COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60083 : LEONARD P. WEISS : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : EDMUND MECKLENBURG, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT MAY 7, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 121502 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: JAMES W. BURKE, JR. TODD M. RASKIN BURKE, VANNUCCI & GALLAGHER JOHN T. MCLANDRICH, MAZANEC, 22649 Lorain Avenue RASKIN & RYDER CO., L.P.A. Fairview Park, Ohio 44126 North Solon Office Commons 30670 Bainbridge Road Solon, Ohio 44139 LEO R. WARD JOHN J. RICOTTA, WARD & ASSOC. The Dallas Building 2217 East Ninth Street Cleveland, Ohio 44115 -2- MARGARET K. WEAVER, J.: Plaintiff appeals the trial court's granting of the Motion for Partial Summary Judgment of Defendants Edmund Mecklenburg, Robert M. Holmok, Alan Clark, Anthony Sinagra, City of Lakewood and Thomas Roe as to Counts I and III of his complaint and the Motion for Summary Judgment of Defendants Robert L. Holmok, Jack L. Henderson, Lawrence Mroz, Anthony Sinagra and the City of Lakewood as to Count II of his complaint for violation of his civil rights pursuant to 42 U.S.C. 1983 and also for malicious prosecution. The specific allegations are that several of the defendants, individually and in their official capacities, which include police chief, police officer, police captain, fire chief, fire marshall, and mayor, sought warrants to search Plaintiff's residence without probable cause, and continued a prosecution of Plaintiff for arson for malicious purposes. And further that a police officer surreptitiously recorded a conversation between the Plaintiff and his counsel at the police station two weeks before his criminal trial while they were reviewing discovery. Defendants argue that Plaintiff failed to establish the existence of any genuine issue of material fact as to either the civil rights or the malicious prosecution claim, and therefore, partial summary judgment dismissing the claims against them was appropriate. -3- The case has its genesis in two fires which occurred at Plaintiff's home in Lakewood, the first of which occurred in December, 1983, and the second of which occurred in June, 1984. The first fire was determined to be accidental, caused by a plumber soldering pipes, and the insurance company agreed to pay the defendant $130,000 for the house and $70,000 for its contents. The second fire occurred while the house was unoccupied and being renovated. The second fire was deemed to have been of great intensity because an aluminum threshold was melted and serious damage was done to the steel hull of the boat owned by the plumber who had caused the first fire which was moored at the Plaintiff's house at the time of the fire. The investigators discovered that the gas line to the house which had been capped after the first fire had been opened and uncapped in the garage of Plaintiff's house by someone before the second fire. After debris was removed from the floor, a distinct burn pattern indicating the application of a flammable material was found on the floor of the house, and wood samples were taken by Brininger, a private arson investigator of Plaintiff's insurance company, and by Henderson, the Lakewood fire marshall. The samples were taken from both in and out of the burn pattern. Two separate labs were used for testing those samples. As to the samples submitted by Brininger on June 28, 1984, no detectable amounts of accelerant were revealed according to the report of July 5, 1984. As to the samples taken and submitted July 2, -4- 1984, by Fire Marshall Henderson, the report of July 17, 1984 stated, Gas chromatographic analysis of ether extracts revealed that exhibits #1 and 2 did not contain any accelerants. Exhibits #3, 4, 5 and 6 contained similar multi- component substances not matching current laboratory standards. The Henderson samples were thereafter considered "inconclu- sive" by the investigators as to accelerants. The day before the second fire, two steel beams had been welded together and then spot welded under the house for support. The welder told the investigators that only spot welding had been done near the wooden areas and the primary welding had been done away from the wood. Further, he told the investigators that the area surrounding where he welded had been wetted down before and after the welds and had been watched for an hour thereafter. Based upon the burn pattern and statements of the welder, which gave rise to the suspicion that the fire may have been set because of the poor condition of the foundation, the state fire marshall recommended a search warrant be sought for samples of the foundation beams for scientific investigation. The warrant was obtained and samples were taken which were sent to Youngstown State University for testing. The results indicated the beams were too rotten to support new construction. At the time of the execution of the search warrant on July 8, 1992, only the foundation of the house remained, and one of its pilings had fallen into the water. -5- Investigator Holmok also went to Plaintiff's structural architect, John Bowes, who told him he had never viewed the foundation and had written to the City of Lakewood opining that the house could be rebuilt on the foundation based upon a sketch of the pilings forming the foundation provided by the Plaintiff. He further stated that he had not recommended the steel beam be installed under the floor. Investigator Holmok sought a second search warrant based upon the report that one of the foundation pillars having fallen into the water for its recovery for testing, which was granted. Upon inspection it was found to be in very bad condition, and based upon those findings, a third search warrant was sought and granted for the remaining pillars. On September 1, 1984, Cincinnati Insurance Co. retained Frank J. Tarantine, Ph.D., to examine the pillars, and his testing determined that they had deteriorated to the point that they could not serve as a foundation for the house. The Cincinnati Insurance investigator related cash flow problems of the plaintiff to the investigators as further motive for arson. Plaintiff denied such problems. Based upon all of these facts and other information, the matter was taken to the prosecuting attorney who took it to the grand jury which indicted the plaintiff for arson as to the second fire. Trial to the court was had, and during the trial it was discovered that while Plaintiff and his counsel were viewing discovery material at the Lakewood Police Department about ten -6- days before trial, Investigator Holmok had videotaped the entire procedure, including at least three periods of time when he had been called or gone voluntarily from the room, all without the knowledge of the plaintiff or his counsel. The tape was unknown to the prosecutor until the time of trial, and no information was obtained for or used in the trial. The Plaintiff was found not guilty. This action was thereafter initiated. Because each of Plaintiff's assignments of error raise issues with respect to summary judgment, it is important to note that Civ. R. 56(C, in pertinent part, provides that: 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. The filing of summary judgment also forces the non-moving party to product evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, citing Celotex v. Catrett (1986), 479 U.S. 319. Further, Civ. R. 56(C requires a certain quality of evidence be produced by a party in a motion for or against summary judgment. That evidence may be by depositions, answers to interrogatories, written admissions, affidavits, transcript of evidence in the pending case (emphasis added), and written stipulations of fact. Further, pursuant to Civ. R. 56(E), -7- affidavits must be on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively (emphasis added) that the affiant is competent to testify to the matters stated therein. The caveat is stated in Civ. R. 56(C that "No evidence or stipulation may be considered except as stated in this rule." Although the trial court does not specifically delineate the evidence it considered, Plaintiff's Exhibits A, B, C, F, G, H, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, and Z filed with his memorandum in opposition to the Defendants' Motion for Partial Summary Judgment as to Counts I and III and Exhibit C filed with his memorandum in opposition to the Defendants' Motion for Summary Judgment as to Count II do not meet the standards of the rule. Therefore, this court confines itself to the evidence that was properly before the trial court under Civ. R. 56(C and as to that evidence, to that portion which was properly before the trial court as required by Civ. R. 56(E). Plaintiff's first assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNT I, ALLEGING A FOURTH AND FOURTEENTH AMENDMENT VIOLATION. In a cause of action under 42 U.S.C. Section 1983, the plaintiff must prove that the conduct of the defendant was committed by a person acting under color of state law and the conduct deprived a person of rights, privilege, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor (1981), 451 U.S. 527 at 535. -8- In the instant case, the fact that Investigator Holmok acted under color of state law in preparing affidavits and obtaining search warrants is not in dispute. Plaintiff argues that Holmok's affidavits contained false statements and therefore the warrants were issued without probable cause in violation of the Fourth and Fourteenth Amendments of the United States Constitution which protects individuals against unreasonable searches and seizures. We disagree. In Franks v. Delaware (1978), 438 U.S. 154, the United States Supreme Court established that there must be a sufficient offer of proof that facts in a warrant affidavit were deliberately false or demonstrate a reckless disregard for the truth. If the requisite proof is offered, then the court must set to one side the alleged falsity and determine the sufficiency of the remaining information; if the remaining information in the warrant affidavit is sufficient to support a finding of probable cause, then there is not a violation of the Fourth and Fourteenth Amendments. Id. at 171, 172. The Fourth Amendment demands only that the information set forth in a warrant affidavit be truthful in the sense that it is believed or accepted as true by the affiant. To be truthful does not mean that every fact recited in the warrant affidavit is necessarily correct. Id. at 165. In the affidavits for the search warrants which plaintiff complains contain false information, Affiant Holmok stated that Brininger had smelled gasoline. The affidavit of Fire Marshall -9- Henderson included in Defendant's' Motion for Partial Summary Judgment states that as he and Brininger removed flooring, he smelled a petroleum product which smelled like gasoline and another petroleum product. The unrebutted evidence establishes that one of the persons investigating the fire smelled gasoline. The affidavit for search warrant identified that person as Brininger rather than Henderson. That mistake does not rise to a deliberate falsehood or demonstrate a reckless disregard for the truth. Further, the affidavits state that Brininger, a fire investigator for Cincinnati Insurance Co., observed a burn pattern on the floor indicating a flammable liquid had been poured on it before the second fire. Such evidence is not rebutted and alone would be sufficient to establish probable cause to believe arson had been committed. Consequently, the issuance of the search warrants did not violate Plaintiff's rights against unreasonable