COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72891 LINDA MASTERS, ET AL. : : JOURNAL ENTRY Plaintiff-appellants: : AND vs. : : OPINION CITY OF LORAIN, OHIO, ET AL. : : Defendant-appellees : : : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 14, 1998 : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV0304695 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: DANIEL J. RYAN, ESQ. MICHAEL J. SCHERACH, ESQ. 21270 Lorain Road Law Director Fairview Park, OH 44126 ROBERT J. GARGASZ, ESQ. BARRY B. MOTSCH, ESQ. Assistant Law Directors City of Lorain 7th Floor, City Hall Lorain, OH 44052 ii For Lorain National Bank: LEGAL COUNSEL Lorain National Bank 4466 East Liberty Avenue Vermilion, OH 44089 For Finast, Inc.: THOMAS F. GREVE, ESQ. Rademaker, Matty, McClelland & Greve 55 Public Square, #1775 Cleveland, OH 44113 -2- JOHN T. PATTON, J.: Plaintiff-appellants Linda Masters, et al., ( plaintiff ) appeal the trial court's decision granting defendant-appellees city of Lorain and Finast's motions for summary judgment. Plaintiff's appeal focuses on her objection to being charged and arrested for writing a check returned for insufficient funds. On February 6, 1994, plaintiff wrote a check in the amount of $169.45 to the Finast Supermarket for groceries she purchased. The check was presented to her bank on February 8, 1994 but was returned for insufficient funds. Three days later the check was presented to the bank and again it was returned for insufficient funds. On March 3, 1994, Finast notified plaintiff by letter that her check had been returned by her bank for insufficient funds. See complaint at paragraph 11. Thereinafter, Finast pursued criminal charges against plaintiff. One year later, on February 9, 1995, plaintiff received a letter from the Lorain city prosecutor's office informing her that she had until February 20, 1995 to make complete restitution. See complaint at paragraph 13. However, plaintiff later denied, at her deposition, any knowledge that her checks were returned for insufficient funds until the end of February or beginning of March 1995. It was at the same time she and her husband returned from vacation and found a message on their phone answering machine informing them of the pending criminal charges. A week later plaintiff mailed a money order, dated February 28, 1995, to the Lorain city prosecutor's office as restitution for the insufficiently funded check. However, contrary to plaintiff's -3- claim that she did not have notice of the pending checks until late February or early March, the date on the outside of the envelope revealed the money order was mailed on February 21, 1995 seven days earlier. Despite receipt of the money order the City of Lorain issued a warrant for defendant's arrest and she was subsequently arrested. On October 18, 1995 following a criminal pretrial hearing, a city prosecutor found the misplaced money order plaintiff had sent. Plaintiff obtained a new money order, submitted it to the court and all charges against her were dismissed. Plaintiff then filed a complaint against the city of Lorain, First National Supermarkets, and Lorain National Bank. In her complaint, plaintiff alleged malicious prosecution, abuse of process, false imprisonment, negligence, and wrongful dishonor. Plaintiff dismissed Lorain National Bank and the two remaining defendants filed motions for summary judgment contending there is no evidence to support plaintiff's allegations and the city of Lorain prosecutor is shielded from litigation by sovereign immunity. Notwithstanding plaintiff's opposition, the trial court granted defendants' motions for summary judgment. Plaintiff timely filed her notice of appeal and now submits two assignments of error. In her first assignment of error, plaintiff states as follows: THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANT-APPELLEE CITY OF LORAIN, OHIO. -4- Plaintiff argues the trial court erred in granting summary judgment because there were numerous disputed questions of material fact. In support, plaintiff claims the city of Lorain prosecutor sent a letter to her requesting that she either make restitution or face criminal charges. She claims this action by the prosecutor placed him in the role of an administrator or investigator rather than a governmental employee and thus he is not shielded by sovereign immunity. In addition, plaintiff claims the prosecutor was acting as a collection agency for Finast and this also denies him the sovereign immunity shield. As a result, plaintiff argues the prosecutor acted maliciously and with bad faith in pursuing the criminal charges against her. R.C. 2744.03(A)(6)(b). In response, defendant City of Lorain contends obtaining restitution for a victim of crime, deciding to pursue a criminal charge, and maintaining a criminal proceeding are all activities which fall within the duties protected by sovereign immunity. Defendant also maintains it and its prosecutor are immune from plaintiff's complaints of neglect and malicious prosecution based on R.C. 2744.03 (A)(1) and (7). Immunity for a political subdivision employee is provided by R.C. 2744.03. That section grants the employee immunity