Edvon v. Morales, 106448
| Decision Date | 20 December 2018 |
| Docket Number | No. 106448,106448 |
| Citation | 2018 Ohio 5171 |
| Parties | RICHARD EDVON PLAINTIFF-APPELLEE v. ALEJANDRO MORALES, ET AL. DEFENDANTS-APPELLANTS |
| Court | Ohio Court of Appeals |
ATTORNEYS FOR APPELLANTS
David M. Smith
Frank H. Scialdone
Mazanec Raskin & Ryder Co., L.P.A.
100 Franklin's Row
34305 Solon Road
Cleveland, Ohio 44139
Raymond Vasvari
K. Ann Zimmerman
Vasvari & Zimmerman
1100 Erieview Tower
1301 East Ninth Street
Cleveland, Ohio 44114
{¶1} Defendants-appellants, Parma Heights police officers John Vinkler, Jack Darnell, Adam Sloan, and Ron Felkonis (collectively "appellants" or "the officers") appeal the trial court's in-part denial of their motion for summary judgment. For the reasons that follow, we reverse and remand with instructions for the trial court to enter judgment in favor of appellants.
{¶2} In August 2014, plaintiff-appellee, Richard Edvon, lived with his girlfriend and two young children, one of whom is autistic. According to Edvon, he was not working because his autistic son required "a lot of care," necessitating him to "be home 24 hours a day with him."
{¶3} Around 4:00 p.m. on August 12, 2014, Edvon was in his apartment with his sons when he heard arguing in the hallway that escalated after a few minutes. Edvon stated that heheard a girl screaming for help and for someone to call the police. When he looked through the peephole of his door, he saw "what appeared to be an [adult man] pulling [a girl] away from the door [to the apartment across the hallway]." Edvon stated "there [were] a couple big bangs and [then] * * * the screams turned muffled like someone was covering her face or something." Edvon stated that he "put [his] kids in the far room and shut the door and told them to stay there." He said that he tried looking for his phone to call the police, but that the "screams got so loud and desperate" that he felt the need to "step in." As a result, he grabbed his loaded Smith & Wesson M&P .40 caliber — for which he had a concealed-carry permit — opened his apartment door, and pointed the gun at the man, who was later identified as his neighbor, Alejandro Morales.
{¶4} Edvon said the "man [was] over top [of the] girl against the wall of the hallway right next to [his] door," and that the man "had his arm wrapped in her hair [and] [h]is left arm was over her mouth and her face and her nose[.]" Edvon said he told the man, "Get off of her[,]" but that the man "kept holding onto her hair" and "did not let go." According to Edvon, the man told him that the girl was his daughter and that he was trying to stop her from running away. Edvon said he responded that he did not know who the man was and to let the girl go.1 The man told Edvon to call the police, who would tell him that it was his daughter, but Edvon explained that he could not find his phone. When Edvon told the man to call the police on the man's own cell phone, the man refused and said
{¶5} At that point, Alejandro's two other daughters walked down the hallway and told Edvon that the girl was Alejandro's daughter and that she was "a problem child." Edvon said that the other individuals began speaking in another language, but that it seemed like they were arguing with one another. Edvon told them According to Edvon, they apologized, Alejandro shook his hand, and they all went inside their apartment across the hallway.
{¶6} Parma Heights police officers Vinkler, Darnell, Sloan, and Felkonis responded to a disturbance call at the apartment complex. When they arrived, they spoke with the Morales family. Officers Felkonis and Vinkler spoke with the then-teenage daughter, Regine, and Officers Darnell and Sloan spoke with the father, Alejandro. The officers testified at deposition that their department had responded to the Morales apartment on prior occasions for complaints about Regine, referring to her as an "habitual runaway." Both Alejandro and Regine told the officers that they had been wrestling with one another in the hallway because Regine was trying to run away.
{¶7} During the course of their investigation, the officers learned that the neighbor across the hall, later identified as Edvon, pointed a gun at them during the altercation in the hallway. The Moraleses stated that they wished to prosecute the neighbor for his actions. Based on that information, the officers walked across the hall to investigate the allegation.
{¶8} Edvon opened the door and the officers observed two small children in the apartment. According to Edvon, he did not let the officers inside his apartment, which caused the officers to get upset. Instead, Edvon walked into the hallway and locked the apartment door behind him, leaving his children inside. Upon questioning, Edvon admitted that he pointed hisgun at Alejandro after he refused to let go of the girl. He further advised the officers that he had a valid conceal and carry permit. Edvon stated at deposition that he tried to explain his justification for doing so, but the officers would not hear his side of the story.
{¶9} The officers admitted that Edvon was cooperative and there were not any discrepancies in the version of events between the parties. During the discussion, the officers learned that Edvon's two small children were present inside the apartment when he opened the door and confronted Alejandro with the gun. The officers admitted, however, that they did not know where the children were during the "gun-pointing" incident. According to Edvon, the officers told him he was being neglectful by locking his unattended children inside the apartment while he was outside in the hallway speaking with the officers.
{¶10} Officer Felkonis stated that based on the admission by Edvon that he pointed a gun at the Moraleses and that the Moraleses wanted to prosecute him for doing so, they arrested Edvon for aggravated menacing. Alejandro subsequently signed the complaint that charged Edvon with aggravated menacing. Edvon was also charged with child endangering after Officers Vinkler and Felkonis returned to the police station and discussed the facts and circumstances with their supervisor, Sergeant Cyril.
{¶11} In June 2015, all charges against Edvon were dismissed without prejudice.
{¶12} In 2015, Edvon sued the Moraleses and the officers. The complaint was voluntarily dismissed and in February 2017, Edvon refiled his complaint setting forth claims for defamation against the Moraleses, and malicious prosecution against the officers in both their official and individual capacities. Edvon alleged that he "suffered, and continues to suffer, damages including having been effectively evicted from his apartment, the costs associated withrelocation and his criminal defense, humiliation, emotional pain and suffering, emotional distress and mental anguish, and loss of reputation and standing in the community."
{¶13} The officers answered the complaint and set forth affirmative defenses, including a claim of immunity under R.C. Chapter 2744. Following discovery, the officers filed a joint motion for summary judgment asserting that they were entitled to statutory immunity in both their official and individual capacities.
{¶14} The trial court granted summary judgment in part on "the basis of immunity under R.C. 2744.02 on [Edvon's] claims against the [officers] in their official capacties[,]" but denied the officers' motion in part "on [Edvon's] claims against [them] in their individual capacities."
{¶15} Appellants now appeal, raising as their sole assignment of error that the trial court erred when it denied their motion for summary judgment, finding that they were not entitled to individual immunity under R.C. 2744.03(A)(6).2
{¶16} An appellate court reviews a trial court's decision to grant summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997).
{¶17} The party moving for summary judgment bears the burden of demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The moving party bears the initial responsibility of informing the trial court of thebasis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmoving party's claims. Id. After the moving party has satisfied this initial burden, the nonmoving party has a reciprocal duty to set forth specific facts by the means listed in Civ.R. 56(C) showing that there is a genuine issue of material fact. Id.
{¶18} Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can only reach a conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).
{¶19} Generally, individual employees of a political subdivision, such as the officers in this case, are immune in their individual capacities from civil actions "to recover damages for injury,...
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