Wurth v. Emro Marketing Company , 125 Ohio App. 3d 494 ( 1998 )

I respectfully dissent. The sine qua non of a malicious prosecution case is that the defendant undertook prosecution without probable cause. Probable cause, in this instance, is defined as "[a] reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious [person] in the belief that the person accused is guilty of the offense with which he [or she] is charged." Ash v. Marlow (1851), 20 Ohio 119, at paragraph one of the syllabus; see, also,Rogers v. Barbera (1960), 170 Ohio St. 241, 246, 10 O.O.2d 248, 250-251, 164 N.E.2d 162, 166; Evans v. Smith (1994), 97 Ohio App.3d 59,68, 646 N.E.2d 217, 222-253. The determination of whether probable cause existed at the time the charges were pursued is ordinarily a question of fact and may be determined as a matter of law only if reasonable minds could reach no other conclusion. Huber v. O'Neill (1981), 66 Ohio St.2d 28, 29, 20 O.O.3d 17, 18-19, 419 N.E.2d 10, 11-12; see, also, McFinley v.Bethesda Oak Hosp. (1992), 79 Ohio App.3d 613, 617,607 N.E.2d 936, 939-940.

In my mind, there is considerable doubt that Harter and his principal, Emro, had probable cause to pursue criminal charges after the unemployment compensation hearing. Harter may have initially believed that when Jenelle Wurth told him she had altered inventory forms, she committed the act of "falsification." However, Wurth made it clear at the unemployment compensation hearing that these were not equivalent statements. Therefore, at the time of his appearance before the grand jury, Harter knew that Wurth denied falsifying documents, that his assertion that two other employees would accuse her of taking unpaid lottery tickets would not hold water, and that someone else had admitted to stealing from the store. Balanced against that exculpatory evidence was only that an audit showed missing inventory, Wurth was in charge, and Wurth sometimes used white-out on her inventory forms. Given these circumstances, it seems that there is considerable doubt as to whether a reasonable ground existed for a cautious person to believe that Wurth was guilty of theft.

The grand jury indictment does not per se constitute probable cause if it was founded on false testimony. That is why the transcript of the grand jury proceedings is so relevant here. It is important to know what Harter told the grand jury and what information he withheld. For these reasons, I would reverse the summary judgment against appellants and remand the matter to the trial court for further proceedings, including an examination of Harter's grand jury testimony.

APPENDIX IN THE COURT OF COMMON PLEAS, LUCAS COUNTY, OHIO. Jenelle Wurth et al., Plaintiffs, vs. Emro Marketing Company et al., Defendants. Case No. CI96-1381. J. RONALD Bowman, Judge.

This cause comes before the court on cross-motions for summary judgment filed herein by plaintiffs Jenelle and Steven Wurth ("Plaintiffs") and defendants Robert Day Harter and Emro Marketing Company ("Defendants"), respectively. For the reasons which follow, the court finds defendants' motion for summary judgment well taken and plaintiffs' motion for summary judgment not well taken.

I Plaintiff Jenelle Wurth was employed as a store manager of a local gas station/convenience store owned and operated by defendant Emro Marketing Company ("Emro").¹ As manager, Wurth was responsible for keeping track of the store's inventory. However, on or about January 10, 1995, following an audit, defendant Robert Daye Barter, a district manager for Emro, and David Carr, a regional manager for Emro,² accused Wurth of falsifying inventory records. The audit revealed a significant discrepancy between Wurth's inventory figures and the store's actual inventory. According to Wurth, when Barter and/or Carr confronted her in a nearby storage building about the discrepancy, she denied any wrongdoing.³ Wurth claims that those portions of the inventory records that were changed were the result of errors on her part in counting the merchandise. When she realized that she made such a mistake, she would "white out" the incorrect figure, recount the merchandise, and then record the corrected amount., Wurth's protestations of innocence notwithstanding, Harter and/or Carr allegedly threatened to fire her and file criminal charges against her if she did not sign a written confession/statement. Wurth refused and, though she continued to deny any wrongdoing, was immediately discharged.

Harter and Carr then contacted the Toledo Police and reported the matter. Eventually, a criminal complaint was filed against Wurth in the Toledo Municipal Court.⁴ Upon learning of the charges, Wurth presented herself to Toledo Police, at the Safety Building, where she was handcuffed, fingerprinted, and photographed. Apparently, these charges were dismissed and the matter was presented directly to the Lucas County Grand Jury. On January 55, 1996, Wurth was indicted on one count of grand theft. Wurth was again handcuffed and fingerprinted. the matter proceeded to trial and, on April 18, 1996, Wurth was found not guilty.

Previously, Wurth and others testified at an unemployment compensation hearing concerning the alleged theft. Plaintiffs claim that, subsequent to this hearing, Harter, acting on behalf of himself and Emro, created a document containing false statements regarding the testimony given at the hearing and other untrue information. According to this document, (1) Wurth admitted under oath at the unemployment compensation hearing that she had falsified company records, (2) an employee, Shelly Morse, stated that she had seen Wurth "scratch off an entire ($200) book of lottery tickets for her own personal use without paying for them," and (3) another employee, Michelle Hazard, also stated that she had seen Wurth play the lottery. Plaintiffs allege that Barter published these false statements to the investigating officer, the prosecutor, and others. Further, plaintiffs allege that these false statements were presented to the grand jury for the purpose of establishing probable cause and to secure an indictment.

On April 29, 1996, plaintiffs filed a complaint against Emro and Harter seeking compensatory and punitive damages. Plaintiffs claim that because of the defendants' actions, including the malicious prosecution of Wurth and libelous statements, Wurth suffered, inter alia, extreme emotional distress, deprivation of her liberty and freedom, lost wages, embarrassment, and public ignominy.⁵

Both plaintiffs and defendants have now moved for summary judgment, their motions having been, filed on March 26, 1997 and March 24, 1997, respectively.

II The standard governing a motion for summary judgment is set forth in Civ.R. 56, which provides:

"Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in "the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."

When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v.Wheeler (1988), 38 Ohio St.3d 112, 526 N.E.2d 798, syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. When a properly supported motion for summary judgment is made, "an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [the] rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56 (E).

III A. Intentional Infliction of Emotional Distress Plaintiffs have withdrawn their claim(s) for intentional infliction of emotional distress. Accordingly, this issue need not be addressed. B. Malicious Prosecution "The tort of malicious criminal prosecution is designed to compensate a wrongly accused criminal defendant for the damages caused by the misuse of criminal actions." Carlton v. Davisson (1995), 104 Ohio App.3d 636, 650, 662 N.E.2d 1112, 1121, citingCriss v. Springfield Twp. (1990), 56 Ohio St.3d 82, 84,564 N.E.2d 440, 442-443. In order to prevail on Wurth's claim of malicious criminal prosecution, plaintiffs must establish three essential elements: "(1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. Arrest of the plaintiff or seizure of his property is not a necessary element." Trussellv. Gen. Motors Corp. (1990), 53 Ohio St.3d 142, 146,559 N.E.2d 732, 736.

Although the parties apparently do not dispute that the prosecution of Wurth was terminated in her favor, there is a dispute as to whether there existed probable cause to institute the prosecution and whether there existed malice in instituting the prosecution.

"The gist of an action for malicious prosecution is probable cause and malice may be inferred from the absence of probable cause." Carlton v. Davisson, 104 Ohio App.3d at 650,662 N.E.2d at 1121, citing Melanowski v. Judy (1921), 102 Ohio St. 153,181 N.E. 360, paragraph one of the syllabus. Probable cause for purposes of a malicious prosecution action is defined as "[a] reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged * * *." Ash v. Marlow (1851), 20 Ohio 119,1851 WL 16, paragraph one of the syllabus. "There is no requirement that the defendant must have evidence that will ensure a conviction." Deoma v. Shaker Hts. (1990), 68 Ohio App.3d 72,77, 587 N.E.2d 425, 428, citing Epling v. Express Co. (1977),55 Ohio App.2d 59, 62, 9 O.O.3d 220, 222, 379 N.E.2d 239, 241-242.

