Powlette v. Carlson

[Cite as Powlette v. Carlson, 2022-Ohio-3257.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

DARREN M. POWLETTE :
:
Plaintiff-Appellant : Appellate Case No. 29437
:
v. : Trial Court Case No. 2021-CV-4498
:
ALEX CARLSON : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:

...........

OPINION

Rendered on the 16th day of September, 2022.

...........

KENT J. DEPOORTER, Atty. Reg. No. 0058487, 7501 Paragon Road, Dayton, Ohio
45459
Attorney for Plaintiff-Appellant

EDWARD J. DOWD, Atty. Reg. No. 0018681, CHRISTOPHER T. HERMAN, Atty. Reg.
No. 0076894, & NATHANIEL W. ROSE, Atty. Reg. No. 0099458, 8163 Old Yankee
Street, Suite C, Dayton, Ohio 45458
Attorneys for Defendant-Appellee

.............

DONOVAN, J.
 -2-

{¶ 1} Darren M. Powlette appeals from the trial court’s judgment on the pleadings

in favor of Alex Carlson on Powlette’s complaint for malicious prosecution. We affirm the

trial court’s judgment.

{¶ 2} Some of the history of this case was discussed in a prior appeal, and we

reiterate it here:

The present dispute began when Miami Township zoning inspector

Alex Carlson sent Powlette a March 21, 2018 “Notice of Violation.” The

notice advised Powlette that he was violating Miami Township Zoning

Resolution Article 8, Section 801 by using his property at 7757 Upper

Miamisburg Road as a “bed and breakfast.” The notice further advised him

to resolve the matter by (1) appealing to the Board of Zoning Appeals

(“BZA”), (2) applying for a conditional-use certificate to use his property as

a bed and breakfast, or (3) ceasing operation as a bed and breakfast.

A criminal complaint subsequently was filed against Powlette on May

1, 2018. The misdemeanor complaint, which was sworn to by Carlson,

alleged that beginning on April 19, 2018 and continuing through the date of

the affidavit Powlette did unlawfully “advertise and operate a bed and

breakfast without conditional use certification at 7757 Upper Miamisburg

Road[.]” The matter proceeded to a November 26, 2018 hearing in

Miamisburg Municipal Court. The prosecutor asked the trial court to

“conditionally dismiss” the complaint without prejudice. The prosecutor's
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conditions were that within 10 days Powlette was to cease advertising for a

bed and breakfast. He also was not to operate a bed and breakfast on the

property without a conditional-use certificate. At the conclusion of the

hearing, the trial court dismissed the complaint without prejudice “on the

condition the defendant remove all public notice, that is web site, Facebook,

et cetera, of conducting a bed and breakfast operation on the subject

property and that compliance with the foregoing occur within ten days[.]”

Thereafter, on December 7, 2018, a new criminal complaint was filed

against Powlette. Like the prior complaint, it was sworn to by Carlson. It

alleged that between the dates of March 21, 2018 and December 7, 2018

Powlette did unlawfully “advertise and operate a bed and breakfast at 7757

Upper Miamisburg Road[.]” * * *

State v. Powlette, 2020-Ohio-5212, 162 N.E.3d 172, ¶ 3-5.

{¶ 3} The refiled case was tried to the bench in the Miamisburg Municipal Court on

May 31, 2019, and Powlette was found guilty in July 2019. Powlette appealed, and we

reversed his conviction in November 2020. Id.

{¶ 4} Powlette filed his action against Carlson in November 2021, alleging

malicious prosecution, claiming that Carlson had acted with “actual malice” and engaged

in “intentional and malicious conduct.” He alleged that he had removed all advertising of

a bed and breakfast prior to November 26, 2018 and he had not advertised or operated

a bed and breakfast at his property at any time after November 26, 2018. Powlette

asserted that there was “significant media interest” in the case and that, after the
 -4-

dismissal, he had “commented to local media that ‘The next time the township files a

criminal charge against someone, they really should investigate first.’ ”

{¶ 5} Powlette’s complaint alleged:

The prosecution of [Powlette] by the filing of a criminal Complaint by

[Carlson] on December 7, 2018 was instituted by Defendant Carlson with

malice and without probable cause, in that: (a) the filing of the charge was

done in retaliation for [Powlette’s] media comments that reflected poorly on

Carlson and Miami Township; (b) Carlson did no investigation before filing

either charge; (c) having agreed to the dismissal of the original criminal

charge upon the condition that [Powlette] cease advertising his property as

a bed and breakfast within ten days of the date of that dismissal, [Carlson]

had no evidence that [Powlette] had advertised the property as a bed and

breakfast after May 1, 2018; (d) [Carlson] had no evidence that [Powlette]

had operated a bed and breakfast on his property in violation of local law at

any time.

Complaint at ¶ 16.

{¶ 6} Powlette further asserted that Carlson’s actions “demonstrated actual malice

toward [him].” Powlette asserted that, at a bench trial in the second action held on May

31, 2019, Carlson acknowledged that he had no knowledge of Powlette’s advertising his

property as a bed and breakfast after November 26, 2018, Carlson had never been to the

property, and Carlson had never spoken to anyone who had stayed at a bed and breakfast

on Powlette’s property in the timeframes specified in either criminal complaint.
 -5-

{¶ 7} Powlette alleged that, as a result of Carlson’s intentional and malicious

conduct, he had incurred attorney fees in the amount of $11,487, suffered damage to his

reputation, and sustained economic loss. Powlette sought compensatory and punitive

damages, attorney fees, prejudgment and post-judgment interest, and court costs.

{¶ 8} In December 2021, Carlson filed a motion to dismiss Powlette’s complaint for

failure to state a claim. Carlson later withdrew his motion to dismiss and filed an answer

to the amended complaint. In his answer, Carlson asserted the affirmative defense of

immunity pursuant to R.C. Chapter 2744.

{¶ 9} On January 18, 2022, Carlson filed a motion for judgment on the pleadings,

asserting that pursuant to R.C. Chapter 2744, he was immune from liability. He asserted

that he acted as the zoning inspector in his role as the Deputy Director of Community

Development for Miami Township, which involved conducting code enforcement

inspections of commercial properties and zoning enforcement.

{¶ 10} Regarding the initial complaint against Powlette, Carlson asserted that he

had “provided all of the materials and evidence he had collected, leading up to and after

issuing the initial zoning violation, to the Miamisburg Municipal Court Prosecutor.”

Regarding the second complaint, Carlson asserted that Powlette had not complied with

the conditional dismissal of the first case and had continued to advertise the property as

a bed and breakfast. He pointed out that every criminal complaint originating in the

Miamisburg Prosecutor’s Office required the signature of a prosecutor; “[a]s is the nature

of any criminal complaint, it requires that a prosecutor or grand jury review the materials

and find probable cause within the evidence provided.” Further, Carlson asserted that
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he had acted “in his governmental discretion,” simply “did his job” when he turned over

evidence of the zoning violation, and “did not ‘cause’ a criminal complaint to be brought.”

because only a prosecutor may do so.

{¶ 11} On February 1, 2022, Powlette opposed the motion for judgment on the

pleadings, asserting that it was a “reasonable inference” from the filing of the complaint

that Carlson “was essential in causing the complaint to be filed,” because it was his

“negligent investigation” that had resulted in the complaint. Powlette asserted that,

although R.C. 2744.03(A) sets forth when an employee is immune from suit, R.C.

2744.03(A)(6) provides an exception to immunity if the employee’s “acts or omissions

were with malicious purpose, in bad faith, or in a wanton or reckless manner.” According

to Powlette, he offered proof of actual malice and/or malice could be “legally inferred”

from a lack of probable cause when bringing a criminal complaint against him.

{¶ 12} The trial court granted Carlson’s motion for judgment on the pleadings,

stating:

Because [Powlette] continued to advertise this business use of his

property after the period ordered to cease and desist the violation, [Carlson]

turned his information over to the prosecuting attorney for the Township and

a criminal complaint was filed against [Powlette]. The first complaint was

conditionally dismissed on the condition that [Powlette] cease his

advertising allegedly illegal use of the property for a bed and breakfast, but

[Powlette] did not comply with that condition. A second criminal complaint

was filed. The case went to trial and [Powlette] was found guilty of a minor
 -7-

misdemeanor. He appealed his conviction and the Court of Appeals

vacated the conviction, * * * holding that advertising his intention to conduct

a bed and breakfast was not “using” the property as a bed and breakfast

and, therefore, [Powlette] was not validly convicted of illegal use of his

property.

[Powlette] alleges that the filing of the second criminal complaint

constituted malicious prosecution entitling him to compensatory and

punitive damages. He alleges that the Court of Appeals decision vacating

the conviction constitutes a termination of the criminal case in his favor, an

element of a malicious prosecution case. However, [Powlette] fails to

allege facts to support his allegation that defendant, Alex Carlson, the

zoning inspector, caused the criminal complaint to be filed against him

without probable cause to do so. A malicious prosecution claim requires

some factual allegations that would support an allegation that there was no

probable cause to issue the Notices of Violations that led to the filing of a

criminal complaint. Given that the criminal charges went to a bench trial

and [were] not dismissed before trial, it is presumed that the charges were

based on probable cause that a criminal act had occurred. [Powlette] has

not pled facts that would support the allegation of lack of probable cause or

bad faith or malice.

Malicious prosecution requires that the criminal complaint (1) was

filed with malice; (2) without probable cause; (3) and termination of the
 -8-

prosecution is in favor of the criminal defendant (now, the plaintiff). Trussel

v. GMC, 53 Ohio St.3d 142, 144, 559 N.E.2d 732 (1990). Malice implies

an improper purpose[ ], or an illegitimate reason for commencing the

criminal prosecution. [Powlette] alleges that [Carlson] turned his

information over to the prosecuting attorney who filed the criminal

complaint. There are no factual allegations of an improper purpose. In

addition, as indicated above, the criminal charges went forward to a bench

trial providing a presumption of probable cause. The reversal on appeal

had nothing to do with the state of mind of Alex Carlson in referring the issue

to the prosecutor representing the township. It was based on the appellate

court’s reading of the zoning code differently than how the zoning inspector

read it. Thus, [Powlette] has not alleged facts supporting or allowing an

inference of malice on the part of [Carlson].

Decision & Entry, p. 1-3.

{¶ 13} Powlette appeals, asserting the following assignment of error:

THE COURT ABUSED ITS DISCRETION BY FINDING THAT

APPELLANT FAILED TO ALLEGE FACTS TO SUPPORT THE

ALLEGATION OF LACK OF PROBABLE CAUSE OR MALICE AND

THEREFORE ERRONEOUSLY GRANTED THE MOTION FOR

JUDGMENT ON THE PLEADINGS.

{¶ 14} Powlette contends that the trial court did not discuss the pertinent facts that

supported his argument that Carlson had acted maliciously and without probable cause,
 -9-

namely that Carslon “conducted no investigation” before he filed the first complaint then

filed the second complaint “after the first complaint was conditionally dismissed and he

had no evidence that Powlette had violated the conditions of the dismissal by advertising

his property as a bed and breakfast.” (Emphasis sic.) Powlette argues that it can be

reasonably inferred that his (Powlette’s) public comments about the matter caused

Carlson to file the second criminal complaint, because Carlson “had no other reason to

do so” and admitted that he “had no information to conclude Powlette had violated the

conditions of the dismissal.”

{¶ 15} Powlette further asserts that the facts pled by him, if taken as true, and the

reasonable inferences that could be drawn therefrom clearly supported a conclusion that

Carlson had “instituted and continued to prosecute” a criminal complaint without probable

cause. He argues that the trial court never addressed the issue of malice. He also

challenges the trial court’s conclusion that the charges were based on probable cause

and contends that the court failed to cite “case law to support its dubious logic.” He

argues that, in the absence of evidence that he did anything other than abide by the terms

of the conditional dismissal, the “only subsequent fact” which could have motivated

Carlson to file the second criminal complaint was Powlette’s comment to the local media,

which “would by any measure constitute malice.”

{¶ 16} Carlson responds that Powlette failed to assert that Carlson did anything

more than turn over information to the prosecuting attorney, who filed the complaint,

pointing out that only in “very rare cases can a third-party – other than a prosecutor – be

liable for malicious prosecution.” Carlson asserts that, at worst, his interpretation of the
 -10-

zoning resolution at issue was “an innocent mistake,” but even that conclusion would be

“a stretch” with respect to probable cause, because the prosecutor and trial court moved

forward with the case. According Carlson, he was not responsible for determining

whether probable cause existed and moving forward with charges; rather, the prosecutor

made these determinations, “as evidenced by his signature” on the second complaint.

{¶ 17} Carlson asserts that Powlette did not provide any evidence that Carlson 1)

gave information to the prosecutor for any reason other than enforcing the zoning code

or 2) had knowledge of Powlette’s public comments to the media or was angered by them.

He also asserts that the prosecutor “nullifie[d] any malicious sentiment that may have

motivated [Carlson] to turn over the investigatory materials,” as noted by the trial court at

the hearing on November 26, 2018.

{¶ 18} Regarding Powlette’s assertion that Carlson failed to investigate, Carlson

directs our attention to our opinion in Powlette, 2020-Ohio-5212, 162 N.E.3d 172, at ¶ 21,

wherein we discuss the evidence in the first case that Powlette had advertised his

property and/or intended to use it as a bed and breakfast. He also argues that the

prosecutor’s filing the criminal complaint and the subsequent bench trial should be

dispositive of the issue of probable cause. Carlson asserts that he never made a

determination as to whether there was probable cause; he simply “did his job and turned

over materials that he believed supported a violation of the Zoning Resolution.”

{¶ 19} Finally, and alternatively, Carlson asserts that the trial court’s judgment

should be affirmed based on immunity under the Ohio Revised Code Chapter 2744. He

argues that the trial court’s judgment may be affirmed based on either a failure to meet
 -11-

the elements of malicious prosecution – a finding of probable cause or lack of malice – or

a sua sponte finding of immunity under R.C. 2744.

