Opinion
No. 75413.
February 10, 2000.
CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-348628.
JUDGMENT: REVERSED AND REMANDED.
APPEARANCES:
FRANCIS R. KRAJENKE, JR., ESQ., 2901 Euclid Avenue, Suite 616, Cleveland, OH 44115, For Plaintiff-Appellant.
ANDREW M. WARGO, EQ., P. KOHL SCHNEIDER, ESQ., REID, BERRY STANDARD, 1300 Illuminating Building, 55 Public Square, Cleveland, OH 44113, For Defendants-Appellees.
OPINION
Plaintiff-appellant Maria Roque ("appellant") appeals the grant of summary judgment entered in Cuyahoga County Common Pleas Court in favor of defendants-appellees Taco Bell Corp; Mike Hughes and Mike D'Amato ("appellees") on her claims against them. For the reasons stated below, we reverse.
On February 6, 1998, appellant commenced the within action alleging that Taco Bell and its employees, Mike D'Amato and Mike Hughes, maliciously accused and prosecuted the criminal charges of theft and safecracking against her; that Taco Bell's negligent supervision of its employees caused this malicious prosecution; and that the malicious prosecution was such outrageous conduct as to constitute an intentional infliction of emotional distress.
Appellees jointly answered the complaint. The trial court set a discovery deadline for June 10. On May 18, 1998, appellant served her interrogatories and discovery requests on appellees. On June 12, appellant served subpoenaes on the police officers involved requesting information on the criminal case instituted against her and the video tape. On July 13, 1998, without having responded to the outstanding discovery served upon them, appellees jointly moved for summary judgment on the claims in appellant's complaint in which they argued that their involvement consisted of reporting a loss of money from the drop box at Taco Bell and submitting a security video to the police, which they believed showed appellant in the act of removing the money from a drop box. In their motion for judgment, appellees claimed that under the circumstances described, no malice on their part could be shown, and probable cause existed for the indictments issued by the Grand Jury against appellant. On August 7, 1998, appellant requested and received an extension of time to September 15 in which to respond to appellees' motion for judgment because appellees had still failed to provide responses to her May 18 discovery requests and the Cleveland police had failed to respond to the subpoenaes duces tecum. On August 24, appellant filed a motion to compel discovery asserting that appellees had still failed to provide discovery responses to her interrogatories and requests for production of documents. This motion remained unruled upon by the court. On August 25, appellant reissued subpoenaes to the police officers for depositions duces tecum. On September 4, appellant moved for sanctions against the Cleveland Police for their failure to appear at deposition. This motion remained unruled upon by the court.
On September 16, 1998, appellant filed her response to appellees' motion for summary judgment in which she alleged that appellees have withheld information in an attempt to make the matters obfuscatory. In her supporting affidavit, appellant affirmed that a short time prior to appellee Hughes' allegations against her, she had confronted him about abusing his power and corrupting her sister. Thus, appellant argued that a question of fact existed as to whether the prosecution was maliciously initiated by false information given to the police by appellee Hughes.
On September 20, 1998, without addressing the outstanding motion to compel discovery or motion for sanctions against the Cleveland police officers, the trial court granted appellees' motion for summary judgment. This timely appeal follows in, which appellant advances two assignments of error for our review.
I. THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT-APPELLEES'S (SIC) MOTION FOR SUMMARY JUDGMENT IN LIGHT OF THE TRIAL COURT'S FAILURE TO THOROUGHLY REVIEW THE RECORD BEFORE IT AS REQUIRED BY RULE 56, BOTH IN TERMS OF THE SUFFICIENT EVIDENCE PRESENTED BY PLAINTIFF-APPELLANT AND EVIDENCE THAT WOULD HAVE BEEN PRESENTED IF THE COURT DID NOT DENY MOTIONS TO COMPEL DISCOVERY.
II. THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT-APPELLEES['] MOTION FOR SUMMARY JUDGMENT BY FAILING TO APPROPRIATELY APPLY THE CIV.R. 56(C) STANDARD AS TO ESSENTIAL ELEMENTS OF MALICIOUS PROSECUTION, AS PLAINTIFF PRODUCED EVIDENCE OF GENUINE ISSUES OF MATERIAL FACT AS TO EACH ESSENTIAL ELEMENT SO THAT REASONABLE MINDS COULD NOT COME [TO] A CONCLUSION ADVERSE TO THE PLAINTIFF-APPELLANT AND THE TRIAL COURT DID NOT CONSTRUE THE EVIDENCE IN A LIGHT MOST FAVORABLE TO PLAINTIFF-APPELLANT.
In her first assigned error, appellant, in reliance on Murphy v. Reynoldsburg, (1992), 65 Ohio St.3d 356, complains that the trial court failed to comply with the requirement of Civ.R. 56(C) to thoroughly examine the record before entering judgment and failed to consider her motion to compel discovery. First, appellant complains that the "whirlwind" decision-making process demonstrates a failure to thoroughly review the material presented. Second, appellant contends that the trial court's failure, to rule on her motion to compel discovery cannot comport with the "cautious and conscientious review of the record" required by Civ.R. 56.
We find the circumstances of Murphy to be distinguishable from the matter before us. In Murphy, the trial court admitted that it had not reviewed the materials before it prior to ruling on the motion for summary judgment. Such is not the case here. There is no evidence in the record before us that the trial court failed to properly review the record. Accordingly, we find this argument advanced by appellant unpersuasive.
However, appellant further argues that the trial court erred in granting summary judgment without having necessary and relevant evidence before it. We agree.
This court reviews the lower court's grant of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704 . We apply the same test as a trial court, which test is set forth in Civ.R. 56(C) and specifically provides that before summary judgment may be granted it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United Inc. (1977), 50 Ohio St.2d 317, 327.
It is well-settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. However, once the moving party has satisfied this burden, the non-moving party has the burden to set forth specific facts showing there is an issue for trial. Dresher, supra. In accordance with Civ.R. 56(E), "a nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Dresher, supra; Celotex, supra at 322. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, supra at 358-359.
Pursuant to Civ.R. 56(C), the trial court may grant summary judgment where there is no genuine issue as to any material fact. Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 346. A dispute of fact is "material" if it affects the outcome of the litigation and is "genuine" if demonstrated by substantial evidence going beyond the allegations of the complaint. Burkes v. Stidham (1995), 107 Ohio App.3d 363, 371. An issue of fact exists when the relevant factual allegations in the pleadings, affidavits, depositions or interrogatories are in conflict. Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. In deciding whether there is a genuine issue of material fact, the evidence must be construed in the nonmoving party's favor. Hannah v. Dayton Power Light Co. (1998), 82 Ohio St.3d 482, 485. Further, "the inferences to be drawn from the underlying facts contained in the evidentiary materials, such as affidavits and depositions, must be construed in a light most favorable to the party opposing the motion." Id., citing Turner v. Turner (1993), 67 Ohio St.3d 337, 341.
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. Arrest of the plaintiff or seizure of his property is not a necessary element. [Citations omitted.] Trussell v. General Motors Corporation (1990), 53 Ohio St.3d 142, syllabus. "Malice," as the term is used in a claim of malicious prosecution, refers to "an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice." Criss v. Springfield Twp. (1990), 56 Ohio St.3d 82, 85. Alternatively, malice may be inferred by lack of probable cause. Adamson v. May Company (1982), 8 Ohio App.3d 266. The lack of probable cause is the gist of the tort. Garza v. Clarion Hotel, Inc. (1997), 119 Ohio App.3d 478, 482. Probable cause may be present though no crime has actually been committed; it exists when the facts and circumstances are such that a cautious individual would be warranted in the belief that the person accused is guilty of the offense with which he or she is charged. McFinley v. Bethesda Oak Hosp. (1992), 79 Ohio App.3d 613, 617.
In this case, it is undisputed that the criminal proceeding terminated in favor of appellant with the entry of a nolle prosequi pursuant to R.C. 2941.33 on the charges against her. Our inquiry then goes to only the first and second elements of the claim of malicious prosecution.
Generally, "a citizen who serves only as an informer of criminal activity is not regarded as having instituted the criminal proceedings." Robbins v. Fry (1991), 72 Ohio App.3d 360. However, "[t]he protected status of informer can be lost, when the informer provides false information or the informer demonstrates a desire, direction, request or pressure for the initiation of criminal proceedings." Id. at 362.
An indictment is prima facie evidence of probable cause. Carlton v. Davisson (1995), 104 Ohio App.3d 636, 650-651. The existence of probable cause to prosecute a criminal complaint defeats a cause of action for malicious prosecution because the lack of probable cause is an essential element of a plaintiff's claim. See Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142, 559 N.E.2d 732. This presumption may be rebutted by evidence that the return of the indictment resulted from perjured testimony or that the grand jury proceedings were irregular. Deoma v. Shaker Hts. (1990), 68 Ohio App.3d 72, 77. "The requirement of malice turns directly on the defendant's state of mind. Malice is the state of mind under which a person intentionally does a wrongful act without a reasonable lawful excuse and with the intent to inflict injury or under circumstances from which the law will infer an evil intent." Criss, supra. "If the basis cannot be shown, those who made the decision [to prosecute] will appear to have acted with no basis — that is, maliciously." Criss, supra at 84-85.
In response to appellees' motion for summary judgment on appellant's claim of malicious prosecution and the related claims of negligent supervision and intentional infliction of emotional distress made against them, appellant contends that one or more of the appellees provided "false information" to the police resulting in the charges against her. Without discovery appellant is unable to present evidence to demonstrate whether a question of fact exists and is unable to rebut the presumption that the indictment evidences probable cause.
The record reveals that appellant first sought discovery by interrogatories and requests for production of documents propounded on appellees. Next, appellant filed a motion to compel discovery. Further, appellant issued subpoenaes duces tecum for information from the Cleveland police and requested sanctions for their failure to comply. Finally, appellant argued in her brief in opposition to the motion f or summary judgment that her prosecution may have been predicated on false information given to the police. Thus, from the record it is clear that the trial court was sufficiently alerted to appellant's inability to produce evidence that a question of fact remained as to whether false information was provided to the police causing prosecution of appellant without probable cause.
In the instant case, the trial court did not rule upon the motion to compel. Such non-action has the effect of essentially denying the request. Humphrey v. Scottish Lion Ins. Co. Ltd., (Mar. 15, 1996), Trumbull App. No. 94J-5099. We review the trial court's discovery rulings under an abuse of discretion standard. Tracy v. Merrell Dow Pharmaceuticals (1991), 58 Ohio St.3d 147. A judgment preventing the requesting party from pursuing discovery will not be reversed unless the ruling causes substantial prejudice. Shaver v. Standard Oil Co. (1990), 68 Ohio App.3d 783, 800.
In Tucker v. Webb Corp. (1983), 4 Ohio St.3d 121, our supreme court determined that even though a party failed to avail himself of the procedure afforded by Civ.R. 56(F) in order to obtain the necessary discovery to oppose a motion for summary judgment that "taking into account the ramification of a summary disposition, [they] believe that the courts below should have been more cautious in determining whether any genuine issues of material fact existed * * *." See, also, Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272. The Tucker court determined that "one cannot weigh evidence most strongly in favor of one opposing a motion for summary judgment when there is a dearth of evidence available in the first place." Tucker, supra. It is the lack of evidence on a key issue which will render summary judgment inappropriate. Hatzlachh Supply, Inc. v. Appliance Ctr. of Toledo Inc. (Sept. 30, 1988). Lucas App. No. L-88-040, unreported. See Laidley v. St. Luke's Medical Center (June 3, 1999), Cuyahoga App. No. 73553, unreported.
We find it unreasonable for a trial court to require a party opposing a motion to produce rebuttal evidence and at the same time to deny that party the opportunity to discover that evidence. Therefore, although the trial court is vested with discretion in its regulation of discovery, we find it an abuse of discretion for the trial court to deny appellant the opportunity to obtain the facts necessary to oppose a motion for summary judgment made against her.
Accordingly, we find appellant's first assignment of error to be well taken.
In accordance with our determination of appellant's first assignment of error, we need not address appellant's second assigned error. App.R. 12(A)(1)(c).
Reversed and remanded for further proceedings consistent with this opinion.
This cause is reversed and remanded for further proceedings consistent with the opinion herein.
It is, therefore, ordered that appellant recover from appellees her costs herein.
It is ordered that a special mandate be sent to said 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.
O'DONNELL, P.J., CONCURS; and KARPINSKI, J., DISSENTS (WITH DISSENTING OPINION)
___________________________________ TIMOTHY E. McMONAGLE JUDGE
DISSENTING OPINION
I respectfully dissent. This case involves the remarkable situation in which a crime victim became a tort defendant because the defendant gave the police a videotape recording of the crime which provided the factual basis for indictments that were later dismissed.
The majority contends the trial court committed reversible error by denying plaintiff discovery. Not only do the cases it cites reach a contrary result, but the record does not support its argument in the case at bar.
The standard of review governing discovery rulings is abuse of discretion. Tracy v. Merrel Dow Pharmaceuticals, Inc. (1991), 58 Ohio St.3d 147, 152-154; Huebner v. Miles (1993), 92 Ohio App.3d 493 . To constitute an abuse of discretion, the trial court's ruling:
must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead of passion or bias.
Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256; Tracy v. Merrel Dow, supra at 152; Huebner v. Miles, supra at 501. The record does not support such a finding in the case at bar.
The record shows that plaintiff — not the court — was responsible for any lack of discovery. The trial court could properly find that the discovery requests at issue were untimely made. Moreover, the record does not indicate what requests, if any, were unanswered. The record does show, however, that plaintiff viewed the videotape, conducted substantial discovery by deposing the store manager after serving her written discovery requests, and obtained the police reports relating to the matter. Under the circumstances, she has provided no basis for finding any prejudice from the denial of discovery. Shaver v. Standard Oil Co. (1990), 68 Ohio App.3d 783, 799-800 (requiring a finding of "substantial prejudice"); Huebner v. Miles, supra at 501.
The record shows that plaintiff did not respect the trial court's discovery deadline. At the first pretrial after the February 6, 1998 filing of plaintiff's complaint, the trial court scheduled a discovery completion deadline of June 10, 1998. Plaintiff, however, showed no urgency in obtaining discovery. The first items of discovery in the record are subpoenas directed to two police officers who viewed the videotape; these subpoenas were filed June 12, 1998, two days after the discovery deadline.
On July 13, 1998, after the scheduled close of discovery, defendants filed the motion for summary judgment supported by the affidavit of Taco Bell general manager Mike D'Amato. D'Amato showed to an off-duty police officer, acting as a security guard, the videotape recording of the theft from a cash lockbox. A second Cleveland police officer, who also observed the videotape, initiated the charges against plaintiff, who was indicted by the grand jury after Taco Bell declined to sign a complaint.
On August 7, 1998, shortly before the 30-day deadline for the brief in opposition to summary judgment, plaintiff filed a motion for extension of time to respond. Among other things attached to the motion was a May 18, 1998 cover letter to defense counsel referring to service of plaintiff's "first set of discovery." The underlying discovery requests, however, are not in the record. The trial court granted plaintiff's motion for extension to respond until September 15, 1998.
After three more weeks elapsed, on August 24, 1998, plaintiff filed a motion to compel discovery. The motion argued that plaintiff served defendants with interrogatories and requests for production of documents. Again, these requests were not made part of the record. Plaintiff, as well as the majority opinion, however, ignores that Civil Rules 33 and 34(B) provide 28 days to respond to such requests. Because plaintiff's May 18, 1998 requests were so belatedly served, however, no response was required before the discovery completion date of June 10, 1998 that the trial court ordered.
The trial court did not abuse its discretion by enforcing its long-established discovery deadline. Moreover, plaintiff has not shown any prejudice, because the record does not contain the discovery requests she allegedly made. Without some indication of what plaintiff sought to discover, any finding of prejudice is both speculative and unwarranted. This is particularly true in light of the substantial discovery and other materials that plaintiff did obtain in the action after she made her objection. R R Plastics, Inc. v. F.E. Myers Co. (1993), 92 Ohio App.3d 789, 797-798. It is noteworthy that her own counsel specifically stated at the conclusion of the 60-page deposition of D'Amato, the Taco Bell store manager, "I have no further questions." We may conclude from this statement that plaintiff had a full opportunity to question D'Amato.
In her brief in opposition to summary judgment, belatedly filed one day after the extended court-ordered deadline, plaintiff elected to litigate the case on the merits. Moreover, she did not request any additional time for discovery as required by Civ.R. 56(F). This court and others have repeatedly held, contrary to the majority opinion, that claims of error concerning discovery are waived and lack merit under such circumstances. E.g., BFI Waste Sys. Of Ohio v. Garfield Hts. (1994), 94 Ohio App.3d 62, 73-75; Lillback v. Metro Life Ins. Co. (1994), 94 Ohio App.3d 100, 102-104; R R Plastics, Inc. v. F.E. Myers Co., supra at 797-798.
Attached to plaintiff's brief was her own affidavit, police reports prepared by the two officers, photocopies of her indictments and the order dismissing them, as well as an affidavit from the attorney who represented her in the criminal case. Plaintiff's affidavit and that of her criminal defense attorney dispute that she was the person committing the crimes on the videotape. However, any potential question concerning the criminal's identity would have been disclosed and fully apparent to anyone who viewed the videotape, including the police who initiated the charges or the grand jury that returned the indictments. This is the fundamental defect in her case, a defect that no amount of "discovery" could ever overcome.
Plaintiff has never claimed that defendants falsified the videotape itself. Nor has she explained how defendants could have falsely pursued charges against her when they provided, for independent examination, the precise photographic evidence upon which the authorities relied in bringing the charges. No amount of discovery, even if timely requested and vigilantly pursued, could overcome this defect in her case.
The majority's reliance on Tucker v. Webb Corp. (1983), 4 Ohio St.3d 121, to support its argument to the contrary is misplaced for the reasons set forth in R R Plastics, supra at 798. Unlike in the case at bar, the motion for summary judgment in Tucker was filed before any "substantial discovery" was conducted. Id.
In the case at bar, plaintiff had at least four months to conduct discovery from filing the case on February 6, 1998 until the June 10, 1998 discovery cutoff. She waited until the eve of the deadline to make any requests, and most of her requests were filed after the deadline had expired. Although she stated that defendants did not respond to her written discovery, she has not shown what discovery is outstanding. After making her objection, moreover, she fully deposed the general manager of the Taco Bell.
Plaintiff obtained discovery, and her claims were shown to lack merit. Summary judgment was designed precisely to weed out such meritless claims. The majority opinion creates an enormous loophole for disappointed litigants to argue, after contesting and losing on the merits, that they were improperly denied discovery despite failing to seek a continuance under Civ.R. 56(F). I would join the other courts that have rejected this argument and affirm the judgment of the trial court in its entirety.