[Cite as Bentkowski v. Trafis, 2015-Ohio-5139.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102540
DAVID A. BENTKOWSKI
PLAINTIFF-APPELLANT
vs.
MATTHEW TRAFIS, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-803270
BEFORE: Kilbane, J., Celebrezze, A.J., and Keough, J.
RELEASED AND JOURNALIZED: December 10, 2015 ATTORNEY FOR APPELLANT
Brent L. English Law Offices of Brent L. English The 820 Building - 9th Floor 820 Superior Avenue West Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For Tim Fraundorf and Concerned Residents Of Seven Hills
Phillip J. Henry Phillips & Mille Co., L.P.A. 7530 Lucerne Dr., Suite 200 Middleburg Heights, Ohio 44130
For the Matthew Trafis and the City of Seven Hills
Steven A. Friedman Squire Patton Boggs (US) L.L.P. 4900 Key Tower 127 Public Square Cleveland, Ohio 44114-1304
For the City of Seven Hills and Richard Dell’Aquila, Richard Pignatiello, and Patrick DiChiro
Michelle J. Sheehan Jonathan H. Krol Reminger Co., L.P.A. 101 West Prospect Avenue, Suite 1400 Cleveland, Ohio 44115
William Wunderle, pro se 4360 Gene Drive Seven Hills, Ohio 44131
Gene Dodaro, pro se 6244 Fieldstone Trail Seven Hills, Ohio 44131
Terrence J. Krafcik, pro se 5521 Avenida Vaquero Las Vegas, Nevada 89108
Jim Worgull, pro se 4350 Gene Drive Seven Hills, Ohio 44131
Edward McKenna, pro se 1908 Ridgeview Drive Seven Hills, Ohio 44131
MARY EILEEN KILBANE, J.: {¶1} Plaintiff-appellant, David Bentkowski (“Bentkowski”), appeals from the trial
court’s decisions granting summary judgment in favor of defendants-appellees, Patrick DiChiro,
Richard Dell’Aquila, Richard Pignatiello, and the city of Seven Hills (collectively “City
defendants”), and dismissing defendants Matthew Trafis, Tim Fraundorf, Gene Dodaro, Terrence
Krafcik, Jim Worgull, Edward McKenna, William Wunderle, and Concerned Residents of Seven
Hills, Inc., from the case. For the reasons set forth below, we affirm both orders.
{¶2} This appeal arises from an action brought by Bentkowski after a closed police
investigation into “harassing blogs” about him was produced to Seven Hills’ councilman
Matthew Trafis (“Trafis”) pursuant to a public records request. Bentkowski was elected mayor
of the city of Seven Hills (“City”) in November 2003. He served as the mayor until October
2011, when he resigned. In November 2011, Richard Dell’Aquila (“Dell’Aquila”) was elected
as the mayor of Seven Hills and Bentkowski was elected as councilman-at-large to Seven Hills
City Council. Bentkowski retained that position until December 2013.
{¶3} While mayor of the City, Bentkowski approached the City’s Law Director,
Richard Pignatiello (“Pignatiello”), in the fall of 2009 about certain anonymous postings and
blogs criticizing him on Cleveland.com (a website affiliated with The Plain Dealer) and other
similar community forum websites. Bentkowski inquired if the City could take legal action to
protect him and other City employees “from the attacks, abuse and defamation[.]” He further
inquired if these postings possibly constituted menacing by stalking, intimidation of a public
official, obstruction of justice, or violations of Ohio ethics and election law. Bentkowski
suspected some of his political rivals, including Trafis and Concerned Residents of Seven Hills,
Inc. (“Concerned Citizens”) were involved with the postings. Pignatiello advised that Bentkowski could file a criminal complaint with the City’s police department, which Bentkowski
did on October 19, 2009.
{¶4} Seven Hills Police Detective Mike Salloum (“Detective Salloum”) was assigned
to the investigation of Bentkowski’s complaint. Bentkowski provided Detective Salloum with
the internet postings he alleged constituted a criminal offense, as well as a narrative describing
the alleged criminal conduct. At the end of his narrative, Bentkowski acknowledged that the
police report “will remain private until [the] investigation is completed.” Detective Salloum
reviewed the materials provided by Bentkowski and monitored additional postings on
Cleveland.com. In a report, he concluded that “[t]here is no evidence of any crime being
violated by any poster.” Detective Salloum forwarded his report and investigation materials to
the City’s prosecutor, Patrick DiChiro (“DiChiro”), for a determination on whether a crime was
committed.
{¶5} Upon reviewing Bentkowski’s criminal complaint and the information provided
by Detective Salloum, DiChiro researched the elements of potential crimes and concluded that no
crime had been committed. DiChiro determined to close the investigation in early 2012, after
consulting with a cyber-law expert. The expert advised DiChiro that he did not believe a crime
had occurred, but if the City wanted to retain him, he would research the issue further. DiChiro
decided to ask city council if it desired to retain the legal expert to further research the issue.
Prior to the discussion with city council, DiChiro informed Trafis, who was a city councilman at
the time, that a police investigation was ongoing regarding internet postings about Bentkowski.
{¶6} The members of city council, including Trafis, met in an executive session and
determined they did not wish to expend funds to retain an outside attorney. As a result, in
March 2012, DiChiro issued a formal determination that no crime had been committed and officially closed the investigation. Detective Salloum then informed Bentkowski of this
decision.
{¶7} In April 2012, Trafis made a formal public records request for the police
investigation. Before producing the file, DiChiro reviewed Ohio law and contacted the Ohio
Attorney General’s Office for guidance in determining whether the police investigation should be
released pursuant to the Public Records Act that might exempt the police investigation from
release. Based on his legal research, DiChiro determined that the police investigation was a
public record, and he authorized its release in response to Trafis’s request. DiChiro did not
consult Dell’Aquila or Pignatiello in this regard. Before producing the closed police
investigation to Trafis, DiChiro redacted birth dates, social security numbers, and Bentkowski’s
email address. After the police investigation was released, Cleveland.com and Scene Magazine
published news articles criticizing Bentkowski for wasting the City’s resources on the police
investigation.
{¶8} Bentkowski then filed a complaint, containing five causes of action, against
DiChiro, Dell’Aquila, Pignatiello, the City, Trafis, Tim Fraundorf (“Fraundorf”), Gene Dodaro
(“Dodaro”), Terrence Krafcik (“Krafcik”), Jim Worgull (“Worgull”), Edward McKenna
(“McKenna”), Bill Wunderle (“Wunderle”), and Concerned Residents. Bentkowski sought
monetary relief for the damage to his reputation resulting from the disclosure of the police
{¶9} In Count One, he alleges the City, Dell’Aquila, Pignatiello, and DiChiro
wrongfully and intentionally disclosed or participated in the disclosure of the personal and
confidential information contained in the police investigatory file. Bentkowski claims the police
investigatory report was exempt from public disclosure under the Ohio Public Records Act as a Confidential Law Enforcement Investigatory Record (“CLEIR”) under R.C. 149.43 and
R.C. Chapter 1347. In Counts Two and Three, Bentkowski alleges that Pignatiello, Dell’Aquila,
and the City unlawfully retaliated against him because he disclosed Pignatiello’s and
Dell’Aquila’s ethics violations. In Count Four, he alleges that a group of Seven Hills’ residents,
including city councilman Trafis, Fraundorf, Dodaro, Krafcik, Worgull, McKenna, Wunderle,
and Concerned Residents, which publishes the Seven Hills Reporter and operates a website and a
Facebook page, had joined in an unlawful civil conspiracy against him. In Count Five, he
alleges that all the defendants have intentionally inflicted serious emotional distress upon him.
{¶10} In response, the City defendants and Trafis filed separate motions to dismiss.
Bentkowski opposed both motions and amended his complaint. The City defendants and Trafis
separately moved to dismiss the complaint again. Several of the individual defendants,
including Worgull, Wunderle, and Dodaro, also filed motions to dismiss. Bentkowski opposed
these motions as well.
{¶11} The trial court denied the City defendants’ motion to dismiss in part and granted it
in part. The court found that Bentkowski alleged sufficient facts to survive a Civ.R. 12(B)(6)
motion as to Counts One, Two, Three, and Five. The court dismissed Count Four against the
City defendants, finding that Bentkowski’s amended complaint did not set forth a claim for civil
conspiracy against Dell’Aquila, Pignatiello, DiChiro or the City. The court stated “[a] thorough
reading of [Bentkowski’s] claims show that each claim was explicitly directed to specific
defendants and the conspiracy claim did not name the movants.”
{¶12} The court granted Trafis’s renewed motion to dismiss, stating that Count Five
(intentional infliction of emotional distress (“IIED”)) fails “insofar as it claims distress for
actions regarding public dissemination of critical comments about [Bentkowski], for example, comments posted on the local newspaper’s online community forum.” The court stated that
because Bentkowski was a public official at the time of the alleged wrongdoing, “the
requirements for his claim of emotional distress are heightened.” The court further stated:
In order for a public official to make an emotional distress claim caused by public opinion statements, the plaintiff must show that the complained of statements are actual misstatements of fact and were made with actual malice. Stepien v. Franklin, 39 Ohio App.3d 47 (Ohio Ct. App., Cuyahoga County 1988). Plaintiff does not claim that the statements allegedly made by the defendants were false and therefore his claim of intentional infliction of emotional distress against defendant Trafis is dismissed. As defendant Trafis is not alleged to have committed another tort, plaintiff’s claim of conspiracy also fails.
{¶13} The court applied the arguments made by Trafis as to Counts Four and Five of
Bentkowski’s complaint to the remaining defendants. The court noted that Bentkowski was
awarded “ample opportunity to respond to Trafis’s argument and the court’s decision regarding
these claims goes to the legal, not the factual, basis of the complaint.”
{¶14} The trial court then granted Worgull and Wunderle’s motion to dismiss, as well as
Dodaro’s motion to dismiss, applying the same rationale. The court also applied its decision to
Fraundorf, Krafcik, McKenna, and Concerned Residents, and dismissed these defendants from
the case. Therefore, only the following defendants remained in the case: Dell’Aquila,
Pignatiello, DiChiro, and the City on Counts One, Two, Three, and Five.
{¶15} Thereafter, the City defendants filed a joint answer, and following discovery they
filed two motions for summary judgment — one on Counts Two and Three, and the other on
Counts One and Five. Bentkowski filed separate briefs in opposition to both motions. On
December 31, 2014, the trial court granted the City defendants’ motions for summary judgment.
In a thorough 11-page opinion, the trial court found that the City defendants are entitled to
governmental immunity and Bentkowski’s claims fail as a matter of law. The court stated: Bentkowski alleges that the release of the police record was exempted by R.C. 149.43(h), which prevents the release of “confidential law enforcement investigatory records.” See R.C. 149.43(h). [Bentkowski] also argues that the release of the police record was a violation of R.C. 102.99(B)[.]
***
[However,] Bentkowski fails to identify a specific section of the Ohio Revised Code which expressly imposes liability upon the [City] Defendants for the release of the records in response to a public record request. Additionally, Bentkowski fails to identify the confidential information released which would invoke a violation of R.C. 102.03(B) to exempt the [City] defendants from the general blanket of governmental immunity. No genuine issue of material fact remains to defeat summary judgment on this issue.
The trial court further found that:
The grant of immunity also applies to the individual defendants named in this case.
Bentkowski has failed to provide evidence of malice, bad faith, or wanton or reckless conduct to divest the individual defendants of governmental immunity and impose individual liability. The record indicates DiChiro determined that the file was subject to release and that this decision was not influenced by Pignatiello or Dell’Aquila. * * * At deposition, Bentkowski stated that he was not informed by anyone that Pignatiello or Dell’Aquila were involved in a conspiracy to release the police report, but instead that he made this conclusion based upon the timetable of the report being released contemporaneously with Bentkowski’s accusations of improper activity by city officials.
No question of material fact remains to defeat summary judgment on this issue.
{¶16} Bentkowski now appeals, raising the following six assignments of error for review,
which shall be discussed together where appropriate.
Assignment of Error One
The trial court erred in granting summary judgment on statutory immunity grounds. Assignment of Error Two
The trial court erred in granting summary judgment where a genuine issue of material fact existed and the City defendants were not entitled to judgment as a matter of law regarding their wrongful disclosure of private information about [Bentkowski].
Assignment of Error Three
The trial court erred in granting summary judgment to the City defendants on [Bentkowski’s] claim for intentional infliction of serious emotional distress.
Assignment of Error Four
The trial court erred in dismissing Count Four of the amended complaint alleging that Pignatiello and Dell’Aquila were part of an unlawful civil conspiracy.
Assignment of Error Five
The trial court erred in granting Defendant Trafis’s motion to dismiss all claims against him.
Assignment of Error Six
The trial court erred in entering judgment for the remainder of the individual defendants, some of whom did not even move for dismissal.
Motion for Summary Judgment
{¶17} In the first and second assignments of error, Bentkowski argues the court erred in
granting summary judgment because there are genuine issues of material fact with regard to
whether the CLEIR exception applies to the closed police investigation and whether the City
defendants acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Standard of Review
{¶18} We review an appeal from summary judgment under a de novo standard of review.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Zemcik
v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998).
In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201,
the Ohio Supreme Court set forth the appropriate test as follows.
Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.
{¶19} Once the moving party satisfies its burden, the nonmoving party “may not rest
upon the mere allegations or denials of the party’s pleadings, but the party’s response, by
affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385,
1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party.
Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 1992-Ohio-95, 604 N.E.2d 138.
Governmental Immunity
{¶20} Determining whether a political subdivision is immune from liability under R.C.
2744.02 involves a three-tiered analysis. Elston v. Howland Local Schools, 113 Ohio St.3d 314,
2007-Ohio-2070, 865 N.E.2d 845, ¶ 10; Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d
551, 556, 2000-Ohio-486, 733 N.E.2d 1141. A general grant of immunity is provided within the first tier, which states that “a political subdivision is not liable in damages in a civil action for
injury, death, or loss to person or property allegedly caused by any act or omission of the political
subdivision or an employee of the political subdivision in connection with a governmental or
proprietary function.” R.C. 2744.02(A)(1).
{¶21} The second tier in the immunity analysis focuses on the five exceptions to this
immunity, which are listed in R.C. 2744.02(B). Elston at ¶ 11. If any of the exceptions to
immunity are applicable, thereby exposing the political subdivision to liability, the third tier of
the analysis assesses whether any of the defenses to liability contained in R.C. 2744.03 apply to
reinstate immunity. Id. at ¶ 12.1
{¶22} It is undisputed that the City is a political subdivision and is entitled to immunity
under the first prong of the inquiry. Therefore, the City’s immunity can only be removed if one
of the enumerated exceptions contained in R.C. 2744.02(B) apply. Colbert v. Cleveland, 99
Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781 at 118. Similarly, immunity of city officials
can only be removed if one of the exceptions in R.C. 2744.03(A)(6) apply.
{¶23} Bentkowski contends that the following three exceptions apply to hold the City
defendants liable for the disclosure of the closed police investigation: (1) the Revised Code
imposes liability and an exception exists per R.C. 2744.02(B)(5) and 2744.03(A)(6)(c); (2)
government officials lose their immunity for malicious, bad faith conduct under R.C.
2744.03(A)(6)(b); and (3) immunity is unavailable under R.C. 2744.09(B) for claims brought by
an employee against his political subdivision relative to any matter that arises out of the
employment relationship between the employee and the political subdivision. We agree with the
1R.C. 2744.03(A) provides similar analysis for employees of political subdivisions. trial court in that, as a matter of law, none of these exceptions apply. 2 Therefore, the City
defendants are entitled to governmental immunity from Bentkowski’s claims.
{¶24} Bentkowski first argues that the closed police investigation is exempt from public
records disclosure under the CLEIR exception set forth in R.C. 149.43(A)(1)(h) and a trial
preparation record pursuant to R.C. 149.43(A)(4).3 R.C. 149.43(A)(1)(h) provides that a CLEIR
does not constitute a public record. R.C. 149.43(A)(2) defines a CLEIR as
any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:
(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;
(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source’s or witness’s identity;
(c) Specific confidential investigatory techniques or procedures or specific investigatory work product;
(d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.
{¶25} Bentkowski claims the police investigatory file meets all four criteria. As a result,
the City defendants are not entitled to immunity because the exceptions found R.C.
2744.02(B)(5) and 2744.03(A)(6)(c) impose “civil liability” for their improper disclosure of the
police investigation. We find Bentkowski’s argument unpersuasive because the police
2Because there is no exception to the general grant of immunity, there is no need for us to reach the third tier in the analysis. R.C. 2744.03. 3Ohio’s Public Record Act is set forth in R.C. Chapter 149. investigation, which was closed, does not constitute a CLEIR, and the Revised Code imposes
criminal liability, not civil liability for the disclosure of an exempt public record.