{¶ 20} As this Court has noted:

Civ.R. 12(C) provides: “After the pleadings are closed but within such

time as not to delay the trial, any party may move for judgment on the

pleadings.” “A copy of any written instrument attached to a pleading is a

part of the pleading for all purposes.” Civ.R. 10(C). “A motion for judgment

on the pleadings pursuant to Civ.R. 12(C) presents only questions of law,”

and the standard of review is de novo. Dearth v. Stanley, Montgomery

App. No. 22180, 2008-Ohio-487. “Determination of a motion for judgment

on the pleadings is restricted solely to the allegations in the pleadings and

any writings attached to the complaint. Peterson v. Teodosio (1973), 34

Ohio St.2d 161, 165, 297 N.E.2d 113, 116-117. Dismissal is appropriate

under Civ.R. 12(C) when, after construing all material allegations in the

complaint, along with all reasonable inferences drawn therefrom in favor of

the nonmoving party, the court finds that the plaintiff can prove no set of

facts in support of its claim that would entitle it to relief. State ex rel.

Midwest Pride IV, Inc. v. Pontius (1996), 75 Ohio St.3d 565, 570, 664

N.E.2d 931, 936.” Id.

Inskeep v. Burton, 2d Dist. Champaign No. 2007-CA-11, 2008-Ohio-1982, ¶ 7.

{¶ 21} As Powlette asserts, his conviction was reversed by this Court in Powlette,

2020-Ohio-5212, 162 N.E.3d 172. In that case, Powlette was convicted “on a complaint
 -12-

alleging that he ‘advertise[d] and operate[d] a bed and breakfast’ without a conditional

use permit.” Id. at ¶ 1. Powlette asserted five assignments of error:

First, he contend[ed] the trial court erred in allowing the prosecutor

to amend the complaint to include offense dates past the date that was

sworn to in the complaint. Second, he claim[ed] the trial court denied him

due process and a speedy trial by dismissing the original complaint, not

providing adequate notice of a new violation, and refiling the complaint.

Third, he argue[d] that Sections 801 and 803 of Miami Township Zoning

Resolution Article 8 are vague and violate due process as applied to him.

Fourth, he assert[ed] that the trial court's finding that he operated a bed and

breakfast was against the manifest weight of the evidence. Fifth, he

maintain[ed] that the trial court abused its discretion by finding that Miami

Township could regulate his having a bed and breakfast because his activity

was agritourism not subject to local regulation. * * *

Id. at ¶ 2.

{¶ 22} The history of this case, as set forth in Powlette, is recounted above.

Additionally, the trial court made clear at trial on May 31, 2019, that the matter was before

the court “solely on the refiled case * * * and not the prior case that conditionally had been

dismissed.” Id. at ¶ 6. We further noted that, notwithstanding that the trial court rejected

the prosecutor’s request before the trial to amend the end date in the complaint from

December 7, 2018 to January 16, 2019, the trial court stated that it would allow the

prosecutor to present evidence about guests staying at Powlette's property between
 -13-

December 7, 2018 and January 16, 2019. Finally, the trial court rejected an argument

by Powlette that the refiled case had not been properly commenced because he had not

received a new notice of violation with a corresponding time to cure the alleged violation

before criminal proceedings were pursued. Id.

{¶ 23} This Court noted that the trial court heard from four witnesses at trial: for the

prosecution, Kristen Lipscomb Sund, who stayed at the property from December 30, 2018

to January 1, 2019, and Carlson; and for the defense, Kelly McCracken, who developed

and maintained Powlette’s websites, and Powlette. Id. at ¶ 7. At the conclusion of the

State’s case, the prosecutor moved to amend the complaint to indicate that Powlette’s

offense had occurred between April 12, 2018 and January 16, 2019. Over Powlette’s

objection, the trial court allowed the amendment of the dates. Id.

{¶ 24} The trial court’s summary of the evidence included a statement that Carlson

had “investigated [Powlette’s] property by visiting the Stoney Hill Farm Facebook page

and the Stoney Hill Farm website, where he observed bed and breakfast advertising.”

After summarizing the testimony presented, the court rejected Powlette’s assertion that

he had not operated a bed and breakfast. Id. at ¶ 9. It also rejected Powlette’s

argument that he was exempt from the agricultural-use zoning regulation even if he did

use his property as a bed and breakfast. Id. at ¶ 10.

{¶ 25} In the appeal, we noted that, based on its determinations that Powlette had

been operating a bed and breakfast during the time period at issue, that he had not been

exempt from the township's agricultural-district zoning regulations, and that he had not

had a conditional-use certificate, the trial court found him guilty of violating Miami
 -14-

Township Zoning Resolution Article 8, Section 801, a minor-misdemeanor offense. The

trial court imposed a fine and ordered Powlette to pay court costs. Id. at ¶ 11.

{¶ 26} After reviewing Miami Township Zoning Resolution Article 8, Section 801,

we agreed with the trial court that a bed and breakfast is not a permitted use in an

agricultural district. Id. at ¶12. We rejected Powlette’s argument that the absence of a

specific definition of a “bed and breakfast” in the zoning resolution violated his due

process rights by making it impossible for him to know whether what he was doing violated

the law. Id. at ¶ 13.

{¶ 27} In response to Powlette’s argument that the State had presented no

evidence of his operating a bed and breakfast under the plain and ordinary dictionary

definition of that phrase, we stated:

Powlette advertised his “farmhouse” as a bed and breakfast,

advertised it on Air B&B, was informed of his violation of the zoning

resolution, and eventually rented it out to a family although they prepared

their own food there. Given Powlette's advertising, his admission before

the BZA that the property “was meant to be a bed and breakfast,” and the

notice of violation provided to him, we have no hesitation in concluding that

Powlette's intended use of the described property was as a bed and

breakfast as contemplated by the zoning resolution. * * * On this record, the

evidence was sufficient to conclude that Powlette's property came within

the term “bed and breakfast” in the zoning resolution.

Id. at ¶ 14.
 -15-

{¶ 28} However, in reversing the trial court’s finding of a zoning violation, we

stated:

We recognize that there was evidence that Powlette advertised his

property as a bed and breakfast during the time period in the refiled

complaint. The State presented screenshots of Powlette's Facebook page

and a website referring to his property as a “bed and breakfast.” The “URL”

for Powlette's property was www.stoneyhillbedandbreakfast.com. Another

webpage screenshot included a statement that “Stoney Hill Bed and

Breakfast is family owned and operated,” along with a link to an email

address, www.stoneyhillbedandbreakfast@gmail.com. Some of the

referenced screenshots were undated, and others were dated between

February 2, 2018 and March 2, 2018, which was just before the starting

date alleged in the refiled complaint. There appears to be no dispute,

however, that the Facebook and website references to “Stoney Hill Bed and

Breakfast” continued to exist after the starting date alleged in the refiled

complaint. Defense witness Kelly McCracken testified that she created the

“Stoney Hill Bed and Breakfast” website on December 31, 2017. She did

not remove all textual references to a “bed and breakfast” until August 26,

2018. After the first complaint against Powlette that resulted in a dismissal

without prejudice, McCracken also changed the website's URL to “Stoney

Hill Farm” on November 26, 2018. McCracken recalled that she engaged

in essentially the same process for Powlette's Facebook advertising.
 -16-

Zoning inspector Carlson conceded at trial that he had no knowledge of

Powlette advertising his property as a “bed and breakfast” after November

26, 2018. Nevertheless, the record establishes that Powlette did advertise

his property as a “bed and breakfast” during the relevant time period. In its

decision, the trial court also referenced Powlette's “intent” to operate a bed

and breakfast, as evidenced by his testimony at a July 9, 2018 BZA hearing

involving a different issue. During that hearing, which involved Powlette's

use of a barn, he commented that he “meant” to use the farmhouse as a

bed and breakfast. During that same hearing, Powlette added that he had

not yet actually hosted a bed and breakfast.

(Citations omitted.) Id. at ¶ 14-15.

{¶ 29} It was also significant to this Court that “the prosecutor presented no

evidence that Powlette provided any guests with lodging between March 21, 2018 and

December 7, 2018, the dates set forth in the refiled complaint.” Id. at ¶ 16. We

concluded that the amendment of the complaint had been error in that it improperly

changed the offense from events that occurred before December 7, 2018 and added the

events that occurred from December 30, 2018 to January 1, 2019, denying Powlette due

process. Id. at ¶ 19, 20.

{¶ 30} We next addressed an argument that we construed as a sufficiency

argument: Powlette’s assertions that no one had actually stayed at the property as of

December 7, 2018, and that an intent to operate is not the same as actual operation. Id.

at ¶ 20. Based upon the testimony of Kristen Lipsccomb Sund that she had rented the
 -17-

farmhouse from December 30, 2018, to January 1, 2019, we concluded that “there was

no evidence Powlette used his property as a bed and breakfast during the time period in

the refiled complaint.” Id.

{¶ 31} We concluded as follows:

In sum, the State's evidence consisted of Powlette's (1) intending to

use his property as a “bed and breakfast” in July 2018, (2) advertising his

property as a bed and breakfast during the relevant time period before

ultimately removing all references to a “bed and breakfast” from Facebook

and his website and (3) renting his property to one group from December

30, 2018 to January 1, 2019.

