Daher v. Cuyahoga Community College Dist. , 2021 Ohio 2103 ( 2021 )

[Cite as Daher v. Cuyahoga Community College Dist., 2021-Ohio-2103.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
GEORGE DAHER, :
Plaintiff-Appellant, :
No. 109719
v. :
CUYAHOGA COMMUNITY :
COLLEGE DISTRICT, ET AL.,
:
Defendants-Appellees.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 24, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-15-852177
Appearances:
The Pattakos Law Firm L.L.C., Peter Pattakos, and Rachel
Hazelet, for appellant.
Roetzel and Andress, L.P.A., and Barry Y. Freeman, for
appellees.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, Amici, for appellees.
MARY EILEEN KILBANE, J.:
Plaintiff-appellant George Daher (“Daher”) appeals the trial court’s
decision to grant defendants Beverly Bankston (“Bankston”), Ronald Wynne
(“Wynne”), Clayton Harris (“Harris”), and Cuyahoga Community College District’s
(“Tri-C”) (collectively “Defendants”) motion for judgment on the pleadings pursuant
to Civ.R. 12(C). For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Daher appeals the trial court’s judgment granting Defendants’ motion
for judgment on the pleadings. The following facts were established in Daher v.
Cuyahoga Cty. Community College Dist., 2017-Ohio-751, 85 N.E.3d 1048, ¶ 2-8
(8th Dist.) (“Daher I”):
Daher was employed by Cuyahoga Community College District from
September 2012 to April 2015. The events that led up to and resulted
in his termination formed the basis for subsequent criminal and civil
proceedings in the Cuyahoga County Court of Common Pleas. It is
undisputed that the court reporter is not a party to the civil action from
which the instant appeal arose.
In Cuyahoga C.P. No. CR-15-599959, the Cuyahoga County Grand Jury
returned an indictment in October 2015 charging Daher with two
counts of unauthorized use of property — computer, cable, or
telecommunication property, in violation of R.C. 2913.04. A second
indictment was issued in December 2015 charging Daher with 24
counts of unauthorized use of property. The trial court granted the
state’s motion to dismiss the case without prejudice on February 3,
2016. On March 15, 2016, the trial court amended its judgment entry
and dismissed the case with prejudice. The trial court ordered the
record of Daher’s criminal case to be sealed pursuant to R.C. 2953.52.1
1 The prosecutors in this case opposed the motion to seal the record and
appealed to this court alleging the trial court erred dismissing an indictment with
prejudice at an expungement hearing. State v. G.D., 8th Dist. Cuyahoga Nos. 104317
In Cuyahoga C.P. No. CV-15-852177, Daher filed a civil complaint
against the college and Beverly Bankston, an administrative lieutenant
with the campus police and security services, on October 6, 2015.
Daher asserted claims for public policy violations, discrimination,
retaliation, and intentional interference with prospective employment.
Daher amended his complaint on April 21, 2016, to add a malicious
prosecution claim. Specifically, Daher alleged that defendants
maliciously instituted the criminal proceedings against him by filing a
false, defamatory, and incomplete complaint to the Cuyahoga County
Prosecutor’s Office for the purpose of retaliating against him. Daher
further alleged that the criminal prosecution was not supported by
probable cause.
On May 5, 2016, Daher filed a subpoena ordering the court reporter to
produce “all transcripts, notes & exhibits from grand jury proceedings”
pertaining to his criminal prosecution. The court reporter filed
motions to quash Daher’s subpoena and for a protective order, arguing
that (1) grand jury proceedings are secret, (2) the requested materials
were privileged, and (3) that Daher failed to demonstrate a
particularized need for disclosure that outweighed the need for secrecy.
In opposing the court reporter’s motions to quash the subpoena and for
a protective order, Daher argued that he needed the grand jury
materials to overcome the presumption that probable cause existed to
prosecute him, establish the elements of his malicious prosecution
claim, and to impeach Lieutenant Ronald Wynne of the college’s
campus police and security services. Daher further asserted that the
motions were “a transparent attempt to prevent the discovery of
potentially perjur[i]ous testimony that is directly relevant to [Daher's]
malicious prosecution claims[.]”
On July 15, 2016, the trial court held the court reporter’s motions to
quash and for a protective order in abeyance and ordered the court
reporter to produce the grand jury materials requested in Daher’s
subpoena to the court for an in-camera inspection.
This court dismissed the court reporter’s appeal, reasoning that until the trial court
compelled disclosure of the subpoenaed materials, there was no final appealable
and 104328, 2016-Ohio-8148, ¶ 28. This court affirmed the trial court, finding the
state’s appeal to be frivolous with no real question for review. Id. at ¶ 28.
order. Id. at ¶ 24. The court reporter appealed this dismissal to the Ohio Supreme
Court, which affirmed this court’s decision. Daher v. Cuyahoga Community College
Dist., 155 Ohio St.3d 271, 2018-Ohio-4462, 120 N.E.3d 830, ¶ 16 (“Daher II”).
On November 15, 2019, Daher filed an unopposed motion to file a
second amended complaint in which he removed the national origin discrimination,
retaliation, and tortious interference claims, maintained the malicious prosecution
claim, and added a claim for malicious attempt to influence public officials pursuant
to R.C. 2921.03. On November 27, 2019, the trial court granted leave and deemed
the second amended complaint filed as of November 25, 2019. The same day,
Defendants filed their motion for judgment on the pleadings. Daher filed his brief
in opposition on December 9, 2019, and Defendants’ reply brief was filed on
December 13, 2019.
On May 1, 2020, the trial court granted Defendants’ motion for
judgment on the pleadings. The court stated that:
[A]fter construing the complaint and answer in the light most favorable
to the plaintiff, and accepting all of its factual allegations as true, [the
court] finds that the plaintiff can prove no set of facts in support of the
claims that would entitle them to relief.
The court finds that grand jury testimony and statements to
prosecutors are absolutely immune from civil liability. See, MJ Dicorpo
v. Sweeney, 69 Ohio St.3d 497, 505, 1994-Ohio-316. Further, plaintiff
is not entitled to relief under R.C. 2921.03 as he was not criminally
convicted. Therefore, judgment is rendered in favor of defendant and
against plaintiff
On May 12, 2020, Daher filed his notice of appeal from this judgment. In this
appeal, Daher presents two assignments of error:
I. The trial court wrongly dismissed Plaintiff/Appellant’s malicious
prosecution claim on the pleadings based on an erroneous application
of M.J. DiCorpo v. Sweeney, 69 Ohio St.3d 497,1994-Ohio-316, 634
N.E.2d 203 (1994) in holding that Defendants/Appellees were immune
from civil liability despite allegedly having made knowingly false
statements calculated to frame Appellant for a crime, thereby causing
the institution of baseless criminal proceedings against him.
II. The trial court wrongly dismissed Plaintiff/Appellant’s claim under
R.C. 2921.03 because, contrary to the trial court’s holding and as
recently affirmed by The Supreme Court of Ohio, the statute does not
require an underlying criminal conviction as a prerequisite for civil
liability.
After both parties had filed briefs, the Cuyahoga County Prosecutor’s office filed a
motion for leave to appear in the case and filed an Amicus Curiae brief in support of
Defendants. The motion was unopposed and granted.
LAW AND ANALYSIS
Both of Daher’s assignments of error center around the trial court’s
granting of Defendants’ motion for judgment on the pleadings pursuant to Civ.R.
12(C). First, Daher argues the trial court improperly applied Ohio law by dismissing
his malicious prosecution claim because it found defendants immune from civil
liability. He then argues the dismissal of his claim for intimidation pursuant to R.C.
2921.03 was improper because the trial court incorrectly found a criminal conviction
was required to succeed on this second claim. Defendants counter that the trial
court’s dismissal was proper for both of Daher’s claims because the statements they
made to the prosecutor and/or grand jury, which are the basis for Daher’s two
claims, are protected by absolute immunity. Defendants argue that, even if Daher
does not require a criminal conviction to succeed on his intimidation claim, the trial
court’s dismissal was still proper because their absolute immunity bars that claim as
well.
