Gemperline v. Franano

2022 Ohio 3727, 199 N.E.3d 587

• Court: Ohio Court of Appeals
• Decided: October 18, 2022
• Docket: 22 CAE 03 0017
• Status: Published

Opinion

[Cite as Gemperline v. Franano, 2022-Ohio-3727.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

MICHAEL L. GEMPERLINE JUDGES: Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellant Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 22 CAE 03 0017 DOMENICO FRANANO, ET AL.

Defendants-Appellees OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of Common Pleas, Case No. 20 CVH 03 0166

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 18, 2022

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee Dominic Franano

JOSHUA J. BROWN THOMAS H. FUSONIE Cassone Law Offices, LLC DANIEL E. SHUEY 5086 North High Street – Suite A Vorys, Sater, Seymour Pease, LLP Columbus, Ohio 43214 52 East Gay Street Columbus, Ohio 43215

For Defendant-Appellee Karen Slavik For Defendant-Appellee Rebecca Mount

LORI E. THOMSON C. JOSEPH MCCULLOUGH MARK HOWARD GAMS White, Getgey and Meyer Co., LPA Gallagher Gams Tallan Barnes & Littrell 6125 East Kemper Road 471 East Broad Street – 19th Floor Cincinnati, Ohio 45241 Columbus, Ohio 43215-3872 Delaware County, Case No. 22 CAE 03 0017 2

For Defendant-Appellee Gary R. Johnson For Defendant-Appellee Kerry Daly

DAVID W. ORLANDINI JOSHUA R. BILLS BENJAMIN C. ADKINS NICHOLAS S. BOBB Collins, Roche, Utley & Garner Pelini, Campbell & Williams, LLC 655 Metro Place South – Suite #200 5880 Innovation Drive Dublin, Ohio 43017 Dublin, Ohio 43016

For Defendant-Appellee William Houk For Defendant-Appellee Susan Miceli

TERRENCE J. KENNEALLY GARY G. YASHKO SEAN M. KENNEALLY The Law Office Gary G. Yashko Law Office of Terrence J. Kenneally & 611 Gradall Court Assoc. Co. Powell, Ohio 43065 River Terrace Bldg. 19111 Detroit Road – Suite #200 Rocky River, Ohio 44116

For Defendant-Appellee Rebecca Mount

CURTIS J. SYBERT Sybert, Rhoad, Lackey Swisher, LLC 153 S. Liberty Street Powell, Ohio 43065 Delaware County, Case No. 22 CAE 03 0017 3

Hoffman, J. {¶1} Plaintiff-appellant Michael L. Gemperline appeals the judgment entered by

the Delaware County Common Pleas Court dismissing his complaint alleging abuse of

process against Defendants-appellees Domenico Franano, Karen Slavik, Rebecca

Mount, Susan Miceli, Kerry Daly, William Houk, and Gary R. Johnson pursuant to Civ. R.

12(B)(6).

STATEMENT OF THE FACTS AND CASE

{¶2} In 2018, Appellant took office as a Trustee for Liberty Township. In his

capacity as trustee, Appellant voted to request an EMS proposal from Delaware County

to replace the township EMS.

{¶3} In 2019, Appellees, who all opposed the plan to replace the township EMS,

gathered signatures for a petition to remove Appellant from office, allegedly stating

Appellant wanted to replace Liberty Township EMS with Delaware County services,

“Liberty Township EMS will be harmed,” and “people will die” because of Appellant's plan.

{¶4} On July 2, 2019, pursuant to R.C. 3.07 and 3.08, a complaint to remove

Appellant from office was filed by Appellees in the Delaware County Court of Common

Pleas. The complaint alleged Appellant was in favor of replacing Liberty Township EMS

with Delaware County EMS, engaged in misconduct by seeking to replace a contractor

of the township, improperly ceded his authority to another trustee, failed to check the

abuse of power of another trustee, conducted township business using his personal email

account, and failed to recuse himself from matters in which he had a conflict of interest.

In August of 2019, Appellees’ removal complaint was voluntarily dismissed via stipulation.

{¶5} On March 30, 2020, Appellant filed a complaint in the Delaware County

Common Pleas Court against Appellees. On September 18, 2020, Appellant filed an Delaware County, Case No. 22 CAE 03 0017 4

amended complaint alleging: abuse of process, intentional infliction of emotional distress,

and defamation. The trial court dismissed the complaint pursuant to Civ. R. 12(B)(6) for

failure to state a claim on which relief could be granted.

{¶6} Appellant filed an appeal to this Court. On appeal, we affirmed the dismissal

of all causes of action with the exception of abuse of process. This Court found the

complaint sufficient to set forth a cause of action for abuse of process:

The record demonstrates that the amended complaint alleges that

the legal process was proper in form and with probable cause; that

Appellees attempted to pervert the process in an attempt to accomplish an

ulterior purpose for which it was not designed (attempting to influence an

election, force Appellant to become a political ally, and attempt to ruin

Appellant's reputation and finances), and that Appellant sustained damages

as a result of the wrongful use of process. Accordingly, we find the trial court

erred in granting Appellee's motion to dismiss for failure to state a claim

upon which relief can be granted.

{¶7} Gemperline v. Franano, 5th Dist. Delaware No. 21 CAE 01 0002, 2021-

Ohio-2394, ¶ 24, appeal not allowed, 165 Ohio St.3d 1494, 2021-Ohio-4515, 178 N.E.3d

530.

{¶8} While the trial court noted the Noerr-Pennington doctrine might apply in this

case, because the trial court did not specifically decide the issue, we declined to address

the application of the doctrine. Id. at ¶15. Delaware County, Case No. 22 CAE 03 0017 5

{¶9} On remand, the trial court found Appellant’s cause of action for abuse of

process barred by the Noerr-Pennington doctrine. The trial court dismissed the abuse of

process claim for failure to state a claim on which relief may be granted pursuant to Civ.

R. 12(B)(6).

{¶10} It is from the March 3, 2022 judgment of the trial court Appellant prosecutes

his appeal, assigning as error:

I. THE TRIAL COURT ERRED BY GRANTING A 12(B)(1) MOTION

TO DISMISS TO DEFENDANT-APPELLEES ON THE GROUND THAT

THE NOERR-PENNINGTON DOCTRINE PROVIDES IMMUNITY TO

ABUSE OF PROCESS CLAIMS.

II. THE TRIAL COURT ERRED BY GRANTING A 12(B)(1) MOTION

TO DISMISS TO DEFENDANT-APPELLEES BASED ON THE NOERR-

PENNINGTON DOCTRINE BECAUSE THIS DOCTRINE CANNOT BE

RESOLVED ON THE PLEADINGS.

I.

{¶11} In his first assignment of error, Appellant argues the trial court erred in

dismissing his cause of action for abuse of process. He specifically argues the Noerr-

Pennington doctrine should not apply to a claim for abuse of process, and even if the

doctrine does apply to the instant action, the trial court erred in failing to find the “sham”

litigation exception to the doctrine applies in this case. Delaware County, Case No. 22 CAE 03 0017 6

{¶12} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for

failure to state a claim upon which relief can be granted, our standard of review is de

novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44,

¶ 5. A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can

be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson

v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992), citing

Assn. for the Defense of the Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116,

117, 537 N.E.2d 1292 (1989). In considering a motion to dismiss, a trial court may not

rely on allegations or evidence outside the complaint. State ex rel. Fuqua v. Alexander,

79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). Rather, the trial court may review only

the complaint and may dismiss the case only if it appears beyond a doubt that the plaintiff

can prove no set of facts entitling the plaintiff to recover. O'Brien v. Univ. Community

Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.

{¶13} Noerr–Pennington immunity is a “doctrine [that] originated in the anti-trust

context as the proposition that ‘joint efforts to influence public officials do not violate the

antitrust laws even though intended to eliminate competition. Such conduct is not illegal,

either standing alone or as part of a broader scheme itself violative of the Sherman Act.’”

We, Inc. v. Philadelphia, Dept. of Licenses & Inspections, 174 F.3d 322, 326 (3d Cir.

1999), quoting United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670, 85 S.Ct.

1585, 14 L.Ed.2d 626 (1965); see also Eastern R. R. Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The United States

Supreme Court has held, “Those who petition government for redress are generally

immune from antitrust liability.” Professional Real Estate Investors, Inc. v. Columbia Delaware County, Case No. 22 CAE 03 0017 7

Pictures Industries, Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). This

type of immunity from antitrust liability is otherwise known as Noerr–Pennington immunity.

{¶14} Although originating in the antitrust context, Noerr-Pennington immunity has

been extended to a broader range of cases in which the defendant engaged in activity

protected by the First Amendment. Although Ohio has not specifically addressed the

extension of the doctrine to the tort of abuse of process, the Ohio Supreme Court held

the doctrine provided immunity to a defendant against a claim for unfair competition by

way of malicious litigation. Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366,

2012-Ohio-4193, 978 N.E.2d 832. This Court has applied the doctrine to a cause of action

for tortious interference with employment and civil conspiracy. Lanzer v. Louisville, 5th

Dist. No. 2015 CA 00170, 2016-Ohio-8071, 75 N.E.3d 752.

{¶15} Appellant cites DirecTV, Inc. v. Zink, 286 F. Supp 2d 873 (E.D. Mich. 2003),

in which the federal court held the Noerr-Pennington doctrine did not provide immunity

against liability for abuse of process. The court noted the purpose of the Noerr–

Pennington doctrine is to protect the right to petition the courts from the chilling effect

which would result if bringing a reasonable lawsuit could violate the law. Id. at 874. In

contrast, the abuse of process tort as defined by the state of Michigan addresses

subsequent misconduct or abuse of proceedings, occurring only after the process has

been initiated. Id. at 875. To properly allege abuse of process in Michigan, a party must

plead: 1) an ulterior purpose, and 2) an act which is improper in the regular prosecution

of the proceeding. Id. Declining to apply the Noerr–Pennington doctrine’s protection to

subsequent abuses does not harm a plaintiff’s First Amendment right to petition the

courts, because it does not discourage the plaintiff from bringing the original suit. Id. Delaware County, Case No. 22 CAE 03 0017 8

{¶16} In Ohio, in order to assert a claim of abuse of process, a plaintiff must allege:

(1) a legal proceeding has been set in motion in proper form and with probable cause, (2)

the proceeding has been perverted to attempt to accomplish an ulterior purpose for which

it was not designed, and (3) direct damage has resulted from the wrongful use of process.

Gemperline, supra, at ¶18. We find DirecTV distinguishable because unlike Michigan,

Ohio does not specifically define the tort of abuse of process to require a subsequent act

of misconduct after the initiation of the action. We therefore find the Noerr-Pennington

doctrine does provide immunity from an action for abuse of process where the alleged

abuse is based on the initiation of the action itself, and a subsequent act of misconduct

is not alleged by the plaintiff.

{¶17} In the instant case, Appellant’s complaint does not allege any subsequent

misconduct in the proceeding to remove him from office after the initiation of the suit.

Rather, he alleges the Appellees’ motivation for filing the action to remove him from office

was not to remove him from office, but rather, as this Court previously noted, to influence

an election, to force Appellant to become a political ally, and to ruin Appellant's reputation

and finances Id. at ¶24. All of Appellant’s allegations in his complaint relate to Appellees’

motivation for the initiation of the action, and not to any subsequent action taken by

Appellees in the prosecution of the suit which perverted the underlying proceeding to

attempt to accomplish an ulterior purpose for which it was not designed. We therefore

find the trial court did not err in finding the Noerr-Pennington doctrine applied in the instant

case.

{¶18} Appellant also argues the trial court erred in finding the “sham” litigation

exception to the Noerr-Pennington doctrine did not apply in this case. A litigant is not Delaware County, Case No. 22 CAE 03 0017 9

entitled to Noerr-Pennington immunity if he engaged in “sham” litigation. See, e.g., Static

Control Components, Inc. v. Lexmark International, Inc., 697 F.3d 387, 408 (6th Cir.

2012). The United States Supreme Court has set forth a two-part test to determine if the

sham litigation exception applies. First, the lawsuit must be objectively baseless, in the

sense that no reasonable litigant could realistically expect success on the merits.

Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S.

49, 60, 113 S. Ct. 1920, 123 L.Ed. 2d 611 (1993). If the court finds the litigation is

objectively baseless, the court next examines whether the litigant was motivated by a

desire to pursue his own rights or to accomplish an improper motive. Id. at 60-61.

{¶19} In the instant case, Appellant’s complaint alleged the underlying removal

action filed by Appellees was initiated with probable cause. Amended Complaint,

September 18, 2020, ¶46. We agree with the trial court the underlying action could not

be both supported by probable cause, yet objectively baseless. For this reason, we find

the trial court did not err in finding the “sham” litigation exception does not apply in the

instant case.

{¶20} We find the trial court did not err in dismissing Appellant’s claim for abuse

of process pursuant to Civ. R. 12(B)(6) based on the application of the Noerr-Pennington

doctrine.

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

II.

{¶22} In his second assignment of error, Appellant argues the Noerr-Pennington

doctrine cannot be resolved from the pleadings, and the trial court therefore erred in

dismissing the action pursuant to Civ. R. 12(B). Delaware County, Case No. 22 CAE 03 0017 10

{¶23} Noerr–Pennington immunity is an affirmative defense that must be pleaded

in an answer or it is waived under Civ.R. 8(C). Am. Chem. Soc. v. Leadscope, Inc., supra.

Because affirmative defenses typically rely on matters beyond the pleadings, affirmative

defenses normally cannot be raised in a Civ.R. 12(B)(6) motion to dismiss. Mills v.

Whitehouse Trucking Co, 40 Ohio St.2d 55, 58, 320 N.E.2d 668 (1974). However, an

exception exists where the existence of the affirmative defense is obvious from the face

of the complaint itself. Id. In Lanzer v. Louisville, 5th Dist. No. 2015 CA 00170, 2016-

Ohio-8071, 75 N.E.3d 752, this Court found the trial court properly dismissed a case

pursuant to Civ. R. 12(B)(6) where the application of the Noerr-Pennington doctrine was

apparent from the complaint itself.

{¶24} In the instant case, we find the trial court did not err in dismissing the

complaint pursuant to the Noerr-Pennington doctrine. From the face of the complaint

itself, we find it is apparent the action was based on Appellees’ institution of a complaint

to remove Appellant from office. As discussed earlier, the complaint was based solely on

the underlying motivation for the institution of the removal action, and not based on any

subsequent unprotected actions taken after the action was filed. Delaware County, Case No. 22 CAE 03 0017 11

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

{¶26} The judgment of the Delaware County Common Pleas Court is affirmed.

By: Hoffman, J. Wise, Earle, P.J. and Delaney, J. concur

HON. WILLIAM B. HOFFMAN

HON. EARLE E. WISE, JR.

HON. PATRICIA A. DELANEY