In our view, the foregoing evidence did not support Powlette's

conviction under Miami Township Zoning Resolution Article 8, Section 801.

As noted above, that provision identifies certain permitted “uses” of

property. Another provision, Section 803, identifies a “bed and breakfast”

as a conditional use requiring a conditional-use certificate. The complaint

charged Powlette with violating Section 801 by unlawfully “advertis[ing] and

operat[ing] a bed and breakfast” because he did not obtain a conditional-

use certificate.

We note that Sections 801 and 803 are land “use” regulations. For

purposes of the misdemeanor complaint against Powlette then, the ultimate

question is not whether he “advertised” his property as a bed and breakfast.

Strictly speaking, the question also is not whether he “operated” a bed and
 -18-

breakfast. Rather, insofar as Sections 801 and 803 regulate the “use” of

property, the narrow issue is whether the State proved beyond a reasonable

doubt that Powlette “used” his property as a “bed and breakfast” without a

conditional-use certificate in violation of Miami Township's land-use

regulations.

In our view, Powlette's expressed intent to operate a bed and

breakfast during the unrelated July 2018 BZA hearing or his act of

advertising the property as a bed and breakfast for a period of time could

perhaps support injunctive relief against Powlette prohibiting him from

proceeding, but it did not establish a criminal violation of Miami Township

Zoning Resolution Article 8, Section 801 between the dates of March 21,

2018 and December 7, 2018. Regardless of what Powlette “meant” or

“intended” or even “attempted” to do, the State was required to prove that

he actually used his property as a bed and breakfast without a conditional-

use certificate during the original times reflected in the refiled complaint.

***

The only remaining issue is whether Powlette used his property as a

bed and breakfast by advertising it as such. We conclude that the

advertising did not establish his use of the property for that purpose. * * *

Although advertising, in an appropriate case, might support an inference of

use, we are unpersuaded in this case that advertising a property as a bed

and breakfast by itself is enough to prove use of the property for that
 -19-

purpose.

Id. at ¶ 22-26.

{¶ 32} As noted above, in Powlette’s malicious prosecution case, the trial court

determined that Powlette had not pled facts that supported his allegation of a lack of

probable cause, bad faith, or malice as the elements of malicious prosecution. The court

did not consider Carlson’s affirmative defense of immunity. As noted in Argabrite v.

Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, “[w]hen a plaintiff files a civil

action against an employee of a political subdivision, the employee’s entitlement to

statutory immunity is a separate question from the plaintiff’s ability to establish the

elements of his or her claim.” Id. at ¶ 10.

{¶ 33} “The issue of governmental immunity is a question of law. Conley v.

Shearer, 64 Ohio St.3d 284, 595 N.E.2d 862 (1992). When presented with a question

of law, we apply a de novo standard of review.” Coterel v. Reed, 2016-Ohio-7411, 72

N.E.3d 1159, ¶ 11 (2d Dist.), citing Hayward v. Summa Health Sys./Akron City Hosp., 139

Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 23.

* * * The Ohio Immunity statute creates a presumption of

immunity for official government acts, carried out by political

subdivisions and their employees. Cook v. Cincinnati, 103 Ohio

App.3d 80, 90, 658 N.E.2d 814 (1st Dist.1995). The Ohio immunity

statute provides three exceptions to the general rule favoring

governmental immunity. The exceptions at issue are based on R.C.

2744.03(A)(6)(a) and (b), which eliminates a public employee’s
 -20-

immunity defense if: (a) “the employee’s acts or omissions were

manifestly outside the scope of the employee’s employment or official

responsibilities”; or (b) “the employee’s acts or omissions were with

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

***

* * * To overcome the presumption of statutory immunity, the

facts must support a conclusion that the employee acted manifestly

outside the scope of employment, with a malicious purpose, in bad

faith, or in a wanton or reckless manner. * * *

***

For purposes of statutory immunity, the definitions of the

elements of the defense were recently reviewed by the Fifth District

Court of Appeals as follows:

“ ‘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
 -21-

fraud.’ ” Jackson, quoting Slater v. Motorists Mut. Ins. Co., 174 Ohio

St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus.

In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711,

983 N.E.2d 266, the Ohio Supreme Court held “wanton,” “willful,” and

“reckless” describe different and distinct degrees of care and are not

interchangeable. Id. at paragraph one of syllabus. * * *

“Wanton misconduct is the failure to exercise any care toward

those to whom a duty of care is owed in circumstances in which there

is a great probability that harm will result.” Id. at ¶ 33. Wanton

misconduct has been likened to conduct that manifests a “disposition

to perversity,” but the Supreme Court abandoned “disposition to

perversity” as an element of the definition of wanton misconduct in

Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977). Id. at ¶ 28.

