Gemperline v. Franano , 2022 Ohio 3727 ( 2022 )

[Cite as Gemperline v. Franano, 2022-Ohio-3727.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MICHAEL L. GEMPERLINE JUDGES:
Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 22 CAE 03 0017
DOMENICO FRANANO, ET AL.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court
of Common Pleas, Case No. 20 CVH 03
0166
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 18, 2022
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee Dominic Franano
JOSHUA J. BROWN THOMAS H. FUSONIE
Cassone Law Offices, LLC DANIEL E. SHUEY
5086 North High Street – Suite A Vorys, Sater, Seymour Pease, LLP
Columbus, Ohio 43214 52 East Gay Street
Columbus, Ohio 43215
For Defendant-Appellee Karen Slavik For Defendant-Appellee Rebecca Mount
LORI E. THOMSON C. JOSEPH MCCULLOUGH
MARK HOWARD GAMS White, Getgey and Meyer Co., LPA
Gallagher Gams Tallan Barnes & Littrell 6125 East Kemper Road
471 East Broad Street – 19th Floor Cincinnati, Ohio 45241
Columbus, Ohio 43215-3872
Delaware County, Case No. 22 CAE 03 0017 2
For Defendant-Appellee Gary R. Johnson For Defendant-Appellee Kerry Daly
DAVID W. ORLANDINI JOSHUA R. BILLS
BENJAMIN C. ADKINS NICHOLAS S. BOBB
Collins, Roche, Utley & Garner Pelini, Campbell & Williams, LLC
655 Metro Place South – Suite #200 5880 Innovation Drive
Dublin, Ohio 43017 Dublin, Ohio 43016
For Defendant-Appellee William Houk For Defendant-Appellee Susan Miceli
TERRENCE J. KENNEALLY GARY G. YASHKO
SEAN M. KENNEALLY The Law Office Gary G. Yashko
Law Office of Terrence J. Kenneally & 611 Gradall Court
Assoc. Co. Powell, Ohio 43065
River Terrace Bldg.
19111 Detroit Road – Suite #200
Rocky River, Ohio 44116
For Defendant-Appellee Rebecca Mount
CURTIS J. SYBERT
Sybert, Rhoad, Lackey Swisher, LLC
153 S. Liberty Street
Powell, Ohio 43065
Delaware County, Case No. 22 CAE 03 0017 3
Hoffman, J.
{¶1} Plaintiff-appellant Michael L. Gemperline appeals the judgment entered by
the Delaware County Common Pleas Court dismissing his complaint alleging abuse of
process against Defendants-appellees Domenico Franano, Karen Slavik, Rebecca
Mount, Susan Miceli, Kerry Daly, William Houk, and Gary R. Johnson pursuant to Civ. R.
12(B)(6).
STATEMENT OF THE FACTS AND CASE
{¶2} In 2018, Appellant took office as a Trustee for Liberty Township. In his
capacity as trustee, Appellant voted to request an EMS proposal from Delaware County
to replace the township EMS.
{¶3} In 2019, Appellees, who all opposed the plan to replace the township EMS,
gathered signatures for a petition to remove Appellant from office, allegedly stating
Appellant wanted to replace Liberty Township EMS with Delaware County services,
“Liberty Township EMS will be harmed,” and “people will die” because of Appellant's plan.
{¶4} On July 2, 2019, pursuant to R.C. 3.07 and 3.08, a complaint to remove
Appellant from office was filed by Appellees in the Delaware County Court of Common
Pleas. The complaint alleged Appellant was in favor of replacing Liberty Township EMS
with Delaware County EMS, engaged in misconduct by seeking to replace a contractor
of the township, improperly ceded his authority to another trustee, failed to check the
abuse of power of another trustee, conducted township business using his personal email
account, and failed to recuse himself from matters in which he had a conflict of interest.
In August of 2019, Appellees’ removal complaint was voluntarily dismissed via stipulation.
{¶5} On March 30, 2020, Appellant filed a complaint in the Delaware County
Common Pleas Court against Appellees. On September 18, 2020, Appellant filed an
Delaware County, Case No. 22 CAE 03 0017 4
amended complaint alleging: abuse of process, intentional infliction of emotional distress,
and defamation. The trial court dismissed the complaint pursuant to Civ. R. 12(B)(6) for
failure to state a claim on which relief could be granted.
{¶6} Appellant filed an appeal to this Court. On appeal, we affirmed the dismissal
of all causes of action with the exception of abuse of process. This Court found the
complaint sufficient to set forth a cause of action for abuse of process:
The record demonstrates that the amended complaint alleges that
the legal process was proper in form and with probable cause; that
Appellees attempted to pervert the process in an attempt to accomplish an
ulterior purpose for which it was not designed (attempting to influence an
election, force Appellant to become a political ally, and attempt to ruin
Appellant's reputation and finances), and that Appellant sustained damages
as a result of the wrongful use of process. Accordingly, we find the trial court
erred in granting Appellee's motion to dismiss for failure to state a claim
upon which relief can be granted.
{¶7} Gemperline v. Franano, 5th Dist. Delaware No. 21 CAE 01 0002, 2021-
Ohio-2394, ¶ 24, appeal not allowed, 165 Ohio St.3d 1494, 2021-Ohio-4515, 178 N.E.3d
530.
{¶8} While the trial court noted the Noerr-Pennington doctrine might apply in this
case, because the trial court did not specifically decide the issue, we declined to address
the application of the doctrine. Id. at ¶15.
Delaware County, Case No. 22 CAE 03 0017 5
{¶9} On remand, the trial court found Appellant’s cause of action for abuse of
process barred by the Noerr-Pennington doctrine. The trial court dismissed the abuse of
process claim for failure to state a claim on which relief may be granted pursuant to Civ.
R. 12(B)(6).
{¶10} It is from the March 3, 2022 judgment of the trial court Appellant prosecutes
his appeal, assigning as error:
I. THE TRIAL COURT ERRED BY GRANTING A 12(B)(1) MOTION
TO DISMISS TO DEFENDANT-APPELLEES ON THE GROUND THAT
THE NOERR-PENNINGTON DOCTRINE PROVIDES IMMUNITY TO
ABUSE OF PROCESS CLAIMS.
II. THE TRIAL COURT ERRED BY GRANTING A 12(B)(1) MOTION
TO DISMISS TO DEFENDANT-APPELLEES BASED ON THE NOERR-
PENNINGTON DOCTRINE BECAUSE THIS DOCTRINE CANNOT BE
RESOLVED ON THE PLEADINGS.
I.
{¶11} In his first assignment of error, Appellant argues the trial court erred in
dismissing his cause of action for abuse of process. He specifically argues the Noerr-
Pennington doctrine should not apply to a claim for abuse of process, and even if the
doctrine does apply to the instant action, the trial court erred in failing to find the “sham”
litigation exception to the doctrine applies in this case.
Delaware County, Case No. 22 CAE 03 0017 6
{¶12} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for
failure to state a claim upon which relief can be granted, our standard of review is de
novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44,
¶ 5. A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can
be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson
v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992), citing
Assn. for the Defense of the Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116,
117, 537 N.E.2d 1292 (1989). In considering a motion to dismiss, a trial court may not
rely on allegations or evidence outside the complaint. State ex rel. Fuqua v. Alexander,
79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). Rather, the trial court may review only
the complaint and may dismiss the case only if it appears beyond a doubt that the plaintiff
can prove no set of facts entitling the plaintiff to recover. O'Brien v. Univ. Community
Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.
{¶13} Noerr–Pennington immunity is a “doctrine [that] originated in the anti-trust
context as the proposition that ‘joint efforts to influence public officials do not violate the
antitrust laws even though intended to eliminate competition. Such conduct is not illegal,
either standing alone or as part of a broader scheme itself violative of the Sherman Act.’”
We, Inc. v. Philadelphia, Dept. of Licenses & Inspections, 174 F.3d 322, 326 (3d Cir.
1999), quoting United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670, 85 S.Ct.
1585, 14 L.Ed.2d 626 (1965); see also Eastern R. R. Presidents Conference v. Noerr
Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The United States
Supreme Court has held, “Those who petition government for redress are generally
immune from antitrust liability.” Professional Real Estate Investors, Inc. v. Columbia
Delaware County, Case No. 22 CAE 03 0017 7
Pictures Industries, Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). This
type of immunity from antitrust liability is otherwise known as Noerr–Pennington immunity.
{¶14} Although originating in the antitrust context, Noerr-Pennington immunity has
been extended to a broader range of cases in which the defendant engaged in activity
protected by the First Amendment. Although Ohio has not specifically addressed the
extension of the doctrine to the tort of abuse of process, the Ohio Supreme Court held
the doctrine provided immunity to a defendant against a claim for unfair competition by
way of malicious litigation. Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366,
2012-Ohio-4193, 978 N.E.2d 832. This Court has applied the doctrine to a cause of action
for tortious interference with employment and civil conspiracy. Lanzer v. Louisville, 5th
Dist. No. 2015 CA 00170, 2016-Ohio-8071, 75 N.E.3d 752.
{¶15} Appellant cites DirecTV, Inc. v. Zink, 286 F. Supp 2d 873 (E.D. Mich. 2003),
in which the federal court held the Noerr-Pennington doctrine did not provide immunity
against liability for abuse of process. The court noted the purpose of the Noerr–
Pennington doctrine is to protect the right to petition the courts from the chilling effect
which would result if bringing a reasonable lawsuit could violate the law. Id. at 874. In
contrast, the abuse of process tort as defined by the state of Michigan addresses
subsequent misconduct or abuse of proceedings, occurring only after the process has
been initiated. Id. at 875. To properly allege abuse of process in Michigan, a party must
plead: 1) an ulterior purpose, and 2) an act which is improper in the regular prosecution
of the proceeding. Id. Declining to apply the Noerr–Pennington doctrine’s protection to
subsequent abuses does not harm a plaintiff’s First Amendment right to petition the
courts, because it does not discourage the plaintiff from bringing the original suit. Id.
Delaware County, Case No. 22 CAE 03 0017 8
{¶16} In Ohio, in order to assert a claim of abuse of process, a plaintiff must allege:
(1) a legal proceeding has been set in motion in proper form and with probable cause, (2)
the proceeding has been perverted to attempt to accomplish an ulterior purpose for which
it was not designed, and (3) direct damage has resulted from the wrongful use of process.
Gemperline, supra, at ¶18. We find DirecTV distinguishable because unlike Michigan,
Ohio does not specifically define the tort of abuse of process to require a subsequent act
of misconduct after the initiation of the action. We therefore find the Noerr-Pennington
doctrine does provide immunity from an action for abuse of process where the alleged
abuse is based on the initiation of the action itself, and a subsequent act of misconduct
is not alleged by the plaintiff.
{¶17} In the instant case, Appellant’s complaint does not allege any subsequent
misconduct in the proceeding to remove him from office after the initiation of the suit.
Rather, he alleges the Appellees’ motivation for filing the action to remove him from office
was not to remove him from office, but rather, as this Court previously noted, to influence
an election, to force Appellant to become a political ally, and to ruin Appellant's reputation
and finances Id. at ¶24. All of Appellant’s allegations in his complaint relate to Appellees’
motivation for the initiation of the action, and not to any subsequent action taken by
Appellees in the prosecution of the suit which perverted the underlying proceeding to
attempt to accomplish an ulterior purpose for which it was not designed. We therefore
find the trial court did not err in finding the Noerr-Pennington doctrine applied in the instant
case.
{¶18} Appellant also argues the trial court erred in finding the “sham” litigation
exception to the Noerr-Pennington doctrine did not apply in this case. A litigant is not
Delaware County, Case No. 22 CAE 03 0017 9
entitled to Noerr-Pennington immunity if he engaged in “sham” litigation. See, e.g., Static
Control Components, Inc. v. Lexmark International, Inc., 697 F.3d 387, 408 (6th Cir.
2012). The United States Supreme Court has set forth a two-part test to determine if the
sham litigation exception applies. First, the lawsuit must be objectively baseless, in the
sense that no reasonable litigant could realistically expect success on the merits.
Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S.
49, 60, 113 S. Ct. 1920, 123 L.Ed. 2d 611 (1993). If the court finds the litigation is
objectively baseless, the court next examines whether the litigant was motivated by a
desire to pursue his own rights or to accomplish an improper motive. Id. at 60-61.
{¶19} In the instant case, Appellant’s complaint alleged the underlying removal
action filed by Appellees was initiated with probable cause. Amended Complaint,
September 18, 2020, ¶46. We agree with the trial court the underlying action could not
be both supported by probable cause, yet objectively baseless. For this reason, we find
the trial court did not err in finding the “sham” litigation exception does not apply in the
instant case.
{¶20} We find the trial court did not err in dismissing Appellant’s claim for abuse
of process pursuant to Civ. R. 12(B)(6) based on the application of the Noerr-Pennington
doctrine.
{¶21} The first assignment of error is overruled.
II.
{¶22} In his second assignment of error, Appellant argues the Noerr-Pennington
doctrine cannot be resolved from the pleadings, and the trial court therefore erred in
dismissing the action pursuant to Civ. R. 12(B).
Delaware County, Case No. 22 CAE 03 0017 10
{¶23} Noerr–Pennington immunity is an affirmative defense that must be pleaded
in an answer or it is waived under Civ.R. 8(C). Am. Chem. Soc. v. Leadscope, Inc., supra.
Because affirmative defenses typically rely on matters beyond the pleadings, affirmative
defenses normally cannot be raised in a Civ.R. 12(B)(6) motion to dismiss. Mills v.
Whitehouse Trucking Co, 40 Ohio St.2d 55, 58, 320 N.E.2d 668 (1974). However, an
exception exists where the existence of the affirmative defense is obvious from the face
of the complaint itself. Id. In Lanzer v. Louisville, 5th Dist. No. 2015 CA 00170, 2016-
Ohio-8071, 75 N.E.3d 752, this Court found the trial court properly dismissed a case
pursuant to Civ. R. 12(B)(6) where the application of the Noerr-Pennington doctrine was
apparent from the complaint itself.
{¶24} In the instant case, we find the trial court did not err in dismissing the
complaint pursuant to the Noerr-Pennington doctrine. From the face of the complaint
itself, we find it is apparent the action was based on Appellees’ institution of a complaint
to remove Appellant from office. As discussed earlier, the complaint was based solely on
the underlying motivation for the institution of the removal action, and not based on any
subsequent unprotected actions taken after the action was filed.
Delaware County, Case No. 22 CAE 03 0017 11
{¶25} The second assignment of error is overruled.
{¶26} The judgment of the Delaware County Common Pleas Court is affirmed.
By: Hoffman, J.
Wise, Earle, P.J. and
Delaney, J. concur
HON. WILLIAM B. HOFFMAN
HON. EARLE E. WISE, JR.
HON. PATRICIA A. DELANEY