from liability in connection with a governmental or proprietary function unless one of three exceptions applies. The three exceptions are as follows: (a) his acts or omissions were manifestly outside the scope of his employment or official responsibilities, (b) his acts or omissions were with malicious purposes, in bad faith, or in a wanton or reckless manner, and (c) liability is expressly imposed -5- upon the employee by a section of the Revised Code. R.C. 2744.03(A)(6)(a-c). Under this analysis, the first question is whether the City of Lorain prosecutor was acting in a governmental or proprietary function. A governmental function is defined in R.C. 2744.01(C)(2)(f) as [j]udicial, quasi-judicial, prosecutorial, legislative, and quasi-legislative. In Willitzer v. McCloud (1983), 6 Ohio St.3d 447, 449, the Ohio Supreme Court discussed the function of a prosecutor and stated: Thus, prosecutors are considered `quasi-judicial officers' entitled to absolute immunity granted judges, when their activities are `intimately associated with the judicial phase of the criminal process.' Imbler v. Pachtman (1976), 424 U.S. 409. Imbler held that a prosecutor has absolute immunity `* * * in initiating a prosecution and in presenting the State's case * * *.' Id.at 431. However, `absolute immunity' does not extend to a prosecutor engaged in essentially investigative or administrative functions. Dellums v. Powell (C.A.D.C. 1981), 660 F.2d 802, 805, and cases cited therein. While performing these functions, he is entitled to only a qualified immunity. First, we must determine whether the City of Lorain prosecutor was engaged in judicial function or investigative or administrative functions. The record reveals representatives of Finast Supermar- ket presented the prosecutor with a twice-returned check and they signed a criminal complaint alleging plaintiff issued an insuffi- ciently funded check. Based on this information, the prosecutor sent plaintiff a letter stating she had eleven days to make full restitution or criminal charges would be pursued. After this period of time elapsed, the prosecutor issued a warrant and had -6- plaintiff arrested. Although the charge was later dropped when plaintiff made restitution. Plaintiff complains the prosecutor was acting as a collection agency for Finast and acted outside the scope of his duties. There is simply no evidence the prosecutor acted outside his official duties or function in an investigative or administrative fashion. Processing a signed criminal complaint and issuing a warrant based on this complaint is a function intimately associated with the judicial phase of the criminal process. See Imbler, supra, at 430. See, also, Hunter v. Middletown (1986), 31 Ohio App.3d 109 (the decision to initiate, maintain, or dismiss criminal charges is at the very core of the prosecutorial function.) There is no evidence the prosecutor acted in a reckless manner. Next, we must determine whether the prosecutor's activities fall within one of the three exceptions listed in R.C. 2744.03(A)(6)(a-c). The first exception pertains to a prosecutor acting within the official scope of his employment. The above analysis reveals the prosecutor acted within the scope of his employment. The second exception relates to whether a governmental employee acts with malice, in bad faith, or in a wanton or reckless manner. Plaintiff argues acting as a collection agency for a private corporation is reckless, negligent conduct as evidenced by the prosecutor sending a letter and making a phone call in an attempt to force plaintiff to make restitution before he filed official criminal charges. Plaintiff's argument is misplaced. -7- In Brockman v. Bell (1992), 78 Ohio App.3d 508, 516, the court defined reckless as: Comment f to Section 500 [of the Restatement of the Law 2d, Torts] compares recklessness with intentional misconduct, providing that "[w]hile an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it." Id. at 590. Thus, "reckless misconduct" as defined in Section 500 of the Restatement may be used interchangeably with "willful misconduct," Thompson, supra; Jackson v. Butler Cty. Bd. of Commrs. (Dec. 2, 1991), Butler App. No. CA91-01-005, unreported, and, for purposes of the immunity afforded under R.C. Chapter 2744, "wanton or reckless" misconduct under R.C. 2744.03(A)(6) may be viewed as the functional equivalent of "willful or wanton misconduct" under R.C. 2744.02(B)(1)(b). We fail to see how initiating criminal procedures such as providing a potential criminal defendant with the opportunity to rectify the issuing of an insufficiently funded check, which is not disputed, in an attempt to avoid criminal charges is reckless. Based on the foregoing analysis, we find there are no genuine issues of material fact regarding whether the city of Lorain prosecutor acted outside the scope of his official duties or in a reckless manner and thus plaintiff's first assignment of error is overruled. Plaintiff's second assignment of error states as follows: THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANT-APPELLEE FINAST. Plaintiff argues the trial court erroneously granted defendant-Finast's motion for summary judgment when genuine issues of material fact existed. Plaintiff contends issues of material fact exist for a claim of malicious prosecution, abuse of process, and false imprisonment. Specifically, plaintiff focuses on the -8- criminal complaint signed by Finast which stated she knowingly wrote the check when there was not an existing account at the time of issue. Defendant maintains there is no evidence supporting any of plaintiff's allegations and in fact it is undisputed they are the victims of the crime. Defendant submits that plaintiff and her husband both admit the check issued to them was insufficiently funded. Moreover, defendant argues at plaintiff's deposition she admitted bouncing checks. The transcript indicates plaintiff stated she bounced checks before the time in question and since then as well. Plaintiff and her husband's indifference to issuing insufficiently funded checks was demonstrated at husband's deposition where he stated he does not believe it is against the law to write bad checks. In addition, defendant alleges the proper criminal procedures were followed by the city of Lorain prosecu- tor's office. In order to prevail on a claim of malicious prosecution, the plaintiff 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 [criminal] defendant. Trussell v. Gen. Motors Corp. (1990), 53 Ohio St.3d 142, 144. The evidence does not reveal that there is a genuine issue of material fact regarding whether Finast maliciously prosecuted plaintiff. The first prong in the test states there must be malice in instituting or continuing the prosecution. This prong has not been demonstrated in the instant case. The Ohio Supreme Court has -9- defined malice for a claim of malicious prosecution as an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice. Mayes v. Columbus (1995), 105 Ohio App.3d 728, 737; citing Criss v. Springfield Twp. (1990), 56 Ohio St.3d 82, 85. In determining whether a criminal prosecution was instituted or continued for an improper purpose, inquiry must be made into the basis for the decision to prosecute. In the absence of showing a basis for the decision, it will appear to have been made without any basis, i.e., maliciously. Id. Finast had a basis for deciding to prosecute. It had a twice- returned insufficiently funded check from the bank and there was a lengthy period of time in which the plaintiff made no attempt to make restitution. Based on these facts alone there is enough evidence to commence criminal proceedings. We note Finast did make a mistake in the criminal complaint by assuming when a check is returned twice for insufficient funds it means the issuer does not have a bank account. However, this error was mitigated by the fact that there was sufficient evidence to press criminal charges. See R.C. 2913.11. Therefore, the requisite malice needed to substanti- ate a claim for malicious prosecution is not present. Plaintiff also argues there are genuine issues of fact regarding whether Finast abused the judicial process. In order to establish a claim for abuse of process, a plaintiff must satisfy three elements: (1) that a legal proceeding has been set in motion in proper form and with the proper cause, (2) the proceeding has been perverted to attempt to accomplish an ulterior purpose for -10- which it was designed, and (3) that direct damage has resulted. Robb v. Chagrin Lagoons Yacht Club (1996), 75 Ohio St.3d 264. Plaintiff claims Finast improperly filed a fraudulent complaint with the Lorain Prosecutor's Office as a form of coercion to obtain an advantage in collecting on the check she issued. Restated, plaintiff argues Finast used the Lorain prosecutor's office as a collection agency to coerce her to pay. As stated before, plaintiff admitted she issued insufficiently funded checks on many occasions and, specifically, one to Finast. Now she complains Finast cannot force her to pay on a check she admits was insufficient when issued and is attempting to sue Finast for collecting a debt that was outstanding for more than a year. Plaintiff's arguments are illogical. There is not one scintilla of evidence that Finast employed an ulterior purpose to gain an advantage in trying to collect on the improperly issued check. Lastly, plaintiff contends she was falsely imprisoned. Based on the above analysis, Finast had sufficient evidence to institute criminal charges against plaintiff and the prosecutor's office acted appropriately in processing the criminal complaint and arresting plaintiff. There was no unlawful detention or restraint. Witcher v. City of Fairlawn (1996), 113 Ohio App.3d 214, 217-218. Accordingly, trial court did not err in granting summary judgment in favor of Finast and the city of Lorain as there are no genuine issues of material fact relating to malicious prosecution, abuse of process, or false imprisonment. Judgment affirmed. -11- -12- It is ordered that appellees recover of appellants their 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 direct ing the Court of Common Pleas 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. DYKE, P.J. ROCCO, J., CONCURS. JUDGE JOHN T. PATTON 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 .