In addition, "[a]n indictment is prima facie evidence of probable cause and a plaintiff must bring forward substantial evidence to rebut this." Canton v. Davisson,104 Ohio App.3d at 650-651, 662 N.E.2d at 1121. The plaintiff must bring forward evidence suggesting that "the return of the indictment resulted from perjured testimony or that the grand jury proceedings were otherwise significantly irregular." Deoma v. Shaker Hts.,68 Ohio App.3d at 77, 587 N.E.2d at 428.

Upon examination of the competent summary judgment evidence, the court finds that plaintiffs have failed to offer any substantial evidence tending to show that the return of the indictment resulted from perjured testimony or that the grand jury proceedings were otherwise significantly irregular or that defendants otherwise lacked probable cause to initiate criminal proceedings against Wurth.

There is uurebutted evidence before the court that (1) the January 1995 audit revealed a significant discrepancy in inventory, (2) Wurth was responsible for keeping track of inventory, (3) the inventory records evidenced the "whiting out" and changing of figures, (4) an investigation initially revealed that at least $3,500 to $3,600 worth of inventory was missing, (5) at the time the complaint was sworn in Toledo Municipal Court defendants had informed the city prosecutor that their investigation was ongoing but the city prosecutor advised that what they had would be good enough and the city prosecutor advised as to how the complaint should be worded, (6) the charges in Toledo Municipal Court were dismissed and the matter was presented directly to the Lucas County Grand Jury, (7) Barter prepared the document in question only after the county prosecutor requested him to do so, (8), Barter had informed the county prosecutor that the information was what he had gotten out of the unemployment compensation hearing/other sources, (9) at that time the county prosecutor had requested the tape of the unemployment compensation hearing (possibly considering reviewing the hearing testimony for the purpose of comparing it to Harter's summary), and (10) the Lucas County Grand Jury did return an indictment.

Accordingly, the court finds this aspect of plaintiffs motion for summary not well taken and this aspect of defendants' motion for summary judgment well taken.

C. Libel Plaintiffs libel claim is predicated upon the allegation that Barter prepared a certain document (discussed supra) that contained numerous false statements. Plaintiffs assert that Harter then published the document to the grand jury; However, "remarks made by parties or witnesses during and relevant to judicial proceedings are absolutely immune from civil suit."Carlton v. Davisson, 104 Ohio App.3d at 652, 662 N.E.2d at 1122, citing Willitzer v. McCloud (1983), 6 Ohio St.3d 447, 448, 6 OBR 489, 489-490, 458 N.E.2d 693, 694-695. Taking plaintiffs' assertion as true, the allegedly defamatory statements were made during, and do not appear to have been anything other than relevant to, the grand jury proceedings and were, therefore, protected by absolute immunity from civil suit. Carlton.

In addition, plaintiffs claim that Harter published the document to the prosecuting attorney. However, there is unrebutted testimony before the court that Barter prepared the document only after the prosecuting attorney requested him to do so. Under the facts presented, the court again finds that the allegedly defamatory statements were protected by absolute immunity from civil suit. See M.J. DiCorpo, Inc. v. Sweeney (1994), 69 Ohio St.3d 497, 634 N.E.2d 203.

Accordingly, the court finds this aspect of plaintiffs' motion for summary judgment not well taken and this aspect of defendants' motion for summary judgment well taken.

In view of the above, it is ORDERED, ADJUDGED and DECREED that plaintiffs' motion for summary judgment be and hereby is found not well taken and same is overruled and denied.

It is FURTHER ORDERED, ADJUDGED and DECREED that defendants' motion for summary judgment be and hereby is found well taken and same is granted.

So ordered.

¹ The gas station is variously referred to by the parties as a "Gastown Station," a "Speedway Store," and a "Gas Town.

² Carr is not named as a defendant.

³ In contrast, Harter testifies in his deposition that Wurth admitted to falsifying the books.

⁴ Wurth was accused of stealing over $3,000 worth of lottery tickets and/or cigarettes.

⁵ Plaintiff Steven Wurth's claims are for loss of consortium and emotional distress as a result of the malicious prosecution of and libelous statements against his wife.