against Tianna at the time the claim was filed. Dontae expressed in his affidavit that he discussed the relevant circumstances with attorney Pina prior to the filing of the civil action and notified her that Tiana was not invited to his home on the night of the incident. (Dontae‘s affidavit ¶ 15, 23.) Attorney Pina testified that she completed “an independent investigation of the contents of the complaint,” independently researched the law supporting the trespass claim, and had, based on the information provided by the owner of the property in question, sufficient evidence to “justify” the factual allegation that Tiana unlawfully entered the property of another. (Tr. 61-66.)
{¶ 72} Deferring to the trial court‘s assessment of the facts and evidence supporting the trespass claim at the time it was included in the original and amended complaints, we find the trial court did not abuse its discretion in determining that the filing of the claim did not amount to frivolous conduct.
v. Aiding and Abetting Malicious Prosecution
{¶ 73} In the original complaint, Dontae set forth a cause of action for aiding and abetting malicious prosecution against Steve. Dontae alleged as follows:
Steve Thomas supported all of the false statements made by Tiana Murry; he served as a false witness against Dontae Thomas and the other accused; and his name appears as such on the incident report.
(Original complaint ¶ 26.)
{¶ 74} The modern application of civil aiding and abetting can be traced to the Second Restatement of Torts: “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he [or she] * * * knows that the other‘s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself [or herself].” 4 Restatement of the Law 2d, Torts, Section 876(b) (1979).
{¶ 75} However, in DeVries Dairy, L.L.C. v. White Eagle Coop. Assn., Inc., 131 Ohio St.3d 1436, 2012-Ohio-331, 960 N.E.2d 986, the Supreme Court of Ohio
Under the applicable circumstances, does Ohio recognize a cause of action for tortious acts in concert under the Restatement (2d) of Torts, § 876?
{¶ 76} In answering the certified question in the negative, the Supreme Court of Ohio noted that the state of Ohio “has never recognized a claim under 4 Restatement 2d Torts, Section 876 (1979).” Id. at ¶ 2. Thus, the court unambiguously concluded that the state of Ohio does not recognize a cause of action for aiding and abetting a tortious act. Id.; see also Wells Fargo Bank v. Smith, 12th Dist. Brown No. CA2012-04-006, 2013-Ohio-855, ¶ 36.
{¶ 77} Under these circumstances, we find Dontae‘s aiding and abetting claim against Steve was not supported by existing law. A clear reading of DeVries mandates the conclusion that “no reasonable attorney could have brought the action in light of the existing law.” In this case, the record of the sanction hearing reflects that attorney Pina pursued the claim on Dontae‘s behalf based on an inaccurate reading of the current law in Ohio. (Tr. 66.) As discussed further below, “misinterpreting the state of existing law” is a valid defense against charges of “willful” violations of
COUNSEL FOR ATTORNEY PINA: [Defense counsel] pointed out that aiding and abetting malicious prosecution, there was no law to it and you testified that you must have misread it?
ATTORNEY PINA: Right.
COUNSEL FOR ATTORNEY PINA: So when you filed your aiding and abetting of a malicious prosecution claim did you feel that there were allegations or, rather, factual contentions that had the ability for an extension or modification of the law?
ATTORNEY PINA: No.
(Tr. 70.)
{¶ 78} Accordingly, we find the trial court abused its discretion by determining that the aiding and abetting malicious prosecution claim was warranted under existing law. “A cursory review, prior to the filing of the complaint, would have uncovered the current state of case law relating to these matters.” Newman v. Weinman, 2012-Ohio-3464, 985 N.E.2d 161, ¶ 39 (8th Dist.). As such, the pursuit of this unwarranted claim amounted to frivolous conduct within the meaning of
{¶ 79} Having found the existence of frivolous conduct, we note that
the decision to assess or not to assess a penalty lies within the sound discretion of the trial court. Sain v. Roo, 10th Dist. Franklin No. 01AP-360, 2001 Ohio App. LEXIS 4740 (Oct. 23, 2001), citing Wiltberger v. Davis, 110 Ohio App.3d 46, 52, 673 N.E.2d 628 (1996). Accordingly, it is not within this court‘s province to decide, in the first instance, whether sanctions should be imposed.
vi. Damages
{¶ 80} Finally, appellants argue attorney Pina engaged in frivolous conduct by filing a civil action that sought damages that were not supported by fact or law. We find no merit to appellants’ argument.
{¶ 81} In this case, the damages requested in this case stemmed from allegedly tortious conduct that resulted in injury to Dontae and his personal property. Although Dontae‘s deposition testimony focused on the money expended by others to bail him out of jail following his arrest, the nonfrivolous claims for defamation, malicious prosecution, civil trespass, and malicious destruction of property set forth sufficient facts that, if proven successful, may have entitled Dontae to damages. See
2. Civ.R. 11
{¶ 82}
The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the document;
that to the best of the attorney‘s or party‘s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the document had not been served. For a willful violation of this rule, an attorney or pro se party, upon motion of a party or upon the court‘s own motion, may be subjected to appropriate action, including an award to the opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule. * * *
{¶ 83} When a party files a motion for sanctions under
a general and somewhat indefinite term. It has no constricted meaning. It cannot be defined with exactness. It is not simply bad judgment. It is not merely negligence. It imports a dishonest purpose or some moral obliquity. It implies conscious doing of wrong. It means a breach of a known duty through some motive of interest or ill will. It partakes of the nature of fraud. * * * It means “with actual intent to mislead or deceive another.”
Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 151, 187 N.E.2d 45 (1962), overruled on other grounds, Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994).
{¶ 85} As stated, a legal and factual basis existed for Dontae‘s claims for defamation, malicious prosecution, civil trespass, and malicious destruction of property. While appellants contend that the complaint was filed in an effort to perpetrate extortion, the record supports attorney Pina‘s testimony that she read each filing submitted on Dontae‘s behalf, had sufficient grounds and a good faith basis to support these claims, and did not file these claims for the purpose of harassment or delay. To the extent we have determined that attorney Pina did not harbor good grounds to file the aiding and abetting claim, we are unable to conclude that attorney Pina‘s conduct evidenced a willful or bad-faith violation of
{¶ 87} Judgment affirmed in part, reversed in part. The matter is remanded to the trial court to address the frivolous aiding and abetting claim filed against Steve in the original complaint.
It is ordered that appellants and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the municipal court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR