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Schutte v. Summit County Sheriff's Office

Court of Appeals of Ohio, Ninth District, Summit

June 7, 2017

ROBERT SCHUTTE Appellant
v.
SUMMIT COUNTY SHERIFF'S OFFICE, et al. Appellees

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2015 07 3633

          APPEARANCES: DONALD GALLICK, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant Prosecuting Attorney, for Appellees.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER JUDGE.

         {¶1} Plaintiff-Appellant, Robert Schutte, appeals the judgment of the Summit County Court of Common Pleas granting summary judgment in favor of Defendants-Appellants, Summit County Sheriff Steve Barry, Summit County Sheriffs Deputy Robert DiSabato, and the Summit County Sheriffs Department (collectively, "Defendants"), on his claims for malicious prosecution, selective prosecution, abuse of process, and wrongful termination. We reverse and remand to the trial court for further clarification.

         I.

         {¶2} Schutte owns several acres of property located off of Berna Road in Green, Ohio. Schutte's property, however, does not abut Berna Road, but is accessible from Berna Road via a city-owned right-of-way known as Tim Drive. According to Schutte, a dispute developed between him and his adjoining neighbors concerning the use of this right-of-way. Schutte alleges that one of his neighbors performed substantial work to the right-of-way without first obtaining a permit from the city. This caused the city's law director to send a letter to Schutte and his neighbors admonishing them for performing unsanctioned work on the city-owned right-of-way.

         {¶3} Following his receipt of this letter, Schutte spent nearly two weeks spreading gravel on the right-of-way to allegedly make ingress and egress more accessible to his property. This action caused the city law director to file an incident report with the Summit County Sheriffs Office and Schutte was ultimately charged in the Barberton Municipal Court with one count of performing excavations without a permit in violation of Green Codified Ordinance 1022.01, a third-degree misdemeanor. Schutte alleges that he had authority from the city to spread the gravel on the right-of-way without a permit. Schutte also alleges that as a result of this criminal charge being brought against him, he was fired from his job with the Summit County Sheriffs Office. The criminal case against Schutte ultimately concluded with the prosecutor dismissing the matter without prejudice.

         {¶4} On July 20, 2015, Schutte filed a complaint in the Summit County Court of Common Pleas alleging claims for malicious prosecution, selective prosecution, abuse of process, and wrongful discharge against Sheriff Steve Barry, individually and in his official capacity, Deputy Robert DiSabato, individually and in his official capacity, and the Summit County Sheriffs Office. Defendants filed an answer denying the allegations set forth in Schutte's complaint.

         {¶5} Defendants thereafter filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C), to which Schutte responded in opposition. In ruling on Defendants' Civ.R. 12(C) motion, the trial court dismissed Sheriff Barry and Deputy DiSabato from the lawsuit in their individual capacities, but permitted them to remain as defendants in their official capacities. Moreover, to accommodate the parties, the trial court converted the balance of Schutte's Civ.R. 12(C) motion for judgment on the pleadings to a Civ.R. 56 motion for summary judgment and permitted the parties time to file supporting or opposition briefs with appropriate evidentiary materials. Consequently, Defendants filed a subsequent motion for summary judgment arguing that no genuine issue of material fact is in dispute and that they are entitled to judgment as a matter of law on each of Schutte's claims. Specifically, Defendants argue in their summary judgment motion that they are entitled to judgment as a matter of law on Schutte's malicious prosecution, selective prosecution, and abuse of process claims since they are entitled to sovereign immunity under to R.C. Chapter 2744. In the alternative, Defendants argue in their motion for summary judgment that Schutte cannot successfully prove his claims for selective prosecution, abuse of process, and wrongful termination. Schutte filed a brief in opposition to Defendants' motion for summary judgment, to which Defendants filed a reply brief in support of their motion for summary judgment. On March 30, 2016, the trial court granted summary judgment in favor of Defendants on all of Schutte's claims.

         {¶6} Schutte filed this timely appeal and presents two assignments of error for this Court's review. To facilitate our analysis, we elect to address both assignments of error together.

         II.

         Assignment of Error I

         The trial court erred by granting summary judgment on Schutte's claims for malicious prosecution, ...


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