Wozniak v. Fritsch

2014 Ohio 4693

• Court: Ohio Court of Appeals
• Decided: October 23, 2014
• Docket: 101175
• Status: Published

Opinion

[Cite as Wozniak v. Fritsch, 2014-Ohio-4693.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101175

THOMAS J. WOZNIAK PLAINTIFF-APPELLANT

vs.

MICHAEL J. FRITSCH, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-801829

BEFORE: S. Gallagher, J., Boyle, A.J., and Stewart, J.

RELEASED AND JOURNALIZED: October 23, 2014 ATTORNEY FOR APPELLANT

William S. Derkin 5702 Theota Avenue Parma, OH 44129

ATTORNEYS FOR APPELLEES

James A. Climer Frank H. Scialdone Cara Wright Mazanec, Raskin, Ryder & Keller Co. 34305 Solon Road 100 Franklin’s Row Cleveland, OH 44139

For David Britton, et al.

Linda Garrett Beebe 19111 Detroit Road, Suite 205 Rocky River, OH 44116 SEAN C. GALLAGHER, J.:

{¶1} Plaintiff Thomas Wozniak appeals from the trial court’s decision granting

summary judgment in favor of defendants Michael Fritsch, Edward Gannon, and Richard

Ginley (collectively “Lakewood Defendants”), all detectives for the city of Lakewood,

Ohio, and defendants David Britton, Eric Print, David Wright, Dennis Markley, LSC

Service Corp., and SS. C&M Haven Inc. (collectively “C&M Haven Defendants”), upon

Wozniak’s claims for false arrest and retaliation. Finding no merit to any of Wozniak’s

arguments, we affirm.

{¶2} For approximately ten years, Wozniak lived in Fedor Manor, which is a

HUD-financed facility operated by the C&M Haven Defendants. On February 27, 2012,

Wozniak was seen trespassing in several apartments in Fedor Manor, and the Lakewood

police were contacted. The Lakewood Defendants investigated the incidents and sought

a statement from Wozniak. Wozniak declined the request until he could consult with

legal counsel. After the Lakewood Defendants issued warrants for Wozniak’s arrest for

criminal trespass, Wozniak gave a statement claiming a reasonable basis for entering

several apartments, which he believed to be unoccupied. At least one of the apartments

was occupied by another tenant.

{¶3} The Lakewood Defendants arrested Wozniak, and it is not clear from the

record the extent of the C&M Haven Defendants’ involvement in the arrest, beyond

reporting the trespass to the police. In an affidavit submitted in response to the Lakewood Defendants’ motion for summary judgment, Wozniak summarily concluded

that the C&M Haven Defendants sought his arrest, but Wozniak did not include a

foundation to transform his speculative belief into a fact.

{¶4} During the prosecution of the trespass claims against Wozniak, the municipal

court accepted a no contest plea and placed Wozniak into a diversion program. Shortly

thereafter, Wozniak filed a complaint against the defendants, advancing a claim for false

arrest and later amended to include a retaliation claim. The trial court granted summary

judgment in favor of all the defendants in two separate entries. Wozniak timely

appealed. He now claims the trial court erred in granting summary judgment in favor of

both sets of defendants, on both claims. 1 We find no merit to Wozniak’s two

assignments of error.

{¶5} Appellate review of summary judgment is de novo, governed by the standard

set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833

N.E.2d 712, ¶ 8. “Summary judgment may be granted only when (1) there is no genuine

issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and

(3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds

can come to but one conclusion and that conclusion is adverse to the nonmoving party.”

Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7.

1 Wozniak advanced two assignments of error. The first provides that the trial court erred in granting summary judgment in favor of the Lakewood Defendants, and the second provides that the trial court erred in granting summary judgment in favor of the C&M Haven Defendants. Because some of the issues overlap, both assignments of error will be addressed together because they relate to the false arrest and retaliation claims. {¶6} We summarily overrule Wozniak’s arguments pertaining to the retaliation

claim. The retaliation claim was predicated upon the C&M Haven Defendants’ April

2013 notice of intent to terminate Wozniak’s tenancy, allegedly sent in retaliation for a

2008 lawsuit Wozniak filed against the C&M Haven Defendants. Even if the intent to

evict is a sufficient basis to advance a retaliation claim, temporal proximity between the

lawful activity and the retaliation is generally a substantial factor in determining the

landlord’s motives. Reid v. Plainsboro Partners, III, 10th Dist. Franklin Nos. 09AP-442

and 09AP-456, 2010-Ohio-4373, ¶ 39, citing Karas v. Floyd, 2 Ohio App.3d 4, 440

N.E.2d 563 (2d Dist.1981), paragraph one of the syllabus. Wozniak failed to support his

argument with any citations to authority, as required by App.R. 16(A)(7), demonstrating

that a five-year-old incident is a temporally sufficient foundation for a retaliation claim.

For this reason, we decline to address any assigned error with respect to the trial court’s

decision involving the retaliation claim.

{¶7} The only remaining issue on appeal, therefore, focuses on the false arrest

claim. In order to establish a claim for false arrest, a plaintiff must adduce facts

demonstrating the intentional detention of the person and the unlawfulness of the

detention. Ficklin v. Home Depot U.S.A., Inc., 8th Dist. Cuyahoga No. 94458,

2010-Ohio-5601, ¶ 34, citing Barnes v. Meijer Dept. Store, 12th Dist. Butler No.

CA2003-09-246, 2004-Ohio-1716, ¶ 15, and Harvey v. Republic Servs. of Ohio, 5th Dist.