The CLEIR Exception is Inapplicable
{¶26} R.C. 149.43(A)(2)(a) and (b) are not applicable to the instant case because the
closed police investigation did not include the name of any suspect since no crime was
committed. The investigation also does not contain the name of any confidential informant or
witness interviewed by the police. Bentkowski cannot be considered a confidential informant
because he was the complainant. Furthermore, Bentkowski’s identity as the alleged victim of a
crime would not remain confidential because any criminal indictment would include his name as
the alleged victim. R.C. 149.43(A)(2)(c) is inapplicable because the file included no
confidential investigatory techniques. R.C. 149.43(A)(2)(d) is inapplicable because there is no
allegation that the disclosure of anything Bentkowski told the police would endanger his physical
safety. Moreover, Bentkowski acknowledged his understanding that the police file will remain
private until the investigation is completed. Therefore, the closed police investigatory file is a
public record subject to disclosure under R.C. 149.43.
The Trial Preparation Exception is Inapplicable
{¶27} Bentkowski also argues that the closed police investigation is a trial preparation
record exempt from disclosure. A trial preparation record is a “record that contains information
that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal
action or proceeding, including the independent thought processes and personal trial preparation
of an attorney.” R.C. 149.43(A)(4). Bentkowski claims that the closed police investigation
contains his own work product, which includes information he submitted to the police in
anticipation of litigation and criminal prosecution. However, by the time the closed police investigation was produced in response to the public records request, the investigation was closed
and no crime was charged or even contemplated. Thus, trial was certainly not reasonably
anticipated, and this exception is inapplicable to the facts in the instant case.
Civil Liability is Not Imposed by Statute
{¶28} R.C. 2744.02(B)(5) and 2744.03(A)(6)(c) provide that a political subdivision and
its employees are not immune when “civil liability” is expressly imposed upon them by a section
of the Revised Code. Id. The statutes further provide that “civil liability” shall not be
construed to exist under another section of the Revised Code merely because that section
provides for a criminal penalty. Id.
{¶29} In support of his argument, Bentkowski relies on R.C. 102.03(B), and contends that
this section imposes liability on city officials. R.C. 102.03(B) provides that no public official
shall
disclose or use, without appropriate authorization, any information acquired by the public official or employee in the course of the public official’s or employee’s official duties that is confidential because of statutory provisions, or that has been clearly designated to the public official or employee as confidential when that confidential designation is warranted because of the status of the proceedings or the circumstances under which the information was received and preserving its confidentiality is necessary to the proper conduct of government business.
{¶30} Under R.C. 102.99(B), a violation of R.C. 102.03(B) is a first-degree
misdemeanor.
{¶31} We note, however, and Bentkowski concedes, that R.C. 102.03(B) imposes only
“criminal penalties.” R.C. 102.03 does not expressly impose “civil liability,” as required to
abrogate immunity under R.C. 2744.02(B)(5) and R.C. 2744.03(A)(6)(c). He further concedes
that the Public Records Act does not explicitly and directly impose a duty upon the City defendants to not disclose records about him that are exempt from disclosure. Therefore,
Bentkowski cannot use these as exceptions to the City defendants’ general grant of immunity.
R.C. 2744.03(A)(6)(b) — Pignatiello, DiChiro, and Dell’Aquila Did Not Act with Malicious Purpose, in Bad Faith, or in a Wanton or Reckless Manner
{¶32} Bentkowski next argues that the court erred when it found that Pignatiello,
DiChiro, and Dell’Aquila did not act with a malicious purpose, in bad faith, or in a wanton or
reckless manner by releasing the closed police investigation.
{¶33} “‘In the context of political subdivision immunity, malicious purpose has been
defined as the willful and intentional design to do injury.”’ Friga v. E. Cleveland, 8th Dist.
Cuyahoga No. 88262, 2007-Ohio-1716, ¶ 15, quoting Piro v. Franklin Twp., 102 Ohio App.3d
130, 139, 656 N.E.2d 1035 (9th Dist.1995), citing Jackson v. Butler Cty. Bd. of Cty. Commrs., 76
Ohio App.3d 448, 453, 602 N.E.2d 363 (12th Dist.1991). Bad faith “‘connotes a dishonest
purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior
motive or ill will partaking of the nature of fraud.’” Jackson, quoting Slater v. Motorists Mut.
Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus. Wanton
misconduct is the failure to exercise any care whatsoever and establishes a disposition to
perversity on the part of the tortfeasor. Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d
351, 356, 1994-Ohio-368, 639 N.E.2d 31. Lastly, reckless “conduct refers to an act done with
knowledge or reason to know of facts that would lead a reasonable person to believe that the
conduct creates an unnecessary risk of physical harm and that this risk is greater than that
necessary to make the conduct negligent.” Piro at 139, citing Thompson v. McNeill, 53 Ohio
St.3d 102, 104-105, 559 N.E.2d 705 (1990), citing 2 Restatement of the Law 2d, Torts, Section
500, at 587 (1965). {¶34} We agree with the trial court’s finding that there is no evidence to suggest that
Dell’Aquila or Pignatiello had any involvement in the release of the closed police investigation
or that they acted in bad faith by ordering or encouraging its release. DiChiro’s deposition
testimony demonstrates that he alone decided to release the closed police investigation in
response to certain public records requests. Bentkowski admits that he was not informed by
anyone that Dell’Aquila or Pignatiello were involved in a conspiracy to release the police
investigatory report; instead, he concluded they were involved based upon the report being
released contemporaneously with his accusations of improper activity by City officials.
{¶35} With respect to DiChiro, Bentkowski argues DiChiro acted in bad faith when he
disclosed information to Trafis prior to a city council meeting and he failed to confide in
Bentkowski about the release of the closed police investigation. A review of the record reveals
that DiChiro shared with Trafis that a police investigation existed. He did not provide Trafis
with the investigation or allow Trafis to review any part of the file. The information DiChiro
shared with Trafis was the same information that was to be shared during an upcoming council
meeting. Moreover, DiChiro took considerable steps to determine whether the investigatory file
was a public record, including conducting research on the matter and consulting with the police
and attorney general. These efforts belie any notion that DiChiro acted recklessly, in bad faith,
or with malice as Bentkowski contends. Therefore, we do not find that Pignatiello, DiChiro, or
Dell’Aquila acted with bad faith or malicious conduct.
R.C. 2744.09(B) — Bentkowski’s Claims Do Not Arise Out of the Employment Relationship with the City
{¶36} Under 2744.09(B), the general blanket of political immunity is inapplicable to
“[c]ivil actions by an employee * * * against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision[.]”
Bentkowski’s claims are premised on the release of a closed police investigation file in response
to public records request. This scenario is not related to Bentkowski’s employment with the
City. Bentkowski concedes that the closed police investigation does “not relate to Bentkowski’s
performance as a public official[.]”
{¶37} Under the plain language of the statute, political immunity does not extend to civil
actions by an employee against his political subdivision relative to any matter that arises out of
the employment relationship between the employee and the political subdivision. R.C.
2744.09(B). As a result, Bentkowski cannot rely on the “employment” exception to the general
blanket of immunity.
{¶38} Therefore, the first and second assignments of error are overruled.
IIED — City Defendants
{¶39} In the third assignment of error, Bentkowski argues the trial court improperly
granted summary judgment to the City defendants on his IIED claim. Bentkowski claims the
City defendants inflicted emotional distress upon him by disclosing the closed police
{¶40} In order to establish an IIED claim, the plaintiff must demonstrate that (1) the
defendant intended to cause, or knew or should have known that his actions would result in
serious emotional distress; (2) the defendant’s conduct was so extreme and outrageous that it
went beyond all possible bounds of decency and can be considered completely intolerable in a
civilized community; (3) the defendant’s actions proximately caused psychological injury to the
plaintiff; and (4) the plaintiff suffered serious mental anguish of a nature no reasonable person
could be expected to endure. Lombardo v. Mahoney, 8th Dist. Cuyahoga No. 92608, 2009-Ohio-5826, ¶ 6, citing Ashcroft v. Mt. Sinai Med. Ctr., 68 Ohio App.3d 359, 366, 588
N.E.2d 280 (8th Dist.1990).
{¶41} Liability for IIED will only be found in the most extreme circumstances. Crable v.
Nestle USA, Inc., 8th Dist. Cuyahoga No. 86746, 2006-Ohio-2887, ¶ 55. “‘Liability has been
found only where the conduct has been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”’ Id., quoting Yeager v. Local Union 20, Teamsters, 6
Ohio St.3d 369, 375, 453 N.E.2d 666 (1983).
{¶42} Public figures and public officials are prohibited from recovering damages for IIED
without showing that the publication contained a false statement of fact that was made with
actual malice. Stepien v. Franklin, 39 Ohio App.3d 47, 52, 528 N.E.2d 1324 (8th Dist.1988),
citing Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).
{¶43} In the instant case, the disclosure of the closed police investigation in response to
the public records request does not constitute extreme or outrageous conduct sufficient to
establish a claim for intentional infliction of emotion distress. The Ohio Supreme Court has
stated that the liability for IIED:
“does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. See Magruder, Mental and Emotional Disturbance in the Law of Torts, Harvard Law Review 1033, 1053 (1936). * * *” Yeager at 375, quoting Restatement of the Law 2d, Torts (1965) 71, Section 46, Comment d.
Thus, Bentkowski’s IIED claims fail as a matter of law.
{¶44} Accordingly, the third assignment of error is overruled.
Motion to Dismiss
{¶45} In the fourth, fifth, and sixth assignments of error, Bentkowski argues the trial
court erred when it dismissed the civil conspiracy claim against Dell’Aquila and Pignatiello, and
dismissed Trafis, Fraundorf, Dodaro, Krafcik, Worgull, McKenna, Wunderle, and Concerned
Citizens from the case.
{¶46} We apply a de novo standard of review to the trial court’s granting of a motion to
dismiss under Civ.R. 12(B)(6) for failure to state a claim. Perrysburg Twp. v. Rossford, 103
Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta U.S.A. Corp.,
95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136. Under this standard of review, we must
independently review the record and afford no deference to the trial court’s decision. Herakovic
v. Catholic Diocese of Cleveland, 8th Dist. Cuyahoga No. 85467, 2005-Ohio-5985, ¶ 13.
{¶47} In order for a trial court to dismiss a complaint under Civ.R. 12(B)(6) for failure to
state a claim upon which relief may be granted, it must appear beyond doubt that the plaintiff can
prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. Doe
v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing
O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975).
{¶48} In resolving a Civ.R. 12(B)(6) motion, a court’s factual review is confined to the
four corners of the complaint. Grady v. Lenders Interactive Servs., 8th Dist. Cuyahoga No.
83966, 2004-Ohio-4239, ¶ 6. Within those confines, a court accepts as true all material
allegations of the complaint and makes all reasonable inferences in favor of the nonmoving party. Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 667, 1995-Ohio-295, 653 N.E.2d 1186. “[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.” York v. Ohio State Hwy.
Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).
Civil Conspiracy — Pignatiello and Dell’Aquila
{¶49} Bentkowski argues the court erred when it granted Pignatiello and Dell’Aquila’s
motion to dismiss on the grounds that his civil conspiracy cause of action did not apply to them.
We agree with the end result of trial court, but we reach the same conclusion on different
grounds. Bentkowski acknowledges that Pignatiello and Dell’Aquila’s names were not
expressly referenced in the description for Count Four. They were, however, referenced in the
body of the complaint. In our de novo review, we accept as true all material allegations of the
complaint and make all reasonable inferences in favor of the nonmoving party.
{¶50} In Count Four, Bentkowski alleges that Pignatiello and Dell’Aquila “were willing
participants in the conspiracy and worked behind the scenes to ensure that the information was
released.” To establish a civil conspiracy claim, the plaintiff must prove: “(1) a malicious
combination of two or more persons, (2) causing injury to another person or property, and (3) the
existence of an unlawful act independent from the conspiracy itself.” Kelley v. Buckley, 193
Ohio App.3d 11, 2011-Ohio-1362, 950 N.E.2d 997 (8th Dist.), ¶ 70, citing Williams v. Aetna Fin.
Co., 83 Ohio St.3d 464, 1998-Ohio-294, 700 N.E.2d 859. “An action for civil conspiracy
cannot be maintained unless an underlying unlawful act, which would be actionable in the
absence of the conspiracy, is committed.” Id., citing Gosden v. Louis, 116 Ohio App.3d 195,
687 N.E.2d 481 (9th Dist.1996). {¶51} In the instant case, Bentkowski fails to allege an “unlawful act” independent from
the conspiracy itself. Because Bentkowski failed to establish the requisite elements to sustain a
cause of action for civil conspiracy, his claim fails as a matter of law. See McCauley v. PDS
Dental Laboratories, 8th Dist. Cuyahoga No. 90086, 2008-Ohio-2813.
{¶52} Therefore, the fourth assignment of error is overruled.
Civil Conspiracy and IIED — Trafis
{¶53} Bentkowski next argues that the trial court improperly granted Trafis’s motion to
dismiss. Bentkowski alleged a civil conspiracy cause of action and an IIED cause of action
against Trafis. Bentkowski’s civil conspiracy cause of action fails for the same reasons
discussed above.
{¶54} With regard to Bentkowski’s IIED cause of action, a trial court may dismiss a
claim for intentional infliction of emotional distress under Civ.R. 12(B)(6), when the alleged
conduct does not, as a matter of law reach the level of extreme and outrageous conduct.
Reamsnyder v. Jaskolski, 10 Ohio St.3d 150, 462 N.E.2d 392 (1984); Morrow v. Reminger &
Reminger Co., L.P.A., 183 Ohio App.3d 40, 63, 2009-Ohio-2665, 915 N.E.2d 696 (10th Dist.).
{¶55} Bentkowski’s IIED claim was based on his allegation that “[t]he Defendants,
jointly and severally, intentionally and recklessly inflicted serious emotional distress upon the
Plaintiff by their outrageous conduct enumerated above.” However, Bentkowski’s amended
complaint, which was filed after Trafis filed his initial motion to dismiss, did not contain any
allegation that any of the statements allegedly made by Trafis were false statements of fact made
with actual malice. Because he failed to allege that Trafis, or any defendant, made false
statements of fact, with actual malice, Bentkowski’s claim is legally deficient, and the trial court
properly granted Trafis’s renewed motion to dismiss. {¶56} Therefore, the fifth assignment of error is overruled.
The Other Nonmoving Defendants
{¶57} Bentkowski argues the trial court also erred when it dismissed all claims against
the remaining nonmoving defendants because he did not receive notice that the trial court
intended to dismiss the nonmoving parties.
{¶58} In X-S Merch., Inc. v. Wynne Pro, L.L.C., 8th Dist. Cuyahoga No. 97641,
2012-Ohio-2315, we stated that “dismissals under Civ.R. 12(B)(6) for failure to state a claim
upon which relief can be granted are akin to dismissals pursuant to Civ.R. 41(B)(1) in that they
are ‘fundamentally unfair’ in the absence of prior notice and an opportunity to respond.” Id. at ¶
17, citing Mayrides v. Franklin Cty. Prosecutor’s Office, 71 Ohio App.3d 381, 594 N.E.2d 48
(10th Dist.1991). We also stated that: “[t]he only instances of when a sua sponte dismissal of a
complaint without notice is appropriate are when the complaint is frivolous or the plaintiff
cannot succeed on the facts stated in the complaint.” X-S Merch. at ¶ 17, fn. 2, citing Dunn v.
Marthers, 9th Dist. Lorain No. 05CA008838, 2006-Ohio-4923.
{¶59} Here, the docket reflects that Trafis filed a motion to dismiss Bentkowski’s
complaint, and in response, Bentkowski filed a brief in opposition and a motion for leave to file
an amended complaint. Bentkowski’s amended complaint contained the same allegations
relating to the claims for IIED and civil conspiracy against Trafis and the nonmoving defendants.
Trafis then filed a renewed motion to dismiss and Bentkowski filed a brief in opposition. In
ruling on Trafis’s renewed motion to dismiss, the trial court applied his argument to all the
defendants. The court found that Bentkowski was awarded ample opportunity to respond to
Trafis’s argument that Bentkowski failed to allege that any defendant made any false statement of fact with actual malice against him. The court further found that its decision regarding these
causes of action went to the legal, not factual basis of the complaint.
{¶60} Because the trial court found that the claim was legally deficient based on the facts
alleged in Bentkowski’s complaint, it was entitled to apply that argument to all defendants named
in the IIED cause of action. Moreover, since the nonmoving defendants were not alleged to
have committed any underlying tort other than the IIED claim, Bentkowski’s civil conspiracy
cause was also legally deficient. Therefore, we find that the trial court did not err in dismissing
Bentkowski’s IIED and civil conspiracy causes of action against the nonmoving defendants.
{¶61} Accordingly, the sixth assignment of error is overruled.
{¶62} Judgment is affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
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.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and KATHLEEN ANN KEOUGH, J., CONCUR