Bentkowski v. Trafis

[Cite as Bentkowski v. Trafis, 2015-Ohio-5139.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 102540

DAVID A. BENTKOWSKI

PLAINTIFF-APPELLANT

vs.

MATTHEW TRAFIS, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-803270

BEFORE: Kilbane, J., Celebrezze, A.J., and Keough, J.

RELEASED AND JOURNALIZED: December 10, 2015
ATTORNEY FOR APPELLANT

Brent L. English
Law Offices of Brent L. English
The 820 Building - 9th Floor
820 Superior Avenue West
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

For Tim Fraundorf and Concerned Residents
Of Seven Hills

Phillip J. Henry
Phillips & Mille Co., L.P.A.
7530 Lucerne Dr., Suite 200
Middleburg Heights, Ohio 44130

For the Matthew Trafis and the City of Seven Hills

Steven A. Friedman
Squire Patton Boggs (US) L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304

For the City of Seven Hills and Richard Dell’Aquila, Richard Pignatiello, and Patrick
DiChiro

Michelle J. Sheehan
Jonathan H. Krol
Reminger Co., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, Ohio 44115

William Wunderle, pro se
4360 Gene Drive
Seven Hills, Ohio 44131

Gene Dodaro, pro se
6244 Fieldstone Trail
Seven Hills, Ohio 44131

Terrence J. Krafcik, pro se
5521 Avenida Vaquero
Las Vegas, Nevada 89108

Jim Worgull, pro se
4350 Gene Drive
Seven Hills, Ohio 44131

Edward McKenna, pro se
1908 Ridgeview Drive
Seven Hills, Ohio 44131

MARY EILEEN KILBANE, J.:
 {¶1} Plaintiff-appellant, David Bentkowski (“Bentkowski”), appeals from the trial

court’s decisions granting summary judgment in favor of defendants-appellees, Patrick DiChiro,

Richard Dell’Aquila, Richard Pignatiello, and the city of Seven Hills (collectively “City

defendants”), and dismissing defendants Matthew Trafis, Tim Fraundorf, Gene Dodaro, Terrence

Krafcik, Jim Worgull, Edward McKenna, William Wunderle, and Concerned Residents of Seven

Hills, Inc., from the case. For the reasons set forth below, we affirm both orders.

{¶2} This appeal arises from an action brought by Bentkowski after a closed police

investigation into “harassing blogs” about him was produced to Seven Hills’ councilman

Matthew Trafis (“Trafis”) pursuant to a public records request. Bentkowski was elected mayor

of the city of Seven Hills (“City”) in November 2003. He served as the mayor until October

2011, when he resigned. In November 2011, Richard Dell’Aquila (“Dell’Aquila”) was elected

as the mayor of Seven Hills and Bentkowski was elected as councilman-at-large to Seven Hills

City Council. Bentkowski retained that position until December 2013.

{¶3} While mayor of the City, Bentkowski approached the City’s Law Director,

Richard Pignatiello (“Pignatiello”), in the fall of 2009 about certain anonymous postings and

blogs criticizing him on Cleveland.com (a website affiliated with The Plain Dealer) and other

similar community forum websites. Bentkowski inquired if the City could take legal action to

protect him and other City employees “from the attacks, abuse and defamation[.]” He further

inquired if these postings possibly constituted menacing by stalking, intimidation of a public

official, obstruction of justice, or violations of Ohio ethics and election law. Bentkowski

suspected some of his political rivals, including Trafis and Concerned Residents of Seven Hills,

Inc. (“Concerned Citizens”) were involved with the postings. Pignatiello advised that
Bentkowski could file a criminal complaint with the City’s police department, which Bentkowski

did on October 19, 2009.

{¶4} Seven Hills Police Detective Mike Salloum (“Detective Salloum”) was assigned

to the investigation of Bentkowski’s complaint. Bentkowski provided Detective Salloum with

the internet postings he alleged constituted a criminal offense, as well as a narrative describing

the alleged criminal conduct. At the end of his narrative, Bentkowski acknowledged that the

police report “will remain private until [the] investigation is completed.” Detective Salloum

reviewed the materials provided by Bentkowski and monitored additional postings on

Cleveland.com. In a report, he concluded that “[t]here is no evidence of any crime being

violated by any poster.” Detective Salloum forwarded his report and investigation materials to

the City’s prosecutor, Patrick DiChiro (“DiChiro”), for a determination on whether a crime was

committed.

{¶5} Upon reviewing Bentkowski’s criminal complaint and the information provided

by Detective Salloum, DiChiro researched the elements of potential crimes and concluded that no

crime had been committed. DiChiro determined to close the investigation in early 2012, after

consulting with a cyber-law expert. The expert advised DiChiro that he did not believe a crime

had occurred, but if the City wanted to retain him, he would research the issue further. DiChiro

decided to ask city council if it desired to retain the legal expert to further research the issue.

Prior to the discussion with city council, DiChiro informed Trafis, who was a city councilman at

the time, that a police investigation was ongoing regarding internet postings about Bentkowski.

{¶6} The members of city council, including Trafis, met in an executive session and

determined they did not wish to expend funds to retain an outside attorney. As a result, in

March 2012, DiChiro issued a formal determination that no crime had been committed and
officially closed the investigation. Detective Salloum then informed Bentkowski of this

decision.

{¶7} In April 2012, Trafis made a formal public records request for the police

investigation. Before producing the file, DiChiro reviewed Ohio law and contacted the Ohio

Attorney General’s Office for guidance in determining whether the police investigation should be

released pursuant to the Public Records Act that might exempt the police investigation from

release. Based on his legal research, DiChiro determined that the police investigation was a

public record, and he authorized its release in response to Trafis’s request. DiChiro did not

consult Dell’Aquila or Pignatiello in this regard. Before producing the closed police

investigation to Trafis, DiChiro redacted birth dates, social security numbers, and Bentkowski’s

email address. After the police investigation was released, Cleveland.com and Scene Magazine

published news articles criticizing Bentkowski for wasting the City’s resources on the police

investigation.

{¶8} Bentkowski then filed a complaint, containing five causes of action, against

DiChiro, Dell’Aquila, Pignatiello, the City, Trafis, Tim Fraundorf (“Fraundorf”), Gene Dodaro

(“Dodaro”), Terrence Krafcik (“Krafcik”), Jim Worgull (“Worgull”), Edward McKenna

(“McKenna”), Bill Wunderle (“Wunderle”), and Concerned Residents. Bentkowski sought

monetary relief for the damage to his reputation resulting from the disclosure of the police

investigation.

{¶9} In Count One, he alleges the City, Dell’Aquila, Pignatiello, and DiChiro

wrongfully and intentionally disclosed or participated in the disclosure of the personal and

confidential information contained in the police investigatory file. Bentkowski claims the police

investigatory report was exempt from public disclosure under the Ohio Public Records Act as a
Confidential Law Enforcement Investigatory Record (“CLEIR”) under R.C. 149.43 and

R.C. Chapter 1347. In Counts Two and Three, Bentkowski alleges that Pignatiello, Dell’Aquila,

and the City unlawfully retaliated against him because he disclosed Pignatiello’s and

Dell’Aquila’s ethics violations. In Count Four, he alleges that a group of Seven Hills’ residents,

including city councilman Trafis, Fraundorf, Dodaro, Krafcik, Worgull, McKenna, Wunderle,

and Concerned Residents, which publishes the Seven Hills Reporter and operates a website and a

Facebook page, had joined in an unlawful civil conspiracy against him. In Count Five, he

alleges that all the defendants have intentionally inflicted serious emotional distress upon him.

{¶10} In response, the City defendants and Trafis filed separate motions to dismiss.

Bentkowski opposed both motions and amended his complaint. The City defendants and Trafis

separately moved to dismiss the complaint again. Several of the individual defendants,

including Worgull, Wunderle, and Dodaro, also filed motions to dismiss. Bentkowski opposed

these motions as well.

{¶11} The trial court denied the City defendants’ motion to dismiss in part and granted it

in part. The court found that Bentkowski alleged sufficient facts to survive a Civ.R. 12(B)(6)

motion as to Counts One, Two, Three, and Five. The court dismissed Count Four against the

City defendants, finding that Bentkowski’s amended complaint did not set forth a claim for civil

conspiracy against Dell’Aquila, Pignatiello, DiChiro or the City. The court stated “[a] thorough

reading of [Bentkowski’s] claims show that each claim was explicitly directed to specific

defendants and the conspiracy claim did not name the movants.”

