Montgomery v. Greene Co. Sheriff's Dept.

[Cite as Montgomery v. Greene Co. Sheriff's Dept., 2018-Ohio-869.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
JOEL MONTGOMERY :
:
Plaintiff-Appellant : Appellate Case No. 2017-CA-40
:
v. : Trial Court Case No. 2016-CV-0645
:
GREENE COUNTY SHERIFF’S : (Civil Appeal from
DEPARTMENT, et al. : Common Pleas Court)
:
Defendant-Appellee :
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OPINION
Rendered on the 9th day of March, 2018.
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TOM O. MERRITT, Atty. Reg. No. 0066661, 1480 W. Main Street, Tipp City, Ohio 45371
Attorney for Plaintiff-Appellant
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, 61 Greene Street, Xenia, Ohio 45385
Attorney for Defendant-Appellee
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FROELICH, J.
{¶ 1} Joel Montgomery appeals from a judgment of the Greene County Court of
Common Pleas, which granted summary judgment in favor of the Greene County Sheriff’s
Office and Detective Shawn Bradley on Montgomery’s claims for malicious prosecution
and violation of his constitutional rights.
{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.
Facts and Procedural History
{¶ 3} On September 28, 2016, Montgomery filed a complaint against the Greene
County Sheriff’s Office, Detective Shawn Bradley, the Greene County Prosecutor, the
Greene County Board of Commissioners, and each of the Commissioners individually.
The complaint alleged malicious prosecution and violation of Montgomery’s constitutional
rights; specifically, Montgomery alleged that he was falsely accused of shooting at his
neighbor’s barn (criminal damaging), that Deputy Bradley had persuaded Montgomery’s
neighbor, Timothy Abner, “to falsely swear to a complaint,” and that, as a result, his home
was searched in violation of his constitutional rights.
{¶ 4} All of the parties filed answers; additionally, the prosecutor, Board of
Commissioners, and the Commission members filed counterclaims seeking to recover
costs and attorney fees for Montgomery’s “frivolous conduct” and motions to dismiss.
Montgomery filed a reply to the counterclaims and a memorandum in opposition to the
motion to dismiss. The Sheriff’s Office and Deputy Bradley filed a motion for judgment
on the pleadings.
{¶ 5} On April 17, 2017, the trial court granted the motion to dismiss the
prosecutor, Board of Commissioners, and the individual commissioners, finding that
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Montgomery “had failed to plead any facts that would pierce [their] governmental
immunity” for intentional tort claims. The court also granted the Sheriff’s Office’s motion
for judgment on the pleadings. It overruled Deputy Bradley’s motion for judgment on the
pleadings, noting that paragraphs 31, 42, and 43 of the complaint contained allegations
supporting Montgomery’s claim of malicious prosecution and his claim that his house was
searched based on an allegedly false affidavit, in violation of his constitutional rights.
{¶ 6} On April 26, 2017, the Sheriff’s Office and Detective Bradley filed a motion
for summary judgment. 1 Attached to the motion were affidavits from Montgomery’s
neighbor, Timothy Abner, and Detectives Bradley and Jason Tavner. Additionally,
copies of Abner’s witness statements to sheriff’s deputies on June 5 and 9, 2015, were
attached to his affidavit.
{¶ 7} Abner’s affidavit stated that he lived next door to Montgomery in June 2015
and made “numerous reports” to the Sheriff’s Office about Montgomery’s firing weapons
in the direction of Abner’s home. Abner also found bullet holes in his bike trailer and
truck. When deputies came to his home to investigate on June 5, 2015, he showed them
the bullet holes. The deputies then went to talk with Montgomery. According to the
affidavit, not long after the deputies left, Montgomery again fired “what sounded like an
automatic weapon” in the direction of Abner’s house, and Abner called the deputies to
come back. Abner stated in his affidavit that, “[a]t no time did Detective Bradley or
anyone employed or affiliated with the sheriff’s office or any other law enforcement
agency ask me to lie or embellish any statement I gave.”
1
Although the Greene County Sheriff’s Office’s motion for judgment on the pleadings
appeared to have been granted in the trial court’s April 17, 2017 judgment, the motion
for summary judgment was filed on behalf of the Sheriff’s Office and Detective Bradley.
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{¶ 8} Detective Bradley’s affidavit stated that, in early June 2015, he had been
assigned to investigate a complaint made by Abner “that his neighbor, Joel Montgomery
had, on multiple occasions, fired a weapon in the direction of his home, causing damage
to his personal property.” Bradley had several conversations with Abner about Abner’s
relationship with Montgomery and “background information.” Bradley’s affidavit further
stated that, “[a]t no time did I ask Mr. Abner to lie or embellish any statement given or
complaint made, nor did I ask anyone to ask Mr. Abner to lie or embellish any statement
given or complaint made on my behalf.”
{¶ 9} Finally, Detective Tavner’s affidavit stated that he had responded to a
“weapons complaint” by Abner on June 5, 2015, wherein Abner stated that he had heard
automatic gun fire from Montgomery’s property the previous night. Abner showed
Tavner where Abner’s bike trailer, truck, and garage had been shot, and several spent
rounds of ammunition were found. Tavner and another deputy, Detective Longfellow,
then made contact with Montgomery at Montgomery’s house, where Tavner “observed
approximately 1,000 spent ammunition casings at Mr. Montgomery’s front door.”
Montgomery admitted to shooting the previous night, but said it was “bulls***” that he had
damaged any of Abner’s property.
