McWreath v. Cortland Bank

[Cite as McWreath v. Cortland Bank, 2015-Ohio-5457.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

LARRY J. MCWREATH, : OPINION

Plaintiff-Appellant, :
CASE NO. 2013-T-0112
- vs - :

CORTLAND BANK, et al., :

Defendants-Appellees. :

Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2009 CV 00182.

Judgment: Affirmed.

L. Bryan Carr, Carr, Feneli & Carbone Co., L.P.A., 1392 S.O.M. Center Road, Mayfield
Heights, OH 44124 (For Plaintiff-Appellant).

Elizabeth M. Hill, Ulmer & Berne, L.L.P., 1100 Skylight Office Tower, 1660 West
Second Street, Cleveland, OH 44113-1448 (For Defendants-Appellees, Cortland Bank
and Charles Commons).

John T. McLandrich, Frank H. Scialdone, and Tami Z. Hannon, Mazanec, Raskin,
Ryder & Keller Co., L.P.A., 100 Franklin’s Row, 34305 Solon Road, Solon, OH 44139
(For Defendant-Appellee, Donna Rish).

TIMOTHY P. CANNON, P.J.

{¶1} This appeal is from a final order of the Trumbull County Court of Common

Pleas granting summary judgment in favor of appellees, Donna Rish, Charles

Commons, and Cortland Bank, on the following three remaining claims in the underlying

civil action: intentional interference with expectancy interest; civil conspiracy; and abuse
of process. Appellant, Larry J. McWreath, maintains that appellees’ summary judgment

motions should have been overruled as genuine issues of material facts remain as to

these claims. Based on the following, we affirm the decision of the trial court.

{¶2} This case centers on a series of events involving appellant; his elderly

neighbor, the late Mr. Kopervac; Ms. Rish, an investigator for the Trumbull County

Probate Court; and Mr. Commons, a vice-president of Cortland Bank. The subject

matter of the action concerns whether appellees engaged in acts that wrongfully

required appellant to defend himself in separate legal proceedings before the Trumbull

County Probate Court.

{¶3} Appellant filed a complaint against appellees asserting nine causes of

action: (1) negligence; (2) defamation; (3) interference with expectancy interest; (4)

intentional interference with contract; (5) fraud; (6) breach of contract; (7) civil

conspiracy; (8) breach of obligation of good faith and fair dealing; and (9) abuse of

process. In August 2009, the trial court dismissed all nine claims as to Appellee Rish

and six of the claims as to Appellees Commons and Cortland Bank. Five months later,

the trial court granted summary judgment for Commons and Cortland Bank on the three

remaining claims. In February 2010, appellant appealed the foregoing two rulings to

this court.

{¶4} Previously, in McWreath v. Cortland Bank, 11th Dist. Trumbull No. 2010-

T-0023, 2012-Ohio-3013, this court upheld the granting of summary judgment on the

following claims: negligence; defamation; intentional interference with contract; fraud;

breach of contract; and breach of obligation of good faith and fair dealing. This court

reversed the granting of the Civ.R. 12(B)(6) motion to dismiss in part, and the case was

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remanded for further proceedings on the aforementioned three claims in regard to all

three appellees. After remand and further discovery, the trial court granted summary

judgment on the remaining claims in favor of all three appellees. This appeal concerns

the propriety of the grant of summary judgment on the remaining claims.

{¶5} Appellant is a longtime resident of Vienna, Ohio. In approximately 1985,

he became friends with his neighbor, Frank Kopervac, an elderly gentleman who did not

have any living relatives when he died in March 2008. Through the years, appellant and

members of appellant’s family helped Mr. Kopervac in performing basic tasks, including

grocery shopping, cleaning his home, and paying his bills. In fact, appellant and Mr.

Kopervac became so close that, in 1997, Mr. Kopervac executed a new will and named

appellant the sole beneficiary of his estate. Near the conclusion of Mr. Kopervac’s life,

his estate was worth over one million dollars, and the majority of his funds were

deposited with Cortland Bank.

{¶6} On December 27, 2007, appellant took Mr. Kopervac to Cortland Bank to

cash a number of checks and transfer other funds. Because Mr. Kopervac did not have

any form of identification with him, the transactions could not be completed. Over the

following two days, it was necessary for appellant to go to the bank on three separate

occasions before he could withdraw $12,000 for Mr. Kopervac. When Commons, as

vice president, ultimately approved the transaction, appellant complained about how

difficult it had been to obtain the funds. During the ensuing conversation, appellant

initially told Commons that he was Mr. Kopervac’s grandson, but later admitted they

were just close friends. Near the end of the discussion, Commons advised appellant

that if he wanted to do transactions at the bank for Mr. Kopervac, it would be easier if he

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had a power of attorney.

{¶7} One week later, Mr. Kopervac executed a power of attorney naming

appellant as his attorney-in-fact. When appellant initially presented it to Cortland Bank,

though, it was rejected due to a perceived problem with one of the witnesses. After this

problem was resolved, Commons informed appellant the power of attorney would be

accepted. Thereafter, appellant was given access to Mr. Kopervac’s safety deposit box

on three separate occasions in January 2008.

{¶8} Despite this, appellant still thought that Commons and Cortland Bank were

trying to obstruct his access to Mr. Kopervac’s funds. He further believed the bank was

not paying a sufficient percentage of interest on the funds; thus, he considered whether

all of Mr. Kopervac’s funds should be transferred to another institution.

{¶9} Separate from the foregoing events, Mr. Kopervac’s home was burglarized

on January 5, 2008. Although the Vienna Police Department was called to the scene,

the officers were never able to determine what actually took place; i.e., whether

someone broke into the residence, or whether Mr. Kopervac was scammed by a person

impersonating a policeman. Nevertheless, the investigation did reveal that $10,000 in

cash, various checks, and two firearms were stolen from the home.

{¶10} In light of the burglary, questions were raised as to whether Mr. Kopervac

was still capable of caring for himself. As a result, the Vienna police chief called the

county probate judge and informed him of the situation. In turn, the probate judge

instructed Rish, as the court investigator, to conduct an investigation. Shortly after the

burglary, Rish interviewed Mr. Kopervac on two separate occasions. During at least

one of the interviews, appellant and his mother were present.

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 {¶11} After the police chief’s discussion with the probate judge, Commons also

telephoned the judge to raise concerns about Mr. Kopervac’s present situation. In

response, the probate judge stated he was already aware of Mr. Kopervac’s situation.

{¶12} On February 7, 2008, a private entity, Guardian and Protective Services,

Inc. (“GAPS”), filed an application with the probate court to be appointed guardian of Mr.

Kopervac’s person and estate. The application alleged that Mr. Kopervac was

incompetent as a result of mental incapacity. On the same day the application was

filed, the probate judge issued a judgment finding that Mr. Kopervac’s best interest

would be served if an investigation were conducted. The judgment contained a specific

order requiring Rish to conduct the investigation and to submit a written report within

fourteen days. Additionally, the probate court ordered a stay of all withdrawals of funds

from Mr. Kopervac’s bank accounts.

{¶13} Rish submitted her written report only four days later. The report had a

number of factual errors regarding appellant’s relationship with Mr. Kopervac. For

example, the report stated that Mr. Kopervac did not have a will and that a local attorney

was presently acting as Mr. Kopervac’s attorney-in-fact under the power of attorney.

The report also incorrectly asserted that appellant had withdrawn $250,000 of Mr.

Kopervac’s funds from Cortland Bank.

{¶14} GAPS did its own investigation of Mr. Kopervac’s and appellant’s financial

records and concluded that appellant had not engaged in any improper behavior in

helping Mr. Kopervac over the preceding few years. Accordingly, the probate court

rejected the Rish report, and GAPS stated to the probate court that it had no objection

to appellant’s appointment as guardian for Mr. Kopervac. Before the appointment could

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be made, Mr. Kopervac died.

{¶15} Three days later, Attorney Daniel Letson submitted an application with the

probate court to be appointed special administrator of the estate. The application

alleged that Mr. Kopervac had died intestate and that there was reason to believe Mr.

Kopervac had been exploited by a “neighbor” immediately before his death. In

conjunction with the application, Attorney Letson also moved for the appointment of a

special investigator. Although the probate court granted this motion, a different person

was appointed special investigator; Rish played no role in the investigation during the

separate estate case.

{¶16} During the estate case, appellant contends he had to expend

approximately $20,000 of the estate funds in defending himself against the assertion

that he stole funds from Mr. Kopervac prior to his death. No finding of wrongful conduct

was ever made against him. Moreover, when appellant moved in June 2008 to admit

Mr. Kopervac’s will to probate, the probate court granted the motion and named

appellant as executor of the estate. Ultimately, appellant inherited Mr. Kopervac’s entire

estate pursuant to the terms of the will.

{¶17} The record demonstrates that each of the remaining claims is predicated

upon the same factual allegations. According to appellant, when Rish was first ordered

to conduct an investigation into Mr. Kopervac’s situation following the robbery at his

home, she and Commons had a conversation in which it was agreed that appellant was

using his influence over Mr. Kopervac to extort funds. Further, appellant claims

Commons’ motivation for conspiring with Rish was allegedly to stop appellant from

transferring Mr. Kopervac’s funds to another bank. This alleged conspiracy, appellant

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maintains, was the cause of the numerous mistakes in Rish’s subsequent report,

including the assertion that appellant had already withdrawn $250,000 from Cortland

Bank.

{¶18} Upon remand, Rish immediately moved for summary judgment on the

three remaining claims. Soon thereafter, Commons and Cortland Bank also requested

summary judgment. As one argument under both motions, all three appellees

contended that Rish and Commons did not engage in a conspiracy to stop appellant

from transferring Mr. Kopervac’s funds. In support of her argument, Rish attached to

her motion a copy of her answers to interrogatories presented by appellant. As part of

her answer to the twelfth interrogatory, Rish averred that she could not recall ever

having contact with Commons during the investigation. In their motion, Commons and

Cortland Bank relied upon an excerpt from Commons’ deposition, in which he denied

talking directly to Rish about the Mr. Kopervac situation.

{¶19} In responding to both motions, appellant tried to create a factual dispute

as to whether Rish and Commons had any direct communication prior to the issuance

of her written report. First, appellant presented the affidavit of his mother, Mary

McWreath. Mary averred that she was present when Rish interviewed Mr. Kopervac

and appellant soon after the burglary. Mary further asserted that when appellant asked

Rish whether she was conducting the investigation solely because Commons had

informed her that appellant intended to withdraw Mr. Kopervac’s deposits from the bank,

Rish answered affirmatively. Second, appellant attached to his response an excerpt

from his deposition, in which he attributed the same admission to Rish.

{¶20} In granting both motions for summary judgment, the trial court initially

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noted that appellant expressly admitted during his deposition that the original impetus

for the investigation into Mr. Kopervac’s welfare had been the telephone call from the

township police chief to the probate judge. In light of this, the trial court concluded that

appellant should not be permitted to present evidence tending to show that Rish

predicated her entire investigation upon the alleged conversation between her and

Commons. As a result, the court further determined that appellant had failed to submit

sufficient evidence to create a factual dispute as to whether Rish and Commons had

spoken directly to each other about the Mr. Kopervac situation prior to the issuance of

her report. Accordingly, the trial court ultimately concluded that appellant could not

meet the necessary elements of each of the remaining claims, as there was a lack of

evidence that Commons and Rish conspired to stop appellant from inheriting Mr.

Kopervac’s estate.

{¶21} Appellant raises one assignment of error for review:

{¶22} “The trial court erred in granting appellees’ motions for summary

judgment.”

{¶23} Appellant essentially argues the trial court improperly interpreted the

evidentiary materials accompanying his response brief. Specifically, he contends the

trial court erred in its holding that his materials could not be considered with respect to

the issue of whether Commons and Rish had conspired to produce a false report

concerning his relationship with Mr. Kopervac. He further asserts that if his mother’s

affidavit and his deposition testimony were considered, they would have been sufficient

to raise a factual dispute as to whether Rish’s investigation was driven by a discussion

she had with Commons immediately after the probate court’s initial order. We disagree.

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 {¶24} This court reviews a trial court’s granting of a motion for summary

judgment de novo. Grafton v. Ohio Edison, Co., 77 Ohio St.3d 102, 105 (1996).

Summary judgment is appropriate when: (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.

Civ.R. 56(C); Welco Indus., Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993).

{¶25} Once the moving party has met its burden of supporting its motion
with sufficient admissible evidence, the nonmoving party has a reciprocal
burden under Civ.R. 56(E) to set forth facts showing that there is a
genuine issue for trial. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). If
the nonmoving party does not satisfy this reciprocal burden, summary
judgment, if appropriate, shall be granted against the nonmoving party.
Civ.R. 56(E).

McWreath, 2012-Ohio-3013, ¶21-22.

{¶26} Appellant claims the trial court improperly engaged in a weighing exercise

and decided that his evidentiary materials were not entitled to any weight. But appellant

has mischaracterized the trial court’s analysis. Instead of weighing conflicting evidence,

the trial court held that appellant’s materials could not be considered at all because they

were in conflict with his own prior statement.

{¶27} “‘An affidavit of a party opposing summary judgment that contradicts

former deposition testimony of that party may not, without sufficient explanation, create

a genuine issue of material fact to defeat the motion for summary judgment.’” Natale v.

Everflow Eastern, Inc., 195 Ohio App.3d 270, 2011-Ohio-4304, ¶29 (11th Dist.), quoting

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, paragraph three of the syllabus.

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 {¶28} As part of her summary judgment motion, Rish presented a copy of the

police report pertaining to the burglary of Mr. Kopervac’s home. The police report

contained a statement that the Vienna police chief had called the probate judge to

inform him of Mr. Kopervac’s situation as an elderly person who may not have been

able to adequately protect himself during a burglary. Consistent with this evidence,

appellant admitted in his deposition that the original stimulus of the ensuing

investigation had been the police chief’s call to the probate judge. Furthermore,

appellant testified that he called the police regarding the burglary.

{¶29} In her affidavit accompanying appellant’s response brief, Mary McWreath

stated that, during an interview at Mr. Kopervac’s home, she heard Rish answer “yes”

when appellant asked her if the only reason she was conducting the interview was

because Commons had told her about the possible transfer of Mr. Kopervac’s funds

from the bank. It is undisputed, however, that Rish’s initial interview with Mr. Kopervac

occurred within three days of the burglary and her second interview with Mr. Kopervac

occurred within days of being ordered to conduct an investigation. Therefore, by

asserting there was a different stimulus for the investigation only days after the probate

judge instructed Rish to look into the matter, Mary was directly contradicting appellant’s

admission that the police chief’s telephone call had been the sole stimulus for Rish’s

investigation.

{¶30} It is not necessary to assess the direct contradiction, however, because

Mary’s affidavit does not establish a factual issue concerning the causes of action

asserted by appellant. There simply is no question as to how and why Rish became

involved with Mr. Kopervac’s situation: the police chief called the probate court. Even if

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what Mary claims to have heard was true, this statement cannot be used to

manufacture a factual issue as to whether the alleged communication between

Commons and Rish was the actual stimulus for the probate investigation. It was not.

{¶31} Further, when considering Mary’s affidavit and appellant’s own deposition

testimony, appellant failed to present any evidentiary materials directly conflicting with

appellees’ materials as to the lack of conspiracy between Rish and Commons during

the investigation. Both Rish and Commons had specific, independent duties and

responsibilities with regard to Mr. Kopervac. Mr. Kopervac was an elderly gentleman

with substantial assets. It was appellant’s conduct at the financial institution that raised

legitimate concerns as to whether someone was taking advantage of a vulnerable

senior citizen. Under the circumstances, the evidentiary material establishes the

probate court, police, Rish, and Commons all acted appropriately to ensure appellant

was acting in Mr. Kopervac’s best interest. The fact that appellant is upset because his

motives were being questioned by appellees and others does not establish a cause of

action.

{¶32} To establish a claim for interference with an expectancy interest, a plaintiff

must prove, inter alia, that the defendant intentionally interfered with an expectancy of

inheritance and that the defendant’s conduct in interfering was tortious in nature.

McWreath, 2012-Ohio-3013, ¶50. There is no evidence that Rish or Commons

intentionally made false statements that were designed to ruin appellant’s reputation

and, thus, somehow stop him from inheriting Mr. Kopervac’s estate. Furthermore, as to

Commons and Cortland Bank, there is no evidence that Commons tried to limit

appellant’s access to Mr. Kopervac’s funds and safety deposit box after appellant

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answered Commons’ question concerning whether the power of attorney was properly

witnessed.

{¶33} Likewise, there is no evidentiary material in the record to support

appellant’s theory that Commons’ motivation for conspiring with Rish was to stop

appellant from transferring Mr. Kopervac’s considerable funds to another bank.

Appellant contends this conspiracy was the reason for numerous mistakes in Rish’s

subsequent report, including the false assertion that appellant had already withdrawn

$250,000 from Cortland Bank.

{¶34} Appellant alleges that appellees fraudulently conspired to open an

investigation and subsequently pursue the appointment of a guardian for Mr. Kopervac.

This investigation expended some of the funds that appellant, as the sole beneficiary,

stood to inherit under Mr. Kopervac’s will. Hence, he claims he suffered damages.

Appellant, however, has failed to set forth any substantive evidence that would support

the inference of collusion on behalf of appellees.

{¶35} That Rish and Commons may, at some point, have had a conversation

concerning Mr. Kopervac is completely understandable given their respective roles.

From the commencement of the probate court’s involvement, nothing in the record

supports the conclusion that Rish was acting in a manner inconsistent with her role as a

court-appointed investigator. She made contact with the prospective ward pursuant to

this role and recommended GAPS’ involvement in the course of her investigation.

Further, because Commons was an agent of the bank who had dealt with appellant and

Mr. Kopervac’s account, it is completely understandable that Rish may have spoken

with him. Even though her report contained certain factual errors, that does not imply

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those errors were intentional or entered with the purpose to mislead. In any event,

there is nothing in the record to indicate the errors were a result of an intentional

fabrication made by Commons and/or Rish.

{¶36} Moreover, Commons’ call to the probate court does not imply he was at all

instrumental in facilitating the formal investigation or opening of the guardianship. As an

agent of the bank at which Mr. Kopervac’s accounts were held, it is not unusual that he

would contact the court, especially in light of appellant’s attempt to withdraw funds with

what Commons viewed as a suspicious power of attorney. Any connection between

Rish and Commons, under the facts as established by the evidence, was due to their

respective duties in relation to Mr. Kopervac. Appellant’s averment that Commons

somehow “utilized his position and influence” to initiate the investigation and

guardianship is contrary to the evidentiary material in the record and nothing more than

self-serving speculation.

{¶37} There is no evidence that Rish and Commons maliciously conspired to

injure appellant through the issuance of false statements in Rish’s report. Similarly, if

Rish and Commons did not work together to enjoin appellant from withdrawing Mr.

Kopervac’s funds from Cortland Bank, an abuse of process did not occur because there

is no evidence they attempted to use either of the probate proceedings to achieve an

ulterior purpose.

{¶38} As previously noted, even if the affidavits of the McWreaths were

considered, there are insufficient facts contained in them to substantiate the allegations

and meet the reciprocal burden. There are many facts in the record that are

undisputed. They establish that appellant contacted the police regarding the burglary,

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and the officer subsequently contacted the probate court regarding concerns he

observed in responding to the phone call. As a result of the officer’s phone call with the

probate court, the probate court then sent Rish, as the court investigator, to the home of

Mr. Kopervac. After her visit on January 9, 2008, Rish determined that GAPS should be

notified, prompting an emergency guardianship to be filed on February 7, 2008. Before

the filing of an emergency guardianship, however, Commons notified the probate court

regarding the situation at the bank and was told the probate court was aware of and

looking into the matter. Upon the filing of the emergency guardianship, Rish was

required to conduct an investigation and, thus, met with Mr. Kopervac for the second

time at his home. Appellant and his mother were present for this meeting. Four days

later, Rish filed her investigator’s report, which contained factual errors.

{¶39} Shortly thereafter, independent third party, GAPS, filed the “application for

appointment of guardian of alleged incompetent.” Because of this application, the

probate court ordered a further investigation as to the circumstances of Mr. Kopervac,

the prospective ward.

{¶40} Appellant’s argument is essentially this: There is no evidence that

appellees did not conspire to interfere with his inheritance, therefore they must have.

Such logic is fallacious. One cannot use the absence of proof of a conclusion as

evidence for the truth of the opposite conclusion. Due to the logical inadequacy of this

inference, as well as the self-serving nature of the substantive averments in appellant’s

and Ms. McWreath’s affidavits, we hold he failed to meet his reciprocal burden.

{¶41} The trial court further held Rish, an employee of the probate court, was

immune from liability. We decline, however, to address the immunity issue given this

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court’s conclusion as to the actual merits of the three remaining claims.

{¶42} In light of appellant’s failure to create a factual dispute regarding whether

Rish and Commons plotted together to thwart appellant’s actions to exercise control

over Mr. Kopervac’s assets, all three appellees were entitled to prevail as a matter of

law on the claims of intentional interference with an expectancy interest, civil

conspiracy, and abuse of process. The trial court did not err in entering judgment

against appellant on the remaining claims of his complaint. For this reason, appellant’s

sole assignment of error lacks merit.

{¶43} The judgment of the Trumbull County Court of Common Pleas is hereby

affirmed.

CYNTHIA WESTCOTT RICE, J., concurs,

THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.

____________________

THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.

{¶44} In affirming, the majority holds there is no genuine issue as to any material

fact. I disagree.

{¶45} In opposing appellees’ motion for summary judgment, appellant advanced

the affidavit of his mother, Mary McWreath; his own affidavit; and an excerpt from his

prior deposition. According to both affidavits, during the second “Kopervac” interview,

Rish made a statement that the investigation was continuing because Commons

communicated concerns to her regarding appellant’s withdrawal of Kopervac’s funds

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from Cortland Bank. The trial court found that the statements in the affidavits conflicted

with appellant’s prior deposition testimony that a telephone call from the township police

chief to the probate judge was the reason for the investigation into Kopervac’s condition,

and therefore, declined to consider the affidavits.

{¶46} As a general proposition, when the affidavit of the non-moving party

conflicts with his previous deposition testimony, it cannot be used to create a factual

dispute to defeat the opposing party’s motion. Wright v. Mar-Bal Inc., 11th Dist. Geauga

No. 2012-G-3112, 2013-Ohio-5647, ¶27. As an exception to the foregoing, a

“conflicting” affidavit must be considered when the non-moving party provides an

explanation for the inconsistency. Id. For reasons to follow, there was no

inconsistency, but even assuming inconsistency, appellant gave the necessary

explanation.

{¶47} During his deposition, appellant agreed that the probate judge’s decision

to appoint Rish to investigate Kopervac’s competency was initially predicated upon the

police chief’s call concerning the burglary. However, appellant expressly asked for an

opportunity to explain his answer. In his ensuing testimony, he said that, within a few

days after the police chief’s call to the probate court, Rish came to Kopervac’s

residence on two separate occasions to conduct interviews. According to him, the

impetus for her first interview was the burglary report and the general concern for

Kopervac’s well-being. But, the impetus for Rish’s second visit was due to the

communication between Rish and Commons:

{¶48} “A. Ms. Rish, when she was questioning and asking my mother questions

and then she asked me questions, I told her – I said, ‘Let’s just cut the s***’ – pardon my

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French, I says, ‘You’re here because Cortland Bank has called you,’” I said, ‘Because of

the fact of me trying to move the money because of the interest rate.’ And she said,

‘Yes, it is.’”

{¶49} Allowing for reasonable inferences, although the police chief’s phone call

to the probate court was the impetus for Rish’s first visit, her conversation with

Commons was the grounds for her second interview and, ultimately, the factual errors in

her written report. To this extent, appellant’s deposition testimony is consistent with his

affidavit.

{¶50} Moreover, given that Mary McWreath’s affidavit had a similar averment

concerning Rish’s statement, it was likewise consistent with appellant’s deposition

testimony as to the ongoing reason for the investigation. Because testimony regarding

Rish’s statement is admissible as a statement against interest, Evid.R. 801(D)(2), the

trial court erred in not considering both affidavits.

{¶51} When viewed in a manner most favorable to appellant, the two affidavits

and the deposition excerpt create a genuine issue of material fact as to whether

Commons and Rish communicated prior to the completion of her written report.

{¶52} The majority concludes that even if appellant’s evidence regarding Rish’s

statement is considered true, “this statement cannot be used to manufacture a factual

issue as to whether the alleged communication between Commons and Rish was the

actual stimulus for the probate investigation.” Supra, at ¶30. While true, that misses

the mark. With reasonable inferences, a jury could conclude that it was the continuation

of the investigation and the second interview that led to false statements in the report.

{¶53} Resultantly, I disagree with the majority’s assertion that we need not

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address the second aspect of the trial court’s summary judgment analysis; i.e., even if

appellant is entitled to go forward against Rish as a factual matter, should judgment still

be entered in favor of Rish on the basis that she is immune from liability?

{¶54} The trial court’s “immunity” analysis is two pronged. First, the court held

that Rish was entitled to absolute immunity on the basis that she was acting on behalf of

the probate judge in performing her investigation into the “Kopervac” situation. Second,

the court found that she was entitled to qualified immunity under R.C. 2744.03(A)(6), as

there is no evidence that she had acted maliciously, in bad faith, or in a reckless or

wanton manner.

{¶55} Under Ohio common law, if a state judge has jurisdiction over a particular

case or controversy, he or she is afforded absolute immunity from civil liability for all

actions taken while performing his or her judicial duties. Loyer v. Turner, 129 Ohio

App.3d 33, 36 (6th Dist.1998). By way of case law, this absolute judicial immunity

extends from judges to any quasi-judicial officers, such as a city or county prosecutor.

See Jopek v. Cleveland, 8th Dist. Cuyahoga No. 93793, 2010-Ohio-2356, ¶30.

Furthermore, court agents have also been given absolute immunity when engaged in

acts of a judicial or quasi-judicial nature. Loyer, at 36.

{¶56} In Clover v. Joliff, 11th Dist. Trumbull No. 2001-T-0135, 2002-Ohio-5161,

this court concluded that a common pleas court’s probation officer is entitled to absolute

immunity in the performance of his duties so long as he does not act beyond the scope

of his authority. Citing our previous opinion in Clark v. Eskridge, 77 Ohio App.3d 524,

529 (11th Dist.1991), the Clover court noted that a probation officer’s immunity extends

to the preparation and filing of a presentence investigation report because the common

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pleas court relies upon those reports in imposing sentence in a criminal matter. Clover,

at ¶20.

{¶57} In holding that Rish was entitled to absolute immunity as a court

employee, the trial court relied upon Clover. The similarity of Rish to a probation officer

is undeniable. The Clover decision, however, is flawed and should be overruled. In

McKinney v. Hartley, 5th Dist. Fairfield No. 2007CA-00072, 2009-Ohio-274, ¶11, the

Fifth District noted that the Clover court failed to acknowledge the effect of R.C.

2744.03(A)(7) upon the extension of absolute judicial immunity to other court

employees.

{¶58} R.C. 2744.02(B) lists a set of specific instances in which an Ohio political

subdivision or its employee can be found liable in a civil action. R.C. 2744.03(A) then

provides, in pertinent part:

{¶59} “(A) In a civil action brought against a political subdivision or an employee

of a political subdivision to recover damages for injury, death, or loss to person or

property allegedly caused by any act or omission in connection with a governmental or

proprietary function, the following defenses or immunities may be asserted to establish

nonliability:

{¶60} “* * *

{¶61} “(7) The political subdivision, and an employee who is a county

prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of

a political subdivision, an assistant of any such person, or a judge of a court of this

state, is entitled to any defense or immunity available at common law or established by

the Revised Code.”

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 {¶62} R.C. 2744.01 et seq. sets forth a complete scheme governing immunity for

Ohio political subdivision and its employees; thus, “[t]he effect of R.C. 2744.03, with the

exception of the common law immunity preserved by R.C. 2744.03(A)(7), is to abrogate

all other immunity provided under common law.” Potter v. City of Troy, 78 Ohio App.3d

372, 386 (1992). See also Triomphe Investors v. City of Northwood, 835 F.Supp 1036,

1046 (W.D.Ohio, 1993). In relation to common law immunities, R.C. 2744.03(A)(7)

refers only to political subdivisions, lead prosecutors, assistant prosecutors, and judges.

The statute does not refer to a court investigator of any kind. As a result, although Rish

was appointed by the probate court to conduct the investigation, she was not entitled to

absolute judicial immunity because her court position or job is not included in R.C.

2744.03(A)(7).

{¶63} In the second part of its “immunity” analysis, the trial court found that Rish

was entitled to qualified immunity under R.C. 2744.03(A)(6). This division provides that

a political subdivision’s employee can assert the following as a defense from civil

liability:

{¶64} “(6) In addition to any immunity or defense referred to in division (A)(7) of

this section and in circumstances not covered by that division or sections 3314.07 and

3746.24 of the Revised Code, the employee is immune from liability unless one of the

following applies:

{¶65} “* * *

{¶66} “(b) The employee’s acts or omissions were with malicious purpose, in

bad faith, or in a wanton or reckless manner.”

{¶67} In holding that appellant did not present evidence tending to show that the

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exception to immunity under subdivision (b) was applicable to Rish’s acts, the trial court

stated that, even if the Rish report contained multiple factual errors, there was no

“correlation” between the errors and any inappropriate behavior on her part. However,

in drawing this conclusion, the trial court clearly relied upon its earlier determination that

there had been no telephonic communication between Rish and Commons before the

issuance of her written report.

{¶68} As previously discussed, there is evidence presented that Rish and

Commons communicated before issuance of the report, that the report contains false

statements, and that the errors could have been avoided had a thorough neutral

investigation been performed.

{¶69} A juror could find, at the very least, that Rish acted recklessly and,

therefore, there is a triable issue regarding qualified immunity. R.C. 2744.03(A)(6).

{¶70} Given the error in the trial court’s analysis of the evidentiary materials

pertaining to the “Rish-Commons communication” issue, I conclude that none of the

three appellees, Rish, Commons, or Cortland Bank, were entitled to summary judgment

on any of the three remaining claims. Accordingly, I dissent.

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