[Cite as Coen v. Dennison, 2014-Ohio-3094.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

JERRY COEN                                       JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                      Hon. W. Scott Gwin, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 2013 AP 08 0036
VILLAGE OF DENNISON, ET AL

        Defendant-Appellee                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Tuscarawas County Court
                                              of Common Pleas, Case No. 2012 CT 03
                                              0237


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       July 10, 2014


APPEARANCES:


For Plaintiff-Appellant                       For Defendant-Appellee


DAN GUINN                                     MARK W. BASERMAN, SR.
Guinn Law Firm, LLC                           Baserman Law Office
118 West High Avenue                          45 South Monroe Street
New Philadelphia, Ohio 44663                  Millersburg, Ohio 44654-1424


Hoffman, P.J.
Tuscarawas County, Case No. 2013 AP 08 0036                                        2


       {¶1}   Plaintiff-appellant Jerry Coen appeals the July 23, 2013 Judgment Entry

entered by the Tuscarawas County Court of Common Pleas, which granted the motion

for summary judgment filed by defendants-appellees Village of Dennison, Ohio,

Dennison Police Department, Police Chief Rob Hunt, and Officer Jimmy McConnell, and

dismissed Appellant’s complaint with prejudice.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   In late November, 2010, Appellant was arrested and charged with two

counts of child endangering arising from a November 25, 2010 incident involving his 8

and 10 year old sons. The charges were dismissed on March 9, 2011. On March 11,

2011, two complaints charging domestic violence stemming from the November 25,

2010 incident were filed. The matter proceeded to trial on May 11, 2011, after which

Appellant was acquitted of the charges.

       {¶3}   On March 12, 2012, Appellant filed a civil complaint against Appellees,

alleging abuse of process, malicious prosecution, negligence, and negligent infliction of

emotional distress. Appellant claimed he was injured by the actions of police officers in

the course of their duties to and employment with Appellee Dennison Police

Department. Appellant further alleged charges should not have been filed against him

initially. Appellees filed a timely answer.

       {¶4}   Appellees filed a motion for summary judgment on June 12, 2013, to

which Appellant responded on June 17, 2013. The trial court conducted a hearing on

July 22, 2013. Via Judgment Entry filed July 23, 2013, the trial court granted summary

judgment in favor of Appellees and dismissed Appellant’s complaint with prejudice.

       {¶5}   It is from this entry Appellant prosecutes this appeal, assigning as error:
Tuscarawas County, Case No. 2013 AP 08 0036                                      3


      {¶6}   "I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

GRANTING THE DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT

SINCE THERE IS A GENUINE DISPUTE OF MATERIAL FACTS."

                                   STANDARD OF REVIEW

      {¶7}   Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

      {¶8}   Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)

the moving party is entitled to judgment as a matter of law; and 3) it appears from the

evidence that reasonable minds can come to but one conclusion and viewing such

evidence most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,

50 Ohio St.2d 317, 364 N.E.2d 267 (1977).

      {¶9}   It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). The standard for

granting summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293,

662 N.E.2d 264 (1996): “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial

court of the basis for the motion, and identifying those portions of the record that
Tuscarawas County, Case No. 2013 AP 08 0036                                       4


demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ, 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).

                                           ANALYSIS

       {¶10} In his sole assignment of error, Appellant challenges the trial court’s

decision to grant summary judgment in Appellees’ favor and to dismiss his complaint.1

                                     NEGLIGENCE CLAIM

       {¶11} R.C. 2744.02(A)(1) provides “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.”           Political

subdivision immunity is not absolute, however.           R.C. 2744.02(B) provides five

1
  Appellant does not assign as error the trial court’s grant of summary judgment with
respect to the emotional distress claim nor his request for punitive damages.
Tuscarawas County, Case No. 2013 AP 08 0036                                        5


exceptions to immunity, which can expose the political subdivision to liability. Those

exceptions are:

             (1) Except as otherwise provided in this division, political

      subdivisions are liable for injury, death, or loss to person or property

      caused by the negligent operation of any motor vehicle by their employees

      when the employees are engaged within the scope of their employment

      and authority. The following are full defenses to that liability: * * *

             (2) Except as otherwise provided in sections 3314.07 and 3746.24

      of the Revised Code, political subdivisions are liable for injury, death, or

      loss to person or property caused by the negligent performance of acts by

      their employees with respect to proprietary functions of the political

      subdivisions.

             (3) Except as otherwise provided in section 3746.24 of the Revised

      Code, political subdivisions are liable for injury, death, or loss to person or

      property caused by their negligent failure to keep public roads in repair

      and other negligent failure to remove obstructions from public roads * * *

             (4) Except as otherwise provided in section 3746.24 of the Revised

      Code, political subdivisions are liable for injury, death, or loss to person or

      property that is caused by the negligence of their employees and that

      occurs within or on the grounds of, and is due to physical defects within or

      on the grounds of, buildings that are used in connection with the

      performance of a governmental function * * *
Tuscarawas County, Case No. 2013 AP 08 0036                                             6


             (5) In addition to the circumstances described in divisions (B)(1) to

      (4) of this section, a political subdivision is liable for injury, death, or loss to

      person or property when civil liability is expressly imposed upon the

      political subdivision by a section of the Revised Code, * * *.

      {¶12} Immunity is extended to claims against individual employees of political

subdivisions pursuant to R.C. 2744.03, which provides, in pertinent part:

             ***

             (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:

             (a) The employee's acts or omissions were manifestly outside the

      scope of the employee's employment or official responsibilities;

             (b) The employee's acts or omissions were with malicious purpose,

      in bad faith, or in a wanton or reckless manner;

             (c) Civil liability is expressly imposed upon the employee by a

      section of the Revised Code. * * *

      {¶13} Appellees contend Chief Hunt and Officer McConnell are immune from

any liability for negligence pursuant to R.C. Chapter 2744 as their alleged acts of

negligence do not demonstrate malicious purpose or bad faith nor constitute wanton or

reckless conduct.    Appellee Village of Dennison submits Appellant neither pled nor

proved the applicability of any exception to the blanket immunity of R.C. Chapter 2944.

In addition, Appellee Dennison Police Department maintains it is not sui juris and
Tuscarawas County, Case No. 2013 AP 08 0036                                        7


Appellant did not assert a claim against the Department relative to the officers’

employment.

       {¶14} Upon review of Appellees’ motion for summary judgment and Appellant’s

response thereto, we find Appellant failed to present any Civ. R. 56 quality evidence to

prove the existence of any issues of material fact. Appellant maintains he “would have

been able to make a prima facie case of damages in this case.” Brief of Appellant at

page 8, unpaginated. Appellant submits he “would testify” and the evidence “would

show” he was injured by Appellees. Speculation as to what the evidence will reveal is

not sufficient to meet Appellant's burden at the summary judgment stage.

       {¶15} We find the trial court did not err in granting summary judgment to

Appellees on Appellant’s negligence claims.

                                 ABUSE OF PROCESS CLAIM

       {¶16} In his Brief to this Court, Appellant challenges the trial court’s dismissal of

his abuse of process claim.      However, upon review of the record, and despite the

caption of the complaint noting such a claim, we find Appellant did not plead a claim of

abuse of process. Appellant merely contends "there was a lack of probable cause."

We find the trial court properly dismissed this claim.

                             MALICIOUS PROSECUTION CLAIMS

       {¶17} Appellant asserted two claims of malicious prosecution against Appellee

Village of Dennison.

       {¶18} In order to succeed on a malicious prosecution claim, the plaintiff must

establish the lack of probable cause in instituting the criminal proceeding. Pierce v.

Woyma, 8th Dist. No. 94037, 2010–Ohio–5590, ¶ 19 (stating that “lack of probable
Tuscarawas County, Case No. 2013 AP 08 0036                                        8


cause is the gist of the action”). “In determining whether the defendant, in instituting the

criminal proceeding, acted without probable cause, his conduct should be weighed in

view of his situation at the time, and of the facts and circumstances which he knew or

was reasonably chargeable with knowing when the proceedings were instituted.”

Melanowski v. Judy, 102 Ohio St. 153, 156, 131 N.E. 360 (1921).

       {¶19} “Probable cause exists when a defendant had a reasonable ground of

belief, supported by trustworthy information and circumstances known to the defendant

which would be sufficiently strong to cause a reasonable careful person, under similar

circumstances, to believe that the prior proceedings and method of presenting the

action were reasonable and lawful. There is no requirement that the defendant must

have evidence that will ensure a conviction.”       Deoma v. Shaker Heights, 68 Ohio

App.3d 72, 77, 587 N.E.2d 425 (8th Dist.1990) (citations omitted). A plaintiff cannot

establish lack of probable cause simply by showing that the claimant was acquitted of

the crime charged. Pierce at ¶ 19.

       {¶20} We find Appellant failed to present any evidence of the quality required by

Civ. R. 56 to establish a genuine issue as to the lack of probable cause. Appellant

merely asserts the second criminal action should not have been filed as the original

charges against him had been dismissed. We find the information relied upon by

Appellees in arresting and charging Appellant was sufficient to establish probable

cause. The lack of sufficient evidence to convict does not negate the probable cause

existing at the time of the filing of the charges. Huber v. O’Neill, 66 Ohio St. 2d 28, 30

(1981).
Tuscarawas County, Case No. 2013 AP 08 0036                                     9


         {¶21} The trial court did not err in granting summary judgment to Appellees on

the malicious prosecution claims.

                  NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM

         {¶22} In his Brief to this Court, Appellant acknowledged he did not establish a

prima facie case of negligent infliction of emotional distress.

         {¶23} Based upon the foregoing, we find the trial court did not err in granting

summary judgment to Appellees and dismissing Appellant’s complaint.2

         {¶24} Appellant’s sole assignment of error is overruled.

         {¶25} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Gwin, J. and

Baldwin, J. concur




2
    We agree Appellee Dennison Police Department is not sui juris.
