Daly v. Certo

2025 Ohio 293

• Court: Ohio Court of Appeals
• Decided: January 31, 2025
• Docket: 30082
• Status: Published

Opinion

[Cite as Daly v. Certo, 2025-Ohio-293.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

WILLIAM DALY : : Appellant : C.A. No. 30082 : v. : Trial Court Case No. 2023 CV 01307 : PETER R. CERTO, JR. et al. : (Civil Appeal from Common Pleas : Court) Appellees : :

...........

OPINION

Rendered on January 31, 2025

WILLIAM DALY, Pro Se Appellant

JEFFREY C. TURNER, DAWN M. FRICK, PATRICK KASSON & AUSTIN RICHARDS, Attorneys for Appellee

.............

LEWIS, J.

{¶ 1} Plaintiff-Appellant William Daly appeals from a judgment of the Montgomery

County Common Pleas Court that granted summary judgment to Defendants-Appellees

Steven Perfetti, Peter Certo, Jr., Jeffrey Slyman, Altick & Corwin, LPA, Buckley King, LPA,

and the City of Riverside. For the following reasons, we will affirm the judgment of the -2-

trial court.

I. Facts and Procedural History

{¶ 2} On March 14, 2023, Daly filed a civil complaint against Certo, Slyman,

Perfetti, the law firm of Altick & Corwin, LPA, the law firm of Buckley King, LPA, and the

City of Riverside. Daly raised seven claims for relief in his complaint. The first claim

alleged that all the defendants were “COMPLICIT AND ACTING IN CONCERT AND

JOINTLY LIABLE.” (Emphasis in original.) No facts were alleged in support of this

claim, which stated as follows:

False Arrest, Abuse of Process, Abuse of police powers , Malicious

prosecution, Sham prosecution, False Imprisonment, Intentional infliction of

mental distress, tortious interference, retaliatory conspiracy, Business tort,

damage to reputation, civil rights violations, A pattern of corrupt activities, a

pattern of abuse under [sic], retaliatory action and conspiracy to damage

plaintiff herein, intentional acts of Reprisal, libel, slander, failure to properly

supervise, failure to monitor its employee’s acts, failure to properly to

supervise, Failure to control its employees all individually, jointly, severally

and also in addition and or alternatively in an act in concert, and complicit

acts to accomplish damage to plaintiff herein.

{¶ 3} The second claim involved only Certo, a licensed attorney in Ohio, who

served as prosecutor for the City of Riverside and was a partner and shareholder at Altick

and Corwin prior to the firm’s being acquired by Buckley King, LPA. This claim alleged

that Certo had committed torts of “ABUSE OF PROCESS, ABUSE OF AUTHORITY, -3-

ENGAGE[D] IN VARIOUS ACTS OF MALICIOUS CONDUCT TO DAMAGE PLAINTIFF,

ENGAGE[D] IN A RETALIATORY CONSPIRACY, AND LIBEL AND SLANDER.”

(Emphasis in original.)

{¶ 4} Daly’s third claim was directed solely at Slyman, a licensed attorney in Ohio,

who had acted as prosecutor on the underlying criminal cases that formed the basis of

Daly’s complaint. This claim alleged that Slyman had committed torts of “SHAM

PROCESS, SHAM PRACTICE OF LAW AS A PROSECUTOR, ABUSE OF PROCESS,

ENGAGE[D] IN VARIOUS ACTS OF MALICIOUS AND OR RECKLESS CONDUCT TO

DAMAGE PLAINTIFF, ENGAGE[D] IN A RETALIATORY CONSPIRACY, LIBEL AND

SLANDER, COERCION AND THREAT.” (Emphasis in original.)

{¶ 5} Daly’s fourth claim alleged that Riverside Police Officer Perfetti had damaged

Daly through “ABUSE OF AUTHORITY, ENGAG[ING] IN VARIOUS ACTS OF

MALICIOUS AND OR RECKLESS CONDUCT TO DAMAGE PLAINTIFF, ENGAG[ING]

IN RETALIATORY CONDUCT OR PATTERN OF HARASSMENT, CONSPIRACY,

LIBEL AND SLANDER.” (Emphasis in original.)

{¶ 6} Daly’s fifth and sixth claims alleged that Altick and Corwin, LPA and Buckley

King, LPA, respectively, were vicariously liable for Certo’s tortious actions.

{¶ 7} Daly’s seventh claim alleged the City of Riverside was vicariously liable for

the tortious conduct of its employees and the Riverside Police Department under the

doctrine of respondeat superior.

{¶ 8} The underlying issues raised in the causes of action were primarily based on

events that occurred in relation to a prior criminal investigation of Daly and resulting -4-

criminal charges. Daly had been a licensed attorney in the State of Ohio since 1991. In

2018 and 2019, Daly had a principal place of business in Dayton, Ohio before moving to

South Carolina in 2019. Prior to 2018, Daly had represented S.H. in a felony criminal

case, a personal injury case, and a child custody case.

{¶ 9} On October 31, 2018, S.H. obtained an ex parte civil stalking protection order

against Daly, which prohibited Daly from having any contact with S.H., either directly or

through another person, and from having possession of any deadly weapon. The

protection order also required Daly to turn over any deadly weapons and concealed carry

weapon license in his possession to the law enforcement agency that served him with the

order. The ex parte civil protection order was served on Daly on November 2, 2018.

{¶ 10} On the afternoon of November 2, 2018, Daly went to the Riverside Police

Department to report an alleged theft offense. Officer Perfetti spoke with Daly at the

police station. According to Daly, S.H. had stolen a necklace and prescription

medication from his car when he had met with her approximately two weeks earlier.

Although he tried to get the necklace back, S.H. refused to give it to him. Daly informed

Officer Perfetti that he had been served with a protection order and provided Officer

Perfetti with S.H.’s contact information.

{¶ 11} Officer Perfetti then met with S.H., who denied stealing the necklace and

claimed it was a gift from Daly. Nevertheless, she gave the necklace to Officer Perfetti

to return to Daly. Officer Perfetti again met with Daly at the Riverside Police Department

on November 2, 2018, and gave Daly the necklace. Daly offered Officer Perfetti a card

for free legal services, which Officer Perfetti refused. Daly then offered Officer Perfetti a -5-

novelty knife, which Officer Perfetti also refused. Daly also offered to show Officer

Perfetti nude photographs of S.H., which Officer Perfetti declined to view. During his

conversation with Officer Perfetti, Daly stated that he had a gun on him and that he was

supposed to inform Officer Perfetti of that fact. Officer Perfetti informed his supervisor

of the events from that day and completed an incident report on November 3, 2018.

Officer Perfetti had no further interactions with Daly or involvement with Daly’s case.

{¶ 12} As a result of the events of November 2, 2018, Daly was charged in June

2019 in the Municipal Court of Montgomery County, Eastern Division, Case No. 2019-

CRB-608E, with violating a protection order, falsification, and attempting to solicit

improper compensation. Daly was later charged on July 30, 2019, in Case No. 2019-

CRB-734E with violating a protection order by possessing a firearm after having been

served with the ex parte protection order. Although Daly had a concealed carry permit,

the ex parte protection order had prohibited him from carrying a firearm. Christine

Kreuger, a detective for the Riverside Police Department at the time, signed each of the

criminal complaints. Slyman acted as the prosecutor for these cases.

{¶ 13} According to Daly, on September 13, 2019, Slyman informed Daly during

plea negotiations that “he got it from the ‘Top Brass’ at the Riverside Police Department

that he had to have a guilty plea.” Complaint p. 8; Daly Depo. 227-228. After Daly

rejected a plea offer involving a guilty plea, Slyman offered Daly a no-contest plea “and

in return we don’t take this to the media.” Complaint p. 8; Daly Depo. 229. Daly then

entered a no contest plea to the violation of a protection order offense in Case No. 2019-

CRB-734E in exchange for dismissal of the three charges in Case No. 2019-CRB-608E. -6-

The magistrate accepted Daly’s no contest plea, found him guilty, and recommended a

sentence. The trial court adopted the magistrate’s finding of guilt, but it did not address

the sentence. Daly filed a notice of appeal. We determined that the trial court’s

judgment was not a final appealable order and dismissed it for lack of jurisdiction. The

trial court then entered final judgment on March 12, 2020, and Daly again appealed.

{¶ 14} The same day that Daly had entered his no contest plea, he filed a petition

with the trial court to seal his records as to the three dismissed charges in Case No. 2019-

CRB-608E. Although the court granted Daly’s motion, it did so prematurely and without

a hearing. Certo, a prosecutor for the City of Riverside, filed a motion on behalf of the

State to vacate the sealing order, which the trial court sustained on February 12, 2020.

Daly also appealed this decision. We consolidated the appeals from the judgment in

Case No. 2019-CRB-734E and the February 12, 2020 order vacating the trial court’s prior

decision to seal the records in Case No. 2019-CRB-608E. Certo represented the City of

Riverside on appeal.

{¶ 15} On March 19, 2021, we affirmed the trial court’s decision in Case No. 2019-

CRB-608E vacating its prior order to seal the records. State v. Daly, 2021-Ohio-873 (2d

Dist.). However, we concluded that the complaint in Case No. 2019-CRB-734E did not

appear to be properly signed and sworn. Because we were unable to determine from

the record if there was a different complaint involved, we remanded Case No. 2019-CRB-

734E for the trial court to determine if there was a properly signed and notarized

complaint. Id. at ¶ 14. S.H. died sometime during the pendency of that appeal.

{¶ 16} Following our March 19, 2021 decision, Daly emailed Certo requesting the -7-

status of the payment of the appellate court costs, presumably related to Case No. 2019-

CRB-734E. Daly indicated in the email that the costs needed to be paid, or he would

turn the matter over to three major collection bureaus. Daly Depo. at 206-207. Certo

responded and indicated the payment request had been forwarded to the City of

Riverside. On May 11, 2021, Daly received a call from a Dayton Police Department

detective based on a complaint from Certo that Daly’s email had told Certo to pay the

court costs or that Daly would report Certo personally to collections. No charges resulted

from Certo’s complaint and no further contact was made by the detective.

{¶ 17} Following our remand of Case No. 2019-CRB-734E, the trial court did not

address whether the complaint filed on July 30, 2019, had been properly sworn; rather, it

permitted the State to amend the complaint with a newly signed and sworn amended

complaint and then reaffirmed its previously imposed sentence. Daly appealed. Certo

again represented the State on appeal. We concluded that the improper complaint had

been a jurisdictional defect that could not be remedied by a motion to amend the

complaint. Accordingly, we reversed Daly’s conviction and remanded for the trial court

to file an order dismissing the case. Certo’s involvement in Daly’s case seems to have

ended with the appellate filings made in Daly’s appeal. Our opinion was rendered on

March 4, 2022. Although the record in this appeal does not show the date on which the

trial court dismissed the charges following our remand, the parties do not appear to

dispute that Case No. 2019-CRB-734E was dismissed on March 23, 2022.

{¶ 18} On March 14, 2023, Daly filed the instant civil action. All the defendants

filed answers to Daly’s complaint and put forth several defenses, including those based -8-

on the statutes of limitations and immunity.

{¶ 19} The City of Riverside, Certo, Slyman, Altick & Corwin, LPA, and Buckley

King, LPA (collectively, “Riverside Defendants”) filed a motion for summary judgment. In

support of the motion, Riverside Defendants submitted Daly’s deposition transcript, which

included eight attached exhibits. Officer Perfetti filed a separate motion for summary

judgment. In support of his motion, Officer Perfetti included his own affidavit and an

affidavit of Detective Krueger, who had been involved in the investigation of Daly’s cases.

Krueger’s affidavit identified two attached exhibits that included a full Cellebrite Physical

Analyzer Report of S.H.’s cell phone and an extraction report of text messages between

Daly and S.H. obtained from S.H.’s cell phone. Additionally, Officer Perfetti submitted a

thumb drive containing audio and video recordings of some of his interactions with Daly

on November 2, 2018. Collectively, the two motions for summary judgment argued that

Daly’s claims were precluded by the applicable statutes of limitations, failed to state a

claim upon which relief could be granted, and/or were subject to immunity defenses.

{¶ 20} Daly filed a memorandum in opposition to the motions for summary

judgment in which he referenced an “affidavit annexed,” but he did not attach an affidavit

or submit any other evidence. Daly’s memorandum also referenced various documents,

such as court exhibits and motions filed in the underlying criminal cases, which were not

submitted to the trial court and are not part of our record. Daly also filed a motion to

strike Krueger’s affidavit “with the exception of her age, her employment, title, and her

capacity as set forth within.”

{¶ 21} On February 20, 2024, the trial court issued a decision granting summary -9-

judgment to all the defendants. The trial court noted “that Plaintiff’s memorandum

opposing summary judgment is considered another re-argument of the claims alleged in

his complaint. There are no affidavits or other facts presented by the Plaintiff.” Decision

(Feb. 20, 2024), p. 7. The court concluded, “while [Daly] presents conviction and

advocacy, he does not submit facts. As such, the Court necessarily considers

Defendants’ facts as unchallenged.” Id. The trial court dismissed Daly’s claims for false

arrest, false imprisonment, libel, slander, abuse of process, intentional infliction of

emotional distress, and tortious interference as all having been filed beyond their

respective statutes of limitations. For the additional claims listed in the complaint, “some

of which are not recognized in Ohio and some of which seem to be restatements of

recognized claims but using similar wording,” the trial court dismissed those claims also

as having been filed beyond their statute of limitations. Alternatively, the trial court

granted summary judgment on all the claims against Officer Perfetti, City of Riverside,

Certo, and Slyman on the basis of common law immunity and/or statutory immunity.

Further, because all of the underlying claims were dismissed, the trial court also

dismissed the derivative liability claims against City of Riverside, Altick and Corwin, and

Buckley King.

{¶ 22} Daly timely appealed and now raises four assignments of error.

II. First Assignment of Error

{¶ 23} The first assignment of error states verbatim as follows:

THE TRIAL COURT ERROR BY A PERFUNCTORY FINDING OF NO

GENUINE ISSUE OF MATERIAL FACT AND DID NOT CONSIDER THE -10-

SWORN AFFIDAVIT REFERRED TO SIX (6) TIMES OR THE SWORN

AFFIDAVIT THAT WAS REFERRED TO AND RELIED UPON IN

PLAINTIFF’S MOTION IN OPPOSITION TO SUMMARY JUDGMENT

{¶ 24} In this assignment of error, Daly contends that he submitted an affidavit in

support of his memorandum in opposition to summary judgment and that the trial court

erred by failing to consider his affidavit when granting defendants’ motions for summary

judgment. Daly attached to his appellate brief a copy of the affidavit he purportedly

attached to his memorandum in opposition. In its decision granting summary judgment,

however, the trial court stated that Daly had not presented any affidavit or other facts in

his memorandum opposing summary judgment. Decision (Feb. 20, 2024), p. 7.

{¶ 25} This Court has reviewed the record and has not located a copy of the

affidavit Daly contends was filed in the trial court. We cannot conclude the trial court

erred by not considering Daly’s affidavit, since there is no evidence in the record that Daly

submitted it to the trial court. Inasmuch as the trial court did not have before it Daly’s

affidavit and could not have considered its contents, this court likewise may not consider

it. An appellate court “cannot consider affidavits and other matters attached for the first

time to an appellate brief which were not properly certified as part of the trial court's

original record and submitted to the court of appeals.” (Citations omitted.) In re

Forfeiture of Property of Rhodes, 2013-Ohio-3046, ¶ 5 (2d Dist.). This is because “in

reviewing the trial court's judgment, we are limited to the record before the trial court.”

FIG 20, LLC FBO SEC PTY v. He, 2024-Ohio-754, ¶ 14 (2d Dist.). “A reviewing court

cannot add matter to the record before it, which was not a part of the trial court's -11-

proceedings, and then decide the appeal on the basis of the new matter.” State v.

Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus. Accordingly, we will

not consider the affidavit attached to Daly’s appellate brief in deciding this appeal.

{¶ 26} The first assignment of error is overruled.

III. Summary Judgment Standard

{¶ 27} The remaining three assignments of error address the merits of the trial

court’s decision granting summary judgment. “Pursuant to Civ.R. 56(C), summary

judgment is proper when (1) there is no genuine issue as to any material fact, (2) the

moving party is entitled to judgment as a matter of law, and (3) reasonable minds, after

construing the evidence most strongly in favor of the nonmoving party, can only conclude

adversely to that party.” Johnson v. Clark Cty. Auditor, 2020-Ohio-3201, ¶ 41 (2d Dist.),

citing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370 (1998). “ ‘Only

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.’ ” Turner v. Turner, 67 Ohio St.3d

337, 340 (1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

{¶ 28} “The moving party carries the initial burden of affirmatively demonstrating

that no genuine issue of material fact remains to be litigated.” Heard v. Dayton View

Commons Homes, 2018-Ohio-606, ¶ 7 (2d Dist.), citing Mitseff v. Wheeler, 38 Ohio St.3d

112, 115 (1988). “To this end, the movant must be able to point to evidentiary materials

of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary

judgment.” Id., citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). “The

substantive law of the claim or claims being litigated determines whether a fact is -12-

‘material.’ ” Townsend v. Kettering, 2022-Ohio-2710, ¶ 16 (2d Dist.), citing Perrin v.

Cincinnati Ins. Co., 2020-Ohio-1405, ¶ 29 (2d Dist.).

{¶ 29} “The inquiry involved in a ruling on a motion for summary judgment

necessarily implicates the substantive evidentiary standard of proof that would apply at a

trial on the merits.” Miller v. Xenia, 2002 WL 441386, *2 (2d Dist. Mar. 22, 2002), citing

Anderson at 252. Therefore, the judge “must ask not whether it thinks the evidence

unmistakably favors one side or the other but whether a fair-minded jury could return a

verdict for the plaintiff on the evidence presented.” Id. “This means that there must be

more than the mere existence of a scintilla of evidence in support of a plaintiff's position.”

Id., citing Anderson at 252.

{¶ 30} Once the moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the party's pleadings. Dresher at 293; Civ.R.

56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits

or as otherwise permitted by Civ.R. 56, setting forth specific facts that show there is a

genuine issue of material fact for trial. Id. The evidence, however, must be construed

in favor of the nonmoving party. Id.

{¶ 31} “When reviewing the decision of a trial court granting or denying a party's

motion for summary judgment, an appellate court applies a de novo standard of review.”

Smathers v. Glass, 2022-Ohio-4595, ¶ 30, citing A.J.R. v. Lute, 2020-Ohio-5168, ¶ 15.

De novo review means that the appellate court uses the same standard that the trial court

should have used and examines all the Civ.R. 56(C) evidence available in the record,

without deference to the trial court’s determinations, to resolve whether, as a matter of -13-

law, summary judgment is appropriate. Ward v. Bond, 2015-Ohio-4297, ¶ 8 (2d Dist.).

“We must affirm the trial court's judgment if any of the grounds raised by the movant at

the trial court are found to support it, even if the trial court failed to consider those

grounds.” Cantrell v. Deitz, 2013-Ohio-1204, ¶ 9 (10th Dist.), citing Coventry Twp. v.

Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist. 1995).

{¶ 32} When we review a trial court’s decision de novo, the appellant must identify

the errors of the trial court with reference to the place in the record where each error is

reflected. App.R. 16(A). “In order to support reversal of a judgment, the record must

show affirmatively not only that error intervened but that such error was to the prejudice

of the party seeking such reversal.” Smith v. Flesher, 12 Ohio St.2d 107 (1967),

paragraph one of the syllabus.

IV. Second Assignment of Error

{¶ 33} Daly’s second assignment of error states:

THE TRIAL COURT ERROR IN GRANTING SUMMARY JUDGMENT

WHEN THE COURT RELIED UPON INCORRECT CALCULATION OF

THE STATUTE OF LIMITATIONS AS TO THE CAUSES OF ACTIONS

{¶ 34} The trial court dismissed the majority of Daly’s claims on the basis that he

filed the claims after the applicable statute of limitations had passed. In his appellate

brief, like his memorandum in opposition to the defendants’ motions for summary

judgment, Daly does not identify separate dates of accrual for any of his alleged claims.

Rather, Daly argues that the trial court erred in calculating the statute of limitations -14-

because “the accrual date for the torts could not have begun until after the reversal of the

underlying case.” Appellant’s Brief, p. 14.

{¶ 35} “Generally, a cause of action accrues and the statute of limitations begins

to run at the time the wrongful act was committed.” Norgard v. Brush Wellman, Inc.,

2002-Ohio-2007, ¶ 8, citing Collins v. Sotka, 81 Ohio St.3d 506, 507 (1998). “[A] cause

of action only arises for purposes of commencing the running of the statute of limitations

period when the plaintiff is aware, or should be aware, that he has been injured.” Bryant

v. Doe, 50 Ohio App.3d 19, 22 (2d Dist. 1988), citing O'Stricker v. Jim Walter Corp., 4

Ohio St.3d 84 (1983), paragraph two of the syllabus.

{¶ 36} Pursuant to R.C. 2305.03(A), “unless a different limitation is prescribed by

statute, a civil action may be commenced only within the period prescribed in sections

2305.04 to 2305.22 of the Revised Code. If interposed by proper plea by a party to an

action mentioned in any of those sections, lapse of time shall be a bar to the action.”

R.C. 2305.11(A) provides that “[a]n action for libel, slander, malicious prosecution, or false

imprisonment . . . shall be commenced within one year after the cause of action accrued

. . . .”

{¶ 37} Daly argues that none of his causes of action accrued until after the

dismissal of the underlying criminal case, which he states occurred on March 23, 2022.

Daly relies solely on Heck v. Humphrey, 512 U.S. 477 (1994), to support his position.

We conclude that Heck does not apply to extend the accrual date until the dismissal of

Daly’s criminal case for his claims.

{¶ 38} In Heck, a man convicted of voluntary manslaughter in Indiana state court -15-

sued prosecutors and a police investigator in federal court for allegedly “engag[ing] in an

‘unlawful, unreasonable, and arbitrary investigation’ leading to [his] arrest; ‘knowingly

destroy[ing]’ evidence ‘which was exculpatory in nature and could have proved [his]

innocence’; and caus[ing] ‘an illegal and unlawful voice identification procedure’ to be

used at [his] trial.” Id. at 478-479. Heck filed suit under 42 U.S.C. 1983, raising claims

that, if true, would have established the invalidity of his conviction. He did not seek

injunctive relief or request his release, but he sought compensatory and punitive monetary

damages, among other things. Notably, at the time Heck filed his federal civil suit, the

appeal of his criminal conviction in the state court was still pending.

{¶ 39} The District Court dismissed Heck’s Section 1983 complaint on the grounds

that, as Heck was challenging the legality of his conviction, where success would require

his release, the suit had to be classified as a habeas corpus action and dismissed

because Heck had failed to exhaust his state court remedies, as required for habeas

corpus cases. Id. at 479-480. The Seventh Circuit affirmed the judgment and approved

the reasoning of the District Court. Id. The United States Supreme Court accepted

certiorari.

{¶ 40} The decision of the Supreme Court centered around “the intersection of the

two most fertile sources of federal-court prisoner litigation,” 42 U.S.C. 1983 and the

federal habeas corpus statute. Id. at 480. At issue was whether Heck could file his

Section 1983 claim while his appeals were pending, because a successful resolution of

the civil suit in his favor would have resulted in reversal of his criminal conviction. The

Supreme Court concluded that Heck did not yet have a cognizable Section 1983 claim -16-

and that the lower court had properly dismissed the action. Id. at 489-490.

{¶ 41} In reaching its decision, the Supreme Court equated Heck’s claims with the

common law cause of action for malicious prosecution. Id. at 484. “One element that

must be alleged and proved in a malicious prosecution action is termination of the prior

criminal proceeding in favor of the accused.” (Citation omitted.) Id. The Court held

that, “in order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would render a

conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or called into question

by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486-

487. Therefore, where a plaintiff seeks damages in a Section 1983 suit, the trial court

“must consider whether the judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless

the plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Id. at 487. In such cases, the statute of limitations does not begin to run

until “the criminal proceeding has ended in the defendant's favor, or a resulting conviction

has been invalidated . . . .” McDonough v. Smith, 588 U.S. 109, 119-20 (2019), citing

Heck at 486-487. On the other hand, if the trial court “determines that the plaintiff's

action, even if successful, will not demonstrate the invalidity of any outstanding criminal

judgment against the plaintiff, the action should be allowed to proceed, in the absence of

some other bar to the suit.” (Emphasis in original.) Heck at 487. As the Court -17-

explained, “Just as a cause of action for malicious prosecution does not accrue until the

criminal proceedings have terminated in the plaintiff's favor, so also a § 1983 cause of

action for damages attributable to an unconstitutional conviction or sentence does not

accrue until the conviction or sentence has been invalidated.” (Citation omitted.) Id. at

489-490.

{¶ 42} Subsequent to its decision in Heck, the United States Supreme Court

decided Wallace v. Kato, 549 U.S. 384 (2007), which served, in some respects, to clarify

the holding in Heck. That case likewise involved a civil lawsuit filed in federal court

pursuant to 42 U.S.C. 1983.

{¶ 43} Following the dismissal of his criminal case, Wallace filed a Section 1983

lawsuit against several state actors seeking damages arising from his alleged unlawful

arrest. Wallace at 387. The district court granted summary judgment to respondents,

and the Seventh Circuit Court of Appeals affirmed, finding that the Section 1983 suit was

barred by the statute of limitations. Id. Wallace argued in the United States Supreme

Court that his Section 1983 claim could not have accrued until after his release from

custody when the State dropped its charges against him, because his unlawful arrest “set

the wheels in motion for his subsequent conviction and detention.” Id. at 391-392. The

Court disagreed, finding instead that “the statute of limitations upon a § 1983 claim

seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest

is followed by criminal proceedings, begins to run at the time the claimant becomes

detained pursuant to legal process,” not when he is ultimately released. Id. at 397.

{¶ 44} The Court further explained that Wallace’s reliance on Heck was misplaced. -18-

The Court held that Heck did not delay the accrual of the plaintiff's false arrest claim

because his claim became available “when he appeared before the examining magistrate

and was bound over for trial.” Id. at 391. At that time, “there was in existence no

criminal conviction that the cause of action would impugn; indeed, there may not even

have been an indictment.” Id. at 393. In contrast, “the Heck rule for deferred accrual is

called into play only when there exists ‘a conviction or sentence that has not been . . .

invalidated,’ that is to say, an ‘outstanding criminal judgment.’ ” (Emphasis in original.)

Id. at 393. “If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn

that conviction, Heck will require dismissal; otherwise, the civil action will proceed, absent

some other bar to suit.” (Citations omitted.) Id. at 394.

{¶ 45} Like the petitioner in Wallace, Daly contends that none of his causes of

action began to accrue until after his final case was dismissed. The Supreme Court

rejected Wallace’s contention, and we likewise reject Daly’s. The favorable-termination

requirement set forth in Heck only applies when a plaintiff brings a Section 1983 lawsuit

to obtain damages and “ ‘a judgment in favor of the plaintiff would necessarily imply’ that

his or her prior conviction or sentence was invalid.” McDonough, 588 U.S. at 119,

quoting Heck at 487. Daly did not allege a Section 1983 federal claim in his complaint,

and Heck does not apply to Daly’s state law claims.

{¶ 46} But even if Heck did apply, only Daly’s cause of action alleging malicious

prosecution included an element that the prosecution was terminated in his favor and,

therefore, the date of accrual for that cause of action would have begun once the criminal

case was terminated in his favor. None of the remaining causes of action would have -19-

invalidated Daly’s conviction had they been successful such that Daly would have had to

wait until his conviction was dismissed in the trial court before filing suit. Accordingly, we

cannot conclude that Heck extended the accrual date of all of Daly’s other causes of

action until his criminal case was dismissed in 2022.

{¶ 47} The second assignment of error is overruled.

V. Third Assignment of Error

{¶ 48} Daly’s third assignment of error states the following:

THE TRIAL COURT ERRORED IN GRANTING SUMMARY JUDGMENT

ON ALL CAUSES OF ACTION WHEN DEFENDANT ONLY PUT FORTH

SOME EVIDENTIARY MATERIALS AS TO SOME CAUSES OF ACTION

AND INSUFFICIENTLY PER DRESHER, id.

{¶ 49} In this assignment of error, Daly insists that the trial court erred in granting

summary judgment on all his claims because the defendants failed to specifically identify

documentary evidence in support of their motions to meet their burden under Dresher, 75

Ohio St.3d 280. We do not agree.

{¶ 50} “[T]he moving party bears the initial responsibility of informing the trial court

of the basis for the motion [for summary judgment], and identifying those portions of the

record before the trial court which demonstrate the absence of a genuine issue of fact on

a material element of the nonmoving party's claim.” Id. at 292. “[A] moving party does

not 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. at 293. However,

“summary judgment may be rendered where the pleadings and the arguments of the party -20-

seeking summary judgment clearly establish that the nonmoving party has no legally

cognizable cause of action.” (Emphasis in original.) Id. at 297-298.

{¶ 51} In addition to relying on the complaint and their answer, Riverside

Defendants supported their motion for summary judgment with Daly’s deposition

transcript and eight attached exhibits, all of which were identified during the deposition.

The exhibits included a copy of Daly’s written statement provided on November 2, 2018,

to Officer Perfetti; a certified copy of the ex parte protection order issued on October 31,

2018; a still photo of Daly at the police station on November 2, 2018, showing him holding

a copy of the ex parte protection order; a copy of the Riverside Police Department police

report; a copy of Daly’s civil complaint in the case sub judice; a certified copy of an entry

and order of the Municipal Court of Montgomery County in Case No. 2019-CRB-608E; a

copy of the July 30, 2019 complaint filed in Municipal Court of Montgomery County Case

No. 2019-CRB-734; and the March 19, 2021 final entry filed by this court in Daly, 2021-

Ohio-873 (2d Dist.). In support of his separate motion for summary judgment, Officer

Perfetti submitted his own affidavit and an affidavit of Christine Krueger, a former

detective with the Riverside Police Department, who had been involved in the

investigation of Daly’s cases and filed the criminal complaints against Daly. Kruger’s

affidavit identified two attached exhibits: a full Cellebrite Physical Analyzer Report of

S.H.’s cell phone and an extraction report of text messages between Daly and S.H.

obtained from S.H.’s cell phone. Additionally, Officer Perfetti submitted a thumb drive

containing audio and video recordings of his interactions with Daly on November 2, 2018,

which was identified in Daly’s deposition as Exhibit B. -21-

{¶ 52} Having reviewed the record de novo, we conclude that the defendants

satisfied their burden of identifying specific facts in the record demonstrating their

entitlement to summary judgment as to all of Daly’s claims and that Daly failed to meet

his reciprocal burden to set forth specific facts showing there was a genuine issue of

material fact for trial. We will address the trial court’s ruling in the context of each of

Daly’s claims.

a. False Arrest and False Imprisonment

{¶ 53} Daly listed false arrest and false imprisonment in his first claim for relief

against all the defendants and also included these two causes of action in the title of the

second, third, and fourth claims. However, Daly did not allege any facts in support of his

claims for false arrest and false imprisonment in the complaint. The defendants

presented the only evidence to the trial court relating to Daly’s bare assertions of false

arrest and false imprisonment. In the transcript of Daly’s deposition, Daly stated that he

had never been physically arrested, but he had been served with a summons; according

to Daly, the summons was equivalent to an arrest. Daly Depo. at 254. Additionally,

following Daly’s plea of no contest, the trial court ordered him to be fingerprinted at the

police station. According to Daly’s deposition testimony, when he appeared for

fingerprinting, he was temporarily taken into custody to be fingerprinted and then

released. Id. at 255-256. Daly stated that the first day he went to be fingerprinted, the

police were unable to complete the task, and Daly had to return another day to be

fingerprinted. Both the last service of summons and the fingerprinting occurred

sometime in 2019. Id. at 256-257. -22-

{¶ 54} “ ‘[F]alse arrest and false imprisonment as causes of action are

indistinguishable. The only distinction lies in the manner in which they arise.’ ” Rogers

v. Barbera, 170 Ohio St. 241, 243 (1960), quoting 22 Am.Jur., False Imprisonment, § 2

and 3, at 353 (1939). “In its essential elements, a claim for false arrest is

indistinguishable from a claim for false imprisonment in that each claim requires proof

that one was intentionally confined within a limited area, for any appreciable time, against

his will and without lawful justification.” (Citations omitted.) Evans v. Smith, 97 Ohio

App.3d 59, 70 (1st Dist. 1994). Because “false imprisonment” includes “false arrest,” the

one-year statute of limitations provided in R.C. 2305.11(A) applies to both causes of

action. (Citations omitted.) Mayes v. Columbus, 105 Ohio App.3d 728, 746 (10th Dist.

1995). “A cause of action for false arrest accrues on the day of the complainant's arrest.”

Aaron v. Venator Group, 2002 WL 192098, *2 (6th Dist. Feb. 8, 2002), citing Mayes at

746. A claim for false imprisonment, on the other hand, accrues when the alleged false

imprisonment ends. Cummins v. Madison Corr. Inst., 2011-Ohio-1608, ¶ 8 (10th Dist.),

citing Robinson v. Dept. of Rehab. & Corr., 2011-Ohio-713, ¶ 14 (10th Dist.).

{¶ 55} Daly contends that the cause of action for these claims did not arise until

after the dismissal of his final case based on the United States Supreme Court’s decision

in Heck, 512 U.S. 477. We explained above why this contention is incorrect. Further,

Ohio courts have explicitly rejected the contention that a cause of action for false arrest

does not accrue until the applicant was acquitted. Reagan v. City of Alliance, 1987 WL

11071, *1 (5th Dist. May 4, 1987) (the statute of limitations begins to run for an action for

false arrest or false imprisonment at the time of arrest because the action is not linked to -23-

the outcome of the criminal proceeding and all operative facts are known at the time of

arrest); Petty v. Kroger Food and Pharmacy, 2007-Ohio-5098, ¶ 18 (10th Dist.) (rejecting

appellant’s argument that a cause of action for false arrest accrues only upon termination

of the underlying criminal proceedings).

{¶ 56} It is at best doubtful whether Daly’s deposition testimony supported any of

the necessary elements of his false imprisonment and false arrest causes of action.

Regardless, these claims were barred by the statute of limitations, and defendants were

entitled to summary judgment. According to Daly’s deposition testimony, he was

“arrested” on the summons and detained for fingerprinting sometime in 2019. The

complaint was filed in 2023. Construing the evidence most strongly in favor of the

nonmoving party, the trial court correctly concluded that Daly’s false arrest and false

imprisonment claims were filed well outside the one-year statute of limitations.

Therefore, the trial court did not err by granting summary judgment in favor of all the

defendants with regard to these claims.

b. Defamation - Libel and Slander

{¶ 57} “Defamation is defined as a false publication which injures a person's

reputation.” Dale v. Ohio Civ. Serv. Emps. Assn., 57 Ohio St.3d 112, 117 (1991), citing

Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118 (1911). Defamation

includes both libel and slander. “Slander generally refers to spoken defamatory words

while libel refers to written or printed defamatory words.” Matikas v. Univ. of Dayton,

2003-Ohio-1852, ¶ 27 (2d Dist.), citing Lawson v. AK Steel Corp., 121 Ohio App.3d 251,

256 (12th Dist. 1997). “Ohio has held that the statute of limitations for defamation, be it -24-

libel or slander, begins to run at the time words are written or spoken, not when the plaintiff

became aware of them.” (Citations omitted.) Singh v. ABA Pub./Am. Bar Assn., 2003-

Ohio-2314, ¶ 22 (10th Dist.). Actions for libel and slander must be commenced within

one year after the cause of action accrued. R.C. 2305.11(A).

{¶ 58} Recently, the Ohio Supreme Court identified an exception that may extend

the time for when a cause of action for libel accrues. In cases where the “publication of

the libelous statements was secretive, concealed, or otherwise inherently unknowable to

the plaintiff due to the nature of the publication,” the discovery rule applies to extend the

time of accrual to when the plaintiff discovers, or by the exercise of reasonable diligence

should have discovered, that he or she was injured by the wrongful conduct of the

defendant. Weidman v. Hildebrant, 2024-Ohio-2931, ¶ 1, ¶ 14. This exception does

not apply in this case, however, as Daly was aware of all the purported libelous and/or

slanderous statements made by the defendants close in time to their alleged publications.

{¶ 59} As Riverside Defendants pointed out, Daly’s complaint and deposition

testimony alleged that all the defamatory statements made by Certo occurred on or before

May 2021. Complaint p. 5-7; Daly Depo. at 275-276. Similarly, based on Daly’s

complaint and deposition testimony, Slyman’s defamatory statements allegedly were

made during the course of prosecuting Daly’s cases in the municipal court. The last

alleged defamatory statement made by Slyman occurred on January 6, 2020. Complaint

p. 7-10; Daly Depo. at 201, 245-246.

{¶ 60} Daly did not identify in his complaint any defamatory statements allegedly

made by Officer Perfetti. According to his deposition testimony, however, Daly claimed -25-

Officer Perfetti made defamatory statements during the November 2, 2018 investigation

and in his police report, which was completed on November 3, 2018. Daly Depo. at 141-

142. Daly also believed that Officer Perfetti had had conversations with Certo and

Slyman during the course of the underlying criminal prosecution about Daly’s

inappropriate relationship with S.H. Id. at 117-124. Additionally, Daly testified about

alleged statements made by Officer Perfetti when he arrested an unidentified individual.

According to Daly, when the unidentified person informed Officer Perfetti he was going to

hire Daly, Officer Perfetti indicated that Daly had pending criminal cases and told the

unidentified person that Daly was “screwing this girl,” meaning S.H. Id. Considering

that the underlying criminal cases were concluded at the end of 2019 and S.H. died

sometime before we issued our decision in Daly on March 19, 2021, Perfetti’s purported

statements would have been made before March 19, 2021, which was more than one

year prior to the filing of Daly’s complaint.

{¶ 61} Daly failed to point to any evidence in his memorandum opposing summary

judgment that created a genuine issue of material fact as to whether his defamation claims

against Certo, Slyman, or Officer Perfetti accrued within one year of March 14, 2023.

Construing the evidence most strongly in favor of the nonmoving party, one can only

conclude that Daly’s defamation claims involving Certo, Slyman, and Officer Perfetti were

filed beyond the statute of limitations. Because the statute of limitations had expired on

Daly’s defamation claims involving Certo, Slyman, and Officer Perfetti, any potential

defamation claims against the remaining defendants under the theory of respondeat

superior were also extinguished by operation of law. Natl. Union Fire Ins. Co. of -26-

Pittsburgh, PA v. Wuerth, 2009-Ohio-3601, ¶ 22-24 (a principal is vicariously liable only

when an agent could be held directly liable). Accordingly, the trial court did not err by

granting summary judgment in favor of all the defendants on Daly’s defamation claims.

c. Abuse of Process

{¶ 62} “The tort of abuse of process arises when one maliciously misuses legal

process to accomplish some purpose not warranted by law.” Clermont Environmental

Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 11 (12th Dist. 1984), citing 1 Am.Jur.2d,

Abuse of Process, § 1, at 250 (1962). “In order to establish a claim of abuse of process,

a plaintiff must satisfy three elements: ‘(1) that a legal proceeding has been set in motion

in proper form and with probable cause; (2) that the proceeding has been perverted to

attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct

damage has resulted from the wrongful use of process.’ ” Robb v. Chagrin Lagoons

Yacht Club, Inc., 75 Ohio St.3d 264, 270 (1996), quoting Yaklevich v. Kemp, Schaeffer &

Rowe Co., L.P.A., 68 Ohio St.3d 294, 298 (1994). There is no liability for abuse of

process when “ ‘the defendant has done nothing more than carry out the process to its

authorized conclusion, even though with bad intentions.’ ” Yaklevich at 298, fn. 2, quoting

Prosser & Keeton, The Law of Torts, § 121, at 898 (5th Ed. 1984).

{¶ 63} “The gist of a claim for malicious prosecution, on the other hand, is the

employment of process for its ostensible purpose, but without regard for probable cause;

i.e., the use of legal process for the mere purpose of vexation or injury.” Hancock at 11,

citing 52 Am.Jur.2d, Malicious Prosecution, § 1, at 187 (1970). “Malicious prosecution

will generally lie where a lawsuit is begun in malice, without probable cause to believe it -27-

can succeed, and which finally ends in failure.” Id. Accordingly, “unlike malicious

prosecution, ‘termination of the prosecution in favor of the accused’ is not a necessary

element to establish an abuse-of-process claim.” (Emphasis in original.) Read v.

Fairview Park, 146 Ohio App.3d 15, 18 (8th Dist. 2001). An abuse-of-process claim

“accrues on the date of the allegedly tortious conduct.” Id. at 19. The claim is not tolled

until the State dismisses the underlying criminal action against the plaintiff. Id. Accord

Tri-State Computer Exchange, Inc. v. Burt, 2003-Ohio-3197, ¶ 18 (1st Dist.).

{¶ 64} “The key consideration in a malicious civil prosecution action is whether

probable cause was present initially to bring the previous suit, whereas the key

consideration in an abuse of process action is whether an improper purpose was sought

to be achieved by the use of a lawfully brought previous action.” Yaklevich at 300. “In

an abuse of process case, ‘[t]he improper purpose usually takes the form of coercion to

obtain a collateral advantage, not properly involved in the proceeding itself, such as the

surrender of property or the payment of money, by the use of the process as a threat or

a club.’ ” Robb at 271, quoting Prosser & Keeton, The Law of Torts, §121, at 898.

{¶ 65} Daly initially asserted the claim of abuse of process against both Certo and

Slyman in his complaint, yet during his deposition he acknowledged that the abuse of

process claim did not apply to Slyman. Daly Depo. at 258-259. As for the claim against

Certo, Daly alleged that Certo had abused the process by having Daly return to Ohio for

hearings in the underlying criminal case and then requesting a continuance. Id. This

occurred once or twice prior to January 6, 2020. While no facts were alleged in the

complaint involving Officer Perfetti that would have met the elements for an abuse of -28-

process claim, Daly claimed in his deposition that Officer Perfetti had committed abuse

of process on November 2, 2018. Id. at 125.

{¶ 66} The trial court granted summary judgment on Daly’s abuse of process claim

based on the expiration of the statute of limitations and, alternatively, because the

defendants were entitled to immunity. The statute of limitations for an abuse of process

claim is four years. Yaklevich at 300; R.C. 2305.09(D).

{¶ 67} The complaint did not alleged facts sufficient to state a claim for abuse of

process against Officer Perfetti. Assuming there were sufficient allegations, however,

the trial court correctly granted summary judgment on statute of limitations grounds.

Daly conceded in his deposition that the facts underlying his abuse of process claim

against Officer Perfetti occurred on November 2, 2018. Daly Depo. at 124-125.

Because Daly did not file his complaint within the four-year statute of limitations, the trial

court correctly granted summary judgment on this claim as it related to Officer Perfetti.

{¶ 68} Daly asserts that the trial court erred in granting summary judgment to Certo

on his abuse of process claims because the trial court incorrectly found that the claim was

filed outside of the statute of limitations and that Certo was entitled to immunity. We

need not address the statute of limitations argument with regard to Certo because the

trial court correctly found, in the alternative, that Certo was entitled to immunity.

{¶ 69} It is well-settled law in Ohio that prosecutors enjoy absolute immunity from

civil suit for acts committed in their roles as judicial officers. Willitzer v. McCloud, 6 Ohio

St.3d 447, 448-449 (1983). Prosecutors are entitled to absolute immunity for conduct

“intimately associated with the judicial phase of the criminal process.” Imbler v. -29-

Pachtman, 424 U.S. 409, 430 (1976). Prosecutors are considered “quasi-judicial”

officers and therefore are entitled to absolute immunity when their acts involve “ ‘initiating

a prosecution and presenting the State’s case.’ ” Willitzer at 449, quoting Imbler at 431.

{¶ 70} As the Riverside Defendants pointed out in their motion for summary

judgment, the only conduct alleged by Daly to constitute abuse-of-process by Certo was

when Certo, acting in his official capacity as a prosecutor, requested one or two

continuances of court hearings in the criminal case. Daly Depo. at 258-259. There is

no question that Certo, as the prosecuting attorney, was acting as a quasi-judicial officer

under these circumstances. The act of requesting a continuance with the trial court

qualifies as an act “intimately associated” with the “judicial phase” of a particular

proceeding and is neither administrative nor investigative. Certo carried his burden on

summary judgment to show that he was entitled to immunity, and Daly did not present

specific operative facts to rebut these claims. Therefore, the trial court correctly granted

summary judgment in favor of Certo on the basis of absolute immunity for this claim.

{¶ 71} Viewing the facts and construing the evidence in a light most favorable to

Daly as the non-moving party, we conclude that Riverside Defendants and Officer Perfetti

were entitled to summary judgment as a matter of law regarding Daly’s claims for abuse

of process.

d. Intentional Infliction of Emotional Distress

{¶ 72} Intentional infliction of emotional distress (“IIED”) is demonstrated where

one “by extreme and outrageous conduct intentionally or recklessly causes serious

emotional distress to another. . . .” Yeager v. Local Union 20, 6 Ohio St.3d 369 (1983), -30-

syllabus, abrogated on other grounds by Welling v. Weinfeld, 2007-Ohio-2451. To

prevail on an IIED claim, “a plaintiff must prove: (1) that the defendant either intended to

cause emotional distress, or knew or should have known that its conduct would result in

serious emotional distress to the plaintiff; (2) that the defendant's conduct was so extreme

and outrageous as to go beyond all possible bounds of decency and was such that it can

be considered utterly intolerable in a civilized community; (3) that the defendant's actions

proximately caused psychological injury to the plaintiff; and (4) that the plaintiff suffered

serious emotional distress of a nature no reasonable person could be expected to

endure.” (Citations omitted.) Rhoades v. Chase Bank, 2010-Ohio-6537, ¶ 15. “Only

the most extreme wrongs, which do great harm to the norms of a civilized society, will rise

to the level of extreme and outrageous conduct.” Martcheva v. Dayton Bd. of Edn., 2021-

Ohio-3524, ¶ 66 (2d Dist.), citing Brown v. Denny, 72 Ohio App.3d 417, 423 (2d Dist.

1997). “Liability for intentional infliction of emotional distress ‘does not extend to mere

insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” Rogers

v. Olt, 2018-Ohio-2110, ¶ 26 (2d Dist.), quoting Yeager at 375.

{¶ 73} The Supreme Court of Ohio has described “serious emotional distress” as

“emotional injury which is both severe and debilitating” and has held that it “may be found

where a reasonable person, normally constituted, would be unable to cope adequately

with the mental distress engendered by the circumstances of the case.” Paugh v. Hanks,

6 Ohio St.3d 72, 78 (1983), citing Rodrigues v. State, 52 Haw. 156, 173 (1970). “ ‘It has

not been enough that the defendant has acted with an intent which is tortious or even

criminal, or that he has intended to inflict emotional distress, or even that his conduct has -31-

been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff

to punitive damages for another tort.’ ” Reamsnyder v. Jaskolski, 10 Ohio St.3d 150, 153

(1984), quoting Restatement of the Law 2d, Torts, § 46, Comment d (1965). “ ‘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 Restatement

of the Law 2d, Torts, § 46, Comment d (1965). “It is the act, rather than the result, that

must be outrageous and extreme.” Georgin v. Georgin, 2022-Ohio-4328, ¶ 38 (12th

Dist.), citing Scott v. Spearman, 115 Ohio App.3d 52, 58 (5th Dist. 1996).

{¶ 74} IIED claims are generally subject to a four-year statute of limitations.

Yeager at syllabus. However, when the essential character of an IIED claim consists of

conduct that is, in substance, another tort, the statute of limitations for the other tort

controls. Weidman, 2024-Ohio-2931, at ¶ 26-27; Grover v. Bartsch, 2006-Ohio-6115,

¶ 52 (2d Dist.). “Where a claim for intentional infliction of emotional distress is set forth

under a separate count in a complaint, the applicable statute of limitations for the entire

claim is determined by the essential character of the underlying tort action.” (Citations

omitted.) Breno v. City of Mentor, 2003-Ohio-4051, ¶ 10 (8th Dist.), abrogated on other

grounds by Foley v. Univ. of Dayton, 2016-Ohio-7591.

{¶ 75} In his complaint, Daly listed an IIED claim under his first claim for relief but

included no supporting facts. Daly did not allege in his complaint or present any

evidence to ascertain that he had suffered the type of serious mental anguish required to

establish an IIED claim. In their motion for summary judgment, Riverside Defendants -32-

argued that Daly’s IIED claim should fail because there was no evidence that any of the

actions of the defendants went beyond all bounds of decency, that any of the defendants

had an intent to cause him severe emotional distress, or that Daly had suffered severe

emotional distress as a result of any actions of the defendants. In support of their motion,

Riverside Defendants pointed to Daly’s deposition testimony. Daly identified his being

“arrested on false charges,” as the basis of his IIED claim. Daly Depo. at 129. As a

result of his “arrest,” Daly claimed he had nightmares, “tremors, sweating, anxiety, panic,

confusion, anger, apathy, depression,” but he admitted that he did not seek any medical

attention, and no physician had diagnosed him with a medical condition resulting from his

arrest. Id. at 172-173.

{¶ 76} Officer Perfetti argued that the statute of limitations for this claim was one

year and, therefore, Daly’s claim was time barred. Officer Perfetti explained that

because the basis of Daly’s IIED claim was that Officer Perfetti’s actions had led to Daly’s

being “arrested on false charges,” then the IIED claim mirrored the tort of false arrest,

which was subject to a one-year statute of limitations. Because the “arrest” occurred

more than one year prior to the filing of Daly’s complaint, the claim was barred by the

statute of limitations.

{¶ 77} When Daly filed his memorandum in opposition to summary judgment, he

did not direct the court to any evidence in support of his IIED claim. Rather, he argued

that the statute of limitations did not begin to run until his final case was dismissed and,

therefore, his complaint for this claim was timely.

{¶ 78} The alleged conduct underlying Daly’s IIED claim was the same alleged -33-

conduct underlying his false arrest claim. Because the substance of Daly’s IIED claim

was virtually identical to his false arrest claim, the statute of limitations associated with

the false arrest claim controlled. Weidman, 2024-Ohio-2931, at ¶ 27. Daly alleged he

was falsely arrested in 2019 and, therefore, his complaint for IIED was barred by the one-

year statute of limitations.

{¶ 79} Even if the applicable statute of limitations had been four years, however,

we would still find that summary judgment was appropriate for at least two reasons. First,

Daly failed to plead that the mental anguish he suffered as a result of the defendants’

actions was of a nature that no reasonable person should be expected to endure it.

Consequently, there was no genuine issue of material fact for the IIED claim, and the

defendants were entitled to judgment as a matter of law. Malone v. Lowry, 2007-Ohio-

5665, ¶ 18 (2d Dist.). Second, “[a] plaintiff claiming severe and debilitating emotional

distress must present some ‘guarantee of genuineness’ in support of his or her claim to

prevent summary judgment in favor of the defendant.” Buckman-Peirson v. Brannon,

2004-Ohio-6074, ¶ 40 (2d Dist.), citing Paugh, 6 Ohio St.3d at 76. While expert medical

testimony may be a helpful and effective method of proving severe emotional distress,

such evidence is not always necessary. Nevertheless, “a plaintiff in a case for intentional

infliction of emotional distress must present some evidence beyond the plaintiff's own

testimony that he or she has experienced emotional distress due to the defendant's

actions.” Id. at ¶ 56. “Summary judgment [on an IIED claim] is appropriate when the

plaintiff presents no testimony from experts or third parties as to the emotional distress

suffered and where the plaintiff does not seek medical or psychological treatment for the -34-

alleged injuries.” Crable v. Nestle USA, Inc., 2006-Ohio-2887, ¶ 58 (8th Dist.), citing

Buckman-Peirson; Plikerd v. Mongeluzzo, 73 Ohio App.3d 115 (3d Dist. 1992); Sheets v.

Rockwell Internatl. Corp., 68 Ohio App.3d 345 (10th Dist. 1990).

{¶ 80} Here, Daly did not submit any evidence from an expert or third party to

substantiate his alleged serious emotional injury. On the contrary, Daly testified in his

deposition that he had not sought out any medical treatment for his perceived symptoms

and had no plans to do so. Daly Depo. at 173, 265. Because Daly failed to establish a

genuine issue of material fact relating to the serious and debilitating nature of his alleged

emotional injury, summary judgment was appropriate.

{¶ 81} Accordingly, the trial court did not err in granting summary judgment in favor

of Riverside Defendants and Officer Perfetti on Daly’s IIED claim.

e. Tortious Interference

{¶ 82} In the first claim of his complaint, Daly listed “tortious interference” and

“business tort.” No facts were alleged in support of these claims. During his deposition,

Daly identified the claim of “tortious interference” as “tortious interference with a contract.”

Daly Depo. at 130, 266. In describing the basis of the claim relating to Officer Perfetti,

Daly stated that it was “[a]rresting me on false charges and – not him arresting me, but

being in the group and being the match that started the fire, and having me falsely

arrested on these charges.” Id. at 130. As to the Riverside Defendants, Daly explained

that the tortious interference with contracts claim was related to “oral contracts of

representation that [he] would have gained from [his] client base that [he] didn’t gain.”

Id. at 271. Daly asserted there was one unidentified individual who did not hire him and -35-

was unable to identify any other individuals. Id. at 271-272. Daly alleged that the basis

of the “business tort” claim, which he explained was “another word for tortious interference

with contracts,” was that the tortious interference affected his bottom line. Daly claimed

that his business contracts were interfered with as a result of the false arrest and false

charges because they affected his reputation. Id. at 130-131. Daly alleged that there

was a “drop off in business,” which he also attributed somewhat to the COVID pandemic.

Id. at 272.

{¶ 83} “The torts of interference with business relationships and contract rights

generally occur when a person, without a privilege to do so, induces or otherwise

purposely causes a third person not to enter into or continue a business relation with

another, or not to perform a contract with another.” A & B-Abell Elevator Co. v.

Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 14 (1995). “A

claim for tortious interference with business relations differs from a claim for tortious

interference with contract in that the former claim allows recovery for improper

interference with prospective contractual relations.” Innovative Architectural Planners,

Inc. v. Ohio Dept. of Admin. Servs., 2024-Ohio-824, ¶ 22 (10th Dist.), citing Bansal v. Mt.

Carmel Health Sys., 2011-Ohio-3827, ¶ 30 (10th Dist.). The elements of tortious

interference with a contract include “(1) the existence of a contract, (2) the wrongdoer's

knowledge of the contract, (3) the wrongdoer's intentional procurement of the contract's

breach, (4) lack of justification, and (5) resulting damages.” Kenty v. Transamerica

Premium Ins. Co., 72 Ohio St.3d 415, 419 (1995).

{¶ 84} “ ‘The elements essential to recovery for a tortious interference with a -36-

business relationship are: (1) a business relationship; (2) the wrongdoer's knowledge

thereof; (3) an intentional interference causing a breach or termination of the relationship;

and (4) damages resulting therefrom.’ ” Kademian v. Marger, 2012-Ohio-962, ¶ 93 (2d

Dist.), quoting Wolf v. McCullough-Hyde Mem. Hosp., 67 Ohio App.3d 349, 355 (12th

Dist. 1990). “It does not require the breach of a contract; rather, it is enough to prove

that a third party did not enter into or continue a business relationship with the plaintiff.”

AEGIS, LLC v. Schlorman, 2024-Ohio-3325, ¶ 20 (2d Dist.), citing Gentile v. Turkoly,

2017-Ohio-1018, ¶ 24 (7th Dist.).

{¶ 85} The applicable statute of limitations for a claim of tortious interference with

a contract is generally four years after the cause of action accrued. R.C. 2305.09(D).

Because Daly alleged that Officer Perfetti’s conduct of “starting the fire,” i.e., investigating

Daly’s complaint and writing a police report, was the act that facilitated the tortious

interference, the trial court granted summary judgment based on the expiration of the

statute of limitations. According to Officer Perfetti’s affidavit, all of his conduct involved

in the underlying criminal cases occurred on November 2 and 3, 2018, which was more

than four years before Daly filed his complaint.

{¶ 86} Moreover, as the defendants pointed out in their motions for summary

judgment, Daly did not establish all the necessary elements to prove tortious interference

with a contractual relationship or a business relationship and, therefore, summary

judgment was appropriate on that basis as well. According to Daly’s deposition

testimony, he never had a contract with an individual that he claimed was lost as a result

of his “arrest” and prosecution. Rather, he argued there were oral contracts that he -37-

would have gained but did not, i.e., prospective contracts. “[T]he element requiring the

existence of a valid contract is the threshold issue in determining whether a tortious

interference with a contract has occurred . . . .” Sharp v. Clark, 1992 WL 107849, *6 (2d

Dist. May 20, 1992). Absent evidence of a contract, the first element of the tortious

interference with a contract claim fails. Ettayem v. Ramsey, 2019-Ohio-675, ¶ 22 (10th

Dist.). Because Daly’s deposition testimony made it clear he had not had any contracts

that were breached or terminated because of his “arrest” and prosecution, summary

judgment as to all defendants was appropriate on Daly’s claim of tortious interference

with a contractual relationship.

{¶ 87} Furthermore, where a plaintiff fails to identify anyone with whom plaintiff had

a business relationship or prospective contractual relationship that was terminated

because of defendant’s alleged intentional contractual interference, summary judgment

is proper. Marinelli v. Prete, 2010-Ohio-2257, ¶ 41 (6th Dist.). As Riverside Defendants

pointed out, Daly was unable to identify any specific business relationship that was

affected. Daly Depo. at 271-272. At best, Daly mentioned an unnamed individual who

he believed had not hired him solely as a result of comments allegedly made by Officer

Perfetti. Daly was unable to identify who the prospective client was, what the contract

would have entailed, or what the damages would have been. Moreover, “a statement

from unknown sources . . . is inadmissible hearsay, and does not create issues of material

fact.” Stillwell v. Xenia, 2001 WL 127880, *6 (2d Dist. Feb. 16, 2001). Considering Daly

failed to allege any facts or state any elements of this claim in his complaint, and the

defendants affirmatively demonstrated that Daly’s sole evidence did not create a genuine -38-

issue of material fact, we conclude that summary judgment was appropriate on this

alternative basis. See Cantrell, 2013-Ohio-1204, at ¶ 9 (10th Dist.).

f. Other Claims

{¶ 88} The substance of Daly’s claims is not apparent from the complaint due to

his lack of compliance with Civ.R. 8(A) and (E). Daly’s complaint failed to identify any

facts whatsoever to support his first claim for relief, which listed claims of false arrest,

abuse of process, abuse of police powers, malicious prosecution, sham prosecution, false

imprisonment, intentional infliction of mental distress, tortious interference, retaliatory

conspiracy, business tort, damage to reputation, civil rights violations, a pattern of corrupt

activities, “a pattern of abuse under,” retaliatory action and conspiracy to damage him,

intentional acts of reprisal, libel, slander, failure to properly supervise, failure to monitor

its employee’s acts, failure to properly supervise, and failure to control employees.

Daly’s remaining claims consisted of mostly conclusory statements and generally lacked

clarity due to the dearth of factual allegations asserted. As the trial court observed, some

of Daly’s claims listed in the complaint “are not recognized in Ohio,” while others appeared

to be “restatements of recognized claims but using similar wording.” Moreover, Daly’s

failure to allege the elements of all the claims that he raised in his complaint made it

virtually impossible to identify the basis for the potential claims. But for Daly’s deposition

testimony, most of his claims would have been impossible to decipher.

{¶ 89} When deciding a motion for summary judgment, the court must consider

whether there are any genuine issues of material fact in dispute. Both Riverside

Defendants and Officer Perfetti argued in their motions for summary judgment that the -39-

remaining claims were either not cognizable under Ohio law or there was insufficient

evidence of disputed material facts in relation to the claims. There were no affidavits or

other evidence presented by Daly after the defendants met their summary judgment

burden that put any material facts in dispute.

{¶ 90} We have already addressed several specific claims that were listed in Daly’s

complaint. As for the remaining claims, Daly states in his appellate brief that these

additional claims “go directly, at a minimum, to the necessary elements of a successful

malicious prosecution claim . . . .” Appellant’s Brief, p. 16. We agree with the trial court

that some of the remaining “claims” are not recognized claims in Ohio and/or are

duplicates. We also tend to agree with Daly that several of the remaining “claims” are

part and parcel of the malicious prosecution claim and, therefore, fall under that claim

rather than separate claims. We cannot conclude that Daly has adequately supported

any other cognizable claim based on his complaint, deposition testimony, or other Civ.R.

56(C) evidence in the record. Accordingly, we conclude that the defendants were

entitled to summary judgment on the remaining claims listed by Daly, not on statute of

limitations grounds, but because there were no genuine issues of material fact relating to

these claims separate and apart from the malicious prosecution claim.

g. Malicious prosecution

{¶ 91} The trial court found that Daly’s malicious prosecution claim was not barred

by the statute of limitations. However, the trial court held that Certo, Slyman, Officer

Perfetti, and the City of Riverside were entitled to immunity and granted their motions for

summary judgment on that basis. Daly takes issue with the trial court’s finding that -40-

Slyman and Certo were entitled to immunity from the malicious prosecution claim.

Because Daly’s fourth assignment of error deals explicitly with Slyman’s immunity, we will

consider that issue under the fourth assignment of error. Daly does not specifically argue

that either Officer Perfetti or the City of Riverside were not entitled to immunity. Rather,

he argues generally that the defendants failed to satisfy their burden under Dresher, 75

Ohio St.3d 280, and, therefore, were not entitled to immunity. We note that Daly testified

in his deposition that his malicious prosecution claim did not apply to either of the law

firms. Daly Depo. at 262.

{¶ 92} “R.C. Chapter 2744, the Political Subdivision Tort Liability Act, sets forth a

comprehensive statutory scheme for the tort liability of political subdivisions and their

employees.” Supportive Solutions, L.L.C. v. Elec. Classroom of Tomorrow, 2013-Ohio-

2410, ¶ 11. Determining whether a political subdivision is immune from tort liability

pursuant to R.C. Chapter 2744 involves a three-tiered analysis. Lambert v. Clancy,

2010-Ohio-1483, ¶ 8. “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.’ ” Id., quoting R.C. 2744.02(A)(1). The statutory definition of

“governmental function” includes police and prosecutorial functions. R.C.

2744.01(C)(2)(a) and (f). “That immunity, however, is not absolute.” McConnell v.

Dudley, 2019-Ohio-4740, ¶ 21.

{¶ 93} “The second tier of the sovereign-immunity analysis involves determining -41-

whether any of the five exceptions to immunity that are listed in R.C. 2744.02(B) apply to

expose the political subdivision to liability.” Id. at ¶ 22, citing Pelletier v. Campbell, 2018-

Ohio-2121, ¶ 15. “If any of the exceptions to immunity in R.C. 2744.02(B) do apply and

no defense in that section protects the political subdivision from liability, then the third tier

of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03

apply, thereby providing the political subdivision a defense against liability.” Colbert v.

Cleveland, 2003-Ohio-3319, ¶ 9.

{¶ 94} Immunity is also given to employees of political subdivisions. R.C.

2744.03(A)(6). “For claims against individual employees, the three-tiered analysis used

to determine whether a political subdivision is immune is not used.” Lambert at ¶ 10,

citing Cramer v. Auglaize Acres, 2007-Ohio-1946, ¶ 17. “R.C. 2744.03(A)(6) states that

an employee is immune from liability unless the employee's actions or omissions are

manifestly outside the scope of employment or the employee's official responsibilities, the

employee's acts or omissions were malicious, in bad faith, or wanton or reckless, or

liability is expressly imposed upon the employee by a section of the Revised Code.”

Cramer at ¶ 17.

{¶ 95} “Willful misconduct implies an intentional deviation from a clear duty or from

a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to

safety, or purposefully doing wrongful acts with knowledge or appreciation of the

likelihood of resulting injury.” Anderson v. Massillon, 2012-Ohio-5711, ¶ 32, citing Tighe

v. Diamond, 149 Ohio St. 520, 527 (1948). “Wanton misconduct is the failure to exercise

any care toward those to whom a duty of care is owed in circumstances in which there is -42-

great probability that harm will result.” Id. at ¶ 33, citing Hawkins v. Ivy, 50 Ohio St.2d

114, 117-118 (1977). “Reckless conduct is characterized by the conscious disregard of

or indifference to a known or obvious risk of harm to another that is unreasonable under

the circumstances and is substantially greater than negligent conduct.” Id. at ¶ 34, citing

Thompson v. McNeill, 53 Ohio St.3d 102, 104-105 (1990). The standard of

demonstrating wanton misconduct is high. Fabrey v. McDonald Village Police Dept., 70

Ohio St.3d 351, 356 (1994).

{¶ 96} R.C. 2744.03(A)(6) provides that this qualified immunity is “[i]n addition to

any immunity or defense referred to in division (A)(7) of this section and in circumstances

not covered by that division.” R.C. 2744.03(A)(7) states: “The political subdivision, and

an employee who is a county prosecuting attorney, city director of law, village solicitor, or

similar chief legal officer of a political subdivision, an assistant to such person, or a judge

of a court of this state is entitled to any defense or immunity available at common law or

established by the Revised Code.” Thus, R.C. 2744.03(A)(7) preserves the absolute

immunity available to prosecutors at common law.

{¶ 97} As noted previously, it is well-settled common law in Ohio that prosecutors

enjoy absolute immunity from suit for acts committed in their roles as judicial officers.

Prosecutors are considered “quasi-judicial” officers, and as such they are entitled to

absolute immunity when their activities are “intimately associated with the judicial phase

of the criminal process.” Willitzer, 6 Ohio St.3d at 449, quoting Imbler, 424 U.S. at 430.

“The decision to initiate, maintain, or dismiss criminal charges is at the core of the

prosecutorial function.” McGruder v. Necaise, 733 F.2d 1146, 1148 (5th Cir. 1984). -43-

{¶ 98} “Whether a party is entitled to immunity is a question of law properly

determined by the court prior to trial pursuant to a motion for summary judgment.”

Pelletier, 2018-Ohio-2121, at ¶ 12, citing Conley v. Shearer, 64 Ohio St.3d 284, 292

(1992).

i. City of Riverside Immunity

{¶ 99} The City of Riverside argued that it was entitled to summary judgment on

all of Daly’s claims because it was immune from liability under R.C. Chapter 2744, not

just for the malicious prosecution claim but for all of Daly’s alleged claims. The City of

Riverside asserted that it was immune from liability under R.C. 2744.02(A)(1) for acts

committed while performing a governmental function, and none of the exceptions to

immunity under R.C. 2744.02(B) existed. We agree.

{¶ 100} There is no dispute that the City of Riverside is a political subdivision and

therefore able to assert immunity. R.C. 2744.02(A)(1). Daly’s complaint alleged that

the City of Riverside was liable in tort based on the theory of respondeat superior for the

actions of Certo, Slyman, and Officer Perfetti. The City of Riverside’s alleged liability

was entirely based on the actions of its employees as prosecutors and police officers

while performing a governmental function (R.C. 2744.01(C)(2)(a) and (C)(2)(f),

respectively). Thus, the City of Riverside was immune from liability unless an exception

to immunity set forth in R.C. 2744.02(B) existed.

{¶ 101} “The five exceptions to immunity are: (1) the negligent operation of a motor

vehicle by an employee of the political subdivision, (2) negligent performance of acts by

employees of the political subdivision with respect to ‘proprietary functions’ of the political -44-

subdivision, (3) negligent failure of the political subdivision to keep public roads in good

repair, (4) negligent creation or failure to remove physical defects in buildings and

grounds; and (5) where civil liability is expressly imposed upon a political subdivision by

another section of the Revised Code.” Reno v. Centerville, 2004-Ohio-781, ¶ 50 (2d

Dist.). “A political subdivision may not be held liable under a theory of respondeat

superior unless one of the exceptions to the sovereign immunity listed in R.C. 2744.02(B)

applies.” Id. at ¶ 53, citing Lee v. Cleveland, 2003-Ohio-742 (8th Dist.). Additionally,

“courts have generally held that because R.C. 2744.02(B) includes no specific exceptions

for intentional torts, political subdivisions are immune from intentional tort claims.”

Henderson v. Euclid, 2015-Ohio-15, ¶ 62 (8th Dist.) (listing cases).

{¶ 102} In his memorandum in opposition to summary judgment, Daly argued that

the City of Riverside was not immune from liability because the City had acquiesced in

allowing Slyman to act as prosecutor on Daly’s case. This assertion does not fall within

any of the five exceptions contained in R.C. 2744.02(B). “[A] political subdivision's

immunity can be removed only through one of the enumerated exceptions found in R.C.

2744.02(B)(1) through (5).” O'Toole v. Denihan, 2008-Ohio-2574, ¶ 71, citing Colbert,

2003-Ohio-3319, at ¶ 8.

{¶ 103} Daly has not pointed to the applicability of any of the five exceptions.

Viewing the evidence in the light most favorable to Daly, we conclude that none of the

exceptions to immunity found in R.C. 2744.02(B) were applicable under the facts of this

case. Therefore, pursuant to R.C. 2744.02(A)(1), the City of Riverside was immune from

liability for any alleged damage arising from the investigation, prosecution, and detention -45-

of Daly, and it was entitled to summary judgment as a matter of law.

ii. Certo’s Immunity

{¶ 104} Daly complains on appeal that Certo did not identify any evidence in the

record to support his entitlement to immunity in his motion for summary judgment.

Furthermore, Daly argues that Certo’s conduct “alleged in the complaint of using his

position of authority in order to gain favor from the city of Dayton police and influence

them in bringing charges against Daly, is definitely not conduct of a ‘governmental

function’ that he is engaging in and it is clearly outside the scope of an employee for the

municipality.” Appellant’s Brief at p. 17.

{¶ 105} In its motion for summary judgment, Riverside Defendants cited a portion

of Daly’s deposition testimony that explained the sole basis for his malicious prosecution

claim against Certo. Riverside Defendants’ Motion for Summary Judgment (Jan. 2,

2024), p. 2. Daly stated that “Certo had no probable cause to prosecute this matter” and

“continued to try to have the case unsealed for no reason.” Daly Depo. at 259-260.

Further, Daly stated that Certo had attempted to amend the complaint in Case No. 2019-

CRB-734E to have Daly booked and fingerprinted again, “things that you don’t do as a

prosecutor.” Id. Riverside Defendants argued that Certo was entitled to absolute

immunity pursuant to both statutory and common law authority. Riverside Defendants’

Motion for Summary Judgment (Jan. 2, 2024), p. 7-8.

{¶ 106} Both Daly’s complaint and deposition testimony clearly established that

Certo was the acting prosecutor for the City of Riverside at all relevant times. As the

prosecutor, Certo’s decisions to initiate and maintain the prosecution against Daly were -46-

“intimately associated with the judicial phase of the criminal process.” See Willitzer, 6

Ohio St.3d at 449. Thus, Certo had absolute immunity in connection with those

decisions. We also conclude that Certo’s decision to pursue the unsealing of Case No.

2019-CRB-608E fell within the bounds of absolute immunity. Pursuant to the sealing

statutes, it is within the discretion of the prosecutor to object to an application to seal a

record. R.C. 2953.33(B)(1). Furthermore, Certo successfully argued on appeal that the

trial court had correctly vacated its order sealing the records in Case No. 2019-CRB-

608E. Daly, 2021-Ohio-873, at ¶ 17 (2d Dist.). Finally, we conclude that Certo was also

entitled to immunity when he attempted to amend the complaint following the remand of

Case No. 2019-CRB-734E. Although we ultimately disagreed with Certo’s arguments

on appeal, he was performing his actions in a prosecutorial function, i.e., filing motions

and submitting briefs as an advocate on behalf of the City of Riverside. “ ‘[P]rosecutors

enjoy absolute immunity from suit for acts committed in their role as judicial officers.’ ”

Rieger v. Marsh, 2011-Ohio-6808, ¶ 35 (2d Dist.), quoting Hawk v. Am. Elec. Power Co.,

2004-Ohio-7042, ¶ 8 (3d Dist.).

{¶ 107} Daly’s sole argument on appeal opposing Certo’s immunity is that Certo

acted outside the scope of his employment when he contacted the Dayton Police

detective about Daly’s April 24, 2021 email. Daly acknowledged that he had emailed

Certo regarding an outstanding payment for the court of appeals fees. Daly Depo. at

205-207. The police detective Daly spoke with indicated that Certo had perceived Daly’s

email as a threat to report him personally if he did not pay Daly’s appellate costs. Daly

admitted that he sent the email to Certo stating that “you have to pay these court costs or -47-

I’m turning this over to collection, or three major collection bureaus.” Id. Daly explained

that he had contacted Certo because Certo was the attorney for the City of Riverside, the

party that owed the money, but stated that he had not expected Certo to personally pay

the costs. Id.

{¶ 108} Evidence of Certo’s complaint to the Dayton Police about Daly’s email did

not fall within the confines of Daly’s malicious prosecution claims against Certo because

no prosecution was instituted regarding Certo’s complaint to the Dayton Police. Further,

we cannot conclude under these circumstances that this action demonstrated willful or

wanton misconduct so as to remove Certo’s statutory immunity. Nor was it sufficient to

demonstrate that Certo had acted maliciously, in bad faith, wantonly, or recklessly to

remove his statutory immunity under R.C. 2744.03(A)(6). Because Certo was entitled to

immunity, the trial court properly granted his motion for summary judgment on this claim.

iii. Officer Perfetti’s Immunity

{¶ 109} Daly does not argue on appeal that Officer Perfetti was not entitled to

immunity. Rather, he summarily argues that the trial court erred in granting summary

judgment to all of the defendants.

{¶ 110} “Law enforcement officers are political subdivision employees.” Hoffman

v. Gallia Cty. Sheriff's Office, 2017-Ohio-9192, ¶ 37 (4th Dist.). Under R.C.

2744.03(A)(6)(b), political subdivision employees are immune from liability unless their

acts or omissions are done “with malicious purpose, in bad faith, or in a wanton or reckless

manner.” The evidence in this case demonstrated that Officer Perfetti was the

responding officer who took Daly’s complaint against S.H., which also resulted in Daly’s -48-

subsequent criminal prosecution for violation of a protection order. Perfetti Affidavit.

The investigation itself was initiated by Daly, who wished to file a complaint against S.H.

for an alleged theft of a necklace. Id. Officer Perfetti contacted S.H. to confront her

about Daly’s accusations and she provided him with the allegedly stolen necklace. Id.

She also showed Officer Perfetti several photographs that seemed to corroborate that

Daly had gifted her the necklace rather than her stealing it. Id. Officer Perfetti then met

with Daly and returned the necklace to him. Id. Following the return of the necklace,

Daly offered Officer Perfetti a coupon for one free legal service, a knife, and nude photos

of S.H., all of which Perfetti rejected. Id. Daly also informed Officer Perfetti that he was

carrying a gun, which was in violation of an ex parte civil protection order. Id.; Daly Depo.

Ex. A & C. Officer Perfetti’s only involvement occurred when he investigated the

complaint against S.H. on November 2, 2018, informed his superiors of the investigation,

and submitted a police report the following day. Id. Officer Perfetti conducted no further

investigation or interviews of any additional witnesses. Id. Officer Perfetti was not

involved in the decision to prosecute Daly or the prosecution itself. Id. Officer Perfetti

did not arrest Daly and had no further involvement in the case. Id. Daly did not point to

any Civ.R. 56(C) materials in opposition to summary judgment demonstrating that Officer

Perfetti acted with malicious purpose, in bad faith, or in a wanton or reckless manner or

acted outside the scope of his employment.

{¶ 111} Viewing the record in the light most favorable to Daly, we conclude that

there were no genuine issues of material fact and that Officer Perfetti was entitled to

judgment as a matter of law because there was no evidence that he acted with malicious -49-

purpose, in bad faith, or in a wanton or reckless manner. Officer Perfetti was therefore

entitled to immunity under R.C. 2744.03(A)(6)(b) and to summary judgment.

h. Vicarious Liability

{¶ 112} The trial court concluded that there was no basis for any derivative liability

against Altick & Corwin or Buckley King because Certo was entitled to summary judgment

on all claims alleged against him. Daly has not challenged this aspect of the trial court’s

decision on appeal. Nevertheless, we agree with the trial court.

{¶ 113} Daly’s sole theory of liability against the law firms was based upon the

doctrine of respondeat superior. “This doctrine of liability depends on the existence of

control by a principal (or master) over an agent (or servant), terms that [the Ohio Supreme

Court has] used interchangeably.” Wuerth, 2009-Ohio-3601, at ¶ 20, citing Hanson v.

Kynast, 24 Ohio St.3d 171, 173 (1986). “Although a party injured by an agent may sue

the principal, the agent, or both, a principal is vicariously liable only when an agent could

be held directly liable.” Id. at ¶ 22. “If there is no liability assigned to the agent, it

logically follows that there can be no liability imposed upon the principal for the agent's

actions.” Comer v. Risko, 2005-Ohio-4559, ¶ 20, citing Losito v. Kruse, 136 Ohio St. 18

(1940), and Herron v. Youngstown, 136 Ohio St. 190 (1940). Because Certo was

entitled to summary judgment on all the claims alleged against him, the law firms were

likewise entitled to summary judgment on Daly’s vicarious liability claims.

{¶ 114} Having found that all the defendants were entitled to summary judgment

on all of the claims discussed above, Daly’s third assignment of error is overruled.

VI. Fourth Assignment of Error -50-

{¶ 115} In his final assignment of error, Daly makes the following argument:

THE TRIAL COURT ERRORED BY SUMMARILY AND WITHOUT ANY

EVIDENTIARY MATERIAL LISTED IN CIV RULE 56(C) APPLIED

IMMUNITY STATUS TO A FAUX PROSECUTOR WITH NO LEGAL BASIS

{¶ 116} Daly’s arguments in his fourth assignment of error focus on the trial court’s

finding that Slyman was immune from liability on the claim of malicious prosecution

because there was no evidence in the record that Slyman had been a lawfully appointed

special prosecutor or employed by the City of Riverside. According to Daly, Slyman was

not entitled to immunity and summary judgment was improperly granted as to Daly’s

malicious prosecution claim against Slyman. We disagree and conclude that Slyman

was entitled to summary judgment on Daly’s malicious prosecution claim based on

immunity and the fact that probable cause existed.

{¶ 117} Daly’s complaint alleged that on September 13, 2019, attorney Slyman

appeared at the Municipal Court in Huber Heights, Ohio, and presented himself to Daly

and the trial court as the duly appointed special prosecutor in the cases. Slyman

participated in all the court conferences and motions and made various plea offers to Daly

during the pendency of the cases. Slyman met with the complainant in the Montgomery

County Jail1 and ordered the Riverside Police Department to bring forth the fourth charge

against Daly.2 Complaint p. 7-9.

{¶ 118} According to Daly’s complaint, during plea discussions, Slyman stated that

1 The “complainant” was later identified in Daly’s deposition as S.H.

2 The fourth charge was filed in Case No. 2019-CRB-734E on July 30, 2019. -51-

the “Top Brass” of the Riverside Police Department had to have Daly enter a guilty plea

on the charges, but Daly refused to plead guilty. Slyman then offered for Daly to plead

no contest and “in return we don’t take this to the media.” Daly accepted the offer from

Slyman and entered a no contest plea on September 13, 2019, to the separately charged

violation of a protection order offense in Case No. 2019-CRB-734E in exchange for

dismissal of the three charges in Case No. 2019-CRB-608E. Complaint at p. 8.

{¶ 119} Daly also alleged in his complaint that on December 5, 2019, Slyman had

emerged from Certo’s office at the Huber Heights courthouse and told Daly that “he was

‘coming at [Daly] now’ because [Daly] filed an appeal.” Slyman stated “Ha, Ha, YOU

DON’T HAVE A FINAL APPEALABLE Order, see you at sentencing.” (Emphasis in

original.) Daly testified in his deposition that these statements were made by Slyman

while “still acting as a prosecutor in the case.” Daly Depo. at 24-235. We note that

following the initial notice of appeal in Case No. 2019-CRB-734E, this court determined

that the trial court’s judgment was not a final appealable order and dismissed the appeal

for lack of jurisdiction.

{¶ 120} Slyman never provided any documentation to Daly as to his appointment

as a special prosecutor. According to Daly, Slyman informed Daly that he should contact

the City of Riverside manager Joshua Rausch even though Rausch was not the city

manager at the time of Daly’s prosecution by Slyman. Complaint at p. 7-10.

{¶ 121} Daly testified during his deposition that Slyman’s statements about

pleading guilty or going to the media and Slyman’s statements on December 5, 2019,

were indicative of malicious prosecution. Daly Depo. at 261-262. Daly also discussed -52-

a motion filed by Certo on May 6, 2021, in the underlying criminal case that stated Certo

denied having a conflict of interest with the case and “gave the case to someone else” to

“more efficiently distribute his workload.” Id. at 218-219.

{¶ 122} The trial court found that Slyman was entitled to immunity based on his

role as a representative of the City of Riverside in prosecuting Daly. The trial court

focused on Slyman’s functions, which included interviewing witnesses, appearing in court

as the City’s representative, and discussing plea offers. Even if Slyman’s actions were

committed with only the acquiescence of the City, the trial court concluded this was

enough to grant Slyman immunity for his actions. We agree with the trial court.

{¶ 123} Under R.C. 2744.03(A)(1), employees of a political subdivision are granted

immunity in civil actions seeking to recover damages for injury, death, or loss to person

or property allegedly caused by any act or omission in connection with a governmental or

proprietary function if the employee involved was engaged in the performance of a

judicial, quasi-judicial, prosecutorial, legislative, or quasi-legislative function. An

“employee” is defined, in part, as “an officer, agent, employee, or servant, whether or not

compensated or full-time or part-time, who is authorized to act and is acting within the

scope of the officer's, agent's, employee's, or servant's employment for a political

subdivision.” R.C. 2744.01(B). R.C. 2938.13 provides that “[i]n any case prosecuted

for violation of a municipal ordinance the village solicitor or city director of law, and for a

statute, he or the prosecuting attorney, shall present the case for the municipal

corporation and the state respectively, but either may delegate the responsibility to some

other attorney in a proper case, or, if the defendant be unrepresented by counsel may -53-

with leave of court, withdraw from the case.” The statutory immunity provided to

prosecutors under R.C. Chapter 2744 is in addition to the absolute immunity provided for

by common law immunity. Absolute immunity is granted to prosecutors for claims arising

out of their initiation of a prosecution and advocating the state's case but does not extend

to merely investigative or administrative functions. Imbler, 424 U.S. at 431.

Consequently, we look to “ ‘the functional nature of the activities’ of which the plaintiff

complains” to determine whether absolute immunity applies. McGruder, 733 F.2d at

1148 (5th Cir.), quoting Imbler at 430.

{¶ 124} Based on Daly’s allegations, Slyman presented himself to the trial court as

the prosecutor on the case and acted in accordance with his role as an advocate for the

City of Riverside. Slyman engaged in prosecutorial functions including interviewing S.H.,

filing motions on behalf of the City of Riverside, and engaging in plea negotiations.

“[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or

for trial, and which occur in the course of his role as an advocate for the State, are entitled

to the protections of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993). According to Daly’s deposition transcript, Slyman prosecuted the case because

Certo was trying to “more efficiently distribute his workload.” Daly Depo. at 218. Daly

did not challenge Slyman’s authority to prosecute the case in the municipal court and

benefitted from plea negotiations with him by entering a no contest plea in return for the

dismissal of three charges. Id. at 244-245. Daly could have filed a motion in the criminal

case to dismiss the complaint or to remove counsel, but he did not. See State ex rel.

Burkons v. Beachwood, 2021-Ohio-950, ¶ 13 (8th Dist.). Nevertheless, Daly pointed to -54-

no Civ.R. 56(C) evidence that raised a genuine issue of material fact as to Slyman’s acts

performed as a prosecutor on behalf of the City of Riverside. Accordingly, we conclude

Slyman was entitled to immunity for his actions.

{¶ 125} Even if Slyman were not entitled to immunity, Slyman was entitled to

summary judgment on other grounds. In addition to arguing that Slyman was entitled to

statutory and common law immunity, Riverside Defendants also argued that there was

no issue of material fact in dispute for the malicious prosecution claim. Specifically, they

argued that there was probable cause to pursue the charges against Daly and there was

no evidence of malice.

{¶ 126} In order to prevail on a malicious prosecution claim, the plaintiff must

prove: “(1) malice in instituting or continuing the prosecution, (2) lack of probable cause,

and (3) termination of the prosecution in favor of the accused.” Criss v. Springfield Twp.,

56 Ohio St.3d 82, 84 (1990), citing Trussell v. General Motors Corp., 53 Ohio St.3d 142

(1990). “Malice” for purposes of a claim of malicious criminal prosecution “means an

improper purpose, or any purpose other than the legitimate interest of bringing an

offender to justice.” (Citations omitted.) Id. at 85. “[C]laims for malicious prosecution

are not favored at law because they ‘act as a restraint upon the right to resort to the courts

for lawful redress.’ ” Froehlich v. Ohio Dept. of Mental Health, 2007-Ohio-4161, ¶ 9,

quoting Guy v. McCartney, 2002-Ohio-3035, ¶ 18 (7th Dist.).

{¶ 127} “In actions for malicious prosecution, while malice is an essential element,

the want of probable cause is the real gist of the action.” Melanowski v. Judy, 102 Ohio

St. 153, 155 (1921). “If the plaintiff cannot show lack of probable cause, the claim for -55-

malicious prosecution fails as a matter of law.” Frazier v. Clinton Cty. Sheriff's Office,

2008-Ohio-6064, ¶ 14 (12th Dist.), citing Davis v. Peterson, 1995 WL 134796, *3 (9th

Dist. Mar. 29, 1995). Probable cause, as it pertains to a malicious prosecution claim, is

defined as “ ‘a reasonable ground of suspicion, supported by circumstances sufficiently

strong in themselves to warrant a cautious man in the belief that the person accused is

guilty of the offense with which he is charged.’ ” Barbera, 170 Ohio St. at 246, quoting

Ash v. Marlow, 20 Ohio 119 (1851). “ ‘The determinative issue is not whether a particular

crime was actually committed, but whether there was a reasonable ground of suspicion,

supported by circumstances sufficiently strong in themselves to warrant a cautious man

in the belief that the person accused was guilty of the offense with which he was

charged.’ ” Copas v. Emro Marketing, Inc., 1999 WL 114975, *3 (2d Dist. Mar. 5, 1999),

quoting Garza v. Clarion Hotel, Inc., 119 Ohio App.3d 478, 482 (1st Dist. 1997).

{¶ 128} “A proceeding is ‘terminated in favor of the accused’ only when its final

disposition indicates that the accused is innocent.” Ash v. Ash, 72 Ohio St.3d 520, 522

(1995). “However, a prosecution that is terminated by reason of a voluntary settlement

or agreement of compromise with the accused is not indicative of guilt or innocence and,

therefore, is not a termination in favor of the accused.” Id. at 522.

{¶ 129} The three charges in Case No. 2019-CRB-608E were dismissed as part

of a plea agreement on September 13, 2019. Because this case was terminated based

on a voluntary agreement of compromise, Daly cannot establish that this case was

terminated in favor of the accused to support a malicious prosecution claim. Therefore,

we need not consider whether there was probable cause to pursue a prosecution for -56-

those offenses.

{¶ 130} It is also questionable whether Case No. 2019-CRB-734E was terminated

in favor of the accused in such a way to support a malicious prosecution claim. Following

Daly’s no contest plea, finding of guilt, and sentence, he appealed. After the remand

and subsequent appeal, we ordered the trial court to enter a dismissal of the charge as a

result of a jurisdictional defect in the complaint, not because the charges lacked merit.

We stated that “[b]ecause the defect was jurisdictional, the State’s remedy was to file a

new valid complaint.” As noted above, “[a] proceeding is ‘terminated in favor of the

accused’ only when its final disposition indicates that the accused is innocent.” Ash at

522. However, the parties did not address this issue in the trial court or on appeal.

Therefore, we will assume for purposes of this appeal that Case No. 2019-CRB-734E

was terminated in Daly’s favor and will now consider whether there was probable cause

to charge the offense in Case No. 2019-CRB-734E.

{¶ 131} In Case No. 2019-CRB-734E, Daly was charged with one count of violating

a protection order, in violation of R.C. 2919.27(A)(2). The criminal complaint alleged that

on November 2, 2018, at the Riverside Police Department, Daly recklessly violated the

terms of a protection order issued pursuant to R.C. 2903.214 in that he had a firearm on

his person while under an active protection order issued in Case No. 2018 CV 05086.

Daly Depo. Ex. H. Riverside Detective Christine Krueger signed the complaint. Id.

{¶ 132} Officer Perfetti stated in his affidavit that on November 2, 2018, he met

with Daly, who made a theft complaint about S.H. Daly had been served with an ex parte

protection order, for which S.H. had been the complainant. Daly Depo. Ex. C and E. -57-

The order provided that Daly was not permitted to “possess, use, carry, or obtain any

deadly weapon at any time while the Order remain[ed] in effect” unless Daly was excepted

for official use pursuant to 18 U.S.C. 925(a)(1). Daly Depo. at 71; Daly Depo. Ex. C.

When Daly met with Officer Perfetti, Daly informed Officer Perfetti that he had a gun in

his possession, which was in violation of the ex parte protection order. Perfetti affidavit;

Daly Depo. Ex. B.

{¶ 133} In his deposition, Daly was asked the following question: “when you met

with Mr. Perfetti on the 2nd, you told him you had a firearm on you, correct?” Daly Depo.

at 72. Daly responded, “That is correct.” Id. at 73. Daly then explained that he had

informed Officer Perfetti that he had a gun, but he did not in fact have a gun on his person.

Id. at 74. When asked why he told Officer Perfetti that information, Daly responded

“Because I wasn’t certain whether I had it in the small of my back or not or in my pocket.

So it’s always better to say that you do and not, then to not say that you do and have.

Because if you have and you didn’t say that you had, you can be arrested and lose your

firearm license and go to jail. So you throw that out there as a precaution and you’re

covered under all circumstances.” Id. at 74-75.

{¶ 134} Based on this record, there is no dispute that Daly told Officer Perfetti that

he had a gun on his person when they met at the police station on November 2, 2018.

The record also supports that the ex parte protection order, which was issued on October

31, 2018, pursuant to R.C. 2903.214, was active on November 2 and precluded Daly from

possessing a deadly weapon. Even though Daly later denied possessing a gun in his

deposition testimony, defendants were not required to demonstrate that Daly would have -58-

been convicted at trial of the charged offense, only that probable cause existed at the

time of the prosecution. See Dehlendorf v. Gahanna, 2015-Ohio-3680, ¶ 26 (10th Dist.).

The evidence presented to the trial court met Slyman’s initial summary judgment burden

to show there was no genuine issue of material fact that he had had probable cause to

pursue the criminal prosecution of Daly. The burden then shifted to Daly to point to

evidence in the record showing there was no probable cause.

{¶ 135} Daly failed to point to specific portions of the record exhibiting a genuine

issue of material fact regarding the issue of probable cause. As a result, the trial court

correctly granted summary judgment to Slyman on Daly’s claim of malicious prosecution.

{¶ 136} Daly’s fourth assignment of error is overruled.

VII. Conclusion

{¶ 137} Having overruled all of Daly’s assignments of error, we will affirm the

judgment of the trial court.

WELBAUM, J. and TUCKER, J., concur.