{¶ 10} After leaving Montgomery’s property and pulling into a vacant parking lot
nearby, Tavner heard automatic gun fire coming from the area of Montgomery’s property,
“what sounded like 30 rounds of ammunition being shot in less than 5 seconds.” Abner
called dispatch again, and Tavner and Longfellow returned to Abner’s property. After
the deputies parked their cruiser, Montgomery fired five rounds from “what sounded like
a handgun,” but the deputies were unable to determine the direction of the shooting.
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{¶ 11} Tavner’s affidavit stated that he had not asked Abner to lie or embellish any
statement, or asked anyone else to do so on his (Tavner’s) behalf.
{¶ 12} Montgomery’s response to the motion for summary judgment included a
copy of the search warrant the sheriff’s deputies obtained for his residence, including a
narrative supplement, and a September 2015 transcript of a trial in a civil case between
Abner and Montgomery. 2 Montgomery’s response acknowledged that Abner’s
statements to sheriff’s deputies and the discovery of two spent shell casings on Abner’s
property formed the basis for the issuance of the search warrant for his home.
{¶ 13} In the trial transcript, Abner testified that he had a verbal altercation with
Montgomery shortly after moving into the neighboring property in September 2014, “and
that was the last time I seen him exactly up close in person.” Abner further testified that,
“from then on [Montgomery] was firing off full automatic weapons, machine guns and just
different – different guns * * * pretty much every day.” Abner first called the sheriff’s office
about the gunfire in April 2015, and again in early June 2015.
{¶ 14} Relying on the trial transcript, Montgomery argued in his response to the
motion for summary judgment that Abner’s statement that he not “not seen” Montgomery
in many months was inconsistent with Abner’s affidavit and with Detective Bradley’s
conclusion that Montgomery was the person involved in the shooting which had caused
damage to Abner’s property.
{¶ 15} On June 22, 2017, the trial court granted summary judgment to the
Sheriff’s Office and Bradley. The trial court stated:
2
According to Montgomery’s response, the civil case was “dismissed” on the day of
trial, but the disposition of that case is not otherwise apparent from the record of this
case.
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Abner, Bradley and Tavner’s affidavits refute the pertinent allegations of
Montgomery’s complaint. Montgomery provided no Civ.R. 56 material to
refute their sworn statements. The Defendants Greene County Sheriff’s
Office and Deputy Sheriff Detective Shawn Bradley are entitled to judgment
as a matter of law and their motion for summary judgment is hereby granted.
Summary Judgment
{¶ 16} Montgomery raises one assignment of error on appeal, asserting that the
trial court erred in granting summary judgment to the Sheriff’s Officer and Detective
Bradley.
{¶ 17} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is
no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds, after construing the evidence most strongly in
favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving
party carries the initial burden of affirmatively demonstrating that no genuine issue of
material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526
N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials
of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).
{¶ 18} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits
or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is
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a genuine issue of material fact for trial. Id. Throughout, the evidence must be
construed in favor of the nonmoving party. Id.{¶ 19} We review the trial court’s ruling on a motion for summary judgment de
novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.
De novo review means that this court uses the same standard that the trial court should
have used, and we examine the evidence, without deference to the trial court, to
determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d
Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.
Analysis
{¶ 20} Montgomery’s argument that the trial court erred in granting summary
judgment is two-fold. First, he argues that the court should have considered the
transcript attached to his response to the motion for summary judgment. Second, he
asserts that, if the transcript had been considered, Abner’s testimony therein created a
genuine issue of material fact, because Abner’s testimony that he had not seen
Montgomery for several months contradicted his (Abner’s) affidavit, which stated that
Abner (in Montgomery’s words) “witnessed Mr. Montgomery shooting at his house” in
June 2015.
{¶ 21} It is unclear from the trial court’s judgment to what extent it considered the
transcript filed with Montgomery’s response to the motion for summary judgment, if at all.
The judgment notes Montgomery’s reliance on the transcript testimony and his claim that
Abner’s testimony therein contradicted his (Abner’s) affidavit. But the judgment also
observes that “Montgomery provided no Civ.R. 56 material to refute” sworn affidavits
offered in support of summary judgment. Indeed, the transcript is not properly
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authenticated, and the trial court could have refused to consider it on that basis.
{¶ 22} However, even assuming that the trial transcript were properly before the
court in opposition to the Sheriff’s Office’s and Bradley’s motion for summary judgment,
it did not contradict Abner’s affidavit. In the affidavit, Abner stated that he had reported
to the Sheriff’s Office that his neighbor, Montgomery, “fir[ed] weapons in the direction of
[his] home” on more than one occasion and that he “heard automatic gun fire coming from
Joel Montgomery’s property” on June 5, 2015, before discovering bullet holes in his own
property. In his transcript testimony, Abner recounted an encounter with Montgomery in
the fall of 2014, shortly after Abner moved into the property neighboring Montgomery’s
property. During that encounter, Montgomery claimed that Abner had cut down plants
that were on Montgomery’s property, cursed at Abner, and made a crude gesture toward
him. Abner stated that this was “the last time I seen him exactly up close in person.”
Abner did not state that he had never seen Montgomery again, and Abner’s denial of “up
close” contact with Montgomery in subsequent months did not contradict the statements
in his affidavit that shots had been fired from Montgomery’s house.
{¶ 23} Based on the evidence offered in support of the Sheriff’s Office’s and
Bradley’s motion for summary judgment, and Montgomery’s failure to refute this evidence,
the trial court did not err in granting summary judgment in favor of the Sheriff’s Office and
Detective Bradley.
{¶ 24} The assignment of error is overruled.
{¶ 25} The judgment of the trial court will be affirmed.
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WELBAUM, P.J. and HALL, J., concur.
Copies mailed to:
Tom O. Merritt
Nathaniel R. Luken
Hon. James R. Brogan
Hon. Stephen A. Wolaver, Administrative Judge