COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72722 INAJO T. DAVIS : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : CITY OF WARRENSVILLE HTS., ET AL. : 0PINION : Defendants-Appellees : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 15, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Case No. 301615 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Plaintiff-Appellant: WILLIAM J. NOVAK THOMAS D. ROBENALT Rubenstein, Novak, Einbund & Pavlik Skylight Office Tower 1660 W. Second St., Suite 270 Cleveland, Ohio 44113-1498 For Defendants-Appellees: CLIFFORD C. MASCH JOHN G. PETO Reminger & Reminger Co., L.P.A. The 113 St. Clair Building Cleveland Ohio 44114 PER CURIAM: Inajo T. Davis appeals from a decision of the common pleas court granting summary judgment to the City of Warrensville Heights, and to William Zadeskey and David Williams, police -2- officers in that city, on her claims for negligent hiring of those officers, defamation based upon statements contained in a police report they prepared, and negligent and/or intentional infliction of emotional distress. Since the facts are generally not disputed, and since the appellees are entitled to judgment as a matter of law, we conclude the trial court did not err in granting summary judgment and affirm that decision. The record in this case reveals that on February 27, 1993, Julius Davis, brother of appellant, who had separated from his wife Linda, arranged for a counselor to meet with him and his wife. However, instead of attending the counseling session, Julius and his sister, who is an attorney, went to the Warrensville Heights Police Department, where they met Sgt. William Zadeskey and Patrolman David Williams, and asked them to assist in an effort to remove Julius' eight-month-old son from Linda's apartment, located at 4671 Dalebridge Avenue, in the City of Warrensville Heights. At that time, the officers informed Davis and her brother that they would assist in an effort to maintain the peace, but if anyone at Linda's apartment refused to allow the child to leave, since the officers did not possess legal authority to determine child custody, they would not allow Davis or Julius to remove the child without a written court order awarding him custody. When Davis and her brother arrived at Linda's apartment, they met Linda's mother, LaVerl Bostick, and a babysitter, both of whom refused to allow them to remove the child. When Officers Zadeskey and Williams learned that Bostick and the babysitter would not -3- allow Davis or Julius to remove the child, and that Julius had been scheduled to attend the same counseling session with his wife Linda, they also refused to allow Davis or her brother to take the child. The record further reveals that Davis and her brother then began to argue with the officers, that Davis then claimed to be an attorney, and refused to accept the officers' claims that they did not possess legal authority to decide a child custody matter. When Davis continued to argue, citing legal concepts, the officers asked to see proof of her attorney licensure, but she refused to provide it to them at that time. The officers maintained their resolve that the child not leave the apartment, and Davis and her brother eventually left the premises. The officers then prepared their police report which becomes the basis of Davis' defamation claims against the officers in this case. In that report, the officers did not specifically refer to Davis by name but, rather, as Jane Doe, Subject #2, and the lady. They also referred to Bostick as the Complainant, and to Julius' son as the Victim. Further, the officers quoted a portion of the conversation that Officer Williams had with Davis in which he stated: It was made very clear--numerous times, and if you are the attorney that you claim to be--you would have understood this long ago--frankly, I do not believe you to be an attorney and would not want you as my representative. The officers concluded the report with the following: [Julius] and his sister tried to scam everybody here- the mother was waiting for him -4- at a counseling session and he attempted to take custody of the child- for whatever reason. His sister, allegedly a lawyer- would not let the matter go and demanded we determine custody of the child. We again, advised her we could not determine custody and the child stayed where it was at. She could get a Court Order. Still, this was not good enough * * *. Julius and Linda eventually obtained a divorce, and each recounted these events to a clinical social worker at the Family Conciliation Service, who wrote a report which the Domestic Relations court relied upon in determining child custody. In that report, both Julius and Linda admitted the facts as recorded by the officers. Davis then commenced the instant case against Officers Williams and Zadeskey, and the City of Warrensville Heights, alleging defamation based upon the statements contained in the police report, negligent hiring and intentional and/or negligent infliction of emotional distress. The appellees moved for summary judgment, which Inajo Davis opposed, utilizing an affidavit from Linda Davis, in which she stated that the statements in the police report are false and, particularly, that Inajo Davis did not attempt to scam the officers, which contradicted earlier testimony she had given on these issues. The court nevertheless granted summary judgment to the city and to the officers on all causes of action, despite Linda Davis' inconsistent affidavit. Inajo Davis now appeals raising two assignments of error, which we jointly consider. They state: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT FOR APPELLEE. -5- II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN THAT APPELLEE IS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW. Davis contends the court erred when it granted summary judgment to the officers and the city, on her defamation claims, urging that immunity did not apply to either the officers or the city. She does not argue in her brief that the court erred when it granted summary judgment on her other claims. The appellees maintain the court did not err when it granted summary judgment, since the city possesses absolute immunity, and the officers possess qualified immunity, in connection with Davis' defamation claims, and since Davis failed to establish prima facie evidence of defamation. The principle issue then presented for our review is whether the court erred when it granted summary judgment to the appellees on Davis' defamation claims. Civ.R. 56(C) provides the standard for determining a summary judgment motion and states in relevant part: * * * Summary judgment shall be rendered forthwith if the pleading, 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 -6- have the evidence or stipulation construed most strongly in his favor. Our review of the record reveals that the facts in this case are generally not disputed and, therefore, the issue for resolution concerns whether or not the appellees are entitled to judgment on the defamation claims as a matter of law. We begin with a discussion of the law regarding sovereign immunity. R.C. 2744.02(A)(1) provides in pertinent part: * * * a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental * * * function. It is well established that the operation of a police department is a governmental function. See McCloud v. Nimmer (1991), 72 Ohio App.3d 533. Thus, the City of Warrensville Heights is immune from liability for the acts of the officers and, therefore, is entitled to judgment as a matter of law. Hence, the trial court did not err when it granted the city summary judgment on Davis' defamation claim. In connection with appellant's defamation claims against the officers, R.C. 2744.03(A)(6) provides them with qualified immunity, stating in relevant part: * * * the employee is immune from liability unless one of the following applies: * * * (b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; * * *. -7- In Hahn v. Kotten (1975), 43 Ohio St.2d 237, the Supreme Court defined qualified immunity at 244: A qualified or conditionally privileged communicationis one made in good faith on any subject matter in which the person communicatinghas an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right or interest. The essential elements thereof are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. (Emphasis and quotations in original). Further, in Jacobs v. Frank (1991), 60 Ohio St.3d 111, the court stated in paragraph 2 of its syllabus: When a defendant possesses a qualified privilege regarding statements contained in a published communication, that privilege can be defeated only by a clear and convincing showing that the communication was made with actual malice. In a qualified privilege case, actual malice is defined as acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity. Hence, a police officer possesses qualified immunity with respect to statements made in a police report, which can only be overcome by a showing of clear and convincing evidence that the officer made those statements with actual malice. See Black v. Cleveland Police Dept. (1994), 96 Ohio App.3d 84. Here, the evidence demonstrates that Davis and her brother, Julius, attempted to remove the infant from the care of Bostick and the babysitter, at a time Julius had scheduled Linda Davis to attend a counseling session; they further attempted to enlist the -8- officers' assistance in this endeavor, but the officers refused to allow Davis and her brother to remove the child. Upon this refusal, Davis claimed to be an attorney, argued that Julius had a legal right to take his son, but refused to show proof of licensure to the officers. The police report here reflects these details as perceived by the officers who prepared it, and contains their characterization of the activity as a scam. Based on our review of the evidence contained in this record, Davis has not demonstrated by clear and convincing evidence that the officers made that report with actual malice or recklessness, or in bad faith. Hence, the trial court did not err when it granted summary judgment on these claims. Regarding appellant's remaining claims against the city for negligent hiring and against all appellees for intentional and/or negligent infliction of emotional distress, we recognize that the appellant has failed to separately argue these in her brief and, therefore, we are not required to review them. See App.R. 12. Accordingly, we have concluded the trial court properly granted summary judgment in this case and that judgment is affirmed. So ordered. -9- It is ordered that appellees recover of appellant 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. JAMES D. SWEENEY, CHIEF JUSTICE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .