Mary Fair v. Litel Communications, Inc., and Litel Telecommunications Corp.
| Decision Date | 12 March 1998 |
| Docket Number | 97APE06-804,98-LW-2059 |
| Parties | Mary Fair, Plaintiff-Appellant, v. Litel Communications, Inc., and Litel Telecommunications Corporation, Defendants-Appellees |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Gayton Tilton & Endres, Charles W. Gayton and Steven E. Hillman, for appellant.
Jones Day, Reavis & Pogue, Christopher J. Skorina and Steven T Catlett; and Patrick S. Miller, for appellees.
This matter comes before the court on appeal from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motion of defendants, LCI International Management Services, Inc., and LCI International Telecom Corp. (collectively "defendants"). On August 12, 1994, plaintiff, Mary Fair ("plaintiff"), instituted this litigation against defendants alleging causes of action for malicious prosecution and negligent and intentional infliction of emotional distress. On August 9, 1996, the trial court granted the parties leave to file cross-motions for summary judgment, which were presented to the court for ruling on September 23, 1996. Defendants' motion for summary judgment was subsequently granted and, on June 17, 1996, plaintiff filed a notice of appeal to this court.
As recounted by defendants, plaintiff managed defendants' credit and collection department from April 1986 to July 19, 1991. As an employee, plaintiff was charged with overseeing the collection of defendants' past due accounts and, if necessary, was authorized to employ the services of independent collection agencies in that effort. However, as a salaried worker, plaintiff was not entitled to retain any portion of the past due funds collected from defendants' customers.[1]
Sometime in July 1986, plaintiff incorporated her own collection agency which she operated out of her home under the name CIS. According to defendants, plaintiff then used her position with defendants to improperly funnel company business to this entity. Defendants claim they discovered plaintiff's ownership of CIS sometime during the summer of 1991 which prompted an internal investigation in order to determine whether anyone had known of, or approved, plaintiff's use of CIS to collect defendants' accounts. Upon completion of the investigation, defendants concluded that plaintiff had failed to obtain proper authorization, and in fact had taken steps to conceal her ownership of CIS from defendants. Defendants terminated plaintiff's employment and contacted Detective Robert Snyder of the Columbus Police Department who subsequently commenced an independent investigation into plaintiff's activities.
Detective Snyder testified that he obtained and analyzed bank records during the course of his investigation which revealed plaintiff and her then roommate, Dorothy Harvey, had opened a business checking account for CIS in February 1987. The records also showed that, although plaintiff was an authorized signator on the account, none of the checks which had been issued to defendants by CIS bore plaintiff's signature. Additionally, Snyder's investigation disclosed that, from February 1987 through October 1990, approximately $230,000 had been collected from defendants' customers and deposited into the CIS account, while only about $50,000 had been remitted to defendants. Detective Snyder also independently uncovered evidence that CIS was operated out of plaintiff's residence by plaintiff, her roommate Dorothy Harvey and another individual named Ted Kelso. Finally, Snyder determined that CIS had no stationary, invoices or other documentation indicating plaintiff's ownership or affiliation with the company. Based on the foregoing, Detective Snyder testified that he concluded plaintiff had engaged in criminal conduct.
In the fall of 1991, Snyder contacted Assistant Franklin County Prosecutor Andrew Cooke regarding his investigation into plaintiff's activities. Cooke testified by way of affidavit that, based upon his own independent review of the evidence, he concluded that there was probable cause to believe that plaintiff had defrauded defendants. Cooke stated that he instructed Snyder to continue his investigation into plaintiff's activities, and subsequently took the matter before the grand jury in order to obtain an indictment charging plaintiff with aggravated theft in violation of R.C. 2913.02. The criminal charge against plaintiff was eventually dismissed in October 1993, after which plaintiff instituted this civil action for damages.
On July 19, 1996, the trial court granted defendants' motion for summary judgment upon plaintiff's claims, finding there to be no genuine issue of material fact to submit to a jury. Plaintiff now raises the following assignments of error:
An appellate court must review a trial court's decision on a motion for summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588. As recognized by the United States Supreme Court in Celotex Corp. v. Catrett (1986) 477 U.S. 317, summary judgment is not a disfavorable shortcut, but rather, a useful mechanism designed to secure the just, speedy, and inexpensive determination of appropriate actions. Summary judgment is properly granted when no genuine issue as to any material fact remains to be litigated. Civ.R. 56(C) provides:
"*** 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. ***"
In order to prevail upon a motion for summary judgment, the moving party must inform the trial court of the basis for the motion and identify those portions of the record which demonstrate the absence of a genuine issue of material fact.[2] In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court explained:
***" Id. at 292-293.
Although the court is obligated to view all evidentiary material in a light most favorable to the nonmoving party, Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, when faced with a properly supported motion for summary judgment a nonmoving party may not rely upon the mere allegations set forth within his or her complaint, but must demonstrate a material issue of fact exists by directing the court's attention to evidentiary materials of the type listed in Civ.R. 56(C). Dresher, supra, at 292. See, also, Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, following Celotex, supra; and Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45. Succinctly, viewing all facts in a light most favorable to the nonmoving party, the court must determine whether the evidence presents a sufficient disagreement to require submission of a claim to a jury, or whether it is so one-sided that one party must prevail as a matter of law. Turner v. Turner (1993), 67 Ohio St.3d 337, 340.
A private person who initiates or procures the institution of criminal proceedings against another is not subject to liability unless the person against whom the proceedings were initiated proves all three of the following elements: (1) malice in instituting or continuing the prosecution, (2) lack of probable cause for undertaking the prosecution, and (3) termination of the prosecution in favor of the accused. Ash v. Ash (1995), 72 Ohio St.3d 520, citing Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142, 146. In this case, plaintiff argues that a jury must be allowed to hear her claim that defendants gave false and misleading information to the police and prosecuting attorney, as the existence of probable cause is an issue of fact uniquely within the province of the jury to decide. While we agree with the proposition that probable cause is generally a jury question, we have held that "in an appropriate case, the existence of probable cause may be determined as a matter of law when the evidence provided in the record allows for only one reasonable conclusion." Runyon v. Columbus Southern Power Co. (June 27, 1995), Franklin App. No. 94APE11-1656, unreported (1995 Opinions 2938, 2942), citing McFinley v. Bethesda Oak Hosp. (1992), 79 Ohio App.3d 613, 617.
As an initial matter, we note that our review of the record reveals that plaintiff failed to come forward with evidence which would support a finding that defendants either instituted or continued plaintiff's criminal prosecution. Specifi...
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