“ ‘[M]ere negligence is not converted into wanton misconduct unless

the evidence establishes a disposition to perversity on the part of the

tortfeasor.’ ” Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d

351, 356, 639 N.E.2d 31 (1994) (Citation omitted). “[I]t must be under

such surrounding circumstances and existing conditions that the party

doing the act or failing to act must be conscious, from his knowledge

of such surrounding circumstances and existing conditions, that his

conduct will in all common probability result in injury.” Anderson,

supra at ¶ 25 citing Universal Concrete Pipe Co. v. Bassett, 130 Ohio
 -22-

St. 567, 200 N.E. 843 (1936), paragraph two of syllabus.

“Willful conduct implies an intentional deviation from a clear

duty or from a definite rule of conduct, a deliberate purpose not to

discharge some duty necessary to safety, or purposefully doing

wrongful acts with knowledge or appreciation of the likelihood of

resulting injury.” Anderson, supra at ¶ 32. Willful misconduct involves

“an intent, purpose, or design to injure.” Zivich v. Mentor Soccer Club,

Inc. (1998), 82 Ohio St.3d 367, 375, 696 N.E.2d 201. (Citation

omitted). Willful misconduct is something more than negligence and

it imports a more positive mental condition prompting an act than

wanton misconduct. Phillips v. Dayton Power & Light Co., (1994), 93

Ohio App.3d 111, 119, 637 N.E.2d 963. (Citation omitted). “Willful

misconduct” involves a more positive mental state prompting the

injurious act than wanton misconduct, but the intention relates to the

misconduct, not the result. Mashburn v. Dutcher, 5th Dist., 2012-

Ohio-6283, 14 N.E.3d 383, ¶ 45.

Both wanton and willful describes conduct that is greater than

negligence and can be summarized as follows: willful conduct is the

intent to harm someone and wanton misconduct is the failure to

exercise any care whatsoever. Anderson, supra, at ¶ 48.

“Reckless conduct is characterized by the conscious disregard

of or indifference to a known or obvious risk of harm to another that is
 -23-

unreasonable under the circumstances and is substantially greater

than negligent conduct.” Id. at ¶ 34. (Citations omitted).

Rondy v. Richland Newhope Industries, Inc., 2016-Ohio-118, 57 N.E.3d

369, ¶¶ 42-47 (5th Dist.).

The Ninth District Court of Appeals recently addressed the term

“manifestly outside the scope of employment” as that term is used in the

immunity statute as follows:

R.C. Chapter 2744 does not define what conduct is “manifestly

outside the scope of the employee's employment or official

responsibilities.” R.C. 2744.03(A)(6)(a). However, Ohio courts

have generally held that “ ‘conduct is within the scope of

employment if it is initiated, in part, to further or promote the

master's business.’ ” Curry v. Blanchester, 12th Dist. Clinton Nos.

CA2009-08-010, CA2009-08-012, 2010-Ohio-3368, ¶ 30, quoting

Jackson v. McDonald, 144 Ohio App.3d 301, 307, 760 N.E.2d 24

(5th Dist.2001). “For an act to fall within the scope of employment,

it must be ‘calculated to facilitate or promote the business for which

the [employee or agent] was employed.’ ” Johnson v. Godsey, 2d

Dist. Clark No. 2012 CA 80, 2013-Ohio-3277, ¶ 32, quoting

Osborne v. Lyles, 63 Ohio St.3d 326, 329, 587 N.E.2d 825 (1992).

“In general, if an act is committed within the scope of employment,

it will be authorized, either expressly or impliedly, by the employer.”
 -24-

Johnson at ¶ 32. “ ‘It is only where the acts of state employees are

motivated by actual malice or other [situations] giving rise to

punitive damages that their conduct may be outside the scope of

their state employment.’ ” Curry at ¶ 30, quoting Jackson at 307,

760 N.E.2d 24. “The act must be so divergent that it severs the

employer-employee relationship.” (Internal quotations and

citations omitted.) Wee Care Child Ctr., Inc. v. Ohio Dept. of Job

& Family Servs., 10th Dist. Franklin No. 13AP-1004, 2014-Ohio-

2913, ¶ 28. “One acts with a malicious purpose if one willfully and

intentionally acts with a purpose to cause harm.” Moss v. Lorain

Cty. Bd. of Mental Retardation, 185 Ohio App.3d 395, 2009-Ohio-

6931, 924 N.E.2d 401, ¶ 19 (9th Dist.).

Thomas v. Bauschlinger, 9th Dist. Summit No. 27240, 2015-Ohio-281, ¶ 25.

Coterel at ¶ 14, 15, 16-17:

{¶ 34} Having reviewed the pleadings, and construing all material allegations and

all reasonable inferences therefrom in favor of Powlette, we conclude that the facts herein

did not support a conclusion that Carlson acted manifestly outside the scope of his

employment as the Deputy Director of Community Development and in his role as the

Miami Township Zoning Inspector, or that he acted with a malicious purpose, in bad faith,

or in a wanton or reckless manner. In other words, Carlson was entitled to immunity

pursuant to R.C. 2744.03(6).

{¶ 35} Powlette’s complaint makes clear that he pursued his malicious prosecution
 -25-

claim against Carlson in Carlson’s official capacity as a Miami Township zoning code

enforcement officer. Although this Court reversed Powlette’s misdemeanor conviction,

we cannot reasonably conclude that Carlson’s conduct in swearing to the second

complaint against Powlette rose to the level of any of the egregious conduct defined

above in Coterel. Powlette’s property is zoned for agricultural use only, and “a ‘bed and

breakfast’ is not a permitted use in an agricultural district.” Powlette, 2020-Ohio-5212,

162 N.E.3d 172, at ¶12 (2d Dist.). There was evidence from a July 9, 2018 BZA

hearing, involving a “different issue,” that Powlette intended to operate a bed and

breakfast on his property. Id. at ¶ 21. After the conditional dismissal of the first

complaint, at which time Powlette was ordered by the court to cease advertising for a bed

and breakfast and not to operate a bed and breakfast on the property without a conditional

use certificate, Powlette failed to comply with the advertising condition. As this Court

determined, there “appears to be no dispute * * * that the Facebook and website

references to ‘Stoney Hill Bed and Breakfast’ continued to exist after the starting date

alleged in the refiled complaint.” Id. at ¶ 15.

{¶ 36} In our prior decision “the narrow issue [was] whether the State proved

beyond a reasonable doubt that Powlette [actually] ‘used’ his property as a ‘bed and

breakfast’ without a conditional use permit.” (Emphasis and bracketed word added.) Id.

at ¶ 24. However, the distinct issue presented in this case is Carlson’s conduct in his

capacity as a zoning enforcement officer. We conclude that Powlette’s continued

advertising, coupled with his expressed intent to operate a bed and breakfast on his

property, supported an inference of “use” for purposes of Carlson’s conduct in turning
 -26-

over materials to the prosecutor. We agree with the trial court’s determination that the

reversal of Powlette’s conviction on appeal “had nothing to do with the state of mind of

Alex Carlson in referring the issue to the prosecutor representing the township. It was

based on the appellate court’s reading of the zoning code differently than how the zoning

inspector read it.”

{¶ 37} Powlette’s assertion in paragraph 16 of his amended complaint that Carlson

filed charges in retaliation for Powlette’s public comment to the media after the township’s

first complaint was conditionally dismissed is mere speculation and is not supported by

any factual allegations in the complaint, such as that Carlson was even aware of the

comment. As Carlson notes, “[i]n general, the decision whether to prosecute a criminal

offense is left to the discretion of the prosecutor.” (Emphasis added.) State v. Bakhshi,

2d Dist. Montgomery No. 25585, 2014-Ohio-1268, ¶ 41, citing State v. Turner, 192 Ohio

App.3d 323, 330, 2011-Ohio-393, 949 N.E.2d 57 (2d Dist.). Further, we cannot conclude

that Carlson failed to investigate, given the evidence presented at trial and this Court’s

conclusion that Powlette continued to advertise in violation of the court’s order to cease

doing so within 10 days.

{¶ 38} While Powlette alleged that Carlson had engaged in intentional and

malicious conduct, we cannot conclude that Carlson acted with a willful and intentional

design to do injury to Powlette, as malicious purpose is defined in the context of political

subdivision immunity. We further cannot conclude that Carlson acted in bad faith of the

nature of fraud. Under the circumstances and conditions presented, we cannot conclude

that Carlson was conscious that his conduct would result in injury to Powlette or failed to
 -27-

exercise any care whatsoever such that wanton misconduct was demonstrated. We

similarly cannot conclude that Carlson acted recklessly or exhibited an indifference to a

known or obvious risk of harm to Powlette. In other words, we conclude that Carlson

acted at all times to enforce the Miami Township Zoning Resolution and not outside the

scope of his employment.

{¶ 39} Pursuant to our de novo review, we find that Carlson was entitled to

statutory immunity. Accordingly, Carlson was entitled to judgment on the pleadings.

Powlette’s assignment of error is overruled.

{¶ 40} The judgment of the trial court is affirmed.

.............

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Kent J. Depoorter
Edward J. Dowd
Christopher T. Herman
Nathaniel W. Rose
Hon. Richard S. Skelton