Nix v. O'Malley

• Decision Date: 16 November 1998
• Docket Number: 97-4165,Nos. 97-4086,s. 97-4086
• Citation: 160 F.3d 343
• Parties: John H. NIX, Plaintiff-Appellant, v. Patrick J. O'MALLEY; Weston, Hurd, Fallon, Paisley & Howley, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 343

160 F.3d 343

John H. NIX, Plaintiff-Appellant, v. Patrick J. O'MALLEY; Weston, Hurd, Fallon, Paisley &amp Howley, Defendants-Appellees.

Nos. 97-4086, 97-4165.

United States Court of Appeals Sixth Circuit.

Argued Sept. 25, 1998.

Decided Nov. 16, 1998.

Harold Pollock (argued and briefed), Harold Pollock Co., LPA, Cleveland, OH, for Appellant.

David C. Lamb (argued and briefed), Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, Patrick M. McLaughlin (argued and briefed), John F. McCaffrey (briefed), McLaughlin & McCaffrey, LLP, Cleveland, OH, for Appellees.

Before: KENNEDY and BOGGS, Circuit Judges, and WEBER, ^* District Judge.

BOGGS, Circuit Judge.

In 1994, an as-yet-unidentified party intercepted John H. Nix's cordless telephone calls. In a public court filing, Patrick J. O'Malley and the Cleveland law firm of Weston Hurd, Fallon, Paisley & Howley ("Weston, Hurd") disclosed the substance of the intercepted communications, and Nix sued. The district court granted summary judgment for O'Malley and Weston, Hurd, dismissing Nix's three claims. We affirm the district court's disposition of counts two and three, which alleged violations of Ohio's Corrupt Activities Act and which accused Weston, Hurd of legal malpractice. We reverse the grant of summary judgment on Nix's first count, insofar as the district court disposed of Nix's claim that O'Malley and Weston, Hurd violated Ohio's wiretap laws when they publicly disclosed certain contents of the intercepted communications.

I. Background

This case stems from a neighborhood dispute over plans to develop a vacant lot on Brookside Drive in Cleveland. In August 1993, John H. Nix moved into the home of Dr. John Master. Master, an elderly widower, lived on Brookside Drive, located in a relatively affluent neighborhood. Nix's girlfriend, Rebekah Deamon, who worked in Master's home, had introduced the two men, who soon formed a partnership to build homes on nearby undeveloped land owned by Master. The proposed development upset some neighborhood residents who opposed further construction and feared that Nix was taking advantage of the aged doctor.

In November 1993, Nix approached Patrick J. O'Malley, an attorney and Cleveland City Councilman whose ward included Brookside Drive. Nix sought O'Malley's support of a tax abatement for the development, but O'Malley declined, explaining that he favored abatements only for economically distressed areas. Soon after this discussion, two Brookside Drive residents contacted O'Malley about Master and the development. Jack G. Sword asserted that Master had previously promised the undeveloped land to him. Another neighbor expressed concern because Master no longer returned her phone calls. These conversations prompted O'Malley to have the Cleveland police visit the Master household; the Fraud Unit investigated, found Master lucid and competent, and ceased its inquiries.

In December, O'Malley attended a heated neighborhood meeting about the proposed development--a gathering that engendered a defamation lawsuit by Nix and Master against neighbor Jack Sword and his wife. While an insurance company defended the Swords in the defamation suit, O'Malley served as Jack Sword's personal counsel. Given the lawsuit and the contested development plans, neighborhood tensions predictably escalated. It is undisputed that, during February and March of 1994, someone intercepted and taped Nix's cordless telephone conversations at the Nix/Master residence. The interceptor acted without a warrant and without consent from the parties to the conversations. In late March, Nix gained possession of four cassette tapes that contained recordings of his conversations.

After Nix learned of the taping, he and Master brought suit in federal district court in Cleveland on April 22, 1994, naming the Swords and O'Malley among the several defendants. That case, Master v. Sword, No. 1:94CV849, is still pending. One year later, Master's accountant, William Weinkammer, filed a related suit; in Weinkammer v. Sword, No. 1:95CV0820, Weinkammer sued, among others, Sword and O'Malley, claiming that he had been a party to some of the intercepted telephone calls. In both Master and Weinkammer, the plaintiffs alleged that the defendants conspired to wiretap Nix's phones and to use the information gained from the interception to block the partnership's housing development.

Neither of these suits form the basis for this appeal, but the instant case stems from the defendants' actions in Master and Weinkammer. In those complaints, Nix and Weinkammer sought relief under various theories, including federal and state wiretap laws, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510-2520, and Ohio's related law, OHIO REV.CODE ANN. §§ 2933.51-2933.65 (Banks-Baldwin 1998). ¹ These wiretap laws prohibit more than the placing of wiretaps because they forbid both the interception of certain communications--even if the interceptor does not use or disclose the contents of the communication--and the use or disclosure of the contents of the communication--even if the user or discloser did not intercept the communication. ² See 18 U.S.C. § 2511; OHIO REV.CODE ANN. § 2933.52 (Banks-Baldwin 1998). In Master and Weinkammer, the plaintiffs alleged that the defendants both intercepted the communications and used and disclosed the contents of the communications.

When confronted with the lawsuits, O'Malley retained Weston, Hurd to assist in his defense. He denied involvement in any conspiracy or wiretapping, although he admitted that he had heard portions of a recording that probably contained the intercepted communications. In a later affidavit, prepared on June 13, 1996, O'Malley explained his exposure to the intercepted communications:

28. Sometime [in early 1994], Officer Sue Sazima of the Cleveland Police Department's Street Crimes Unit, called me and requested that I come downtown to Police Headquarters to listen to some tapes. Officer Sazima stated that I may be the object of a blackmail and extortion scheme.

29. When I arrived at the Cleveland Police Department's Headquarters, Officer Sazima told me that the Organized Crime Unit was listening to the tapes.

30. Naturally, I was greatly concerned at the suggestion of threats from individuals involved in organized crime.

31. Later, the same day, the tapes became available and Officer Sazima played about ten minutes of tape for me. The tape recorded conversation was between two males, neither of whom were recognizable to me by voice.

32. Upon listening to the tapes, my concern was relieved, [sic] I did not care to pursue the matter further.

33. I assumed that because I was requested to come to police headquarters to listen to tapes that were in police possession, that the tape recordings had been obtained through a lawful investigation.

34. To this day I do not know who made the tapes or why they were made.

Nix, who also named Sazima as a co-conspirator, asserts without contradiction that the tape played for O'Malley contained a recording of Nix's intercepted conversations.

The plaintiffs in Master filed a motion in limine to prevent the Master defendants from using copies of the tape recordings when preparing their defenses. The district court denied the motion, and O'Malley then disclosed to his attorneys at Weston, Hurd the contents of the recorded conversations. Weston, Hurd prepared O'Malley's defense, and, on November 27, 1995, filed summary judgment motions in both Master and Weinkammer. The two motions, filed in the public record, each attached an affidavit by O'Malley that differs from the one reprinted in the previous paragraph in that the filed affidavit contained two paragraphs--31 and 32--that disclosed certain contents of the intercepted communications. ³

Soon after, on December 27, 1995, Nix filed a complaint in Ohio state court. The first count alleged that O'Malley and Weston, Hurd violated Ohio's state wiretap law. (Because federal law did not protect cordless telephone calls when the interception occurred, Nix does not claim that the defendants violated Title III.) Unlike Master and Weinkammer, this lawsuit did not seek relief for an act of wiretapping. Instead, Nix alleged that the defendants violated the law by using and disclosing the contents of the communications on three separate occasions: ⁴ when O'Malley disclosed the contents of the tape to Weston, Hurd after the district court denied Nix's motion in limine for a protective order; when Weston, Hurd used the contents of the tape in preparing O'Malley's defense; and when O'Malley and Weston, Hurd filed O'Malley's affidavit with the motions for summary judgment in the Master and Weinkammer cases.

The second count alleged that the defendants conspired to aid and abet others in the concealment of the wiretapping and that the defendants withheld from discovery unprivileged statements about the wiretapping to avoid civil and criminal liability. This claim sought relief under RICO, 18 U.S.C. § 1964, the Ohio Corrupt Activities Act, OHIO REV.CODE ANN. §§ 2923.51-2923.66 (Banks-Baldwin 1998), and Ohio's obstruction of justice law, OHIO REV.CODE ANN. § 2921.32 (Banks-Baldwin 1998). The third count alleged that Weston, Hurd--which has never represented Nix--breached a common-law duty to him by assisting O'Malley in committing unspecified crimes and intentional torts against Nix. Nix termed this claim "Legal Malpractice."

O'Malley and Weston, Hurd removed the case to federal court on the basis of the RICO claim, which Nix later removed from his complaint by amendment, although he never made good on his threat to move to remand the case to state court. The district court granted the defendants' motions for summary judgment on all three counts.

II. Standard of Review

We review the district court's grant of summary judgment de novo, applying the standards used by the district court. See Middleton v....