Deoma v. Shaker Heights

• Citation: 587 N.E.2d 425,68 Ohio App.3d 72
• Decision Date: 18 June 1990
• Docket Number: No. 57049,57049
• Parties: DEOMA et al., Appellants, v. CITY OF SHAKER HEIGHTS et al., Appellees. *
• Court: United States Court of Appeals (Ohio)

Page 72

68 Ohio App.3d 72

587 N.E.2d 425

DEOMA et al., Appellants, v. CITY OF SHAKER HEIGHTS et al., Appellees. ^*

No. 57049.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided June 18, 1990.

Scott H. Ballou and Norman A. Fox, Jr., Cleveland, for appellants.

Alan M. Petrov and Kathryn A. Kerka, Cleveland, for appellees.

PATTON, Chief Justice.

Plaintiffs-appellants, Joseph Deoma and Louis Narducci, appeal from a summary judgment rendered in favor of defendants city of Shaker Heights, its mayor, Steve Alford, and its investigator, Ralph King.

The record discloses the following facts. Police officers in Shaker Heights, Ohio would frequently undertake security work for the Shaker Heights School Board when off duty, to subsidize their incomes. It was standard practice for the school board to obtain the name of the officer who would work an event two weeks before its occurrence in order to requisition a check from the treasurer drafted in the name of the officer and to draft a contract and waiver form. Often an officer's schedule for police duties would conflict with the officer's commitment to the school board and another officer would then assume the security work for the school board's event. The check for the work would nevertheless be issued in the name of the officer originally assigned.

In August 1984, Shaker Heights Mayor Steve Alford directed Ralph King, the city law department investigator, to conduct an independent investigation of the Shaker Heights police force on an anonymous tip that officers were working other jobs with the city at the same time they were working as police officers, i.e., "double-dipping." King instigated the investigation pursuant to the mayor's direction and conducted it without involvement of the police department.

As a result of the investigation, appellants Deoma and Narducci were indicted for forgery and theft. At their trials, following the state's case, both Deoma and Narducci were acquitted. Thereafter, appellants filed a complaint against the appellees for malicious prosecution, wrongful discharge, defamation, infliction of emotional distress, and damages under Section 1983, Title 42, U.S.Code. The court rendered summary judgment in favor of appellees on all grounds. Appellants' six assigned errors are interrelated and will be discussed jointly. In these assignments, appellants contest the summary judgment.

I

In deciding whether the trial court correctly granted summary judgment, this court must follow Civ.R. 56 and view the record in the light most favorable to the nonmoving party. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 66 O.O.2d 311, 309 N.E.2d 924. The burden of establishing that the material facts are not in dispute, and that no genuine issue of facts exists, is on the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. The inferences to be drawn from the underlying facts contained in the depositions, affidavits and exhibits must be construed in the opposing party's favor. When so construed, the motion must be overruled if reasonable minds could find for the party opposing the motion. Hounshell v. American States Ins. Co. (1981), 67 Ohio St.2d 427, 437, 21 O.O.3d 267, 273, 424 N.E.2d 311, 316; Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 138, 522 N.E.2d 477, 480. However, in that Civ.R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, such party must so perform if it is to avoid summary judgment. Van Fossen v Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph seven of the syllabus.

A. Malicious Prosecution

In order to state a cause of action for malicious prosecution in Ohio, the plaintiff must allege four essential elements: (1) malicious institution of prior proceedings against the plaintiff by defendant; (2) lack of probable cause for the filing of the prior lawsuit; (3) termination of the prior proceedings in plaintiff's favor; and (4) seizure of plaintiff's person or property during the course of the prior proceedings. Crawford v. Euclid Natl. Bank (1985), 19 Ohio St.3d 135, 139, 19 OBR 341, 344, 483 N.E.2d 1168, 1173; Kelly v. Whiting (1985), 17 Ohio St.3d 91, 94, 17 OBR 213, 216, 477 N.E.2d 1123, 1126; Woyczynski v. Wolf (1983), 11 Ohio App.3d 226, 227, 11 OBR 350, 351, 464 N.E.2d 612, 614. See Hawley v. Ritley (1988), 35 Ohio St.3d 157, 161, 519 N.E.2d 390, 394.

Appellants assert that there is a question of fact as to whether there was probable cause to initiate the criminal charges against them. Probable cause exists when a defendant had a reasonable ground of belief, supported by trustworthy information and circumstances known to the defendant which would be sufficiently strong to cause a reasonable careful person, under similar circumstances, to believe that the prior proceedings and method of presenting the action were reasonable and lawful. Melanowski v. Judy (1921), 102 Ohio St. 153, 156, 131 N.E. 360, 361, citing Ash v. Marlow (1851), 20 Ohio 119; Donohoe v. Burd (S.D.Ohio 1989), 722 F.Supp. 1507, 1517; Portis v. TransOhio Savings Bank (1988), 46 Ohio App.3d 69, 545 N.E.2d 923, paragraph three of the syllabus. There is no requirement that the defendant must have evidence that will ensure a conviction. Epling v. Express Co. (1977), 55 Ohio App.2d 59, 62, 9 O.O.3d 220, 222, 379 N.E.2d 239, 241.

The return of an indictment by the grand jury is evidence of probable cause; when an indictment has been returned by the grand jury, the plaintiff has the burden of producing substantial evidence to establish lack of probable cause. Id.; Donohoe, supra; Adamson v. May Co. (1982), 8 Ohio App.3d 266, 268, 8 OBR 358, 360, 456 N.E.2d 1212, 1215. Plaintiff must produce evidence to the effect that the return of the indictment resulted from perjured testimony or that the grand jury proceedings were otherwise significantly irregular. Id. We find that appellants Deoma and Narducci failed to meet this burden.

The parties agree that it was standard practice for the school board to obtain the name of the officer who would work an event two weeks before its occurrence. Often the assigned officer was unable to work the event as scheduled. The check for the work would nevertheless be issued in the name of the officer originally assigned. However, appellees argue that appellants' alleged improprieties exceeded the standard practice.

On the basis of the information given by King, the prosecutor's office submitted the case to the Cuyahoga County Grand Jury. In February 1985, appellants were indicted for forgery and theft.

King's investigation revealed that Deoma was in charge of assigning officers to work night building security for the schools. Deoma often filled in the school time cards for the officers. Deoma placed extra hours on the time cards of several officers, hours that they did not work. The officers returned the excess money from their paychecks to Deoma. Deoma also signed officers' names to blank time cards and submitted hours for his personal overtime to the city for the same days that he was working for the school board, supposedly while off duty. Further, Deoma's lie detector test showed that he gave deceptive answers to questions regarding whether he had falsified time cards or had fraudulently obtained any money from the school board. We note that although lie detector tests are not admissible into evidence, they may be used to establish probable cause to initiate a criminal action.

King's investigation revealed that Narducci had signed employment contracts in the name of Officer Daniel Velardo for school board work. Checks bearing Velardo's name as payee were then issued to, endorsed by, and cashed by Narducci. Velardo did not authorize Narducci to use his name or to negotiate checks payable to him, and knew nothing of Narducci's conduct. ¹

We find that these undisputed facts gave rise to probable cause to institute criminal charges. Further, although Prince v. Shaker Heights (Apr. 20, 1989), Cuyahoga App. No. 54397, unreported, 1989 WL 43393, is related to this case, it is factually distinguishable. Prince essentially involves the standard procedure which we previously referred to. In Prince, the school board was given the name of Officer Eden as the security officer who would work a scheduled event. Accordingly, Jim Eden's name appeared on the check although Officer Prince actually worked at the event. When King interviewed Eden, he learned that Eden knew that Prince had endorsed the check as Jim Eden. Moreover, at a point weeks before the start of Prince's criminal trial, King was told by Officer Johnston and later by Eden that Prince was not guilty of criminal conduct. Both Johnston and Eden unsuccessfully tried to supply the information to King, who refused to consider the information. In the instant case, neither appellant presented any exculpatory information prior to the commencement of their trials. As to Deoma, no one came forward to proclaim Deoma's innocence. As to Narducci, Velardo never knew that Narducci had signed Velardo's name to employment contracts and checks.

Accordingly, the court properly rendered summary judgment in favor of appellees on appellants' malicious prosecution claim.

B. Wrongful Discharge

Appellants Deoma and Narducci claim that an issue of fact exists as to whether their resignations were forced upon them and, therefore, they were constructively discharged without just cause. Appellants essentially claim that their constructive discharge resulted from the criminal investigation which had been conducted against them.

Appellants rely on federal decisions to support their position. Generally, an employee is constructively discharged "when the employer makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." See Wolf v....