{¶12} The court granted Trafis’s renewed motion to dismiss, stating that Count Five

(intentional infliction of emotional distress (“IIED”)) fails “insofar as it claims distress for

actions regarding public dissemination of critical comments about [Bentkowski], for example,
comments posted on the local newspaper’s online community forum.” The court stated that

because Bentkowski was a public official at the time of the alleged wrongdoing, “the

requirements for his claim of emotional distress are heightened.” The court further stated:

In order for a public official to make an emotional distress claim caused by public
opinion statements, the plaintiff must show that the complained of statements are
actual misstatements of fact and were made with actual malice. Stepien v.
Franklin, 39 Ohio App.3d 47 (Ohio Ct. App., Cuyahoga County 1988). Plaintiff
does not claim that the statements allegedly made by the defendants were false
and therefore his claim of intentional infliction of emotional distress against
defendant Trafis is dismissed. As defendant Trafis is not alleged to have
committed another tort, plaintiff’s claim of conspiracy also fails.

{¶13} The court applied the arguments made by Trafis as to Counts Four and Five of

Bentkowski’s complaint to the remaining defendants. The court noted that Bentkowski was

awarded “ample opportunity to respond to Trafis’s argument and the court’s decision regarding

these claims goes to the legal, not the factual, basis of the complaint.”

{¶14} The trial court then granted Worgull and Wunderle’s motion to dismiss, as well as

Dodaro’s motion to dismiss, applying the same rationale. The court also applied its decision to

Fraundorf, Krafcik, McKenna, and Concerned Residents, and dismissed these defendants from

the case. Therefore, only the following defendants remained in the case: Dell’Aquila,

Pignatiello, DiChiro, and the City on Counts One, Two, Three, and Five.

{¶15} Thereafter, the City defendants filed a joint answer, and following discovery they

filed two motions for summary judgment — one on Counts Two and Three, and the other on

Counts One and Five. Bentkowski filed separate briefs in opposition to both motions. On

December 31, 2014, the trial court granted the City defendants’ motions for summary judgment.

In a thorough 11-page opinion, the trial court found that the City defendants are entitled to

governmental immunity and Bentkowski’s claims fail as a matter of law. The court stated:
 Bentkowski alleges that the release of the police record was exempted by R.C.
149.43(h), which prevents the release of “confidential law enforcement
investigatory records.” See R.C. 149.43(h). [Bentkowski] also argues that the
release of the police record was a violation of R.C. 102.99(B)[.]

***

[However,] Bentkowski fails to identify a specific section of the Ohio Revised
Code which expressly imposes liability upon the [City] Defendants for the release
of the records in response to a public record request. Additionally, Bentkowski
fails to identify the confidential information released which would invoke a
violation of R.C. 102.03(B) to exempt the [City] defendants from the general
blanket of governmental immunity. No genuine issue of material fact remains to
defeat summary judgment on this issue.

The trial court further found that:

The grant of immunity also applies to the individual defendants named in this
case.

***

Bentkowski has failed to provide evidence of malice, bad faith, or wanton or
reckless conduct to divest the individual defendants of governmental immunity
and impose individual liability. The record indicates DiChiro determined that the
file was subject to release and that this decision was not influenced by Pignatiello
or Dell’Aquila. * * * At deposition, Bentkowski stated that he was not informed
by anyone that Pignatiello or Dell’Aquila were involved in a conspiracy to release
the police report, but instead that he made this conclusion based upon the
timetable of the report being released contemporaneously with Bentkowski’s
accusations of improper activity by city officials.

***

No question of material fact remains to defeat summary judgment on this issue.

{¶16} Bentkowski now appeals, raising the following six assignments of error for review,

which shall be discussed together where appropriate.

Assignment of Error One

The trial court erred in granting summary judgment on statutory immunity
grounds.
 Assignment of Error Two

The trial court erred in granting summary judgment where a genuine issue of
material fact existed and the City defendants were not entitled to judgment as a
matter of law regarding their wrongful disclosure of private information about
[Bentkowski].

Assignment of Error Three

The trial court erred in granting summary judgment to the City defendants on
[Bentkowski’s] claim for intentional infliction of serious emotional distress.

Assignment of Error Four

The trial court erred in dismissing Count Four of the amended complaint alleging
that Pignatiello and Dell’Aquila were part of an unlawful civil conspiracy.

Assignment of Error Five

The trial court erred in granting Defendant Trafis’s motion to dismiss all claims
against him.

Assignment of Error Six

The trial court erred in entering judgment for the remainder of the individual
defendants, some of whom did not even move for dismissal.

Motion for Summary Judgment

{¶17} In the first and second assignments of error, Bentkowski argues the court erred in

granting summary judgment because there are genuine issues of material fact with regard to

whether the CLEIR exception applies to the closed police investigation and whether the City

defendants acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
 Standard of Review

{¶18} We review an appeal from summary judgment under a de novo standard of review.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Zemcik

v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998).

In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201,

the Ohio Supreme Court set forth the appropriate test as follows.