Stark No. 2007 CA 00278, 2009-Ohio-1343, ¶ 40. A cause of action for false arrest

exists against either the persons making the arrest or their employers and any private citizen who specifically requests the arrest or provides false information to cause an

arrest. Id. at ¶ 34-35. Private citizens are “insulated from tort liability if their request

for assistance does not amount to a request for arrest.” Id., citing White v. Std. Oil Co.,

16 Ohio App.3d 21, 474 N.E.2d 366 (9th Dist.1984).

{¶8} Wozniak failed to present any evidence of the unlawfulness of his arrest and

spends an inordinate portion of his briefing discussing the admissibility of a no contest

plea in a civil proceeding. We must summarily dispose of that portion of Wozniak’s

claim. The trial court specifically noted in its final judgment entry that the court did not

consider the no contest plea as substantive evidence. The record simply does not

support Wozniak’s arguments as advanced.

{¶9} In support of his claim that the arrest was unlawful, Wozniak presented his

own testimony via affidavit. Wozniak’s only claim of exculpatory evidence was

presented in the form of self-serving statements providing his “reasonable explanation”

for trespassing in the apartments. Other than noting the obvious, most criminals can

articulate a “reasonable explanation” for their criminal conduct, Wozniak’s statements

conceded his presence in the occupied and unoccupied apartments, for which he had to

open doors to gain access. He merely claimed he possessed the privilege to be present in

the apartments because the units appeared to be unoccupied and the “standard procedure”

of Fedor Manor forced tenants to search for service personnel around the building.

{¶10} As we have previously stated, “In dealing with a false arrest allegation,

‘knowledge of the precise crime committed is not necessary to a finding of probable cause provided that probable cause exists showing that a crime was committed by the

defendants.’” Meredith v. Cleveland Hts. Police Dept., 8th Dist. Cuyahoga No. 93436,

2010-Ohio-2472, ¶ 34, quoting United States v. Anderson, 923 F.2d 450, 457 (6th

Cir.1991). For the purposes of determining the merits of a false arrest claim, the focus is

not whether the plaintiff can demonstrate insufficient or conflicting evidence detailing the

state’s inability to prove all elements of the crime. Id. The focus is on the evidence

establishing the probable cause for arrest. The proper inquiry determines whether the

facts known to the arresting officer, at the time of the arrest, were sufficient to cause a

reasonable person to believe that an offense had been committed. Id. at ¶ 32, citing Beck

v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

{¶11} In this case, Wozniak violated Lakewood Codified Ordinance 541.05, which

provides in pertinent part that “[n]o person, without privilege to do so, shall * * *

[k]nowingly enter or remain on the land or premises of another” by entering closed

occupied and unoccupied apartments within Fedor Manor. The C&M Haven

Defendants reported Wozniak’s trespass to the Lakewood Defendants, who in turn

investigated the matter and initiated a criminal complaint in the municipal court.

Wozniak admitted to his presence in the apartments, to opening doors to gain access, and

to the fact that one apartment was occupied. In short, Wozniak conceded he knowingly

entered the premises of another.

{¶12} Wozniak’s only claim of privilege to enter the apartments was that the C&M

Haven Defendants required him to search for a contractor himself. Even if true, the state’s ability to convict Wozniak of criminal trespass is irrelevant to determining the

lawfulness of his arrest. According to what the Lakewood Defendants determined

before issuing the warrants for his arrest, Wozniak trespassed in violation of Lakewood

Codified Ordinance 541.05. Wozniak only ever challenged the city’s ability to

prosecute that crime by asserting the city would not be able to prove Wozniak lacked the

privilege to enter the private apartment units. Whether the city could have proven

beyond a reasonable doubt that Wozniak lacked the privilege to remain in the apartment

units is irrelevant to the determination of the lawfulness of Wozniak’s arrest. Meredith,

8th Dist. Cuyahoga No. 93436, 2010-Ohio-2472, ¶ 32.

{¶13} In support of his privilege claim, Wozniak argues that the trial court erred

pursuant to the Sixth Circuit’s decision in Logsdon v. Hains, 492 F.3d 334 (6th Cir.2007),

in which the Sixth Circuit held that a false arrest claim was properly pleaded in light of

the allegation that the police officers failed to explore exculpatory evidence provided by

witnesses prior to arresting the plaintiff. The Sixth Circuit’s decision has no bearing on

the facts and procedural posture of the current case. In Logsdon, the false arrest claim

was predicated on a warrantless arrest and the question presented was whether the

plaintiff stated a claim for the purposes of overcoming a motion to dismiss. In the

current case, the Lakewood Defendants sought and received a warrant to arrest Wozniak,

and the trial court reviewed the merits of his claim upon a motion for summary judgment.

The Logsdon analysis is simply inapplicable. His assignments of error regarding the

propriety of the trial court’s disposition of his false arrest claim are overruled. {¶14} Upon review of the entire record and the arguments advanced in support of

Wozniak’s claims, we find there is no genuine issue of material fact regarding the

lawfulness of his arrest. Wozniak’s reasonable explanation for trespassing addressed the

state’s ability to convict Wozniak, but did not create a genuine issue of material fact for

the purposes of overruling the Defendants’ motion for summary judgment. It is

undisputed that the Lakewood Defendants reasonably believed an offense was committed

prior to arresting Wozniak. The trial court did not err in granting summary judgment in

favor of all the defendants upon all claims.

{¶15} The judgment of the trial court is affirmed.

It is ordered that appellees recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., CONCURS; MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY