COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 74375 ACCELERATED DOCKET RAYMOND FIELDS : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION HAROLD JOHNSON, ET AL. : : PER CURIAM Defendant-appellees : : DATE OF ANNOUNCEMENT : NOVEMBER 25, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-302967 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: MICHAEL D. BAKER, ESQ. Suite 650 75 Public Square Cleveland, OH 44113-2001 For defendant-appellees: WILLIAM E. ARMSTRONG, ESQ. NANCY HOWE DONNELLY, ESQ. Buckley, King & Bluso 1400 Bank One Center 600 Superior Avenue Cleveland, OH 44114-2652 EUGENE B. MEADOR, ESQ. Kitchen, Deery & Barnhouse 1100 Illuminating Building 55 Public Square Cleveland, OH 44113 PER CURIAM: This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Local Rule 25, the record from the -2- Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. Plaintiff-appellant Raymond Fields purchased a new home from defendant Clevetor Corporation. Clevetor failed to complete a number of items contained on a punch-list of unfinished repairs and plaintiff scheduled a meeting with Clevetor's representative, defendant Harold Johnson. When Johnson failed to appear at the scheduled meeting, plaintiff went to the Clevetor offices. Along the way, he met defendant Daveen McIntosh, a village of Oakwood housing inspector. McIntosh claimed plaintiff became abusive, called her a bitch, began screaming at her and issuing threats. She also claimed plaintiff followed her as she drove off, tailgating her car and forcing her to let him pass. Plaintiff drove to the Clevetor offices where he eventually spoke to Johnson and defendant Avon Wright, Clevetor's project manager. Johnson and Wright tape recorded the ensuing argument in which plaintiff called the two whores and motherfuckers, told them they had fucked with the wrong guy and threatened to kick their ass and kick your boobies all over. After plaintiff left, Johnson and Wright continued to speak on the tape. An incensed Johnson said he would blow [plaintiff's] god damn brains out so quickly he won't know who he is fucking with. Wright told Johnson that would not be necessary, and they could sue plaintiff for his threats. Shortly after her incident with plaintiff, McIntosh called the Clevetor offices to see if plaintiff had visited there. McIntosh learned plaintiff visited those offices and had been rude and threatening. McIntosh spoke to the village mayor, who told her she -3- should file a police report. McIntosh then filed a charge of disorderly conduct against plaintiff. Johnson and Wright filed aggravated menacing charges against plaintiff. The Oakwood police arrested plaintiff and held him for two hours pending his release without bond. The village later dismissed the menacing charges and the municipal court entered a judgment of acquittal on the disorderly conduct charge. Plaintiff filed a complaint against McIntosh, Clevetor, Johnson, Wright, the village, the mayor of Oakwood, the Oakwood building director and Oakwood chief of police. The complaint set forth causes of action for malicious prosecution, conspiracy to commit defamation, and violations of Section 1983 and 1985(C), Title 42, U.S. Code. Defendants removed the case to the United States District Court for the Northern District of Ohio. As relevant to the issues presented in this appeal, the district court granted summary judgment to Clevetor, Johnson and Wright on plaintiff's claims under Sections 1983 and 1985(C), Title 42, U.S. Code, finding they were not state actors. Moreover, the district court found the village had probable cause to arrest plaintiff for the offense of aggravated menacing. Finally, the district court found both Johnson and Wright could reasonably believe plaintiff's threats to them could be interpreted as threats to do serious physical harm. Having granted summary judgment on the federal law claims, the district court declined to exercise supplemental jurisdiction over the remaining state law claims. Upon transfer back to the court of common pleas, Clevetor, Johnson, Wright and McIntosh filed motions for summary judgment. -4- Clevetor, Johnson and Wright argued plaintiff failed to set forth a claim of false arrest, malicious prosecution and defamation. In addition, they alleged the district court's findings of fact and conclusions of law collaterally estopped plaintiff from asserting the false arrest and malicious prosecution. McIntosh's separate motion for summary judgment raised the same arguments. The court granted summary judgment to all defendants without opinion. I Plaintiff first argues the court erred by granting summary judgment on his malicious prosecution claim against Clevetor, Johnson and Wright because he set forth evidence to show they maliciously instituted charges of aggravated menacing against him despite not having any fear that plaintiff would harm them. This action for malicious prosecution required plaintiff to prove: (1) defendants' malice in instituting or continuing the prosecution; (2) their lack of probable cause to institute the prosecution; and (3) termination of the prosecution in plaintiff's favor. Ash v. Ash (1995), 72 Ohio St.3d 520, 522, citing Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142. There is no question that the prosecution was terminated in plaintiff's favor, so the issues for our purposes under Civ.R. 56 are whether reasonable minds could disagree as to whether defendants had probable cause to institute the prosecution and whether they instituted the aggravated menacing charges with malice. Defendants would have probable cause to institute criminal proceedings against plaintiff if they can show [a] reasonable ground of suspicion, supported by circumstances sufficiently strong -5- 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, paragraph one of the syllabus; Huber v. O'Neill (1981), 66 Ohio St.2d 28, 30. The malice element of a claim of malicious prosecution is 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. Aggravated menacing is defined as knowingly causing another to believe that the offender will cause serious physical harm to the person or property of such other person. See R.C. 2903.21(A). Plaintiff argues that transcripts of Johnson and Wright's conversa- tions following their confrontation with him show they believed he would cause them serious physical harm. But one can be guilty of menacing if the victim was not in fact intimidated, just so long as one's purpose was to intimidate the victim. See Committee Comment to R.C. 2903.21; State v. Schwartz (1991), 77 Ohio App.3d 484, 486. We agree that Johnson and Wright's claimed fear for their lives are probably overstated. Nonetheless, reasonable minds could only find that plaintiff's statements that he would kick their ass and kick your boobies all over were fully intended to intimidate Johnson and Wright into finishing the repairs to plaintiff's house; -6- hence, Johnson and Wright had probable cause to file the aggravated lik t plaintiff showed Johnson and Wright brought the aggravated menacing charges with malice. While portions of the taped conversations show that Johnson believed plaintiff must be punished, the constant reference to legal action shows both Johnson and Wright initiated the criminal prosecution to bring plaintiff to justice, fmenacing compla malice necessary to sustain a claim for malicious prosecution. The first assignment of error is overruled.1 II The second assignment of error complains the court erred by granting summary judgment to Clevetor, Johnson and Wright on plaintiff's conspiracy to commit defamation claim. We find the court properly granted summary judgment on this count since plaintiff did not file his defamation claim within the one year statute of limitation period. Morever, we find plaintiff cannot circumvent the statute of limitations period by labeling the claim 1 Defendants also maintain the district court's opinion collaterally estops plaintiff from raising any argument relating to the malicious prosecution, since the district court stated a prudent person could easily believe that Fields intended to intimidate Wright and Johnson, and probable cause existed to arrest him for attempted menacing. Collateral estoppel does not apply here because the district court made this finding in the context of a Section 1983 action brought against the village in reference to its decision to arrest plaintiff. This is not the mutuality of issues required for the application of collateral estoppel. See Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 195. -7- as a conspiracy to commit defamation. See Krause v. Case Western Reserve Univ. (Dec. 19, 1996), Cuyahoga App. No. 70712, unreported. The second assignment of error is overruled. -8- III The third assignment of error challenges the summary judgment rendered to McIntosh on plaintiff's claim for malicious prosecution on McIntosh's disorderly conduct charge filed against him. Reasonable minds could only find that McIntosh did not exhibit any malice in filing the charges and that she had probable cause to believe that plaintiff's abusive conduct (corroborated by a passenger in McIntosh's car) was grossly abusive language as prohibited by R.C. 2917.11(A)(2). The third assignment of error is overruled. IV The fourth assignment of error complains the court erred by granting summary judgment to McIntosh on plaintiff's claim for conspiracy to commit defamation. We overrule for this assignment for the same reasons set forth in the second assignment of error. Judgment affirmed. It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. -9- It is ordered that a special mandate issue out of this court directing 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. TIMOTHY E. McMONAGLE PRESIDING JUDGE JOHN T. PATTON, JUDGE LEO M. SPELLACY, 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 .