We review a ruling on a motion for judgment on the pleadings de
novo. Matthews v. United States Bank Natl. Assn., 8th Dist. Cuyahoga No. 105315,
2017-Ohio-7079, ¶ 8, citing Thornton v. Cleveland, 176 Ohio App.3d 122, 2008-
Ohio-1709, 890 N.E.2d 353, ¶ 3 (8th Dist.). Motions for judgment on the pleadings
are governed by Civ.R. 12(C), which states: “[a]fter the pleadings are closed but
within such time as not to delay the trial, any party may move for judgment on the
pleadings.” Civ.R. 12(C) motions are specifically designed for resolving questions of
law. Peterson v. Teodosio, 34 Ohio St.2d 161, 166, 297 N.E.2d 113 (1973). “Civ.R.
12(C) presents an onerous burden for litigants and consequently, a trial court must
be circumspect in its analysis of Civ.R. 12(C) motions.” Business Data Sys. v.
Figetakis, 9th Dist. Summit No. 22783, 2006-Ohio-1036, ¶ 10.
“In order to be entitled to a dismissal under Civ.R. 12(C), it must
appear beyond doubt that [the nonmovant] can prove no set of facts warranting the
requested relief, after construing all material factual allegations in the complaint
and all reasonable inferences therefrom in [the nonmovant’s] favor.” Id., quoting
State ex rel. Toledo v. Lucas Cty. Bd. of Elections, 95 Ohio St.3d 73, 74, 2002-Ohio-
1383, 765 N.E.2d 854. When ruling on a Civ.R. 12(C) motion, the court is permitted
to consider both the complaint and answer. Thornton, citing State ex rel. Midwest
Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 569, 1996-Ohio-459, 664 N.E.2d 931.
Under Civ.R. 12(C), a “dismissal is appropriate where a court (1)
construes the material allegations in the complaint, with all reasonable inferences
to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond
doubt, that the plaintiff could prove no set of facts in support of his claim that would
entitle him to relief.” Chromik v. Kaiser Permanente, 8th Dist. Cuyahoga No.
89088, 2007-Ohio-5856, ¶ 8, citing Pontious. “Thus, the granting of a judgment on
the pleadings is only appropriate where the plaintiff has failed to allege a set of facts
which, if true, would establish the defendant’s liability.” Id., citing Walters v. First
Natl. Bank of Newark, 69 Ohio St.2d 677, 433 N.E.2d 608 (1982).
Therefore, for trial court’s 12(C) dismissal of Daher’s second amended
complaint to be proper, even assuming the allegations in his complaint to be true, it
must be found that as a matter of law Daher cannot succeed on his claims against
Defendants. Chromik at ¶ 8, citing Pontious. Because the standard of review for a
12(C) is de novo, we will review Daher’s complaint, construe all material allegations
in it as true and all reasonable inferences in Daher’s favor. Then we will assess each
count individually to decide whether, beyond a doubt, Daher can prove no set of
facts to support these two claims to be entitled to relief as a matter of law.
A. Malicious Prosecution Claim
Count 1 of Daher’s complaint alleges a malicious prosecution claim.
Specifically, it alleges, “Defendants Bankston, Wynne, and Harris maliciously
instituted [plaintiff’s] criminal prosecution by making a false, defamatory and
misleadingly incomplete complaint to the Cuyahoga County Prosecutor for the
purpose of retaliating” against him and that Tri-C is responsible for this wrongful
conduct because it had knowledge of, promoted, or consented to these actions.
We note at the onset that malicious prosecution claims are not
favored at law because they “act as a restraint upon the right to resort to the courts
for lawful redress.” Froehlich v. Ohio Dept. of Mental Health, 114 Ohio St.3d 286,
2007-Ohio-4161, 871 N.E.2d 1159, ¶ 9, quoting Guy v. McCartney, 7th Dist.
Jefferson No. 00 JE 7, 2002-Ohio-3035, ¶ 18. “Public policy supports this position
in order that criminal investigations are not discouraged and that those who
cooperate with law enforcement are protected.” Id.To be able to succeed on a claim for malicious prosecution, Daher
must be able to prove: (1) malice in initiating or continuing the prosecution, (2) lack
of probable cause, and (3) termination of the prosecution in favor of the accused.
Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142, 146, 559 N.E.2d 732 (1990);
Thomas v. Murry, 8th Dist. Cuyahoga No. 109287, 2021-Ohio-206, ¶ 64, citing
Frazier v. Clinton Cty. Sheriff's Office, 12th Dist. Clinton No. CA2008-04-015,
2008-Ohio-6064, ¶ 14. “The absence of probable cause is the gist of an action for
malicious prosecution, and malice may be inferred from the absence of probable
cause.” Thomas v. Murry, 8th Dist. Cuyahoga No. 109287, 2021-Ohio-206, ¶ 64,
quoting Brand v. Geissbuhler, 8th Dist. Cuyahoga No. 70565, 1997 Ohio App. LEXIS
709, 14 (Feb. 27, 1997).
Under Ohio law, a “private person who initiates or procures the
institution of criminal proceedings against another is not subject to liability unless
the person against whom the criminal proceedings were initiated proves all * * * of
the above-listed elements” of malicious prosecution. Thomas v. Murry, 8th Dist.
Cuyahoga No. 109287, 2021-Ohio-206, ¶ 65, quoting Ash v. Ash, 72 Ohio St.3d 520,
522, 651 N.E.2d 945 (1995).
The Ohio Supreme Court has held that the initiation of criminal
proceedings, the first element of a malicious prosecution claim, begins with an
informal complaint to a prosecuting attorney. M.J. DiCorpo, Inc. v. Sweeney, 69
Ohio St.3d 497, 506, 634 N.E.2d 203 (1994). However, the Ohio Supreme Court has
also held that these statements, which initiate criminal proceedings, are protected
pursuant to the doctrine of absolute privilege in a “judicial proceeding.” (“We hold
that an affidavit, statement or other information provided to a prosecuting attorney,
reporting the actual or possible commission of a crime, is part of a judicial
proceeding.”) DiCorpo at ¶ 24.
The “doctrine of absolute privilege protects any person who makes a
statement or submits an affidavit to a prosecutor for the purpose of reporting the
commission of a crime — even if the statements are false and are made in bad faith,
with knowledge of their falsity and with actual malice.” Barnes v. Beachwood, 8th
Dist. Cuyahoga No. 87100, 2006-Ohio-3948, ¶ 17, citing DiCorpo, (holding “the
doctrine of absolute privilege for statements made in a judicial proceeding applies
in circumstances where, as here, an affidavit or statement is submitted to a
prosecutor for purposes of reporting the commission of a crime”). Id. at ¶ 19. The
informant is protected by this absolute privilege against civil liability for those
statements made reporting the actual or possible commission of a crime to the
prosecuting attorney, “which bear some reasonable relation to the activity reported.”
Id.
In Barnes, this court upheld the trial court’s sua sponte dismissal of
the plaintiff’s amended complaint with prejudice where the plaintiff alleged claims
of malicious prosecution and intentional infliction of emotional distress against the
city of Beachwood and various employees. Barnes at ¶ 15. The plaintiff, a city
employee, had a dispute with a coworker that led the city and its law director to turn
the matter over to the city prosecutor who charged the plaintiff. Id. at ¶ 2. The law
director had overseen the writing of the report submitted to the prosecutor. Barnes
at ¶ 20. This court found that even when construing the facts in the light most
favorable to the plaintiff, the malicious prosecution claim failed as a matter of law
because plaintiff could not overcome the doctrine of absolute privilege. Id. at ¶ 15.
This court held that the doctrine protected the law director for statements made in
the report, even if knowingly and maliciously ordered, because “the decision to
charge the plaintiff with a crime was ultimately within the sole discretion of the
prosecutor” who instituted the criminal proceedings against the plaintiff. Id. at ¶
20.
Here, just like in Barnes, Daher is alleging in his complaint that his
coworkers “maliciously instituted Plaintiff’s criminal prosecution by making a false,
defamatory and misleadingly incomplete complaint to the Cuyahoga County
Prosecutor.” Giving an affidavit, statement, or other information to a prosecutor
regarding the commission of a crime is the initiating of judicial proceedings.
DiCorpo, 69 Ohio St.3d at 505, 634 N.E.2d 203. These statements are exactly the
kind of statements the Ohio Supreme Court has protected by the doctrine of absolute
privilege in a judicial proceeding and therefore, the persons making the statements
are protected and immune from civil suit. Barnes at ¶ 17, citing DiCorpo.
Daher, in his notice of supplemental authority filing, argues that the
recent Ohio Supreme Court decision in Reister v. Gardner, Slip Opinion No. 2020-
Ohio-5484, states that the litigation privilege does not apply to malicious
prosecution claims. We disagree that the case stands for such a proposition. The
opinion does reaffirm that “[t]he litigation privilege provides absolute immunity to
parties, witnesses, lawyers, and judges from future lawsuits for statements made
during and relevant to judicial proceedings.” Reister at ¶ 8, citing Erie Cty. Farmers’
Ins. Co. v. Crecelius, 122 Ohio St. 210, 171 N.E. 97 (1930), syllabus. However, the
legal issue in Reister was that this privilege was being applied by the appellate court
to immunize the actions of board members done during prior civil litigation, which
the court held was a misapplication of this privilege. Id. at ¶ 9-10. The opinion also
reaffirms that the statements to be protected must be relevant to judicial
proceedings. Id. at ¶ 10. Specifically, the court held that the litigation privilege is
applicable to statements that bear “some reasonable relation to the judicial
proceeding in which” they appear. Id. at ¶ 14, quoting Surace v. Wuliger, 25 Ohio
St.3d 229, 495 N.E.2d 939 (1986). The court clarified that the privilege is not
applicable, however, to conduct that is simply connected in some way to litigation.
Id., citing Willitzer v. McCloud, 6 Ohio St.3d 447, 449-450, 453 N.E.2d 693 (1983).
Despite Daher’s contention the opinion does not say anything about the privilege’s
applicability to allegedly false statements.
However, this court has held that even if Defendants’ statements were
made in bad faith with knowledge of their falsity and with actual malice, the persons
making these statements are protected against civil liability. Barnes, 8th Dist.
Cuyahoga No. 87100, 2006-Ohio-3948, at ¶ 17, citing DiCorpo. Daher’s complaint
puts forth no allegations that Defendants’ statements to the prosecutor were not
related to the activity reported, the activity being his allegedly improper use of the
OHLEG and eOPOTA systems. Similarly, “it cannot be said that a statement bears
no reasonable relation to the activity reported simply because it is false or made in
bad faith. The absolute privilege applies regardless of these defects.” Foley v. Univ.
of Dayton, S.D.Ohio No. 3:15-cv-96, 2015 U.S. Dist. LEXIS 163888, 19 (Dec. 7,
2015), citing DiCorpo. Therefore, we hold that Defendants’ statements to the
Cuyahoga County prosecutors are statements made in a judicial proceeding such
that the Defendants are entitled to absolute immunity for any cause of action
regarding those statements.
Therefore, even when construing all material facts and reasonable
inferences in favor of Daher, he can prove no set of facts that would entitle him to
relief pursuant to Count 1 of his complaint because the Defendants have absolute
immunity from these claims. We, therefore, overrule his first assignment of error
and affirm the trial court’s granting of Defendants’ motion for judgment on the
pleadings regarding this claim.
B. R.C. 2921.03, Intimidation Claim
Count 2 of Daher’s complaint alleges Defendants violated R.C.
2921.03(A) and (C), intimidation. Specifically, it alleges that Defendants provided,
“to the Cuyahoga County Prosecutor’s Office materially false information
concerning Plaintiffs lawful access to, and use of, OHLEG and eOPOTA, Defendants
knowingly attempted to use a materially false and fraudulent writing with malicious
purpose, in bad faith, and in a wanton and reckless manner.” Daher alleges that by
doing so, “Defendants intended to improperly influence and hinder officials of the
County Prosecutor’s Office in the discharge of their official duties,” in violation of
R.C. 2921.03.
Daher’s second assignment of error alleges that the trial court’s
judgment entry improperly dismissed Count 2 of his complaint solely because “he
was not criminally convicted.” Daher argues the recent Ohio Supreme Court
decision in Buddenberg v. Weisdack 161 Ohio St.3d 160, 2020-Ohio-3832, 161
N.E.3d 603, that was published after the trial court’s judgment entry, makes the trial
court’s entry contrary to law. We disagree that the trial court’s dismissal for Daher’s
Count 2 was based solely on a lack of a criminal conviction because the court first
found the defendants’ statements to the prosecutors or grand jury were absolutely
immune from civil liability. Similarly, we find nothing in the Buddenberg decision
that changes Defendants’ absolute immunity in this case.
