[Cite as Hurst v. Moore, 2017-Ohio-7238.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
MARK E. HURST                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. John W. Wise, J.
Plaintiff-Appellant/Cross-appellee            :       Hon. Craig R. Baldwin, J.
                                              :
                                              :
-vs-                                          :       Case No. 17-CA-4
                                              :
WAYNE MOORE, ET AL                            :
                                              :       OPINION
Defendants-Appellees/Cross-
Appellants




CHARACTER OF PROCEEDING:                          Civil appeal from the Licking County Court
                                                  of Common Pleas, Case No. 2016 CV
                                                  00007


JUDGMENT:                                         Affirmed in part; Reversed and Remanded
                                                  in part



DATE OF JUDGMENT ENTRY:                           August 15, 2017



APPEARANCES:

For Appellant/Cross-Appellee                      For Appellees/Cross-Appellants

MARK E. HURST, Pro Se                             DANIEL DOWNEY
470 New Haven Avenue                              400 South Fifth Street
Newark, OH 43055                                  Suite 200
                                                  Columbus, OH 43215
Licking County, Case No. 17-CA-4                                                         2

Gwin, P.J.

      {¶1}   Appellant and cross-appellant both appeal the January 5, 2017 judgment

entry of the Licking County Court of Common Pleas.

                                   Facts & Procedural History

      {¶2}   In 2008, appellant-cross appellee Mark Hurst (“Hurst”) was convicted of:

pandering obscenity involving a minor in violation of R.C. 2907.321; pandering sexually

oriented matter involving a minor in violation of R.C. 2907.322; and illegal use of a minor

in nudity-oriented material or performance in violation of R.C. 2907.323. Hurst was first

designated as a Tier I sexual offender and was ordered to register for purposes of Ohio’s

Sexual Offender or Child-Victim Offender Notice Database (“SORN”). Hurst was released

from prison in 2011 and registered as a Tier I sex offender on November 7, 2011.

      {¶3}   On February 12, 2012, the trial court issued a judgment entry reclassifying

Hurst as a sexually oriented offender. Hurst again registered for purposes of SORN.

Hurst was incarcerated from December 18, 2012 through July 9, 2013 for violating his

parole.

      {¶4}   On December 20, 2012, while Hurst was in prison, this Court issued a

decision finding the portion of Hurst’s sentence classifying him as a sexually oriented

offender void because his convictions did not subject him to classification as a sexual

offender at the time they were committed. Thus, this Court vacated Hurst’s classification

as a sexually oriented offender. State v. Hurst, 5th Dist. Licking No. 12-CA-20, 2012-

Ohio-6075.

      {¶5}   On August 15, 2016, though Hurst was not classified as a “sexually oriented

offender,” or subject to any sexual offender registration requirements, appellee-cross-
Licking County, Case No. 17-CA-4                                                         3


appellant Wayne Moore (“Moore”), a detective with the Licking County Sheriff’s Office,

contacted Hurst and informed him he was required to register as a sex offender. Hurst

protested and provided Moore with a copy of the December 12, 2012 judgment entry from

this Court voiding his improper classification. However, Moore stated Hurst was required

to register and he entered Hurst’s information into the National Sex Offender Registry

website.

       {¶6}   On January 6, 2016, Hurst filed a complaint for defamation against Moore

for publishing his information on the National Sexual Offender Registry. On February 3,

2016, Moore filed a motion to dismiss, arguing Hurst failed to plead a defamatory

statement and arguing Moore was immune from liability. In a March 18, 2016 judgment

entry, the trial court found that while the Licking County Sheriff’s Office and the Licking

County Sheriff were immune from Hurst’s claims, the motion to dismiss with regards to

Moore was denied because it was not clear Hurst could prove no set of facts that would

entitle him to relief against Moore.

       {¶7}   On October 28, 2016, Moore filed a motion for summary judgment. Moore

first argued he was immune from suit pursuant to R.C. 2950.12 and R.C. 2744.03.

Alternatively, Moore argued Hurst’s defamation claim failed.

       {¶8}   The trial court issued a judgment entry on January 5, 2017. The trial court

found since Hurst did not come forth with any evidence of special harm or damages, there

was no defamation per quod. As to defamation per se, the trial court found Hurst’s

inclusion on the registry did not subject him to ridicule, hatred, contempt, or injure him

beyond what he would be subject to because of his convictions. The trial court concluded
Licking County, Case No. 17-CA-4                                                            4


since Hurst did not come forth with any evidence of damages, Moore was entitled to

summary judgment on Hurst’s claim.

       {¶9}   Hurst appeals the January 5, 2017 judgment entry of the Licking County

Court of Common Pleas and assigns the following as error:

       {¶10} “I. THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION,

AND USED A UNSUSTAINABLE, TOTALLY UNRELATED CASE TO SUPPORT ITS

JUDGMENT AND GRANT SUMMARY JUDGMENT TO APPELLEE.

       {¶11} “II. THE COURT SHOWED BIAS AND PREJUDICE TOWARD A PRO SE

LITIGANT.”

       {¶12} Moore also filed an appeal of the trial court’s July 5, 2017 judgment entry

and assigns the following as error:

       {¶13} “I. DESPITE CORRECTLY AWARDING SUMMARY JUDGMENT IN

FAVOR OF CROSS-APPELLANT, THE TRIAL COURT ERRED IN FAILING TO ALSO

FIND THAT CROSS-APPELLANT WAS IMMUNE FROM SUIT PER R.C. 2950.12.

       {¶14} “II. DESPITE CORRECTLY AWARDING SUMMARY JUDGMENT IN

FAVOR OF CROSS-APPELLANT, THE TRIAL COURT ERRED IN FAILING TO ALSO

FIND THAT CROSS-APPELLANT WAS IMMUNE FROM SUIT PER R.C. 2744.03.”

                                   Summary Judgment Standard

       {¶15} Civil Rule 56(C) in reviewing a motion for summary judgment which

provides, in pertinent part:

              Summary judgment shall be rendered forthwith if the pleadings,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence, and written stipulations of fact, if any, timely filed in
Licking County, Case No. 17-CA-4                                                       5


      the action, show that there is no genuine issue of material fact and that the

      moving party is entitled to judgment as a matter of law. No evidence or

      stipulation may be considered except as stated in this rule. A summary

      judgment shall not be rendered unless it appears from the evidence or

      stipulation, and only from the evidence or stipulation, that reasonable minds

      can come to but one conclusion and that conclusion is adverse to the party

      against whom the motion for summary judgment is made, that party being

      entitled to have the evidence or stipulation construed mostly strongly in the

      party’s favor. A summary judgment, interlocutory in character, may be

      rendered on the issue of liability alone although there is a genuine issue as

      to the amount of damages.

      {¶16} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d

271 (1984). A fact is material if it affects the outcome of the case under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d

1186 (6th Dist. 1999).

      {¶17} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Licking County, Case No. 17-CA-4                                                             6

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

       {¶18} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

Once the moving party meets its initial burden, the burden shifts to the non-moving party

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.

The non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

                                                  I.

       {¶19} In his first assignment of error, Hurst argues the trial court erred in granting

Moore’s motion for summary judgment.

       {¶20} To survive a summary judgment on his defamation claim, Hurst was

required to establish five elements necessary to a claim for defamation: (1) a false and

defamatory statement of fact; (2) about the plaintiff; (3) published without privilege to a

third party; (4) with fault of at least negligence on the part of the defendant; and (5) which

was either defamatory per se or caused special harm to the plaintiff. Davis v. Johnson,

5th Dist. Richland No. 07 CA 40, 2007-Ohio-6567.

       {¶21} There are two types of defamation, defamation per se and defamation per

quod. Defamation per quod refers to a communication that is capable of being interpreted

as defamatory, i.e., it must be determined by the interpretation of the listener, through
Licking County, Case No. 17-CA-4                                                           7

innuendo, as being either innocent or damaging.         Northeast Ohio Elite Gymnastics

Training Center, Inc. v. Osborne, 183 Ohio App.3d 104, 2009-Ohio-2612, 916 N.E.2d 484

(9th Dist.). For defamation per quod, special damages must be pled and proven. Id.

Special damages are damages of such a nature that they do not follow as a necessary

consequence of the complained injury. Id.

       {¶22} In this case, Hurst has not alleged any special damages or harm.

Accordingly, we find the trial court did not err in finding the statements were not

defamatory per quod.

       {¶23} For a communication to be defamatory per se, it must be actionable upon

the very words spoken without regard to the interpretation of the listener, i.e., it is

actionable on its face. A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr.

Trades Council, 73 Ohio St.3d 1, 651 N.E.2d 1283 (1995). A statement is defamatory

per se if, on its face, it reflects upon his character in such a manner that would cause him

to be ridiculed, hated, or held in contempt, or in a manner that will injure him in his trade

or profession. A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades

Council, 73 Ohio St.3d 1, 651 N.E.2d 1283 (1995); Croskey v. Universal Health Services,

5th Dist. Richland No. 09 CA 37, 2009-Ohio-5951.

       {¶24} The trial court found this case analogous to King v. Semi Valley Sound,

LLC, 9th Dist. Summit No. 25655, 2011-Ohio-3567, and stated the inclusion of Hurst on

the registry did not subject him to ridicule, hatred, contempt, or injure him beyond what

he would be subject to because of his convictions.

       {¶25} However, we find the King case is factually different from the instant case.

In King, the appellant admitted he was a sex offender, but alleged the use of the word
Licking County, Case No. 17-CA-4                                                          8

“registered,” when used in reference to a convicted sex offender, is defamatory. Id.

According to the appellant in the King case, the only false word in the publication at issue

was the word “registered.” Id.

       {¶26} In the King case, the court stated that, “being publicly identified as a sex

offender, regardless of registration status, is likely to cause a person to be subjected to

ridicule, hatred, and contempt.” Id. However, the court found that being falsely identified

as a sex offender who had to “register” would not cause King to be subjected to ridicule,

hatred, or contempt, or injure him in his trade or profession beyond what he would be

subjected to simply being identified as a sex offender. Id.

       {¶27} In this case, Hurst’s argument is not simply that the only false word is the

word “registered.” Rather, Hurst contends it is defamatory to designate him a “registered

sex offender” since his convictions did not subject him to classification as a sex offender

at the time they were committed. Hurst did not admit he was a sex offender as King did.

In State v. Hurst, 5th Dist. Licking No. 12-CA-20, 2012-Ohio-6075, we vacated and found

void the portion of Hurst’s sentence classifying him as a sexually oriented offender.

Accordingly, we find there are genuine issues of material fact as to whether Moore’s

entering of Hurst’s information into the National Sex Offender Registry website subjected

Hurst to ridicule, hatred, or contempt, or injure him in his trade or profession when the

portion of Hurst’s sentence classifying him as a sexually oriented offender was vacated

and found void.

       {¶28} The trial court also found Moore was entitled to summary judgment because

he presented no evidence of damages. However, when a statement is defamatory per

se, some damages are presumed. Northeast Ohio Elite Gymnastics Training Center, Inc.
Licking County, Case No. 17-CA-4                                                         9

v. Osborne, 183 Ohio App.3d 104, 2009-Ohio-2612, 916 N.E.2d 484 (9th Dist.). Further,

Hurst testified in his deposition that he suffered stress, anxiety, humiliation, and shame

when Moore required him to register.

      {¶29} Accordingly, Hurst’s first assignment of error is sustained.

                                                II.

      {¶30} In his second assignment of error, Hurst contends the trial court showed

bias towards him because he was a pro se litigant.

      {¶31} It is well-established that, pursuant to R.C. 2701.03, the Chief Justice of the

Supreme Court of Ohio has exclusive jurisdiction to determine a claim that a common

pleas judge is biased or prejudiced. See Jones v. Billingham, 105 Ohio App.3d 8, 663

N.E.2d 657 (2nd Dist. 1995). If a common pleas litigant wishes to raise a challenge to a

trial court judge’s objectivity, he or she must utilize the procedure set forth in R.C.

2701.03. State v. Feagin, 5th Dist. Richland No. 16CA21, 2016-Ohio-7003; In re Baby

Boy Eddy, 5th Dist. Fairfield No. 99CA22, 2000 WL 1410 (1999).

      {¶32} Disqualification proceedings are not initiated in the court of appeals and are

not subject to review by the court of appeals. Beer v. Griffith, 54 Ohio St.2d 440, 377

N.E.2d 775 (1978).    Thus, an appellate court lacks the authority to pass upon the

disqualification of a common pleas court judge. State v. Ramos, 88 Ohio App.3d 394,

623 N.E.2d 1336 (Ohio App. 9th Dist 1993).

      {¶33} Accordingly, Hurst’s second assignment of error is overruled.

                                       Cross-Appeal I. & II.

      {¶34} In his cross-assignments of error, Moore contends the trial court did not err

in granting him summary judgment, but erred in granting his motion for summary
Licking County, Case No. 17-CA-4                                                        10


judgment for the wrong reason; namely, the trial court erred in failing to find Moore was

immune from Hurst’s claim pursuant to R.C. 2950.12 and R.C. 2744, et seq. We find the

analysis pursuant to R.C. 2744, et seq. dispositive in this case.

       {¶35} R.C. 2744 et seq. provides governmental immunity to political subdivisions

and their employees. Specifically, 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 an act or omission of the political subdivision or an employee of the

political subdivision in connection with a governmental or proprietary function.”       An

“employee” is defined by R.C. 2744.01(B) as “an officer, agent, employee, or servant * *

* who is authorized to act and is acting within the scope of the officer’s, agent’s,

employee’s, or servant’s employment for a political subdivision.”

       {¶36} Among the list of identified governmental functions is “the provision * * * of

police * * * services or protection” and the “enforcement * * * of any law.”          R.C.

2744.01(C)(2)(a)(i). Thus, based upon the facts presented and the applicable statutory

provisions, we conclude Moore was acting as an employee of a political subdivision and

was performing a governmental function. Therefore, we begin with the presumption that

Moore was immune from liability.

       {¶37} An employee’s immunity remains intact as a defense to any civil claims

unless a plaintiff can prove under R.C. 2744.03(A)(6) that one of the exceptions to

immunity is established. Hunt v. Morrow County, Ohio, 5th Dist. Morrow No. 08 CA 13,

2009-Ohio-4313 (finding a police officer cannot be held personally liable for acts

committed while carrying out their official duties unless one of the exceptions to immunity

applies); Herbert v. City of Canton, 5th Dist. Stark No. 2001CA00281, 2002-Ohio-906.
Licking County, Case No. 17-CA-4                                                          11


These exceptions to immunity are: (a) the employee’s acts or omissions were manifestly

outside the scope of the employee’s employment or official responsibilities; (2) the

employee’s acts or omissions were committed with malicious purpose, in bad faith, or in

a wanton or reckless manner; or (c) civil liability is expressly imposed upon the employee

by a section of the Revised Code. R.C. 2744.03(A)(6).

       {¶38} Hurst has not directed this Court to any statutory provisions imposing

liability upon Moore by a section of the Revised Code. Thus, our determination as to

whether Moore may have been exempt from immunity is subject to the provisions of R.C.

2744.03(A)(6)(a) and (b) only.

       {¶39} Chapter 2744 does not define the type of employee acts that fall “manifestly

outside the scope of employment or official responsibilities” under R.C. 2744.03(A)(6)(a).

However, Ohio courts have generally drawn from agency law principles to hold that

“conduct is within the scope of employment if it is initiated in part, to further or promote

the master’s business.” Hunt v. Morrow County, Ohio, 5th Dist. Morrow No. 08 CA 13,

2009-Ohio-4313.

       {¶40} In an affidavit attached to his motion for summary judgment, Moore avers

that since April 18, 2015, his job duties include registering individuals with Ohio’s Sexual

Offender or Child-Victim Offender Notice database.         The affidavit of Jeremy Wells

(“Wells”), an officer with the Adult Parole Authority, states that matters regarding a

parolee’s SORN registration are referred to the sheriff’s office of the county where the

parolee resides. In his deposition, Hurst testified he met with Moore at the Sheriff’s Office

on August 19, 2015 and that he never met with Moore prior to August 19, 2015 or after

August 19, 2015. Other than the separately filed deposition of Hurst, none of the items
Licking County, Case No. 17-CA-4                                                          12


attached to Hurst’s response to Moore’s motion for summary judgment constitute Rule 56

evidence as they have not been incorporated by reference through a properly framed

affidavit in accordance with Civil Rule 56(E). Thus, it is undisputed all acts or omissions

attributed to Moore occurred within the course and scope of his employment with the

Licking County Sheriff’s Office and there is no genuine issue of material fact as to whether

Moore’s acts or omissions were manifestly outside the scope of his employment or official

responsibilities.

       {¶41} Hurst alleges Moore acted with malicious purpose, in bad faith, or in a

wanton or reckless manner. “Malice” refers to the willful and intentional design to do

injury, or the intention or desire to harm another, usually seriously, through conduct which

is unlawful or unjustified.” Curry v. Blanchester, 12th Dist. Clinton Nos. CA2009-08-010,

CA2009-08-012, 2010-Ohio-3368. “Bad faith” embraces more than bad judgment or

negligence and involves a “dishonest purpose, moral obliquity, conscious wrongdoing,

breach of a known duty through some ulterior motive, ill will partaking of the nature of

fraud, or an actual intent to mislead or deceive another.” Slater v. Motorists Mut. Ins. Co.,

174 Ohio St. 148, 187 N.E.2d 45 (1962).

       {¶42} The Ohio Supreme Court has stated that “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 great probability harm will result.” Anderson v. Massillon, 134 Ohio St.3d

380, 2012-Ohio-5711, 983 N.E.2d 266 (2012). Reckless conduct is “characterized by the

conscious disregard of or indifference to a known or obvious risk of harm to another that

is unreasonable under the circumstances and is substantially greater than negligent

conduct.” Id.
Licking County, Case No. 17-CA-4                                                       13


      {¶43} In this case, though Hurst testified he believes Moore acted with malicious

intent by having Hurst register with SORN, when asked what proof he had that Moore

wanted to harm him, Hurst responded, “At this time, none.” Further, Moore submitted

Rule 56 evidentiary material to support his claim that his conduct was not malicious, in

bad faith, wanton, or reckless. First, Moore submitted evidence that he did not initiate

matters regarding Hurst on August 19, 2015 and was responding to Wells’ inquiry about

Hurst’s duty to register for SORN purposes. The affidavit of Wells avers that when Wells

conducted a routine meeting with Hurst, Wells’ parolee, and Hurst claimed he was no

longer required to register with SORN, Wells contacted Moore to investigate Hurst’s

claim. Moore’s affidavit states on August 19, 2015, he was contacted via telephone by

APA Officer Wells concerning Hurst’s obligation, if any, to register for purposes of SORN.

      {¶44} Additionally, Moore submitted Rule 56 evidence that prior to ordering Hurst

to register, he investigated the matter. In his affidavit, Moore avers: the Licking County

Sheriff’s Office typically receives notice of registration requirements of resident sex

offenders through two sources, judgment entries from the trial court or from the Ohio

Attorney General’s Office SORN entries; the SORN records evidenced that on December

21, 2012, Stephen Brown from the Ohio Attorney General’s Office entered into SORN

that Hurst was a “sexually oriented offender” and thusly required to register for SORN

purposes; during his investigation, he discovered the Ohio Attorney General’s most recent

SORN entry from December 21, 2012 provided Hurst must register for SORN purposes

as no trial court judgment entries nor Attorney General SORN entries had been issued

after December 21, 2012; and to confirm the accuracy of the Attorney General’s entry, he
Licking County, Case No. 17-CA-4                                                       14


contacted Mark Sayers via telephone on August 19, 2015 at the Ohio Attorney General’s

Office, who confirmed Hurst must register with SORN.

      {¶45} Hurst did not submit any Rule 56 evidence to controvert the assertions in

Moore’s affidavit. Further, Hurst cites no evidence in the record to support a conclusion

that Moore had intended to harm him, failed to exercise due care in performing his

investigatory duties, or acted with a conscious disregard of or indifference to a known or

obvious risk when performing his duties. See Miller v. Central Ohio Crime Stoppers, Inc.,

10th Dist. Franklin No. 07AP-669, 2008-Ohio-669; Hunt v. Morrow County, Ohio, 5th Dist.

Morrow No. 08 CA 13, 2009-Ohio-4313.

      {¶46} Based on the Civil Rule 56 evidence in the record, there is no material

dispute of fact as to malice, bad faith, wanton, or reckless misconduct. Accordingly, we

find Moore is entitled to statutory immunity pursuant to R.C. 2744, et seq. Moore’s second

cross-assignment of error is sustained. Based upon our disposition of Moore’s second

cross-assignment of error, Moore’s first cross-assignment of error is moot.

      {¶47} In conclusion, we find the trial court erred in dismissing Hurst’s defamation

claim via summary judgment. However, we also find the trial court erred in finding Moore

was not entitled to statutory immunity pursuant to R.C. 2744, et seq. Thus, Hurst’s

assignment of error is sustained and Moore’s second cross-assignment of error is

sustained. Hurst’s second assignment of error is overruled.
Licking County, Case No. 17-CA-4                                                     15


      {¶48} The January 5, 2017 judgment entry of the Licking County Court of

Common Pleas is affirmed in part and reversed and remanded in part to the trial court to

enter judgment.

By Gwin, P.J.,

Wise, John, J., and

Baldwin, J., concur