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no
genuine issue of material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds can come to but one conclusion and that
conclusion is adverse to the nonmoving party, said party being entitled to have the
evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp.,
73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the
syllabus. The party moving for summary judgment bears the burden of showing
that there is no genuine issue of material fact and that it is entitled to judgment as
a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107,
662 N.E.2d 264.

{¶19} Once the moving party satisfies its burden, the nonmoving party “may not rest

upon the mere allegations or denials of the party’s pleadings, but the party’s response, by

affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a

genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385,

1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party.

Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 1992-Ohio-95, 604 N.E.2d 138.

Governmental Immunity

{¶20} Determining whether a political subdivision is immune from liability under R.C.

2744.02 involves a three-tiered analysis. Elston v. Howland Local Schools, 113 Ohio St.3d 314,

2007-Ohio-2070, 865 N.E.2d 845, ¶ 10; Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d

551, 556, 2000-Ohio-486, 733 N.E.2d 1141. A general grant of immunity is provided within the
first tier, which states that “a political subdivision is not liable in damages in a civil action for

injury, death, or loss to person or property allegedly caused by any act or omission of the political

subdivision or an employee of the political subdivision in connection with a governmental or

proprietary function.” R.C. 2744.02(A)(1).

{¶21} The second tier in the immunity analysis focuses on the five exceptions to this

immunity, which are listed in R.C. 2744.02(B). Elston at ¶ 11. If any of the exceptions to

immunity are applicable, thereby exposing the political subdivision to liability, the third tier of

the analysis assesses whether any of the defenses to liability contained in R.C. 2744.03 apply to

reinstate immunity. Id. at ¶ 12.1

{¶22} It is undisputed that the City is a political subdivision and is entitled to immunity

under the first prong of the inquiry. Therefore, the City’s immunity can only be removed if one

of the enumerated exceptions contained in R.C. 2744.02(B) apply. Colbert v. Cleveland, 99

Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781 at 118. Similarly, immunity of city officials

can only be removed if one of the exceptions in R.C. 2744.03(A)(6) apply.

{¶23} Bentkowski contends that the following three exceptions apply to hold the City

defendants liable for the disclosure of the closed police investigation: (1) the Revised Code

imposes liability and an exception exists per R.C. 2744.02(B)(5) and 2744.03(A)(6)(c); (2)

government officials lose their immunity for malicious, bad faith conduct under R.C.

2744.03(A)(6)(b); and (3) immunity is unavailable under R.C. 2744.09(B) for claims brought by

an employee against his political subdivision relative to any matter that arises out of the

employment relationship between the employee and the political subdivision. We agree with the

1R.C. 2744.03(A) provides similar analysis for employees of political
subdivisions.
trial court in that, as a matter of law, none of these exceptions apply. 2 Therefore, the City

defendants are entitled to governmental immunity from Bentkowski’s claims.

{¶24} Bentkowski first argues that the closed police investigation is exempt from public

records disclosure under the CLEIR exception set forth in R.C. 149.43(A)(1)(h) and a trial

preparation record pursuant to R.C. 149.43(A)(4).3 R.C. 149.43(A)(1)(h) provides that a CLEIR

does not constitute a public record. R.C. 149.43(A)(2) defines a CLEIR as

any record that pertains to a law enforcement matter of a criminal, quasi-criminal,
civil, or administrative nature, but only to the extent that the release of the record
would create a high probability of disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which
the record pertains, or of an information source or witness to whom confidentiality
has been reasonably promised;

(b) Information provided by an information source or witness to whom
confidentiality has been reasonably promised, which information would
reasonably tend to disclose the source’s or witness’s identity;

(c) Specific confidential investigatory techniques or procedures or specific
investigatory work product;

(d) Information that would endanger the life or physical safety of law enforcement
personnel, a crime victim, a witness, or a confidential information source.

{¶25} Bentkowski claims the police investigatory file meets all four criteria. As a result,

the City defendants are not entitled to immunity because the exceptions found R.C.

2744.02(B)(5) and 2744.03(A)(6)(c) impose “civil liability” for their improper disclosure of the

police investigation. We find Bentkowski’s argument unpersuasive because the police

2Because there is no exception to the general grant of immunity, there is no
need for us to reach the third tier in the analysis. R.C. 2744.03.
3Ohio’s Public Record Act is set forth in R.C. Chapter 149.
investigation, which was closed, does not constitute a CLEIR, and the Revised Code imposes

criminal liability, not civil liability for the disclosure of an exempt public record.

The CLEIR Exception is Inapplicable

{¶26} R.C. 149.43(A)(2)(a) and (b) are not applicable to the instant case because the

closed police investigation did not include the name of any suspect since no crime was

committed. The investigation also does not contain the name of any confidential informant or

witness interviewed by the police. Bentkowski cannot be considered a confidential informant

because he was the complainant. Furthermore, Bentkowski’s identity as the alleged victim of a

crime would not remain confidential because any criminal indictment would include his name as

the alleged victim. R.C. 149.43(A)(2)(c) is inapplicable because the file included no

confidential investigatory techniques. R.C. 149.43(A)(2)(d) is inapplicable because there is no

allegation that the disclosure of anything Bentkowski told the police would endanger his physical

safety. Moreover, Bentkowski acknowledged his understanding that the police file will remain

private until the investigation is completed. Therefore, the closed police investigatory file is a

public record subject to disclosure under R.C. 149.43.

The Trial Preparation Exception is Inapplicable

{¶27} Bentkowski also argues that the closed police investigation is a trial preparation

record exempt from disclosure. A trial preparation record is a “record that contains information

that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal

action or proceeding, including the independent thought processes and personal trial preparation

of an attorney.” R.C. 149.43(A)(4). Bentkowski claims that the closed police investigation

contains his own work product, which includes information he submitted to the police in

anticipation of litigation and criminal prosecution. However, by the time the closed police
investigation was produced in response to the public records request, the investigation was closed

and no crime was charged or even contemplated. Thus, trial was certainly not reasonably

anticipated, and this exception is inapplicable to the facts in the instant case.

Civil Liability is Not Imposed by Statute

{¶28} R.C. 2744.02(B)(5) and 2744.03(A)(6)(c) provide that a political subdivision and

its employees are not immune when “civil liability” is expressly imposed upon them by a section

of the Revised Code. Id. The statutes further provide that “civil liability” shall not be

construed to exist under another section of the Revised Code merely because that section

provides for a criminal penalty. Id.

{¶29} In support of his argument, Bentkowski relies on R.C. 102.03(B), and contends that

this section imposes liability on city officials. R.C. 102.03(B) provides that no public official

shall

disclose or use, without appropriate authorization, any information acquired by
the public official or employee in the course of the public official’s or employee’s
official duties that is confidential because of statutory provisions, or that has been
clearly designated to the public official or employee as confidential when that
confidential designation is warranted because of the status of the proceedings or
the circumstances under which the information was received and preserving its
confidentiality is necessary to the proper conduct of government business.

{¶30} Under R.C. 102.99(B), a violation of R.C. 102.03(B) is a first-degree

misdemeanor.

{¶31} We note, however, and Bentkowski concedes, that R.C. 102.03(B) imposes only

“criminal penalties.” R.C. 102.03 does not expressly impose “civil liability,” as required to

abrogate immunity under R.C. 2744.02(B)(5) and R.C. 2744.03(A)(6)(c). He further concedes

that the Public Records Act does not explicitly and directly impose a duty upon the City
defendants to not disclose records about him that are exempt from disclosure. Therefore,

Bentkowski cannot use these as exceptions to the City defendants’ general grant of immunity.

R.C. 2744.03(A)(6)(b) — Pignatiello, DiChiro, and Dell’Aquila Did Not Act with Malicious
Purpose, in Bad Faith, or in a Wanton or Reckless Manner

{¶32} Bentkowski next argues that the court erred when it found that Pignatiello,

DiChiro, and Dell’Aquila did not act with a malicious purpose, in bad faith, or in a wanton or

reckless manner by releasing the closed police investigation.

{¶33} “‘In the context of political subdivision immunity, malicious purpose has been

defined as the willful and intentional design to do injury.”’ Friga v. E. Cleveland, 8th Dist.

Cuyahoga No. 88262, 2007-Ohio-1716, ¶ 15, quoting Piro v. Franklin Twp., 102 Ohio App.3d

130, 139, 656 N.E.2d 1035 (9th Dist.1995), citing Jackson v. Butler Cty. Bd. of Cty. Commrs., 76

Ohio App.3d 448, 453, 602 N.E.2d 363 (12th Dist.1991). Bad faith “‘connotes a dishonest

purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior

motive or ill will partaking of the nature of fraud.’” Jackson, quoting Slater v. Motorists Mut.

Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus. Wanton

misconduct is the failure to exercise any care whatsoever and establishes a disposition to

perversity on the part of the tortfeasor. Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d

351, 356, 1994-Ohio-368, 639 N.E.2d 31. Lastly, reckless “conduct refers to an act done with

knowledge or reason to know of facts that would lead a reasonable person to believe that the

conduct creates an unnecessary risk of physical harm and that this risk is greater than that

necessary to make the conduct negligent.” Piro at 139, citing Thompson v. McNeill, 53 Ohio

St.3d 102, 104-105, 559 N.E.2d 705 (1990), citing 2 Restatement of the Law 2d, Torts, Section

500, at 587 (1965).
 {¶34} We agree with the trial court’s finding that there is no evidence to suggest that

Dell’Aquila or Pignatiello had any involvement in the release of the closed police investigation

or that they acted in bad faith by ordering or encouraging its release. DiChiro’s deposition

testimony demonstrates that he alone decided to release the closed police investigation in

response to certain public records requests. Bentkowski admits that he was not informed by

anyone that Dell’Aquila or Pignatiello were involved in a conspiracy to release the police

investigatory report; instead, he concluded they were involved based upon the report being

released contemporaneously with his accusations of improper activity by City officials.

{¶35} With respect to DiChiro, Bentkowski argues DiChiro acted in bad faith when he

disclosed information to Trafis prior to a city council meeting and he failed to confide in

Bentkowski about the release of the closed police investigation. A review of the record reveals

that DiChiro shared with Trafis that a police investigation existed. He did not provide Trafis

with the investigation or allow Trafis to review any part of the file. The information DiChiro

shared with Trafis was the same information that was to be shared during an upcoming council

meeting. Moreover, DiChiro took considerable steps to determine whether the investigatory file

was a public record, including conducting research on the matter and consulting with the police

and attorney general. These efforts belie any notion that DiChiro acted recklessly, in bad faith,

or with malice as Bentkowski contends. Therefore, we do not find that Pignatiello, DiChiro, or

Dell’Aquila acted with bad faith or malicious conduct.

R.C. 2744.09(B) — Bentkowski’s Claims Do Not Arise Out of the Employment Relationship
with the City

{¶36} Under 2744.09(B), the general blanket of political immunity is inapplicable to

“[c]ivil actions by an employee * * * against his political subdivision relative to any matter that
arises out of the employment relationship between the employee and the political subdivision[.]”

Bentkowski’s claims are premised on the release of a closed police investigation file in response

to public records request. This scenario is not related to Bentkowski’s employment with the

City. Bentkowski concedes that the closed police investigation does “not relate to Bentkowski’s

performance as a public official[.]”

{¶37} Under the plain language of the statute, political immunity does not extend to civil

actions by an employee against his political subdivision relative to any matter that arises out of

the employment relationship between the employee and the political subdivision. R.C.

2744.09(B). As a result, Bentkowski cannot rely on the “employment” exception to the general

blanket of immunity.

{¶38} Therefore, the first and second assignments of error are overruled.

IIED — City Defendants

{¶39} In the third assignment of error, Bentkowski argues the trial court improperly

granted summary judgment to the City defendants on his IIED claim. Bentkowski claims the

City defendants inflicted emotional distress upon him by disclosing the closed police

investigation.

{¶40} In order to establish an IIED claim, the plaintiff must demonstrate that (1) the

defendant intended to cause, or knew or should have known that his actions would result in

serious emotional distress; (2) the defendant’s conduct was so extreme and outrageous that it

went beyond all possible bounds of decency and can be considered completely intolerable in a

civilized community; (3) the defendant’s actions proximately caused psychological injury to the

plaintiff; and (4) the plaintiff suffered serious mental anguish of a nature no reasonable person

could be expected to endure. Lombardo v. Mahoney, 8th Dist. Cuyahoga No. 92608,
2009-Ohio-5826, ¶ 6, citing Ashcroft v. Mt. Sinai Med. Ctr., 68 Ohio App.3d 359, 366, 588

N.E.2d 280 (8th Dist.1990).

{¶41} Liability for IIED will only be found in the most extreme circumstances. Crable v.

Nestle USA, Inc., 8th Dist. Cuyahoga No. 86746, 2006-Ohio-2887, ¶ 55. “‘Liability has been

found only where the conduct has been so outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.”’ Id., quoting Yeager v. Local Union 20, Teamsters, 6

Ohio St.3d 369, 375, 453 N.E.2d 666 (1983).

{¶42} Public figures and public officials are prohibited from recovering damages for IIED

without showing that the publication contained a false statement of fact that was made with

actual malice. Stepien v. Franklin, 39 Ohio App.3d 47, 52, 528 N.E.2d 1324 (8th Dist.1988),

citing Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).

{¶43} In the instant case, the disclosure of the closed police investigation in response to

the public records request does not constitute extreme or outrageous conduct sufficient to

establish a claim for intentional infliction of emotion distress. The Ohio Supreme Court has

stated that the liability for IIED:

“does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities. The rough edges of our society are still in need
of a good deal of filing down, and in the meantime plaintiffs must necessarily be
expected and required to be hardened to a certain amount of rough language, and
to occasional acts that are definitely inconsiderate and unkind. There is no
occasion for the law to intervene in every case where someone’s feelings are hurt.
There must still be freedom to express an unflattering opinion, and some safety
valve must be left through which irascible tempers may blow off relatively
harmless steam. See Magruder, Mental and Emotional Disturbance in the Law of
Torts, Harvard Law Review 1033, 1053 (1936). * * *”
Yeager at 375, quoting Restatement of the Law 2d, Torts (1965) 71, Section 46, Comment d.

Thus, Bentkowski’s IIED claims fail as a matter of law.

{¶44} Accordingly, the third assignment of error is overruled.

Motion to Dismiss

{¶45} In the fourth, fifth, and sixth assignments of error, Bentkowski argues the trial

court erred when it dismissed the civil conspiracy claim against Dell’Aquila and Pignatiello, and

dismissed Trafis, Fraundorf, Dodaro, Krafcik, Worgull, McKenna, Wunderle, and Concerned

Citizens from the case.

{¶46} We apply a de novo standard of review to the trial court’s granting of a motion to

dismiss under Civ.R. 12(B)(6) for failure to state a claim. Perrysburg Twp. v. Rossford, 103

Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta U.S.A. Corp.,

95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136. Under this standard of review, we must

independently review the record and afford no deference to the trial court’s decision. Herakovic

v. Catholic Diocese of Cleveland, 8th Dist. Cuyahoga No. 85467, 2005-Ohio-5985, ¶ 13.

{¶47} In order for a trial court to dismiss a complaint under Civ.R. 12(B)(6) for failure to

state a claim upon which relief may be granted, it must appear beyond doubt that the plaintiff can

prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. Doe

v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing

O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975).

{¶48} In resolving a Civ.R. 12(B)(6) motion, a court’s factual review is confined to the

four corners of the complaint. Grady v. Lenders Interactive Servs., 8th Dist. Cuyahoga No.

83966, 2004-Ohio-4239, ¶ 6. Within those confines, a court accepts as true all material

allegations of the complaint and makes all reasonable inferences in favor of the nonmoving party.
 Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 667, 1995-Ohio-295, 653 N.E.2d 1186. “[A]s long

as there is a set of facts, consistent with the plaintiff’s complaint, which would allow the plaintiff

to recover, the court may not grant a defendant’s motion to dismiss.” York v. Ohio State Hwy.

Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).

Civil Conspiracy — Pignatiello and Dell’Aquila

{¶49} Bentkowski argues the court erred when it granted Pignatiello and Dell’Aquila’s

motion to dismiss on the grounds that his civil conspiracy cause of action did not apply to them.

We agree with the end result of trial court, but we reach the same conclusion on different

grounds. Bentkowski acknowledges that Pignatiello and Dell’Aquila’s names were not

expressly referenced in the description for Count Four. They were, however, referenced in the

body of the complaint. In our de novo review, we accept as true all material allegations of the

complaint and make all reasonable inferences in favor of the nonmoving party.

{¶50} In Count Four, Bentkowski alleges that Pignatiello and Dell’Aquila “were willing

participants in the conspiracy and worked behind the scenes to ensure that the information was

released.” To establish a civil conspiracy claim, the plaintiff must prove: “(1) a malicious

combination of two or more persons, (2) causing injury to another person or property, and (3) the

existence of an unlawful act independent from the conspiracy itself.” Kelley v. Buckley, 193

Ohio App.3d 11, 2011-Ohio-1362, 950 N.E.2d 997 (8th Dist.), ¶ 70, citing Williams v. Aetna Fin.

Co., 83 Ohio St.3d 464, 1998-Ohio-294, 700 N.E.2d 859. “An action for civil conspiracy

cannot be maintained unless an underlying unlawful act, which would be actionable in the

absence of the conspiracy, is committed.” Id., citing Gosden v. Louis, 116 Ohio App.3d 195,

687 N.E.2d 481 (9th Dist.1996).
 {¶51} In the instant case, Bentkowski fails to allege an “unlawful act” independent from

the conspiracy itself. Because Bentkowski failed to establish the requisite elements to sustain a

cause of action for civil conspiracy, his claim fails as a matter of law. See McCauley v. PDS

Dental Laboratories, 8th Dist. Cuyahoga No. 90086, 2008-Ohio-2813.

{¶52} Therefore, the fourth assignment of error is overruled.

Civil Conspiracy and IIED — Trafis

{¶53} Bentkowski next argues that the trial court improperly granted Trafis’s motion to

dismiss. Bentkowski alleged a civil conspiracy cause of action and an IIED cause of action

against Trafis. Bentkowski’s civil conspiracy cause of action fails for the same reasons

discussed above.

{¶54} With regard to Bentkowski’s IIED cause of action, a trial court may dismiss a

claim for intentional infliction of emotional distress under Civ.R. 12(B)(6), when the alleged

conduct does not, as a matter of law reach the level of extreme and outrageous conduct.

Reamsnyder v. Jaskolski, 10 Ohio St.3d 150, 462 N.E.2d 392 (1984); Morrow v. Reminger &

Reminger Co., L.P.A., 183 Ohio App.3d 40, 63, 2009-Ohio-2665, 915 N.E.2d 696 (10th Dist.).

{¶55} Bentkowski’s IIED claim was based on his allegation that “[t]he Defendants,

jointly and severally, intentionally and recklessly inflicted serious emotional distress upon the

Plaintiff by their outrageous conduct enumerated above.” However, Bentkowski’s amended

complaint, which was filed after Trafis filed his initial motion to dismiss, did not contain any

allegation that any of the statements allegedly made by Trafis were false statements of fact made

with actual malice. Because he failed to allege that Trafis, or any defendant, made false

statements of fact, with actual malice, Bentkowski’s claim is legally deficient, and the trial court

properly granted Trafis’s renewed motion to dismiss.
 {¶56} Therefore, the fifth assignment of error is overruled.

The Other Nonmoving Defendants

{¶57} Bentkowski argues the trial court also erred when it dismissed all claims against

the remaining nonmoving defendants because he did not receive notice that the trial court

intended to dismiss the nonmoving parties.

{¶58} In X-S Merch., Inc. v. Wynne Pro, L.L.C., 8th Dist. Cuyahoga No. 97641,

2012-Ohio-2315, we stated that “dismissals under Civ.R. 12(B)(6) for failure to state a claim

upon which relief can be granted are akin to dismissals pursuant to Civ.R. 41(B)(1) in that they

are ‘fundamentally unfair’ in the absence of prior notice and an opportunity to respond.” Id. at ¶

17, citing Mayrides v. Franklin Cty. Prosecutor’s Office, 71 Ohio App.3d 381, 594 N.E.2d 48

(10th Dist.1991). We also stated that: “[t]he only instances of when a sua sponte dismissal of a

complaint without notice is appropriate are when the complaint is frivolous or the plaintiff

cannot succeed on the facts stated in the complaint.” X-S Merch. at ¶ 17, fn. 2, citing Dunn v.

Marthers, 9th Dist. Lorain No. 05CA008838, 2006-Ohio-4923.

{¶59} Here, the docket reflects that Trafis filed a motion to dismiss Bentkowski’s

complaint, and in response, Bentkowski filed a brief in opposition and a motion for leave to file

an amended complaint. Bentkowski’s amended complaint contained the same allegations

relating to the claims for IIED and civil conspiracy against Trafis and the nonmoving defendants.

Trafis then filed a renewed motion to dismiss and Bentkowski filed a brief in opposition. In

ruling on Trafis’s renewed motion to dismiss, the trial court applied his argument to all the

defendants. The court found that Bentkowski was awarded ample opportunity to respond to

Trafis’s argument that Bentkowski failed to allege that any defendant made any false statement of
fact with actual malice against him. The court further found that its decision regarding these

causes of action went to the legal, not factual basis of the complaint.

{¶60} Because the trial court found that the claim was legally deficient based on the facts

alleged in Bentkowski’s complaint, it was entitled to apply that argument to all defendants named

in the IIED cause of action. Moreover, since the nonmoving defendants were not alleged to

have committed any underlying tort other than the IIED claim, Bentkowski’s civil conspiracy

cause was also legally deficient. Therefore, we find that the trial court did not err in dismissing

Bentkowski’s IIED and civil conspiracy causes of action against the nonmoving defendants.

{¶61} Accordingly, the sixth assignment of error is overruled.

{¶62} Judgment is affirmed.

It is ordered that appellees recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

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.

MARY EILEEN KILBANE, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR