Clements v. Brimfield Twp. Police Dept.

[Cite as Clements v. Brimfield Twp. Police Dept., 2017-Ohio-4238.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

THOMAS CLEMENTS, : OPINION

Plaintiff-Appellant, :
CASE NO. 2016-P-0079
- vs - :

BRIMFIELD TWP POLICE :
DEPARTMENT, et al.,
:
Defendants-Appellees.

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2012 CV
0613.

Judgment: Affirmed.

Thomas Clements, pro se, 1410 Brookdale Lane, Kent, OH 44240 (Plaintiff-Appellant).

Mel L. Lute, Jr., Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, North
Canton, OH 44720 (For Defendant-Appellees).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Thomas Clements, appeals the trial court’s decision granting

summary judgment in favor of appellees, the Brimfield Township Police Department,

Chief David Oliver, Sergeant Matthew McCarty, and Officers Atha, Dumont, and Pettit,

based on sovereign immunity. We affirm.
 {¶2} In June of 2010, Cheri Kuss contacted the Brimfield Police Department

upon finding her cable box and modem missing from her residence. Officers responded

and Kuss informed them that Clements had stolen the items along with her spare house

key. She also told the police that Clements did not live there with her. Clements arrived

at the residence and told police that he lived there with Kuss and that he had removed

the cable box and modem to return them to the cable company. Neither Kuss nor

Clements presented a written lease that day demonstrating tenancy. Officer Atha

directed Clements to give Kuss the house key and leave the property. Officers also

advised Clements he should raise the tenancy issue with the landlord.

{¶3} Clements claims that he and Kuss rented the property together as

boyfriend and girlfriend and that Kuss lied to the police to get Clements removed. A few

days later, the police were again dispatched to the residence in response to an

emergency call by Kuss. Clements had stabbed her in the arm during a domestic

altercation. Clements was arrested and ultimately pleaded guilty to felonious assault

and burglary. After posting bond but before pleading guilty, Sergeant McCarty reported

seeing Clements in his vehicle following Kuss in hers. McCarty reported this to Officer

Pettit, who included this in a report he was preparing regarding a no-contact order

between Kuss and Clements. As a result of this report, Clements claims to have been

charged with stalking.

{¶4} Clements subsequently filed suit against Kuss, the Brimfield Township

Police Department, Chief David Oliver, Sergeant Matthew McCarty, and Officers Atha,

Dumont, and Pettit (collectively the Brimfield Police). Although less than clear, he

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asserted claims against the Brimfield Police for wrongful eviction, conversion, fraudulent

misrepresentation, and a civil rights violation.

{¶5} Following discovery, the Brimfield Police moved for summary judgment as

to all of Clements’ claims based on sovereign immunity, qualified immunity, and

Clements’ lack of standing to file suit for wrongful eviction. Clements filed two briefs in

opposition, and the trial court granted the Brimfield Police summary judgment on all

claims in August 2013.

{¶6} The case proceeded to jury trial against Kuss only in 2016, and the jury

ruled in Clements’ favor, but did not award him any damages.

{¶7} Clements appeals the decision granting the Brimfield Police summary

judgment. He does not challenge the decision granting the Brimfield Police judgment

on his purported civil rights claim. He asserts six pro se assigned errors:

{¶8} “[1] The trial court committed prejudicial error in granting summary

judgment to defendants-appellees’ Sgt. Matthew McCarty and Officer John Pettit,

finding that there is no genuine issue of material fact and that Sgt. Matthew McCarty

and Officer John Pettit are entitled to judgment as a matter of law when no facts,

evidence, or stipulation was submitted in defendants-appellees’ summary judgment

motion relative to the allegations against them in Counts 6, 7, & 8 of the Second

Amended Complaint, of which evidence and stipulation is necessary to be submitted by

movant under Ohio Rules of Civil Procedure 56(C) to enable a court to determine if

granting summary judgment is appropriate. (Order and Journal Entry, T.d. 139,

paragraph 7 and paragraph 8).

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 {¶9} “[2] The trial court committed prejudicial error in granting summary

judgment to Officer William Atha and Officer Jerry Dumont, relative to Count 1 in the

Second Amended Complaint, by concluding that there was no genuine issue of material

fact despite plaintiff-appellant Clements showing there was a genuine issue of material

fact by submitting credible evidence demonstrating that the Month-to-Month Rental

Agreement evidence submitted by defendant-appellees, which showed Cheri Kuss as

the sole lessee of 4396 Edison Road, was actually a falsely dated document that could

not have been signed on April 1, 2010 as defendant-appellees purport, but rather was

signed by Cheri Kuss on a date after plaintiff-appellant Clements was unlawfully evicted

on June 1, 2010. (Order and Journal Entry, T.d. 139, paragraph 7 and paragraph 8).

{¶10} “[3] The trial court committed prejudicial error in granting summary

judgment to defendant-appellees Officer William Atha and Officer Jerry Dumont, relative

to Counts 1 & 3 in the Second Amended Complaint, and Chief David Oliver, relative to

Counts 4 & 5 in the Second Amended Complaint, based upon finding that Clement’s

burglary conviction stemming from June 7, 2010, ‘. . . refutes any hearsay effort that

Plaintiff made to demonstrate that he had standing to bring this cause of action’ (Order

and Journal Entry, T.d 139, paragraph 5), when there was credible evidence that a

surrender of the premises had occurred subsequent to the unlawful eviction but prior to

Clements re-entering the residence on June 7, 2010, which is the only reason a

burglary conviction was able to be obtained in the first place.

{¶11} “[4] The trial court committed prejudicial error when granting summary

judgment to Officer William Atha, Officer Jerry Dumont, and Chief David Oliver by not

adhering to Civ.R. 56(C) whereby the trial court adopted erroneous facts in its Order

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and Journal Entry, specifically, A) ‘On June 1, 2010, police officers of the Brimfield

Township Police Department were dispatched to the rented residence of Cheri Kuss.’,

B) ‘In fact, the Plaintiff had a separate address at another location where he resided

with his wife, not Ms. Kuss.’, contradicting credible evidence supplied by plaintiff-

appellant Clements as to those assertions, and the trial court not construing Clement’s

evidence in light most favorable to the non-moving party as required by Civ.R. 56(C).

(Order and Journal Entry, T.d. 139, paragraph 3.)

{¶12} “[5] The trial court erred by concluding that the Brimfield Police

Department, Chief David Oliver, Officer William Atha, and Officer Jerry Dumont were

entitled to judgment as a matter of law relative to immunity under R.C. 2744.02 although

plaintiff-appellant Clements offered credible evidence demonstrating that each

defendant acted with malice, bad faith, or with wanton and reckless disregard, contrary

to how a reasonable law officer would have acted given the same circumstances

respective to each of the counts that each officer is named in.

{¶13} “[6] The trial court erred by concluding that the Sgt. Matthew and Officer

John Pettit were entitled to judgment as a matter of law relative to immunity under R.C.

2744.02 and then granting the officers summary judgment although the movants put

forth absolutely no facts, evidence, or stipulation in their Memorandum-of-Law regarding

the claims against them in Counts 6, 7, & 8 of the Second Amended Complaint nor does

their Memorandum-of-Law even mention Officer McCarty or Officer Pettit’s names at

all.”

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 {¶14} We address Clements’ assigned errors out of order. His fifth and sixth

assigned errors allege summary judgment was improperly granted in favor of the

Brimfield Police on sovereign immunity grounds. We disagree.

{¶15} Pursuant to Civ.R. 56(C), summary judgment should be granted when

reasonable minds could reach but one conclusion and that conclusion is adverse to the

nonmoving party. The moving party has the burden of showing that no issue exists as

to any material fact. State v. Licsak, 41 Ohio App.2d 165, 324 N.E.2d 589 (1974);

Mitseff v. Wheeler, 38 Ohio St.3d 112, 626 N.E.2d 798, syllabus (1988).

{¶16} Once the moving party meets his burden, the opposing party may not rely

on his allegations in his pleadings, but must set forth facts showing that there is a

genuine issue and produce evidence on issues that the party has the burden of proving

at trial. Civ.R. 56(E); Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 570

N.E.2d 1095 (1991), citing Celotex Corp. v. Catrell, 477 U.S. 317, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). In determining a motion for summary judgment, the trial court will

construe the evidence most strongly in favor of the nonmoving party and grant summary

judgment where that party fails to make a showing sufficient to establish the existence

of an essential element upon which that party bears the burden of production. Celotex,

at 322.

{¶17} We review decisions granting summary judgment de novo. Watson v.

Bradley, 11th Dist. Trumbull No. 2016-T-0031, 2017-Ohio-431, ¶12.

{¶18} Clements’ pro se second amended complaint appears to assert two or

three state law claims against the Brimfield Police. Clements avers that he was

unlawfully evicted and that his property was converted as a result of the Brimfield Police

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directing him to leave the residence that he allegedly shared with Kuss. He also claims

the Brimfield Township Police Department and Sergeant McCarty and Officer Pettit

wrongfully secured menacing by stalking charges against him, which he asserts is a

fraud or fraudulent misrepresentation claim.

{¶19} R.C. 2744.02(A)(1) provides that a political subdivision is generally

immune from civil actions, stating:

{¶20} “Except as provided in division (B) of this section, 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 * * *.”

{¶21} The Brimfield Township Police Department is a political subdivision

generally immune from liability in civil actions.

{¶22} Furthermore, R.C. 2744.03(A)(6) provides that employees of a political

subdivision are likewise generally immune for duties associated with his or her job:

{¶23} “[T]he employee is immune from liability unless one of the following

applies:

{¶24} “(a) The employee's acts or omissions were manifestly outside the scope

of the employee's employment or official responsibilities;

{¶25} “(b) The employee's acts or omissions were with malicious purpose, in bad

faith, or in a wanton or reckless manner;

{¶26} “(c) Civil liability is expressly imposed upon the employee by a section of

the Revised Code. Civil liability shall not be construed to exist under another section of

the Revised Code merely because that section imposes a responsibility or mandatory

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duty upon an employee, because that section provides for a criminal penalty, because

of a general authorization in that section that an employee may sue and be sued, or

because the section uses the term ‘shall’ in a provision pertaining to an employee.”

(Emphasis added.)

{¶27} Thus, employees of political subdivisions are immune from liability unless

a designated exception applies. Cook v. Cincinnati, 103 Ohio App.3d 80, 90-91, 658

N.E.2d 814. (1st Dist.1995). There is no dispute that the officers named in Clements’

suit were acting in the scope of their duties at the time they allegedly committed the

torts. Clements instead claims they were acting with either a malicious purpose, in bad

faith, or with wanton misconduct. These exceptions to political subdivision employees’

immunity have been defined as:

{¶28} “Malicious purpose” is “the willful and intentional design to injure or harm

another, generally seriously, through unlawful or unjustified conduct.” Jones v.

Norwood, 1st Dist. Hamilton No. C-120237, 2013-Ohio-350, ¶42. “Bad faith” evinces a

“dishonest purpose, conscious wrongdoing, the breach of a known duty through some

ulterior motive or ill will, as in the nature of fraud, or an actual intent to mislead or

deceive another.” Cook, supra. “Wanton misconduct” is defined as “the failure to

exercise any care toward those to whom a duty of care is owed in circumstances in

which there is great probability that harm will result.” Anderson v. Massillon, 134 Ohio

St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph three of the syllabus. Finally,

“reckless conduct” is “a perverse disregard of a known risk[,]” requiring that the “actor

must be conscious that his conduct will in all probability result in injury.” Winkle v.

Zettler Funeral Homes, Inc., 182 Ohio App.3d 195, 2009-Ohio-1724, 912 N.E.2d 151,

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¶22 (12th Dist.) “These are rigorous standards that will in most circumstances be

difficult to establish * * *.” Argabrite v. Neer, __ Ohio St.3d __, 2016-Ohio-8374, ¶8.

{¶29} Whether an employee of a political subdivision is entitled to immunity

under R.C. 2744.03(A)(6) is a question of law. Conley v. Shearer, 64 Ohio St.3d 284,

292, 1992-Ohio-133, 595 N.E.2d 862. However, “we must determine whether, based

on the evidence in the record, reasonable minds could conclude that any of the officers

acted ‘with malicious purpose, in bad faith, or in a wanton or reckless manner’ so as to

preclude immunity.” Argabrite, at ¶15.

{¶30} First, Clements avers that his then girlfriend Kuss had a longstanding

relationship with Officer Atha and Chief Oliver and that as a result of her relationships,

the Brimfield Police believed her version of the events and acted partially in her favor

upon responding to her call reporting a theft. Clements claims that the Brimfield Police

told him to leave the premises and believed Kuss over him even though Clements

showed the officers several utility statements in his name establishing his right to

remain on the property. Clements claims that Kuss and her sister attended school with

Officer Atha and that Kuss previously acted as an informant for Chief Oliver, and as

such, their actions in believing her were in bad faith, with a malicious purpose, or in a

reckless manner. We disagree.

{¶31} Clements’ allegations of wrongdoing concern police actions during the

course and scope of their official actions in responding to a call reporting a theft. The

officers relied on the caller and directed Clements to leave the premises based on

Kuss’s statement that Clements did not live at the property, that the two had recently

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broken up, and that she did not want him there. They told Clements that he should

address his claimed residency with the property’s landlord since it was a civil matter.

{¶32} Clements alleges that Officer Atha and Chief Oliver had past relationships

with Kuss that resulted in a show of favoritism to her in responding to her call. This

allegation, however, does not demonstrate either acted with a malicious purpose, in bad

faith, or in a wanton or reckless manner so as to preclude immunity. Instead, the

officers responded reasonably in light of Kuss’s assertion that Clements was not a

resident of the property and based on their knowledge of the ongoing domestic issues

between Kuss and Clements. Thus, summary judgment was warranted in favor of the

Brookfield Police on Clements’ claims for wrongful eviction and conversion resulting

from his alleged wrongful eviction.

{¶33} Next Clements appears to assert a fraud or fraudulent misrepresentation

claim regarding officers reporting the fact that Clements was following Kuss. As

Clements asserts in his first assigned error, the Brimfield Police did not specifically

address the factual merits of this claim in its motion for summary judgment. However,

the Brimfield Police clearly sought summary judgment on all of Clements’ claims on

sovereign immunity grounds, and Clements did not raise any exceptions to R.C.

2744.03(A)(6) to preclude immunity on this claim.

{¶34} Furthermore, the Brimfield Police supported their summary judgment

motion with Sergeant McCarty’s affidavit in which he verifies that he was aware that

Clements had posted bond after being indicted for stabbing Kuss. Therefore, upon

seeing Clements following Kuss, McCarty reported this to Officer Pettit because he

knew that Clements “had been warned repeatedly to say away from her * * *.”

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 {¶35} Its summary judgment motion was also supported by the affidavit of

Officer John Pettit, who verifies that McCarty advised him of Clements’ proximity to

Kuss, and since Pettit had been preparing a police report regarding a no-contact

between Clements and Kuss, Pettit included McCarty’s observations in his report.

Thus, McCarty and Pettit established that they were acting within the course and scope

of their official capacities, and as such, are presumed immune from civil liability.

Clements does not provide evidence that either was acting with a malicious purpose, in

bad faith, or in a wanton or reckless manner.

{¶36} Accordingly, summary judgment was proper in favor of the Brimfield Police

on Clements’ fraud and fraudulent misrepresentation claims, and his first, fifth, and sixth

assigned errors lack merit. Consequently, his remaining arguments in his second, third,

and fourth assigned errors are moot since our discussion of these issues would be

purely advisory. State v. Carr, 5th Dist. Stark No. 2014CA00200, 2015-Ohio-1987, ¶12.

{¶37} The trial court’s decision is affirmed.

TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.

concur.

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