search and seizure. Plaintiff's first assignment of error is not well taken. Plaintiff's second assignment of error states: TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON COUNT III OF PLAINTIFF'S COMPLAINT. The Supreme Court of Ohio, in Trussel v. General Motors Corp. (1990), 53 Ohio St. 3d 142, held that the elements of the tort of malicious prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. -10- The only disputed element in the cause sub judice is whether there was a lack of probable cause. Plaintiff argues that Defendants lacked probable cause to prosecute him. We disagree. This court, in Adamson v. May Co. (1982), 8 Ohio App. 3d 266, held that an indictment creates a rebuttable presumption that the accuser had probable cause to prosecute. In that opinion, the court further points out that the presumption must be met by evidence of a substantial nature to counterbalance the presumption. Id. at 170. Further, that opinion, citing Ash v. Marlow (1851), 20 Ohio 119, 129, defines probable cause for prosecution 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. In the instant cause, Plaintiff argues three findings of the trial court which he believes he rebutted sufficiently to counterbalance the presumption that his accuser had probable cause. Those three are first, as to the existence of an accelerant; second as to the cause of the fire being improper welding; and third, as to whether the welder carefully wet down his work area and watched it for an hour after the work was completed. The issue of the presence or lack of the presence of an accelerant after the fire does not rebut the existence of a distinct burn pattern which was found by not fewer than three -11- fire investigation experts, namely, Investigator Brininger, Lakewood Fire Marshall Henderson, and State Fire Marshall Dunkle. On the issue of welding as the cause of the fire, Plaintiff failed to represent substantial evidence to rebut the fact that his theory was investigated and dismissed. Plaintiff argues evidence, much of which was inadmissible, that welding was the cause of the fire. This raises a genuine issue of material fact as to the actual cause of the fire, but does not raise a genuine issue of material fact as to whether Holmok and Henderson investigated the theory that welding was the cause of the fire or that such investigation was done with a reckless disregard for the truth. A careful review of the record reveals that, when the evidence for which there is no question of fact is viewed in the light most favorable to Plaintiff, there existed probable cause for prosecution. Accordingly, Plaintiff's second assignment of error is not well taken. Plaintiff's third and final assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNT II OF PLAINTIFF'S COMPLAINT. Again, Count II of the Plaintiff's complaint was under 42 U.S.C. Section 1983, and Plaintiff must prove that the conduct complained of was committed by a person acting under color of state law and the conduct deprived a person of rights, -12- privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, supra. In the instant case, the audio and video taping of the Plaintiff and his counsel without their knowledge in a conference room at the police station offends the sense of fairness, justice, and integrity of any reasonable person. However, in considering a claim pursuant to the statute, we must consider the two elements to be established. It is undisputed that the officer acted under color of state law. As to the deprivation of a right, privilege or immunity secured by the Constitution or the laws of the United States, the analysis becomes more difficult. Plaintiff argues that evidence could have been obtained which could have been used at trial which could have violated his Sixth Amendment right to counsel, and that such action in and of itself is conduct sufficient to show a deprivation of that right. The tape in this matter was made ten days before trial, and was never seen by the prosecutor until the day of trial, and it contained no defense strategy or other information that was used at trial. The United States Supreme Court in Weatherford v. Bursey (1977), 429 U.S. 545, held that where private attorney-client communications are deceptively monitored in contravention of the right to counsel, no violation of the Sixth Amendment by virtue of the Fourteenth Amendment occurs where there is no tainted -13- evidence used in the prosecution, no communication of defense strategy to the prosecution, and no purposeful intrusion. Id. at 558. Further, in cases in which this issue has arisen, the party claiming a violation has been found guilty, and that is at least a threshold showing of injury. In the case at bar, the Plaintiff was found not guilty. Again, the court in no way wishes to minimize the police action or infer that such action is acceptable conduct in a free society. However, a basic tenet of civil law is "Injuria absque damno." As translated in Black's Legal Dictionary, Fifth Edition, that says, "A wrong done, but from which no loss or damage results, and which therefore, will not sustain a cause of action." Plaintiff asks the court to make a bright line rule that would make contact with privileged defense communication harmful error as a matter of law. The court in U.S. v. DeColoqer (1st Cir. 1987), 821 F. 2d 39 was also asked to make such a rule, which it rejected. We, too, deny the request. Accordingly, Plaintiff's third assignment of error is not well taken. Judgment affirmed. -14- It is ordered that Appellee recover of Appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. Exceptions. DYKE, P.J., and HARPER, J., CONCUR. MARGARET K. WEAVER* JUDGE (*SITTING BY ASSIGNMENT: JUDGE MARGARET K. WEAVER, SANDUSKY COUNTY COMMON PLEAS COURT) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .