[Cite as Pierce v. Woyma, 2012-Ohio-3947.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 97545




                                JENNIFER J. PIERCE

                                                   PLAINTIFF-APPELLEE

                                             vs.

                      FRANK J. WOYMA, JR., ET AL.
                                                   DEFENDANTS-APPELLANTS




                                 JUDGMENT:
                           REVERSED AND REMANDED


                                    Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                   Case No. CP CV-682983

        BEFORE: E. Gallagher, J., Stewart, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                  August 30, 2012
ATTORNEYS FOR APPELLANTS

Barbara A. Langhenry
Interim Director of Law
Jennifer Meyer
Assistant Director of Law
City of Cleveland Dept. of Law
601 Lakeside Ave. E., Room 106
Cleveland, Ohio 44114


ATTORNEY FOR APPELLEE

Brent L. English
Law Offices of Brent L. English
M.K. Ferguson Plaza, Suite 470
1500 West Third Street
Cleveland, Ohio 44113-1422
EILEEN A. GALLAGHER, J.:

       {¶1} Frank Woyma, Jr., appeals the decision of the trial court denying his

motion for summary judgment.       Woyma argues the trial court erred when it determined

that he was not entitled to immunity under R.C. Chapter 2744 of the Ohio Revised Code,

and when it failed to grant his motion to strike. For the following reasons, we reverse

the decision of the trial court.

       {¶2} On October 28, 2005, Jennifer Pierce was with four other women and her

boyfriend at a nightclub on West Sixth Street in the Warehouse District of Cleveland.

The group left the nightclub and began walking down a public sidewalk with Pierce’s

boyfriend holding a beer bottle.     Woyma, a Cleveland Police Officer, was working

department-approved secondary employment in the Warehouse District that evening.

       {¶3} Pierce alleged that Woyma jumped on her boyfriend’s back and began

striking him with the beer bottle that had been in her boyfriend’s hand. During the

altercation, Pierce’s boyfriend, after getting Woyma off of his back, pushed Woyma and

the two fell to the ground.

       {¶4} She further alleged a number of people, some of whom were police

officers, converged on Pierce’s boyfriend and began striking him.      Pierce began to cry

and protested what was happening to her boyfriend.      A female officer then handcuffed

Pierce for allegedly attempting to strike one of the officers, but she released Pierce after

Pierce had calmed down and her friends insisted she had done no such thing.
      {¶5} Woyma then approached Pierce on the opposite side of the street,

complaining about what Pierce’s boyfriend had done.           Woyma asked if Pierce’s

boyfriend had any assets and threatened to sue her boyfriend.      Pierce was not placed

under arrest at the scene, but she was later indicted by the Cuyahoga County Grand Jury

for obstructing official business and obstructing justice.   Pierce elected to proceed to

trial and she was found not guilty of obstructing official business. The charge of

obstructing justice was dismissed on March 21, 2006.

      {¶6} Pierce filed the instant lawsuit on January 26, 2009, alleging claims of

malicious prosecution, intentional infliction of emotional distress, abuse of process and

respondeat superior liability against both Woyma and the city of Cleveland (“the City”).

The City and Woyma moved to dismiss Pierce’s claims and Pierce did not oppose the

motion.   On September 3, 2009, the trial court granted the unopposed motion to

dismiss, and on October 2, 2009, Pierce filed an appeal.

      {¶7} On November 18, 2011, this court affirmed in part, reversed in part and

remanded the matter to the trial court.      Pierce v. Woyma, 8th Dist. No. 94037,

2010-Ohio-5590. Specifically, this court upheld the judgment in favor of the city on

immunity grounds, but reversed the trial court’s decision dismissing Pierce’s claims of

malicious prosecution, intentional infliction of emotional distress and abuse of process

claims. Id.   The case was remanded to the trial court and discovery commenced.       On

July 1, 2011, Woyma filed a motion for summary judgment. On August 19, 2011,

Pierce filed her brief in opposition and on October 17, 2011, the trial court denied

Woyma’s motion for summary judgment.
        {¶8} Woyma appeals, raising the two assignments of error contained in the

appendix to this opinion.

        {¶9} In his first assignment of error, Woyma argues the trial court erred when it

denied his motion for summary judgment because he was immune from liability under

Chapter 2744 of the Revised Code.          Included in this assigned error is Woyma’s

argument that Pierce’s remaining claims of malicious prosecution, abuse of process and

intentional infliction of emotional distress must fail because Pierce can prove no set of

facts to establish each claim.

        {¶10} Generally, the denial of summary judgment is not a final, appealable order.

 See Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878.

However, when a trial court denies a motion in which a political subdivision or its

employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an

alleged immunity and thus is a final, appealable order pursuant to R.C. 2744.02(C).

Hubbell, ¶ 27.

        {¶11}    Appellate courts review trial court summary judgment decisions de

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

Accordingly, appellate courts must independently review the record to determine if

summary judgment is appropriate.      In other words, appellate courts need not defer to

trial court summary judgment decisions. See Brown v. Scioto Cty. Bd. of Commrs., 87

Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Therefore, to determine

whether a trial court properly awarded summary judgment, an appellate court must

review the Civ.R. 56 summary judgment standard as well as the applicable law. Civ.R.
56(C) provides:

      Summary judgment shall be rendered forthwith if the pleadings,
      depositions, answers to interrogatories, written admissions, affidavits,
      transcripts of evidence in the pending case, and written stipulations of fact,
      if any, timely filed in the action, show that there is no genuine issue as to
      any 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 most strongly in the party’s favor.

      {¶12}     Accordingly, trial courts may not grant summary judgment unless the

evidence demonstrates that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law and (3) it

appears from the evidence that reasonable minds can come to but one conclusion and,

after viewing the evidence most strongly in favor of the nonmoving party, that

conclusion is adverse to the party against whom the motion for summary judgment is

made. See, e.g., Vahila v. Hall, 77 Ohio St.3d 421, 429-430, 674 N.E.2d 1164 (1997).

      {¶13}     An employee of a political subdivision is entitled to a general grant of

immunity, but may be liable if one of the three circumstances described in R.C.

2744.03(A)(6)     applies.    Long   v.   Hanging    Rock,   4th   Dist. No. 09CA30,

2011-Ohio-5137. R.C. 2744.03(A)(6) provides as follows:

      (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. Civil liability shall not be construed to exist under
       another section of the Revised Code merely because that section imposes a
       responsibility or mandatory 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.

       {¶14} In the present case, the parties agree that Woyma was acting within the

course and scope of his employment on October 28, 2005 and that R.C. 2744.03(A)(6)(c)

does not apply.      Our analysis then centers around R.C. 2744.03(A)(6)(b): whether

Woyma acted with malicious purpose, in bad faith or in a wanton or reckless manner.

       {¶15} As a general matter, whether an employee is entitled to R.C. 2744.03(A)(6)

immunity is ordinarily a question of law. See, e.g., Conley v. Shearer, 64 Ohio St.3d

284, 292, 595 N.E.2d 862 (1992); Long, ¶ 17.        However, whether the employee acted

with malicious purpose, in bad faith, or in a wanton or reckless manner generally are

questions of fact.   Id.; see also Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541,

2006-Ohio-6208, 857 N.E.2d 573, ¶ 14.       Therefore, a trial court may not grant summary

judgment on the basis of R.C. 2744.03(A)(6) immunity unless reasonable minds can only

conclude that the employee did not act with malicious purpose, in bad faith or in a

wanton or reckless manner. Long, ¶ 17.        If reasonable minds could disagree on these

issues, then a court may not grant the employee summary judgment based upon statutory

immunity.    Summary judgment in favor of a political subdivision’s employee is

appropriate only when the facts are clear and fail to rise to the level of conduct that could
be construed as malicious, in bad faith or wanton and reckless.           Id.   In Long v.

Hanging Rock, the Fourth Appellate District defined the terms “malicious purpose,” “in

bad faith,” or “in a wanton or reckless manner” as follows:

      The term “malice” means the willful and intentional desire to harm
      another, usually seriously, through conduct which is unlawful or
      unjustified. Hicks v. Leffler, 119 Ohio App.3d 424, 428-429, 695 N.E.2d
      777 (1997). “Bad faith” implies sinister motive that has “no reasonable
      justification.” Id. at 429, 695 N.E.2d 777. “Bad faith” embraces more
      than bad judgment or negligence. Id., citing Parker v. Dayton Metro.
      Hous. Auth., 2nd Dist. No. 15556, 1996 WL 339935 (May 31, 1996). It
      imports a “dishonest purpose, moral obliquity, conscious wrongdoing,
      breach of a known duty through some ulterior motive or ill will partaking
      of the nature of fraud. It also embraces actual intent to mislead or deceive
      another.” Id.; Jackson v. Butler Cty. Bd. of Cty. Commrs., 76 Ohio
      App.3d 448, 454, 602 N.E.2d 363 (1991).

      Wanton misconduct has been defined as the failure to exercise any care
      whatsoever. See Fabrey v. McDonald Village Police Dept., 70 Ohio
      St.3d at 356, 639 N.E.2d 31 (1994), citing Hawkins v. Ivy (1977), 50 Ohio
      St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus. The Ohio Supreme
      Court held that “mere negligence is not converted into wanton misconduct
      unless the evidence establishes a disposition to perversity on the part of the
      tortfeasor.” See Id., quoting Roszman v. Sammett, 26 Ohio St.2d 94,
      96-97, 55 O.O.2d 165, 269 N.E.2d 420 (1971). Such perversity requires
      that the actor be conscious that his conduct will, in all likelihood, result in
      an injury. See Id. Moreover, the standard of proof to show wanton
      misconduct is high. Id.

      “Reckless” refers to conduct that causes an unreasonable risk of harm and
      is “substantially greater than that which is necessary to make [an actor’s]
      conduct negligent.” Thompson v. McNeill, 53 Ohio St.3d 102, 104-105,
      559 N.E.2d 705 (1990), quoting 2 Restatement of the Law 2d, Torts (1965)
      587, Section 500. Likewise, an individual acts recklessly when he or she,
      bound by a duty, does an act or intentionally fails to do an act, knowing, or
      having reason to know, of facts that would lead a reasonable person to
      realize not only that there is an unreasonable risk of harm to another, but
      also that such risk is substantially greater than that which is necessary for
      negligence. See Id.; see also, Fabrey, 70 Ohio St.3d at 356, 639 N.E.2d
      31.

      {¶16}    It is with the above cited standards in mind that we analyze Pierce’s
claims.

                                  Malicious Prosecution

       {¶17}     The elements of the tort of malicious criminal prosecution are: (1)

malice in instituting or continuing prosecution, (2) lack of probable cause and (3)

termination of prosecution in favor of the accused.     Trussell v. Gen. Motors Corp., 53

Ohio St.3d 142, 559 N.E.2d 732 (1990). In an action for malicious prosecution, the

lack of probable cause is the gist of the action. Pierce v. Woyma, 8th Dist. No. 94037,

2010-Ohio-5590. Probable cause does not depend on whether the claimant was guilty

of the crime charged. Id.      Rather, the question is whether the accuser had probable

cause to believe that the claimant was guilty. Id. The person instituting the criminal

proceeding is not bound to have evidence sufficient to insure a conviction but is only

required to have sufficient evidence to justify an honest belief in the guilt of the accused.

 Id.

       {¶18}   The return of an indictment by a grand jury is evidence of probable cause;

when an indictment has been returned by the grand jury, the plaintiff has the burden of

producing substantial evidence to establish lack of probable cause. Deoma v. Shaker

Hts., 68 Ohio App.3d 72, 587 N.E.2d 425 (8th Dist.1990); Adamson v. May Co., 8 Ohio

App.3d 266, 268, 456 N.E.2d 1212 (8th Dist.1982). The burden then shifts to the

plaintiff who must produce evidence to the effect that the return of the indictment

resulted from perjured testimony or that the grand jury proceedings were otherwise

significantly irregular. Deoma at 77. We find that Pierce failed to meet this burden.

       {¶19}    In moving for summary judgment, Woyma set forth specific facts
demonstrating that he did not act with actual malice, that he had nothing to do with the

charges brought against Pierce and that Pierce failed to establish a lack of probable

cause.    Specifically, Woyma explains the following: he did not arrest Pierce; he did not

institute criminal charges against Pierce; he merely wrote “an obstructing justice named

suspect report involving a Jennifer Pierce”; that ultimately a superior officer and a

prosecutor determined to charge Pierce with obstructing official business and obstructing

justice and that a grand jury returned an indictment charging Pierce with obstructing

official business and obstructing justice. We find these facts establish not only a lack

of malicious conduct but a lack of any genuine issue of material fact for trial.

         {¶20}   In response, Pierce has not set forth any evidence that the indictment was

the result of perjured testimony or that the grand jury proceedings were otherwise

significantly irregular. More importantly, Pierce has not established the most basic

element of her claim, that Woyma instituted criminal proceedings against her.           The

evidence before this court reveals that Woyma executed a report about Pierce’s

involvement on October 28, 2005 and that the decision to charge her was made by his

superior and a member of the prosecutor’s office.

         {¶21}   Accordingly, there are no genuine issues of material fact that remain to be

litigated.   Pierce’s claim for malicious prosecution fails as a matter of law.     Woyma

was entitled to the grant of immunity.

                                     Abuse of Process

         {¶22}   The elements of the tort of abuse of process are (1) that legal proceedings

have been set in motion in proper form and with probable cause; (2) that proceedings
have been perverted to attempt to accomplish an ulterior purpose for which it was not

designed; and (3) that direct damage resulted from the wrongful use of process.

Yaklevich v. Kemp, Shaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115

(1994).

       {¶23}    Although we acknowledge that Pierce has the right of alternative

pleading as outlined in Civ.R. 8(E)(2), recovery under the competing causes of action for

malicious prosecution and abuse of process under the same set of facts is impossible.

Yaklevich, supra.

       {¶24}    In the present case, Woyma presented this court with prima facie

evidence of probable cause, i.e., the return of a grand jury indictment charging Pierce

with obstructing official business and obstructing justice. In response, Pierce failed to

set forth any evidence demonstrating that the indictment was the result of perjured

testimony or that the proceedings were, in any way, irregular.         We concluded that

Pierce’s claim for malicious prosecution must fail.       We now determine whether any

genuine issue of material fact remains on Pierce’s claim for abuse of process.

       {¶25}    In moving for summary judgment, Woyma argues that he had no

involvement with the decision to charge Pierce or with     her trial on the indicted charges

and thus, he did not act maliciously, with bad faith or in a wanton or reckless manner.

Further, Woyma claims that because Pierce was found not guilty, she cannot show

damages from any alleged wrongful use of process.            In response, Pierce fails to

establish the existence of any genuine issue for trial.   Again, Pierce has not established

the basic element of Woyma’s involvement with the decision to charge her with a crime
or his involvement with the criminal proceeding in which a jury found her not guilty.

Based on the facts before this court, we conclude that Woyma was entitled to a grant of

immunity on Pierce’s claim of abuse of process.

                           Intentional Infliction of Emotional Distress

       {¶26}    To establish a claim for intentional infliction of emotional distress, a

plaintiff must show that: (1) the defendant intended to cause the plaintiff serious

emotional distress; (2) the defendant’s conduct was extreme and outrageous; and (3) the

defendant’s conduct was the proximate cause of plaintiff’s serious emotional distress.

Phung v. Waste Mgt. Inc., 71 Ohio St.3d 408, 410, 1994-Ohio-389, 644 N.E.2d 286.

       {¶27}    In moving for summary judgment, Woyma established the following

facts: he did not arrest Pierce, a superior officer and a member of the prosecutor’s office

obtained charges of obstructing official business and obstructing justice against Pierce,

any actions taken by Woyma against Pierce were not intended to cause serious emotional

distress, Woyma did not engage in any extreme or outrageous conduct towards Pierce

and Pierce did not suffer a severe injury.

       {¶28}    In response, Pierce fails to establish the existence of any genuine issue of

material fact for trial.    Pierce attaches the deposition testimony from eyewitnesses and

her own affidavit in support of her allegations that Woyma said highly inflammatory and

insulting things to her. She also includes as evidence of damage that she was charged

with two felonies “for something she never did.”        However, none of this evidence rises

to the level of proof required to overcome summary judgment.

       {¶29}    Pierce’s own brief categorizes Woyma’s actions towards her as saying
“highly inflammatory and insulting things to her” including calling her a “fucking bitch”

several times.   While we can state that Woyma’s conduct was not exemplary, we cannot

conclude that Woyma’s conduct was extreme or outrageous or that it was intended to

cause Pierce emotional distress.   As such, Pierce’s claim fails as a matter of law.

       {¶30}     Woyma was entitled to the grant of immunity and his motion for

summary judgment should have been granted. Woyma’s first assignment of error is

sustained.

       {¶31}     Our analysis of Woyma’s first assignment of error renders the remainder

of his appeal moot.      The judgment of the trial court is reversed and the case is

remanded.

       It is ordered that appellants recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS;
MELODY J. STEWART, P.J., CONCURS IN PART
AND DISSENTS IN PART (WITH SEPARATE
OPINION)


MELODY J. STEWART, P.J., CONCURRING IN PART AND DISSENTING IN
PART:

       {¶32} I agree that Pierce failed to show a triable issue of fact on the question of

whether Woyma’s conduct at the time of the arrest was so outrageous that it would

support a claim of intentional infliction of emotional distress. I believe, however, that

Pierce rebutted the presumption that the grand jury indictment issued on probable cause

by offering evidence to show that Woyma may not have acted in good faith to establish

the cause necessary for prosecuting Pierce.

       {¶33} In Adamson v. The May Co., 8 Ohio App.3d 266, 456 N.E.2d 1212 (8th

Dist.1982), we recognized a grand jury indictment is not a conclusive presumption of

good faith in malicious prosecution cases. We stated that an indictment raises nothing

more than a rebuttable presumption of good faith prosecution because to hold otherwise

would mean that “a truly malicious accuser could lie at the preliminary hearing or the

grand jury sessions and thereby obtain a bind over order or an indictment which screened

him from civil liability for his malicious prosecution.” Id. at 269. We also said:

        If one party relies on a presumption and his adversary introduces evidence
       of a substantial nature which counterbalances the presumption, it
       disappears. * * * Absent a controlling presumption, conflicting evidence
       about the defendant’s probable cause to believe the plaintiff had committed
       an offense presents a factual issue that should be resolved by the jury.

Id. at 270.

       {¶34}   Pierce’s prosecution was initiated by Woyma’s written report naming

Pierce as a suspect in an obstruction of justice charge. It is unclear from the record how

Woyma learned about Pierce’s conduct for purposes of writing that report. He did not

offer an affidavit in support of his motion for summary judgment, so he did not identify
the source of the information contained in his report. The female officer’s deposition

testimony suggested that Woyma was otherwise occupied in subduing Pierce’s boyfriend

and had nothing to do with Pierce’s arrest, so Pierce is entitled to have the evidence

viewed as showing that Woyma had no first-hand knowledge of what he wrote in the

report. The most obvious source of his information would have been the female officer,

but she testified at deposition that she did not discuss Pierce’s conduct with Woyma and

that she was not asked to write a report about Pierce’s conduct. Indeed, she testified

that she was not called as a witness in Pierce’s criminal trial and that she “didn’t know

anything even went on with this thing” until the civil lawsuit had been filed. There was

evidence that the female police officer related facts of the incident to a supervisor who

was on the scene, but Woyma offered no evidence to say that he learned any facts from

this supervisor nor did the supervisor state that he related facts to Woyma.

       {¶35} Given the lack of sources for the facts contained in his report, reasonable

minds could differ on whether Woyma prepared his report with probable cause. And

given Pierce’s testimony that Woyma was irate at the scene of the fight, repeatedly

calling her a “bitch” and threatening to sue her and her boyfriend for injuries he suffered

during the scuffle, reasonable minds could find that the factual allegations contained in

Woyma’s report may have been the product of revenge, thus making the grand jury

indictment the product of an irregularity. This is not to say that, indeed, Woyma acted

improperly. But for purposes of summary judgment, Pierce offered enough evidence

from which reasonable minds could differ on the question of whether he did. On that

basis, I believe the court properly denied immunity on the malicious prosecution count.
                                      Appendix

Assignments of Error:

      “I. The trial court erred as a matter of law in denying appellant Officer
      Woyma’s motion for summary judgment because he is immune from liability
      under Chapter 2744.

      II. The trial court erred as a matter of law by not striking Plaintiff-Appellee’s
      use of a criminal deposition of Joseph Kalamar in her opposition to summary
      judgment brief because the deposition does not support any of plaintiff-appellee’s
      claims and is highly prejudicial.”
