[Cite as A.W. v. Kircher, 2024-Ohio-2115.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
A.W., : CASE NO. CA2023-11-108 Appellant, : OPINION : 6/3/2024 - vs - :
KONRAD KIRCHER, et al., :
Appellees. :
CIVIL APPEAL FROM LEBANON MUNICIPAL COURT Case No. CVF-2200052
A.W., pro se.
Kircher Law, LLC, and Konrad Kircher, for appellee, Konrad Kircher.
Rittgers, Rittgers & Nakajima, and Charles M. Rittgers, for appellee, Charles M. Rittgers.
Perkinson Legal, and Ryan J. McGraw, for appellee, Ryan J. McGraw.
M. POWELL, J.
{¶ 1} Appellant, A.W., appeals a decision of the Lebanon Municipal Court
dismissing her defamation claim against appellees, attorneys Konrad Kircher, Ryan
McGraw, and Charles Rittgers, and granting summary judgment in favor of Kircher on her Warren CA2023-11-108
R.C. 2307.60 claim.1
{¶ 2} Appellant was sued for defamation by Reproductive Gynecology, Inc.
("RGI") in the Franklin County Court of Common Pleas (the "Franklin County Court").
RGI's defamation claim was based upon negative posts made by appellant on RGI's
social media pages. Appellant hired Kircher to defend the RGI lawsuit against her. At
the time, Kircher was a partner at the Rittgers & Rittgers law firm (the "law firm"). During
his representation of appellant, Kircher suspected that she had not been honest with him
concerning RGI's claim against her. Kircher confronted appellant with his concerns and
then withdrew from representing her in the RGI litigation. Thereafter, using the name "A,"
appellant posted negative reviews of Kircher on his AVVO page and/or the law firm's
social media pages.
{¶ 3} On February 2, 2022, appellant, acting pro se, filed a complaint against
Kircher, alleging legal malpractice and false light. The complaint was based upon
Kircher's published responses to appellant's negative review posted on Kircher's AVVO
page in February 2021. Appellant remained pro se throughout the litigation. On February
28, 2022, Kircher answered appellant's complaint and filed several counterclaims.
Attached to his answer was a November 3, 2021 decision from the Franklin County Court
that addressed appellant's violation of a previous order prohibiting her from posting
reviews about RGI on social media. Specifically, the court found that appellant had
authored and caused violative posts to remain posted in public view in violation of the
order, and that she had also posted new violative posts. Consequently, the Franklin
County Court found appellant in civil contempt of its order. The court permitted appellant
1. This appeal involves two separate cases filed in the municipal court by appellant, Case No. 2200254 and Case No. 2200052. The cases were consolidated by the municipal court in September 2022. For purposes of readability, this court will treat the two cases in this opinion's statements of facts and procedural history as if they were one. The parties filed numerous pleadings throughout the litigation. This opinion only references the pleadings and claims that are relevant to this appeal. -2- Warren CA2023-11-108
"to purge the $250 fine associated with this finding of civil contempt by filing a [sworn]
affidavit verifying to this Court * * * that all violative posts, new violative posts and any
other posts in violation of the Order have been removed." The Franklin County Court
decision made no finding whether appellant's posts about RGI were "fake."
{¶ 4} On March 14, 2022, in response to appellant's negative review of Kircher
on social media, the law firm posted on Google that
This person was found in contempt of court in Franklin County, Common Pleas Court, Case No. 21 CV 2008, for continuing to post fake reviews against someone nonrelated to this firm and Konrad [Kircher]. It is public record. Given her dishonesty, Konrad terminated his relationship [sic] result she is now posting fake reviews against him here.
{¶ 5} On June 3, 2022, appellant filed a separate complaint against Kircher and
the law firm. Appellant later dismissed the law firm as a defendant and named Rittgers
and McGraw, two attorneys employed by the law firm, as defendants.
{¶ 6} On October 3, 2022, appellant filed an amended complaint against Kircher,
Rittgers, and McGraw, alleging defamation and civil conspiracy against all three attorneys
based upon the March 14, 2022 Google post, and an R.C. 2307.60 claim against Kircher
based upon emails Kircher sent appellant in June and September 2022.
{¶ 7} Appellant's defamation claim alleged that (1) the March 14, 2022 Google
post falsely stated she had been found in contempt for "continuing to post fake reviews"
when, in fact, the Franklin County Court's November 3, 2021 decision never stated her
posts about RGI were "fake"; (2) Kircher testified in a deposition in May 2022 that McGraw
and Rittgers drafted and posted the Google post and that he approved the post; and (3)
Kircher admitted in the deposition that the Franklin County Court decision never stated
that appellant's reviews of RGI were fake.
{¶ 8} Appellant's R.C. 2307.60 claim alleged that Kircher damaged her by
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committing a criminal act, namely telecommunications harassment under R.C. 2917.21.
Appellant alleged that Kircher sent the emails after she "merely served Kircher with legal
filings," described how the emails were harassing in nature, and alleged that she suffered
economic damages (counseling fees) and "noneconomic damages such as mental
anguish, mental distress, loss of ability to enjoy life, etc." as a result of the March 14, 2022
Google post and Kircher's harassing emails. Attached to appellant's amended complaint
were the emails Kircher sent her in June and September 2022. The emails were as
follows.
{¶ 9} On June 14, 2022, Kircher emailed appellant, stating: "When the INS learns
that you have court orders against you in two different counties for violating American
laws and refusing to abide by orders of American courts, I doubt you will ever be able to
come back. It has nothing to do with trial, it has everything to do with protecting my fellow
citizens from your illegal conduct." Appellant replied,
Where are the court orders against me in two different counties? You are lying and faking the information again. What is worse is that you even fabricate nonexistent court orders this time! It is highly unethical that you fake nonexistent court orders! Your misconducts are illegal. You are again exposing yourself as fraud through your emails.
Btw, just a few weeks ago, I became engaged to an American citizen and can apply for American citizenship if I want. Even if I don't apply for American citizenship through marriage, I can still apply for it through my doctoral degree and scientific works if I wish to do so. You're welcomed to report me to any immigration authority with your fraudulent allegations and expose yourself as a fraud. My immigration status will not be affected by your false report at all.
{¶ 10} In the early morning hours of June 15, 2022, Kircher emailed appellant,
The Franklin County finding that you are in contempt is the first order. The forthcoming order from Lebanon Municipal Court, which you will certainly violate, will be the second order. They will follow you everywhere and are permanently on the internet, unlike your fraudulent posts.
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If your life is so good, why do you seem so miserable? You keep engaging in hopeless efforts to harm Craig Park [an employee of RGI], RGI and me when you could be channeling that energy to improving your future. I doubt your fiancé knows all the horrible things you have done and keep doing.
{¶ 11} Later that morning, Kircher emailed appellant, "You are really nuts.
Fortunately, you have to prove your nonsense in court. I'll deal with you there rather than
with your irrational ramblings." On September 26, 2022, Kircher emailed appellant, "We
will talk later. I realize I may not be hearing from you for awhile as you may be in
alternative housing without access to the internet."
{¶ 12} On October 14, 2022, Kircher moved for summary judgment. Kircher did
not attach an affidavit or evidentiary materials to his motion. Regarding appellant's R.C.
2307.60 claim, Kircher generally argued that given the context of this case, which involved
multiple filings by the parties and at one point, appellant falsely accusing Kircher of past
domestic violence, tax fraud, and tax evasion, no reasonable jury could find, beyond a
reasonable doubt, that Kircher committed telecommunications harassment. Kircher
further argued that (1) he has never been convicted of a crime and appellant never
reported the alleged telecommunications harassment, (2) appellant did not specify which
elements of R.C. 2917.21 Kircher allegedly committed, (3) appellant was an equal
participant in the alleged harassment in light of her accusations that Kircher was "lying,"
"faking," and committing "highly unethical actions," and (4) the "selectively edited emails"
attached to appellant's amended complaint plainly related to judicial proceedings and
therefore, appellant's claim was barred by the litigation privilege.
{¶ 13} In her memorandum in opposition to the summary judgment motion,
appellant argued that (1) R.C. 2307.60 does not require an underlying criminal conviction
and cited Buddenberg v. Weisdack, 161 Ohio St.3d 160, 2020-Ohio-3832, in support; (2)
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she was not required to specify which elements Kircher committed in violation of R.C.
2917.21 because Ohio is a notice-pleading state; and (3) Kircher's harassing emails have
caused her mental distress, were sent to her via private email, and were not made during
judicial proceedings; appellant cited Reister v. Gardner, 164 Ohio St.3d 546, 2020-Ohio-
5484, in support.
{¶ 14} On October 26, 2022, McGraw and Rittgers separately moved to dismiss
appellant's amended complaint pursuant to Civ.R. 12(B)(6). Both attorneys argued that
appellant failed to state a defamation claim because the March 14, 2022 Google post was
a response to a poster simply identified as "A" and did not identify appellant by name or
other identifying characteristics. Appellant filed a memorandum opposing the Civ.R.
12(B)(6) motions to dismiss. On February 9, 2023, the magistrate granted summary
judgment to Kircher regarding appellant's R.C. 2307.60 claim. The magistrate also
granted McGraw's and Rittgers' Civ.R. 12(B)(6) motions to dismiss appellant's defamation
claims. Appellant filed objections to the magistrate's February 9, 2023 decision.
{¶ 15} On February 21, 2023, Kircher moved to dismiss appellant's defamation
claim pursuant to Civ.R. 12(B)(6). The magistrate granted Kircher's Civ.R. 12(B)(6)
motion to dismiss on April 23, 2023. Appellant filed objections to the magistrate's
decision.
{¶ 16} On September 5, 2023, the municipal court overruled both sets of objections
and adopted the magistrate's February 9, 2023 and April 28, 2023 decisions. Upon
"conduct[ing] an independent review," the municipal court found "that the Magistrate
properly determined factual issues and further appropriately applied the law."
{¶ 17} Appellant now appeals, pro se, raising three assignments of error. The first
and second assignments of error will be addressed together.
{¶ 18} Assignment of Error No. 1:
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{¶ 19} THE TRIAL COURT ERRED BY GRANTING APPELLEES RITTGERS
AND MCGRAW'S MOTION TO DISMISS APPELLANT'S DEFAMATION CLAIM.
{¶ 20} Assignment of Error No. 2:
{¶ 21} THE TRIAL COURT ERRED BY GRANTING APPELLEE KIRCHER'S
MOTION TO DISMISS APPELLANT'S DEFAMATION CLAIM.
{¶ 22} Appellant challenges the municipal court's Civ.R. 12(B)(6) dismissal of her
defamation claims against Kircher, McGraw, and Rittgers. The defamation claims were
based upon the March 14, 2022 Google post. Appellant argues that the municipal court
erred by failing to accept all allegations in her amended complaint as true as required
under Civ.R. 12(B)(6).
{¶ 23} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which
relief can be granted tests the sufficiency of the complaint. Buckner v. Bank of New York,
12th Dist. Clermont No. CA2013-07-053, 2014-Ohio-568, ¶ 13, citing State ex rel. Hanson
v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 1992-Ohio-73. "A motion
made pursuant to Civ.R. 12(B)(6) only determines whether the pleader's allegations set
forth an actionable claim." Ward v. Graue, 12th Dist. Clermont No. CA2011-04-032,
2012-Ohio-760, ¶ 9. "[W]hen a party files a motion to dismiss for failure to state a claim,
all the factual allegations of the complaint must be taken as true and all reasonable
inferences must be drawn in favor of the nonmoving party." Byrd v. Faber, 57 Ohio St.3d
56, 60 (1991). For a complaint to be dismissed under Civ.R. 12(B)(6) for failure to state
a claim, it must appear beyond a reasonable doubt from the complaint that the plaintiff
can prove no set of facts entitling him or her to recovery. LeRoy v. Allen, Yurasek &
Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14.
{¶ 24} The trial court may look only to the complaint to determine whether the
allegations are legally sufficient to state a claim. Ward at ¶ 10. "A court may not use the
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motion to summarily review the merits of the cause of action." Home Builders Assn. of
Dayton & Miami Valley v. Lebanon, 12th Dist. Warren No. CA2003-12-115, 2004-Ohio-
4526, ¶ 8. "'[A]s long as there is a set of facts, consistent with the plaintiff's complaint,
which would allow the plaintiff to recover, the court may not grant a defendant's motion to
dismiss.'" Conaway v. Mt. Orab, 12th Dist. Brown No. CA2021-04-005, 2021-Ohio-4041,
¶ 13, quoting York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 145 (1991). An
appellate court reviews a trial court's decision to grant a Civ.R. 12(B)(6) motion to dismiss
de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5.
{¶ 25} Appellant's amended complaint alleged that Kircher, McGraw, and Rittgers
published the March 14, 2022 Google post, that the post falsely stated she had been
found in contempt by the Franklin County Court for "continuing to post fake reviews" when
"'nowhere' in the judgment from Franklin County ever stated that [her] post was 'fake',"
and that as a result of the Google post, appellant suffered economic damages such as
counseling fees.
{¶ 26} The municipal court granted McGraw's and Rittgers' Civ.R. 12(B)(6)
motions to dismiss appellant's defamation claims as follows:
In presuming all facts contained in [appellant's] claim for defamation are true, and making all reasonable inferences in favor of [appellant], this Court cannot see how [she] can prove any set of facts warranting recovery for defamation against McGraw and Rittgers. Even if McGraw and Rittgers made the post, as a matter of law the post does [not] rise to the level of defamation.
First, the first sentence is true, as [appellant] was found in contempt by the Franklin County Common Pleas Court. Second, the second sentence contains the true statement that Kircher terminated the representation, and also contains an opinion that Kircher believes the poster's comments are fake. If the statements in the post are true or consist of McGraw or Rittgers' opinions, then claims for defamation cannot stand. The only statement that may be false is the last line regarding fake reviews. However, this Court cannot see how this line
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could cause [appellant] any damages under the theory of defamation per se or per quod.
{¶ 27} The municipal court granted Kircher's Civ.R. 12(B)(6) motion to dismiss
appellant's defamation claim as follows:
The Google post does not rise to the level of defamation. First, the first sentence is true, as [appellant] was found in contempt by the Franklin County Common Pleas Court. Second, the second sentence contains the true statement that Kircher terminated the representation, and also contains an opinion that Kircher believes the poster's comments are fake. Further, this Court does not agree that the three-sentence response has proximately caused [appellant] any damages despite her pleading such damages. Even presuming all factual allegations of [appellant's] complaint as true and all reasonable inferences in favor of [appellant], this Court cannot find any set of facts whereby [appellant] can sustain a claim against Kircher for defamation.
{¶ 28} We find that the municipal court failed to properly construe all allegations in
appellant's amended complaint as true when it granted Kircher's, McGraw's, and Rittgers'
Civ.R. 12(B)(6) motions to dismiss appellant's defamation claims. The municipal court
failed to confine its consideration of the adequacy of appellant's claims to her complaint.
Rather, the court improperly found that certain aspects of the March 14, 2022 Google
post were true (i.e., that appellant had been found in contempt in Franklin County and
that Kircher had terminated his representation of appellant), even though the truth of
those statements may not be discerned by reference to appellant's complaint.
{¶ 29} The municipal court also failed to presume that all factual allegations of
appellant's complaint were true and make all reasonable inferences in appellant's favor.
The municipal court rejected appellant's claim of special damages (i.e., mental anguish,
emotional and mental distress, counselling fees, etc.) because it "does not agree that the
three-sentence response has proximately caused [appellant] any damages despite her
pleading such damages." The municipal court also found that the portion of the March
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14, 2022 Google post concerning appellant "continuing to make 'fake' posts" was non-
actionable "opinion."
{¶ 30} The trial court also completely failed to consider the gist of appellant's
defamation claim that the statement in the March 14, 2022 Google post that she was
found in contempt for posting "fake" reviews was false as the Franklin County Court had
not found that the reviews posted by appellant were "fake." In fact, instead of construing
all allegations in the amended complaint as true, the municipal court simply repeated the
attorneys' partial assertion that appellant had been found in contempt by the Franklin
County Court.
{¶ 31} In light of the foregoing, the municipal court erred in dismissing appellant's
defamation claims against Kircher, McGraw, and Rittgers pursuant to Civ.R. 12(B)(6).
The municipal court's September 5, 2023 judgment entry granting the Civ.R. 12(B)(6)
motions to dismiss of Kircher, McGraw, and Rittgers is reversed and the cause is
remanded to the trial court for further proceedings consistent with this opinion.
{¶ 32} Appellant's first and second assignments of error are sustained.
{¶ 33} Assignment of Error No. 3:
{¶ 34} THE TRIAL COURT ERRED BY GRANTING APPELLEE KIRCHER'S
MOTION FOR SUMMARY JUDGMENT ON APPELLANT'S OHIO R.C. 2307.60 CLAIM.
{¶ 35} Appellant argues that the municipal court erred by granting summary
judgment to Kircher on her R.C. 2307.60 claim which was based upon emails Kircher sent
her in June and September 2022. Appellant asserts there is a genuine issue of material
fact whether these emails were telecommunications harassment because (1) Kircher's
motion for summary judgment did not state what Kircher's purpose was in sending the
emails, (2) rather, Kircher simply argued that appellant was unable to prove he committed
telecommunications harassment, and (3) the municipal court improperly opined that the
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emails did not harass, abuse, or intimidate appellant.
{¶ 36} An appellate court reviews a trial court's decision on a motion for summary
judgment de novo, independently, and without deference to the decision of the trial court.
Murray v. Dunn, 12th Dist. Warren No. CA2023-10-084, 2024-Ohio-1639, ¶ 15.
{¶ 37} The principal purpose of summary judgment is to allow a trial court to move
beyond the pleadings and analyze the evidence to determine if a need for a trial exists.
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). Under Civ.R. 56(C),
summary judgment is proper when (1) there are no genuine issues of material fact to be
litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) when all
evidence is construed most strongly in favor of the nonmoving party, reasonable minds
can come to only one conclusion, and that conclusion is adverse to the nonmoving party.
Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 1998-Ohio-389.
{¶ 38} The party moving for summary judgment bears the initial burden of
informing the court of the basis 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. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-
Ohio-107. The moving party cannot discharge its initial burden under Civ.R. 56 simply by
making a conclusory assertion that the nonmoving party has no evidence to prove its
case. Id. Rather, the moving party must be able to specifically point to some evidence
of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving
party has no evidence to support the nonmoving party's claims. Id. The evidentiary
materials listed in Civ.R. 56(C) consist of "the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any." "These evidentiary materials must show that there is no
genuine issue as to any material fact, and that the moving party is entitled to judgment as
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a matter of law." Id. at 293.
{¶ 39} If the moving party fails to satisfy its initial burden, the motion for summary
judgment must be denied. Id. However, if the moving party satisfies its initial burden, the
nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific
facts showing that there is a genuine issue for trial and, if the nonmovant does not so
respond, summary judgment, if appropriate, shall be entered against the nonmoving
party. Id.
{¶ 40} Appellant's amended complaint alleged that Kircher was liable for civil
damages under R.C. 2307.60 for harming her by committing a criminal act, namely for
telecommunications harassment in violation of R.C. 2917.21. The complaint (1) alleged
that after appellant "merely served Kircher with legal filings," Kircher sent her several
harassing and threatening emails in June and September 2022, (2) described how the
emails were harassing in nature (by faking nonexistent court orders such as an injunction
from the Lebanon Municipal Court when municipal courts lack authority to issue
injunctions; by maliciously attacking appellant's Taiwanese nationality and her American
fiancé; by stating appellant would soon be in an alternative house with no internet when
such has never happened), and (3) claimed that as a result of these emails, appellant
suffered economic damages (counseling fees) and "noneconomic damages such as
mental anguish, mental distress, loss of ability to enjoy life, etc."
{¶ 41} The municipal court granted summary judgment to Kircher on appellant's
R.C. 2307.60 claim as follows:
Kircher's emails to [appellant] contain statements regarding [her] conduct in violating court orders, her mental status, and her future housing. While Kircher's comments may have been rude to [appellant], this Court does not find that Kircher's comments rose to the level of a criminal violation of [R.C.] 2917.21. The statements do not contain any threats that harass, intimidate, or abuse [appellant]. Furthermore,
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[appellant] refutes several of Kircher's comments in a response email and invites further Kircher responses. There are no genuine issues of material fact and this Court finds that Kircher is entitled to judgment as a matter of law.
{¶ 42} R.C. 2307.60(A)(1) provides that
Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney's fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.
{¶ 43} The statute "independently authorizes a civil action for damages caused by
criminal acts." Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 6. It does
not require proof of an underlying criminal conviction. Buddenberg, 2020-Ohio-3832 at ¶
6.
{¶ 44} The municipal court reviewed appellant's telecommunications harassment
allegation under R.C. 2917.21(A)(1), which provides, "No person shall knowingly make
or cause to be made a telecommunication * * * to another, if the caller [m]akes the
telecommunication with purpose to harass, intimidate, or abuse any person at the
premises to which the telecommunication is made, whether or not actual communication
takes place between the caller and a recipient." R.C. 2917.21(B)(1) provides that "[n]o
person shall make or cause to be made a telecommunication, or permit a
telecommunication to be made from a telecommunications device under the person's
control, with purpose to abuse, threaten, or harass another person."
{¶ 45} Facts and circumstances surrounding the communication may establish a
defendant's purpose or intent to threaten, harass, or abuse. In re C.W., 1st Dist. Hamilton
Nos. C-180677 and C-180690, 2019-Ohio-5262, ¶ 14. R.C. 2917.21 does not define
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"abuse," "threaten," or "harass." However, the First District Court of Appeals has defined
"harassment" as "[w]ords, conduct, or action ([usually] repeated or persistent) that, being
directed at a specific person, annoys, alarms, or causes substantial emotional distress in
the person and serves no legitimate purpose"; "threaten" as "an expression of an intention
to inflict evil, injury, or damage on another usu[ally] as retribution or punishment for
something done or left undone"; and "abuse" as "cruel or violent treatment of someone;
[specifically] physical or mental maltreatment, often resulting in mental, emotional, sexual,
or physical injury." (Citations deleted.) Id. at ¶ 16.
{¶ 46} We find that the municipal court erred in granting summary judgment to
Kircher on appellant's R.C. 2307.60 claim. Appellant's amended complaint alleged that
Kircher initiated harassing and threatening emails in response to appellant serving Kircher
with legal filings and attached said emails to her complaint. The language and tone of
Kircher's emails to appellant are consistent with this allegation. As the party moving for
summary judgment, Kircher was required to specifically point to "the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any" which affirmatively demonstrate that there
is no genuine issue as to any material fact, and that he was entitled to judgment as a
matter of law. Dresher, 75 Ohio St.3d at 293. However, Kircher did not attach an affidavit
or any evidentiary materials to his motion for summary judgment. Kircher's motion for
summary judgment refers to "the selectively edited emails attached to the Amended
Complaint," thereby suggesting there were more telecommunications that were not
submitted by appellant. However, Kircher did not attach these unedited portions of the
emails to his motion for summary judgment. Kircher's motion for summary judgment also
generally argued that given the context of this case, no reasonable jury could conclude
that he committed telecommunications harassment. However, the moving party cannot
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discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that
the nonmoving party has no evidence to prove its case. Id. Because Kircher failed to
produce any Civ.R. 56(C) evidence regarding the lack of a genuine issue of material fact,
we find that he failed to meet his initial burden under Civ.R. 56. If the moving party fails
to satisfy its initial burden, the motion for summary judgment must be denied. Id.
{¶ 47} Appellant's third assignment of error is sustained.
{¶ 48} Judgment reversed and remanded for further proceedings.
S. POWELL, P.J., and HENDRICKSON, J., concur.
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