In Buddenberg, the plaintiff brought a civil rights action pursuant to
federal and Ohio antidiscrimination laws against her former employer, the Geauga
County Health District; her former supervisor, Geauga County Health
Commissioner Robert K. Weisdack; the Geauga County Health District’s attorney,
James Budzik; and certain members of the Geauga County Board of Health. Id. at
¶ 3. Buddenberg’s complaint also asserted claims for civil liability pursuant to R.C.
2307.60 for alleged violations of three criminal statutes: R.C. 2921.05 (retaliation);
R.C. 2921.03 (intimidation); and R.C. 2921.45 (interfering with civil rights). Id. at ¶
4. Relevant to this case, R.C. 2921.03 provides as follows:
(A) No person, knowingly and by force, by unlawful threat of harm to
any person or property, or by filing, recording, or otherwise using a
materially false or fraudulent writing with malicious purpose, in bad
faith, or in a wanton or reckless manner, shall attempt to influence,
intimidate, or hinder a public servant, party official, or witness in the
discharge of the person’s duty.
(B) Whoever violates this section is guilty of intimidation, a felony of
the third degree.
(C) A person who violates this section is liable in a civil action to any
person harmed by the violation for injury, death, or loss to person or
property incurred as a result of the commission of the offense and for
reasonable attorney’s fees, court costs, and other expenses incurred as
a result of prosecuting the civil action commenced under this division.
A civil action under this division is not the exclusive remedy of a person
who incurs injury, death, or loss to person or property as a result of a
violation of this section.
The defendants attempted to dismiss this claim, arguing Buddenberg
could not state a claim for relief, because none of the defendants were criminally
convicted of the underlying criminal offense under (A) such that civil liability could
not subsequently be imposed under (C). Id. The court analyzed the plain language
in the statute and held that a criminal conviction is not a prerequisite for civil
liability pursuant to this statute. Id. at ¶ 21. R.C. 2921.03(C) imposes civil liability
on a “person who violates” the intimidation statute and does not explicitly limit this
liability just to one who is found guilty of violating the statute under (A). Id. at ¶ 19.
Contrary to Daher’s allegations, however, the court’s decision in
Buddenberg is not determinative of whether he can succeed as a matter of law on
his second claim. Daher’s second amended complaint specifically states that the
allegedly false information Defendants provided to the prosecutor is the entire basis
of his claim that Defendants attempted to improperly influence and hinder county
officials in violation of R.C. 2921.03. This is the same allegedly false information
Defendants provided to the prosecutor that we held were made in a judicial
proceeding such that the Defendants are entitled to absolute immunity for any cause
of action regarding those statements. Barnes, 8th Dist. Cuyahoga No. 87100, 2006-
Ohio-3948, at ¶ 17, citing DiCorpo, 69 Ohio St.3d at 505, 634 N.E.2d 203.
Nothing in Buddenberg suggests that the doctrine of absolute
privilege in a judicial proceeding does not apply to these claims. Similarly, Daher
provides no legal authority to suggest it does not protect Defendants’ statements in
this case. The privilege is known to protect against any claim regarding the
privileged statements including but not limited to malicious prosecution claims,
defamation claims, intentional infliction of emotional distress, civil conspiracy, and
aiding and abetting claims. See Newman v. Univ. of Dayton, 2d Dist. Montgomery
No. 28815, 2021-Ohio-1609, ¶ 44. There is no known exception to the application
of this absolute privilege, especially in the context of a civil claim for intimidation
pursuant to R.C. 2921.03, and we decline to create such an exception here.
Because these statements and thereby the Defendants that said them
are protected with an absolute privilege, Daher will be unable to use their statements
and reports to prove his claim. Without being able to point to statements or
materials knowingly provided to the prosecutor’s office to influence or intimate
them, Daher will be unable to succeed on a claim for intimidation pursuant to R.C.
2921.03, as a matter of law. As such, the trial court’s dismissal of this claim based
on the Defendants’ statements being absolutely immune from civil lability is proper
and not contrary to law.
Therefore, even when construing all material facts and reasonable
inferences in favor of Daher, he can prove no set of facts that would entitle him to
relief pursuant to Count 2. We therefore overrule his second assignment of error
and affirm the trial court’s granting of Defendants’ motion for judgment on the
pleadings.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
______________________________
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR