Russell Adamson v. the May Co., 82-LW-0079

• Decision Date: 03 June 1982
• Docket Number: 82-LW-0079,44191
• Parties: RUSSELL ADAMSON APPELLANT v. THE MAY COMPANY, ET AL. APPELLEES
• Court: Ohio Court of Appeals

RUSSELL ADAMSON APPELLANT v. THE MAY COMPANY, ET AL. APPELLEES

No. 44191.

82-LW-0079 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

June 3, 1982

APPEAL FROM COMMON PLEAS COURT No. 015,024.

For plaintiff-appellant: Dennis A. Rotman.

For defendants-appellees: Jan Saurman.

JOURNAL ENTRY AND OPINION

MARKUS J.

This cause came on to be heard upon the pleading and the ----------------------- transcript of the evidence and record in the Common Pleas Court, and was argued by counsel; on consideration whereof, the court certifies that in its opinion substantial justice has not been done the party complaining, as shown by the record of the proceedings and judgment under review, and judgment of said Common Pleas Court is reversed. Each assignment of error was reviewed by the court and upon review the following disposition made:

SEE OPINION, MARKUS, J., INCORPORATED BY REFERENCE AND MADE PART OF THIS JOURNAL ENTRY AND OPINION.

This cause is remanded for further proceedings in accordance with this opinion.

It is therefore, considered that said appellant recover of said appellee(s) his costs herein.

It is ordered that a special mandate be sent to said Court 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. Exceptions.

PRYATEL C.J. and CORRIGAN, J. CONCUR.

N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.

RUSSELL ADAMSON Plaintiff-Appellant

v.

THE MAY COMPANY, ET AL. Defendants-Appellees

No. 44191.

Court of Appeals of Ohio, Cuyahoga County.

June 3, 1982.

For Plaintiff-Appellant: Dennis A. Rotman, 1148 Euclid Ave., Suite 400, Cleveland, Ohio 44115.

For Defendants-Appellees: Jan Saurman, 14600 Detroit Ave., Suite 95, Cleveland, Ohio 44107.

MARKUS J.

SYLLABUS

1. Where plaintiff asserts malicious prosecution and false imprisonment by a merchant for a supposed theft of the merchant's goods, a bind over order at the preliminary hearing or a grand jury indictment in the criminal theft prosecution creates a rebuttable presumption that the merchant had probable cause to prosecute, unless plaintiff shows those proceedings received perjured testimony or were otherwise significantly irregular.

2. Summary judgment should be denied for a merchant relying on that presumption, if the plaintiff rebuts the presumption with evidentiary material of a substantial nature that the merchant lacked such probable cause, which the court finds has at least counterbalanced the presumption.

Plaintiff seeks reversal of a summary judgment dismissing his action against a department store and its security officer for malicious prosecution and false imprisonment.®1¯ Defendants argue that summary judgment was justified because the security officer's probable cause to believe plaintiff committed a theft offense had been demonstrated by two prior determinations of probable cause. The municipal court judge had so found when he ordered plaintiff's bind over for grand jury consideration, and the grand jury so found when it indicted plaintiff for that theft. We conclude that each of those prior determinations created a legal presumption that probable cause existed for plaintiff's prosecution. However, we also conclude that evidentiary material contained in plaintiff's affidavit and his deposition sufficientl rebutted those presumptions to create genuine issues of material fact. Therefore, summary judgment was not appropriate, and we are obliged to reverse and remand for further proceedings.

Footnote 1 Defendant's sole assignment of error reads:

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AS A GENUINE ISSUE OF MATERIAL FACT DOES EXIST.

The total evidence presented to support or oppose the summary judgment motion consisted of plaintiff's deposition, plaintiff's affidavit, and plaintiff's indictment by the grand jury. Collectively those evidentiary materials showed certain undispute facts.

Plaintiff was employed by the defendant department store. A store security officer detained him and a co-employee as they sat in plaintiff's automobile in the store parking lot. After the security officer questioned them at the car and in the store, store personnel contacted local police officers who arrested both employees for grand theft. The Municipal Court later heard testimony of the security officer®2¯ and found probable cause to believe plaintiff had committed the crime charged, so that court bound him over for grand jury proceedings. Thereafter, the grand jury indicted him for grand theft. For unstated reasons the prosecutor requested that the charge be nolled at plaintiff's initial pretrial hearing, and the case was dismissed. Subsequently, plaintiff filed the present action.

Footnote 2 It is not clear whether the arresting police officers testified at this hearing. The record does disclose that plaintiff was represented by counsel at that hearing and chose not to testify. He later claimed that the security officer's testimony was inaccurate in at least two significant respects.

I.

In order to recover in an action for malicious prosecution, a plaintiff must establish:

"(1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the defendant." (Paragraph one of the syllabus in Rogers v. Barbera (1960), 170 Ohio St. 241.)

Defendants seemingly acknowledge there is sufficient evidence that the prosecution terminated in plaintiff's favor, so as to prevent summary judgment on that ground. Cf. Douglas v. Allen (1897), 56 Ohio St. 156; Gaiser v. Hurleman (1906), 74 Ohio St. 271; Kunz v. Miller (1958), 80 Ohio L. Abs. 198. The parties apparently agree that malice in commencing or continuing the prosecution can be implied if defendants lacked probable cause to believe plaintiff had committed any offense. Cf. Melanowski v. Judy (1921), 102 Ohio St. 153. However, defendants assert the claim that they acted without probable cause to believe plaintiff committed an offense has been disproved as a matter of law.

Proof that defendant lacked probable cause to believe plaintiff had committed an offense is also essential to plaintiff's false imprisonment claim. False imprisonment occurs when the defendant acts:

". . . to confine one intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short." 1 Harper and James, The Law of Torts, 226, Section 3.7 (1956); Feliciano v. Kreiger (1977), 50 Ohio St. 2d 69 at 71.

Plaintiff's detention by the security officer would have been lawful if the security officer had probable cause to believe plaintiff had stolen store merchandise. R.C. 2935.041.®3¯ In that event, it could not constitute false imprisonment.

Footnote 3 Revised Code 2935.041 provides in part:

"(A) A merchant, or his employee or agent, who has probable cause to believe that items offered for sale by a mercantile establishment have been unlawfully taken by a person, may, for the purposes set forth in division (C) of this section, detain the person in a reasonable manner for a reasonable length of time within the mercantile establishment or its immediate vicinity.

"(C) . . . a merchant or his employee or agent pursuant to division (A) of this section may detain another person for any of the following purposes:

"(1) To recover the property that is the subject of the unlawful taking, criminal mischief, or theft;

"(2) To cause an arrest to be made by a peace officer;

"(3) To obtain a warrant of arrest."

In order to render summary judgment, a trial court must find that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. In making these determinations, the court must construe all evidence most strongly in favor of the party against whom judgment is sought. Civ. R. 56(C).®4¯

Footnote 4 Civil Rule 56(C) provides in part:

"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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."

Thus, summary judgment is not appropriate here unless reasonable minds would necessarily conclude from the evidentiary materials submitted that defendants acted with probable cause to believe plaintiff assisted the theft. On the other hand, summary judgment would be proper if defendant's evidentiary materials required that finding, unless plaintiff submitted contrary evidentiary material sufficient to rebut it by showing reasonable minds could conclude defendants lacked such probable cause.®5¯

Footnote 5 Civil Rule 56(E) provides in part:

"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or

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