Powlette v. Carlson ( 2022 )

[Cite as Powlette v. Carlson, 2022-Ohio-3257.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
DARREN M. POWLETTE :
:
Plaintiff-Appellant : Appellate Case No. 29437
:
v. : Trial Court Case No. 2021-CV-4498
:
ALEX CARLSON : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 16th day of September, 2022.
...........
KENT J. DEPOORTER, Atty. Reg. No. 0058487, 7501 Paragon Road, Dayton, Ohio
45459
Attorney for Plaintiff-Appellant
EDWARD J. DOWD, Atty. Reg. No. 0018681, CHRISTOPHER T. HERMAN, Atty. Reg.
No. 0076894, & NATHANIEL W. ROSE, Atty. Reg. No. 0099458, 8163 Old Yankee
Street, Suite C, Dayton, Ohio 45458
Attorneys for Defendant-Appellee
.............
DONOVAN, J.
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{¶ 1} Darren M. Powlette appeals from the trial court’s judgment on the pleadings
in favor of Alex Carlson on Powlette’s complaint for malicious prosecution. We affirm the
trial court’s judgment.
{¶ 2} Some of the history of this case was discussed in a prior appeal, and we
reiterate it here:
The present dispute began when Miami Township zoning inspector
Alex Carlson sent Powlette a March 21, 2018 “Notice of Violation.” The
notice advised Powlette that he was violating Miami Township Zoning
Resolution Article 8, Section 801 by using his property at 7757 Upper
Miamisburg Road as a “bed and breakfast.” The notice further advised him
to resolve the matter by (1) appealing to the Board of Zoning Appeals
(“BZA”), (2) applying for a conditional-use certificate to use his property as
a bed and breakfast, or (3) ceasing operation as a bed and breakfast.
A criminal complaint subsequently was filed against Powlette on May
1, 2018. The misdemeanor complaint, which was sworn to by Carlson,
alleged that beginning on April 19, 2018 and continuing through the date of
the affidavit Powlette did unlawfully “advertise and operate a bed and
breakfast without conditional use certification at 7757 Upper Miamisburg
Road[.]” The matter proceeded to a November 26, 2018 hearing in
Miamisburg Municipal Court. The prosecutor asked the trial court to
“conditionally dismiss” the complaint without prejudice. The prosecutor's
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conditions were that within 10 days Powlette was to cease advertising for a
bed and breakfast. He also was not to operate a bed and breakfast on the
property without a conditional-use certificate. At the conclusion of the
hearing, the trial court dismissed the complaint without prejudice “on the
condition the defendant remove all public notice, that is web site, Facebook,
et cetera, of conducting a bed and breakfast operation on the subject
property and that compliance with the foregoing occur within ten days[.]”
Thereafter, on December 7, 2018, a new criminal complaint was filed
against Powlette. Like the prior complaint, it was sworn to by Carlson. It
alleged that between the dates of March 21, 2018 and December 7, 2018
Powlette did unlawfully “advertise and operate a bed and breakfast at 7757
Upper Miamisburg Road[.]” * * *
State v. Powlette, 2020-Ohio-5212, 162 N.E.3d 172, ¶ 3-5.
{¶ 3} The refiled case was tried to the bench in the Miamisburg Municipal Court on
May 31, 2019, and Powlette was found guilty in July 2019. Powlette appealed, and we
reversed his conviction in November 2020. Id.{¶ 4} Powlette filed his action against Carlson in November 2021, alleging
malicious prosecution, claiming that Carlson had acted with “actual malice” and engaged
in “intentional and malicious conduct.” He alleged that he had removed all advertising of
a bed and breakfast prior to November 26, 2018 and he had not advertised or operated
a bed and breakfast at his property at any time after November 26, 2018. Powlette
asserted that there was “significant media interest” in the case and that, after the
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dismissal, he had “commented to local media that ‘The next time the township files a
criminal charge against someone, they really should investigate first.’ ”
{¶ 5} Powlette’s complaint alleged:
The prosecution of [Powlette] by the filing of a criminal Complaint by
[Carlson] on December 7, 2018 was instituted by Defendant Carlson with
malice and without probable cause, in that: (a) the filing of the charge was
done in retaliation for [Powlette’s] media comments that reflected poorly on
Carlson and Miami Township; (b) Carlson did no investigation before filing
either charge; (c) having agreed to the dismissal of the original criminal
charge upon the condition that [Powlette] cease advertising his property as
a bed and breakfast within ten days of the date of that dismissal, [Carlson]
had no evidence that [Powlette] had advertised the property as a bed and
breakfast after May 1, 2018; (d) [Carlson] had no evidence that [Powlette]
had operated a bed and breakfast on his property in violation of local law at
any time.
Complaint at ¶ 16.
{¶ 6} Powlette further asserted that Carlson’s actions “demonstrated actual malice
toward [him].” Powlette asserted that, at a bench trial in the second action held on May
31, 2019, Carlson acknowledged that he had no knowledge of Powlette’s advertising his
property as a bed and breakfast after November 26, 2018, Carlson had never been to the
property, and Carlson had never spoken to anyone who had stayed at a bed and breakfast
on Powlette’s property in the timeframes specified in either criminal complaint.
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{¶ 7} Powlette alleged that, as a result of Carlson’s intentional and malicious
conduct, he had incurred attorney fees in the amount of $11,487, suffered damage to his
reputation, and sustained economic loss. Powlette sought compensatory and punitive
damages, attorney fees, prejudgment and post-judgment interest, and court costs.
{¶ 8} In December 2021, Carlson filed a motion to dismiss Powlette’s complaint for
failure to state a claim. Carlson later withdrew his motion to dismiss and filed an answer
to the amended complaint. In his answer, Carlson asserted the affirmative defense of
immunity pursuant to R.C. Chapter 2744.
{¶ 9} On January 18, 2022, Carlson filed a motion for judgment on the pleadings,
asserting that pursuant to R.C. Chapter 2744, he was immune from liability. He asserted
that he acted as the zoning inspector in his role as the Deputy Director of Community
Development for Miami Township, which involved conducting code enforcement
inspections of commercial properties and zoning enforcement.
{¶ 10} Regarding the initial complaint against Powlette, Carlson asserted that he
had “provided all of the materials and evidence he had collected, leading up to and after
issuing the initial zoning violation, to the Miamisburg Municipal Court Prosecutor.”
Regarding the second complaint, Carlson asserted that Powlette had not complied with
the conditional dismissal of the first case and had continued to advertise the property as
a bed and breakfast. He pointed out that every criminal complaint originating in the
Miamisburg Prosecutor’s Office required the signature of a prosecutor; “[a]s is the nature
of any criminal complaint, it requires that a prosecutor or grand jury review the materials
and find probable cause within the evidence provided.” Further, Carlson asserted that
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he had acted “in his governmental discretion,” simply “did his job” when he turned over
evidence of the zoning violation, and “did not ‘cause’ a criminal complaint to be brought.”
because only a prosecutor may do so.
{¶ 11} On February 1, 2022, Powlette opposed the motion for judgment on the
pleadings, asserting that it was a “reasonable inference” from the filing of the complaint
that Carlson “was essential in causing the complaint to be filed,” because it was his
“negligent investigation” that had resulted in the complaint. Powlette asserted that,
although R.C. 2744.03(A) sets forth when an employee is immune from suit, R.C.
2744.03(A)(6) provides an exception to immunity if the employee’s “acts or omissions
were with malicious purpose, in bad faith, or in a wanton or reckless manner.” According
to Powlette, he offered proof of actual malice and/or malice could be “legally inferred”
from a lack of probable cause when bringing a criminal complaint against him.
{¶ 12} The trial court granted Carlson’s motion for judgment on the pleadings,
stating:
Because [Powlette] continued to advertise this business use of his
property after the period ordered to cease and desist the violation, [Carlson]
turned his information over to the prosecuting attorney for the Township and
a criminal complaint was filed against [Powlette]. The first complaint was
conditionally dismissed on the condition that [Powlette] cease his
advertising allegedly illegal use of the property for a bed and breakfast, but
[Powlette] did not comply with that condition. A second criminal complaint
was filed. The case went to trial and [Powlette] was found guilty of a minor
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misdemeanor. He appealed his conviction and the Court of Appeals
vacated the conviction, * * * holding that advertising his intention to conduct
a bed and breakfast was not “using” the property as a bed and breakfast
and, therefore, [Powlette] was not validly convicted of illegal use of his
property.
[Powlette] alleges that the filing of the second criminal complaint
constituted malicious prosecution entitling him to compensatory and
punitive damages. He alleges that the Court of Appeals decision vacating
the conviction constitutes a termination of the criminal case in his favor, an
element of a malicious prosecution case. However, [Powlette] fails to
allege facts to support his allegation that defendant, Alex Carlson, the
zoning inspector, caused the criminal complaint to be filed against him
without probable cause to do so. A malicious prosecution claim requires
some factual allegations that would support an allegation that there was no
probable cause to issue the Notices of Violations that led to the filing of a
criminal complaint. Given that the criminal charges went to a bench trial
and [were] not dismissed before trial, it is presumed that the charges were
based on probable cause that a criminal act had occurred. [Powlette] has
not pled facts that would support the allegation of lack of probable cause or
bad faith or malice.
Malicious prosecution requires that the criminal complaint (1) was
filed with malice; (2) without probable cause; (3) and termination of the
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prosecution is in favor of the criminal defendant (now, the plaintiff). Trussel
v. GMC, 53 Ohio St.3d 142, 144, 559 N.E.2d 732 (1990). Malice implies
an improper purpose[ ], or an illegitimate reason for commencing the
criminal prosecution. [Powlette] alleges that [Carlson] turned his
information over to the prosecuting attorney who filed the criminal
complaint. There are no factual allegations of an improper purpose. In
addition, as indicated above, the criminal charges went forward to a bench
trial providing a presumption of probable cause. The reversal on appeal
had nothing to do with the state of mind of Alex Carlson in referring the issue
to the prosecutor representing the township. It was based on the appellate
court’s reading of the zoning code differently than how the zoning inspector
read it. Thus, [Powlette] has not alleged facts supporting or allowing an
inference of malice on the part of [Carlson].
Decision & Entry, p. 1-3.
{¶ 13} Powlette appeals, asserting the following assignment of error:
THE COURT ABUSED ITS DISCRETION BY FINDING THAT
APPELLANT FAILED TO ALLEGE FACTS TO SUPPORT THE
ALLEGATION OF LACK OF PROBABLE CAUSE OR MALICE AND
THEREFORE ERRONEOUSLY GRANTED THE MOTION FOR
JUDGMENT ON THE PLEADINGS.
{¶ 14} Powlette contends that the trial court did not discuss the pertinent facts that
supported his argument that Carlson had acted maliciously and without probable cause,
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namely that Carslon “conducted no investigation” before he filed the first complaint then
filed the second complaint “after the first complaint was conditionally dismissed and he
had no evidence that Powlette had violated the conditions of the dismissal by advertising
his property as a bed and breakfast.” (Emphasis sic.) Powlette argues that it can be
reasonably inferred that his (Powlette’s) public comments about the matter caused
Carlson to file the second criminal complaint, because Carlson “had no other reason to
do so” and admitted that he “had no information to conclude Powlette had violated the
conditions of the dismissal.”
{¶ 15} Powlette further asserts that the facts pled by him, if taken as true, and the
reasonable inferences that could be drawn therefrom clearly supported a conclusion that
Carlson had “instituted and continued to prosecute” a criminal complaint without probable
cause. He argues that the trial court never addressed the issue of malice. He also
challenges the trial court’s conclusion that the charges were based on probable cause
and contends that the court failed to cite “case law to support its dubious logic.” He
argues that, in the absence of evidence that he did anything other than abide by the terms
of the conditional dismissal, the “only subsequent fact” which could have motivated
Carlson to file the second criminal complaint was Powlette’s comment to the local media,
which “would by any measure constitute malice.”
{¶ 16} Carlson responds that Powlette failed to assert that Carlson did anything
more than turn over information to the prosecuting attorney, who filed the complaint,
pointing out that only in “very rare cases can a third-party – other than a prosecutor – be
liable for malicious prosecution.” Carlson asserts that, at worst, his interpretation of the
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zoning resolution at issue was “an innocent mistake,” but even that conclusion would be
“a stretch” with respect to probable cause, because the prosecutor and trial court moved
forward with the case. According Carlson, he was not responsible for determining
whether probable cause existed and moving forward with charges; rather, the prosecutor
made these determinations, “as evidenced by his signature” on the second complaint.
{¶ 17} Carlson asserts that Powlette did not provide any evidence that Carlson 1)
gave information to the prosecutor for any reason other than enforcing the zoning code
or 2) had knowledge of Powlette’s public comments to the media or was angered by them.
He also asserts that the prosecutor “nullifie[d] any malicious sentiment that may have
motivated [Carlson] to turn over the investigatory materials,” as noted by the trial court at
the hearing on November 26, 2018.
{¶ 18} Regarding Powlette’s assertion that Carlson failed to investigate, Carlson
directs our attention to our opinion in Powlette, 2020-Ohio-5212, 162 N.E.3d 172, at ¶ 21,
wherein we discuss the evidence in the first case that Powlette had advertised his
property and/or intended to use it as a bed and breakfast. He also argues that the
prosecutor’s filing the criminal complaint and the subsequent bench trial should be
dispositive of the issue of probable cause. Carlson asserts that he never made a
determination as to whether there was probable cause; he simply “did his job and turned
over materials that he believed supported a violation of the Zoning Resolution.”
{¶ 19} Finally, and alternatively, Carlson asserts that the trial court’s judgment
should be affirmed based on immunity under the Ohio Revised Code Chapter 2744. He
argues that the trial court’s judgment may be affirmed based on either a failure to meet
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the elements of malicious prosecution – a finding of probable cause or lack of malice – or
a sua sponte finding of immunity under R.C. 2744.
{¶ 20} As this Court has noted:
Civ.R. 12(C) provides: “After the pleadings are closed but within such
time as not to delay the trial, any party may move for judgment on the
pleadings.” “A copy of any written instrument attached to a pleading is a
part of the pleading for all purposes.” Civ.R. 10(C). “A motion for judgment
on the pleadings pursuant to Civ.R. 12(C) presents only questions of law,”
and the standard of review is de novo. Dearth v. Stanley, Montgomery
App. No. 22180, 2008-Ohio-487. “Determination of a motion for judgment
on the pleadings is restricted solely to the allegations in the pleadings and
any writings attached to the complaint. Peterson v. Teodosio (1973), 34
Ohio St.2d 161, 165, 297 N.E.2d 113, 116-117. Dismissal is appropriate
under Civ.R. 12(C) when, after construing all material allegations in the
complaint, along with all reasonable inferences drawn therefrom in favor of
the nonmoving party, the court finds that the plaintiff can prove no set of
facts in support of its claim that would entitle it to relief. State ex rel.
Midwest Pride IV, Inc. v. Pontius (1996), 75 Ohio St.3d 565, 570, 664
N.E.2d 931, 936.” Id.Inskeep v. Burton, 2d Dist. Champaign No. 2007-CA-11, 2008-Ohio-1982, ¶ 7.
{¶ 21} As Powlette asserts, his conviction was reversed by this Court in Powlette,
2020-Ohio-5212, 162 N.E.3d 172. In that case, Powlette was convicted “on a complaint
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alleging that he ‘advertise[d] and operate[d] a bed and breakfast’ without a conditional
use permit.” Id. at ¶ 1. Powlette asserted five assignments of error:
First, he contend[ed] the trial court erred in allowing the prosecutor
to amend the complaint to include offense dates past the date that was
sworn to in the complaint. Second, he claim[ed] the trial court denied him
due process and a speedy trial by dismissing the original complaint, not
providing adequate notice of a new violation, and refiling the complaint.
Third, he argue[d] that Sections 801 and 803 of Miami Township Zoning
Resolution Article 8 are vague and violate due process as applied to him.
Fourth, he assert[ed] that the trial court's finding that he operated a bed and
breakfast was against the manifest weight of the evidence. Fifth, he
maintain[ed] that the trial court abused its discretion by finding that Miami
Township could regulate his having a bed and breakfast because his activity
was agritourism not subject to local regulation. * * *
Id. at ¶ 2.
{¶ 22} The history of this case, as set forth in Powlette, is recounted above.
Additionally, the trial court made clear at trial on May 31, 2019, that the matter was before
the court “solely on the refiled case * * * and not the prior case that conditionally had been
dismissed.” Id. at ¶ 6. We further noted that, notwithstanding that the trial court rejected
the prosecutor’s request before the trial to amend the end date in the complaint from
December 7, 2018 to January 16, 2019, the trial court stated that it would allow the
prosecutor to present evidence about guests staying at Powlette's property between
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December 7, 2018 and January 16, 2019. Finally, the trial court rejected an argument
by Powlette that the refiled case had not been properly commenced because he had not
received a new notice of violation with a corresponding time to cure the alleged violation
before criminal proceedings were pursued. Id.
{¶ 23} This Court noted that the trial court heard from four witnesses at trial: for the
prosecution, Kristen Lipscomb Sund, who stayed at the property from December 30, 2018
to January 1, 2019, and Carlson; and for the defense, Kelly McCracken, who developed
and maintained Powlette’s websites, and Powlette. Id. at ¶ 7. At the conclusion of the
State’s case, the prosecutor moved to amend the complaint to indicate that Powlette’s
offense had occurred between April 12, 2018 and January 16, 2019. Over Powlette’s
objection, the trial court allowed the amendment of the dates. Id.
{¶ 24} The trial court’s summary of the evidence included a statement that Carlson
had “investigated [Powlette’s] property by visiting the Stoney Hill Farm Facebook page
and the Stoney Hill Farm website, where he observed bed and breakfast advertising.”
After summarizing the testimony presented, the court rejected Powlette’s assertion that
he had not operated a bed and breakfast. Id. at ¶ 9. It also rejected Powlette’s
argument that he was exempt from the agricultural-use zoning regulation even if he did
use his property as a bed and breakfast. Id. at ¶ 10.
{¶ 25} In the appeal, we noted that, based on its determinations that Powlette had
been operating a bed and breakfast during the time period at issue, that he had not been
exempt from the township's agricultural-district zoning regulations, and that he had not
had a conditional-use certificate, the trial court found him guilty of violating Miami
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Township Zoning Resolution Article 8, Section 801, a minor-misdemeanor offense. The
trial court imposed a fine and ordered Powlette to pay court costs. Id. at ¶ 11.
{¶ 26} After reviewing Miami Township Zoning Resolution Article 8, Section 801,
we agreed with the trial court that a bed and breakfast is not a permitted use in an
agricultural district. Id. at ¶12. We rejected Powlette’s argument that the absence of a
specific definition of a “bed and breakfast” in the zoning resolution violated his due
process rights by making it impossible for him to know whether what he was doing violated
the law. Id. at ¶ 13.
{¶ 27} In response to Powlette’s argument that the State had presented no
evidence of his operating a bed and breakfast under the plain and ordinary dictionary
definition of that phrase, we stated:
Powlette advertised his “farmhouse” as a bed and breakfast,
advertised it on Air B&B, was informed of his violation of the zoning
resolution, and eventually rented it out to a family although they prepared
their own food there. Given Powlette's advertising, his admission before
the BZA that the property “was meant to be a bed and breakfast,” and the
notice of violation provided to him, we have no hesitation in concluding that
Powlette's intended use of the described property was as a bed and
breakfast as contemplated by the zoning resolution. * * * On this record, the
evidence was sufficient to conclude that Powlette's property came within
the term “bed and breakfast” in the zoning resolution.
Id. at ¶ 14.
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{¶ 28} However, in reversing the trial court’s finding of a zoning violation, we
stated:
We recognize that there was evidence that Powlette advertised his
property as a bed and breakfast during the time period in the refiled
complaint. The State presented screenshots of Powlette's Facebook page
and a website referring to his property as a “bed and breakfast.” The “URL”
for Powlette's property was www.stoneyhillbedandbreakfast.com. Another
webpage screenshot included a statement that “Stoney Hill Bed and
Breakfast is family owned and operated,” along with a link to an email
address, www.stoneyhillbedandbreakfast@gmail.com. Some of the
referenced screenshots were undated, and others were dated between
February 2, 2018 and March 2, 2018, which was just before the starting
date alleged in the refiled complaint. There appears to be no dispute,
however, that the Facebook and website references to “Stoney Hill Bed and
Breakfast” continued to exist after the starting date alleged in the refiled
complaint. Defense witness Kelly McCracken testified that she created the
“Stoney Hill Bed and Breakfast” website on December 31, 2017. She did
not remove all textual references to a “bed and breakfast” until August 26,
2018. After the first complaint against Powlette that resulted in a dismissal
without prejudice, McCracken also changed the website's URL to “Stoney
Hill Farm” on November 26, 2018. McCracken recalled that she engaged
in essentially the same process for Powlette's Facebook advertising.
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Zoning inspector Carlson conceded at trial that he had no knowledge of
Powlette advertising his property as a “bed and breakfast” after November
26, 2018. Nevertheless, the record establishes that Powlette did advertise
his property as a “bed and breakfast” during the relevant time period. In its
decision, the trial court also referenced Powlette's “intent” to operate a bed
and breakfast, as evidenced by his testimony at a July 9, 2018 BZA hearing
involving a different issue. During that hearing, which involved Powlette's
use of a barn, he commented that he “meant” to use the farmhouse as a
bed and breakfast. During that same hearing, Powlette added that he had
not yet actually hosted a bed and breakfast.
(Citations omitted.) Id. at ¶ 14-15.
{¶ 29} It was also significant to this Court that “the prosecutor presented no
evidence that Powlette provided any guests with lodging between March 21, 2018 and
December 7, 2018, the dates set forth in the refiled complaint.” Id. at ¶ 16. We
concluded that the amendment of the complaint had been error in that it improperly
changed the offense from events that occurred before December 7, 2018 and added the
events that occurred from December 30, 2018 to January 1, 2019, denying Powlette due
process. Id. at ¶ 19, 20.
{¶ 30} We next addressed an argument that we construed as a sufficiency
argument: Powlette’s assertions that no one had actually stayed at the property as of
December 7, 2018, and that an intent to operate is not the same as actual operation. Id.
at ¶ 20. Based upon the testimony of Kristen Lipsccomb Sund that she had rented the
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farmhouse from December 30, 2018, to January 1, 2019, we concluded that “there was
no evidence Powlette used his property as a bed and breakfast during the time period in
the refiled complaint.” Id.
{¶ 31} We concluded as follows:
In sum, the State's evidence consisted of Powlette's (1) intending to
use his property as a “bed and breakfast” in July 2018, (2) advertising his
property as a bed and breakfast during the relevant time period before
ultimately removing all references to a “bed and breakfast” from Facebook
and his website and (3) renting his property to one group from December
30, 2018 to January 1, 2019.
In our view, the foregoing evidence did not support Powlette's
conviction under Miami Township Zoning Resolution Article 8, Section 801.
As noted above, that provision identifies certain permitted “uses” of
property. Another provision, Section 803, identifies a “bed and breakfast”
as a conditional use requiring a conditional-use certificate. The complaint
charged Powlette with violating Section 801 by unlawfully “advertis[ing] and
operat[ing] a bed and breakfast” because he did not obtain a conditional-
use certificate.
We note that Sections 801 and 803 are land “use” regulations. For
purposes of the misdemeanor complaint against Powlette then, the ultimate
question is not whether he “advertised” his property as a bed and breakfast.
Strictly speaking, the question also is not whether he “operated” a bed and
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breakfast. Rather, insofar as Sections 801 and 803 regulate the “use” of
property, the narrow issue is whether the State proved beyond a reasonable
doubt that Powlette “used” his property as a “bed and breakfast” without a
conditional-use certificate in violation of Miami Township's land-use
regulations.
In our view, Powlette's expressed intent to operate a bed and
breakfast during the unrelated July 2018 BZA hearing or his act of
advertising the property as a bed and breakfast for a period of time could
perhaps support injunctive relief against Powlette prohibiting him from
proceeding, but it did not establish a criminal violation of Miami Township
Zoning Resolution Article 8, Section 801 between the dates of March 21,
2018 and December 7, 2018. Regardless of what Powlette “meant” or
“intended” or even “attempted” to do, the State was required to prove that
he actually used his property as a bed and breakfast without a conditional-
use certificate during the original times reflected in the refiled complaint.
***
The only remaining issue is whether Powlette used his property as a
bed and breakfast by advertising it as such. We conclude that the
advertising did not establish his use of the property for that purpose. * * *
Although advertising, in an appropriate case, might support an inference of
use, we are unpersuaded in this case that advertising a property as a bed
and breakfast by itself is enough to prove use of the property for that
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purpose.
Id. at ¶ 22-26.
{¶ 32} As noted above, in Powlette’s malicious prosecution case, the trial court
determined that Powlette had not pled facts that supported his allegation of a lack of
probable cause, bad faith, or malice as the elements of malicious prosecution. The court
did not consider Carlson’s affirmative defense of immunity. As noted in Argabrite v.
Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, “[w]hen a plaintiff files a civil
action against an employee of a political subdivision, the employee’s entitlement to
statutory immunity is a separate question from the plaintiff’s ability to establish the
elements of his or her claim.” Id. at ¶ 10.
{¶ 33} “The issue of governmental immunity is a question of law. Conley v.
Shearer, 64 Ohio St.3d 284, 595 N.E.2d 862 (1992). When presented with a question
of law, we apply a de novo standard of review.” Coterel v. Reed, 2016-Ohio-7411, 72
N.E.3d 1159, ¶ 11 (2d Dist.), citing Hayward v. Summa Health Sys./Akron City Hosp., 139
Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 23.
* * * The Ohio Immunity statute creates a presumption of
immunity for official government acts, carried out by political
subdivisions and their employees. Cook v. Cincinnati, 103 Ohio
App.3d 80, 90, 658 N.E.2d 814 (1st Dist.1995). The Ohio immunity
statute provides three exceptions to the general rule favoring
governmental immunity. The exceptions at issue are based on R.C.
2744.03(A)(6)(a) and (b), which eliminates a public employee’s
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immunity defense if: (a) “the employee’s acts or omissions were
manifestly outside the scope of the employee’s employment or official
responsibilities”; or (b) “the employee’s acts or omissions were with
malicious purpose, in bad faith, or in a wanton or reckless manner.”
***
* * * To overcome the presumption of statutory immunity, the
facts must support a conclusion that the employee acted manifestly
outside the scope of employment, with a malicious purpose, in bad
faith, or in a wanton or reckless manner. * * *
***
For purposes of statutory immunity, the definitions of the
elements of the defense were recently reviewed by the Fifth District
Court of Appeals as follows:
“ ‘In the context of political subdivision immunity, malicious
purpose has been defined as the willful and intentional design to do
injury.’ ” Friga v. E. Cleveland, 8th Dist. Cuyahoga No. 88262, 2007-
Ohio-1716, ¶ 15, quoting Piro v. Franklin Twp.,102 Ohio App.3d 130,
139, 656 N.E.2d 1035 (9th Dist.1995), citing Jackson v. Butler Cty. Bd.
of Cty. Commrs., 76 Ohio App.3d 448, 453, 602 N.E.2d 363 (12th
Dist.1991). Bad faith “ ‘connotes a dishonest purpose, moral
obliquity, conscious wrongdoing, breach of a known duty through
some ulterior motive or ill will partaking of the nature of
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fraud.’ ” Jackson, quoting Slater v. Motorists Mut. Ins. Co., 174 Ohio
St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus.
In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711,
983 N.E.2d 266, the Ohio Supreme Court held “wanton,” “willful,” and
“reckless” describe different and distinct degrees of care and are not
interchangeable. Id. at paragraph one of syllabus. * * *
“Wanton misconduct is the failure to exercise any care toward
those to whom a duty of care is owed in circumstances in which there
is a great probability that harm will result.” Id. at ¶ 33. Wanton
misconduct has been likened to conduct that manifests a “disposition
to perversity,” but the Supreme Court abandoned “disposition to
perversity” as an element of the definition of wanton misconduct in
Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977). Id. at ¶ 28.
“ ‘[M]ere negligence is not converted into wanton misconduct unless
the evidence establishes a disposition to perversity on the part of the
tortfeasor.’ ” Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d
351, 356, 639 N.E.2d 31 (1994) (Citation omitted). “[I]t must be under
such surrounding circumstances and existing conditions that the party
doing the act or failing to act must be conscious, from his knowledge
of such surrounding circumstances and existing conditions, that his
conduct will in all common probability result in injury.” Anderson,
supra at ¶ 25 citing Universal Concrete Pipe Co. v. Bassett, 130 Ohio
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St. 567, 200 N.E. 843 (1936), paragraph two of syllabus.
“Willful conduct implies an intentional deviation from a clear
duty or from a definite rule of conduct, a deliberate purpose not to
discharge some duty necessary to safety, or purposefully doing
wrongful acts with knowledge or appreciation of the likelihood of
resulting injury.” Anderson, supra at ¶ 32. Willful misconduct involves
“an intent, purpose, or design to injure.” Zivich v. Mentor Soccer Club,
Inc. (1998), 82 Ohio St.3d 367, 375, 696 N.E.2d 201. (Citation
omitted). Willful misconduct is something more than negligence and
it imports a more positive mental condition prompting an act than
wanton misconduct. Phillips v. Dayton Power & Light Co., (1994), 93
Ohio App.3d 111, 119, 637 N.E.2d 963. (Citation omitted). “Willful
misconduct” involves a more positive mental state prompting the
injurious act than wanton misconduct, but the intention relates to the
misconduct, not the result. Mashburn v. Dutcher, 5th Dist., 2012-
Ohio-6283, 14 N.E.3d 383, ¶ 45.
Both wanton and willful describes conduct that is greater than
negligence and can be summarized as follows: willful conduct is the
intent to harm someone and wanton misconduct is the failure to
exercise any care whatsoever. Anderson, supra, at ¶ 48.
“Reckless conduct is characterized by the conscious disregard
of or indifference to a known or obvious risk of harm to another that is
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unreasonable under the circumstances and is substantially greater
than negligent conduct.” Id. at ¶ 34. (Citations omitted).
Rondy v. Richland Newhope Industries, Inc., 2016-Ohio-118, 57 N.E.3d
369, ¶¶ 42-47 (5th Dist.).
The Ninth District Court of Appeals recently addressed the term
“manifestly outside the scope of employment” as that term is used in the
immunity statute as follows:
R.C. Chapter 2744 does not define what conduct is “manifestly
outside the scope of the employee's employment or official
responsibilities.” R.C. 2744.03(A)(6)(a). However, Ohio courts
have generally held that “ ‘conduct is within the scope of
employment if it is initiated, in part, to further or promote the
master's business.’ ” Curry v. Blanchester, 12th Dist. Clinton Nos.
CA2009-08-010, CA2009-08-012, 2010-Ohio-3368, ¶ 30, quoting
Jackson v. McDonald, 144 Ohio App.3d 301, 307, 760 N.E.2d 24(5th Dist.2001). “For an act to fall within the scope of employment,
it must be ‘calculated to facilitate or promote the business for which
the [employee or agent] was employed.’ ” Johnson v. Godsey, 2d
Dist. Clark No. 2012 CA 80, 2013-Ohio-3277, ¶ 32, quoting
Osborne v. Lyles, 63 Ohio St.3d 326, 329, 587 N.E.2d 825 (1992).
“In general, if an act is committed within the scope of employment,
it will be authorized, either expressly or impliedly, by the employer.”
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Johnson at ¶ 32. “ ‘It is only where the acts of state employees are
motivated by actual malice or other [situations] giving rise to
punitive damages that their conduct may be outside the scope of
their state employment.’ ” Curry at ¶ 30, quoting Jackson at 307,
760 N.E.2d 24. “The act must be so divergent that it severs the
employer-employee relationship.” (Internal quotations and
citations omitted.) Wee Care Child Ctr., Inc. v. Ohio Dept. of Job
& Family Servs., 10th Dist. Franklin No. 13AP-1004, 2014-Ohio-
2913, ¶ 28. “One acts with a malicious purpose if one willfully and
intentionally acts with a purpose to cause harm.” Moss v. Lorain
Cty. Bd. of Mental Retardation, 185 Ohio App.3d 395, 2009-Ohio-
6931, 924 N.E.2d 401, ¶ 19 (9th Dist.).
Thomas v. Bauschlinger, 9th Dist. Summit No. 27240, 2015-Ohio-281, ¶ 25.
Coterel at ¶ 14, 15, 16-17:
{¶ 34} Having reviewed the pleadings, and construing all material allegations and
all reasonable inferences therefrom in favor of Powlette, we conclude that the facts herein
did not support a conclusion that Carlson acted manifestly outside the scope of his
employment as the Deputy Director of Community Development and in his role as the
Miami Township Zoning Inspector, or that he acted with a malicious purpose, in bad faith,
or in a wanton or reckless manner. In other words, Carlson was entitled to immunity
pursuant to R.C. 2744.03(6).
{¶ 35} Powlette’s complaint makes clear that he pursued his malicious prosecution
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claim against Carlson in Carlson’s official capacity as a Miami Township zoning code
enforcement officer. Although this Court reversed Powlette’s misdemeanor conviction,
we cannot reasonably conclude that Carlson’s conduct in swearing to the second
complaint against Powlette rose to the level of any of the egregious conduct defined
above in Coterel. Powlette’s property is zoned for agricultural use only, and “a ‘bed and
breakfast’ is not a permitted use in an agricultural district.” Powlette, 2020-Ohio-5212,
162 N.E.3d 172, at ¶12 (2d Dist.). There was evidence from a July 9, 2018 BZA
hearing, involving a “different issue,” that Powlette intended to operate a bed and
breakfast on his property. Id. at ¶ 21. After the conditional dismissal of the first
complaint, at which time Powlette was ordered by the court to cease advertising for a bed
and breakfast and not to operate a bed and breakfast on the property without a conditional
use certificate, Powlette failed to comply with the advertising condition. As this Court
determined, there “appears to be no dispute * * * that the Facebook and website
references to ‘Stoney Hill Bed and Breakfast’ continued to exist after the starting date
alleged in the refiled complaint.” Id. at ¶ 15.
{¶ 36} In our prior decision “the narrow issue [was] whether the State proved
beyond a reasonable doubt that Powlette [actually] ‘used’ his property as a ‘bed and
breakfast’ without a conditional use permit.” (Emphasis and bracketed word added.) Id.
at ¶ 24. However, the distinct issue presented in this case is Carlson’s conduct in his
capacity as a zoning enforcement officer. We conclude that Powlette’s continued
advertising, coupled with his expressed intent to operate a bed and breakfast on his
property, supported an inference of “use” for purposes of Carlson’s conduct in turning
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over materials to the prosecutor. We agree with the trial court’s determination that the
reversal of Powlette’s conviction on appeal “had nothing to do with the state of mind of
Alex Carlson in referring the issue to the prosecutor representing the township. It was
based on the appellate court’s reading of the zoning code differently than how the zoning
inspector read it.”
{¶ 37} Powlette’s assertion in paragraph 16 of his amended complaint that Carlson
filed charges in retaliation for Powlette’s public comment to the media after the township’s
first complaint was conditionally dismissed is mere speculation and is not supported by
any factual allegations in the complaint, such as that Carlson was even aware of the
comment. As Carlson notes, “[i]n general, the decision whether to prosecute a criminal
offense is left to the discretion of the prosecutor.” (Emphasis added.) State v. Bakhshi,
2d Dist. Montgomery No. 25585, 2014-Ohio-1268, ¶ 41, citing State v. Turner, 192 Ohio
App.3d 323, 330, 2011-Ohio-393, 949 N.E.2d 57 (2d Dist.). Further, we cannot conclude
that Carlson failed to investigate, given the evidence presented at trial and this Court’s
conclusion that Powlette continued to advertise in violation of the court’s order to cease
doing so within 10 days.
{¶ 38} While Powlette alleged that Carlson had engaged in intentional and
malicious conduct, we cannot conclude that Carlson acted with a willful and intentional
design to do injury to Powlette, as malicious purpose is defined in the context of political
subdivision immunity. We further cannot conclude that Carlson acted in bad faith of the
nature of fraud. Under the circumstances and conditions presented, we cannot conclude
that Carlson was conscious that his conduct would result in injury to Powlette or failed to
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exercise any care whatsoever such that wanton misconduct was demonstrated. We
similarly cannot conclude that Carlson acted recklessly or exhibited an indifference to a
known or obvious risk of harm to Powlette. In other words, we conclude that Carlson
acted at all times to enforce the Miami Township Zoning Resolution and not outside the
scope of his employment.
{¶ 39} Pursuant to our de novo review, we find that Carlson was entitled to
statutory immunity. Accordingly, Carlson was entitled to judgment on the pleadings.
Powlette’s assignment of error is overruled.
{¶ 40} The judgment of the trial court is affirmed.
.............
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Kent J. Depoorter
Edward J. Dowd
Christopher T. Herman
Nathaniel W. Rose
Hon. Richard S. Skelton