Ogle v. Hocking Cnty.

2013 Ohio 597

Melanie A. Ogle and Charles R. Ogle Plaintiffs-Appellants, v. Hocking County, et al., Defendants-Appellees.

Case No. 11CA31

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

RELEASED: January 31, 2013

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Melanie A. Ogle and Charles R. Ogle, Rockbridge, Ohio, pro se Appellants.

Randall L. Lambert, Lambert Law Office, Ironton, Ohio, for Appellees.

Kline, J.:

{¶1} Melanie Ogle and Charles Ogle (collectively the "Ogles") appeal the judgment of the Hocking County Court of Common Pleas, which dismissed the Ogles' amended complaint for failure to state a claim for which relief can be granted. The Ogles contend that the trial court erred when it granted the defendants' motion to dismiss. Because Count Three of the amended complaint states a cause of action, we agree. The Ogles also contend that the trial court should have stricken the defendants' motion to dismiss. Regarding this contention, the Ogles claim that defendants' counsel did not respond to an inquiry the trial court made during a hearing. The trial court apparently sought clarification on whether defense counsel represented the defendantsin both their official and individual capacities. A trial court speaks only through its journals. Because there is no order regarding this issue, the Ogles cannot show error. Additionally, the Ogles contend that, in its decision granting the motion to dismiss, the trial court misstated various facts related to the proceedings in this case. The Ogles, however, have failed to show how they were prejudiced by the trial court's alleged factual mistakes. As a result, the Ogles cannot show that reversal is warranted on this basis.

{¶2} Accordingly, we affirm, in part, and reverse, in part, the judgment of the trial court.

I.

{¶3} On September 10, 2010, Melanie Ogle filed a complaint as "Citizen of Hocking County." Several months later, the trial court allowed both Melanie Ogle and Charles Ogle to file an amended complaint. In the amended complaint, Melanie Ogle and Charles Ogle are listed as the plaintiffs instead of "Citizen of Hocking County."

{¶4} The Ogles filed the amended complaint against Hocking County and approximately 30 other defendants, including various Hocking County elected officials, deputies of the Hocking County Sheriff's Department, and members of the Hocking County Prosecutor's Office. The amended complaint contains 10 counts in which the Ogles assert multiple allegations against the defendants.

{¶5} Initially, the defendants were named in both their official and individual capacities. On June 17, 2011, the trial court held a hearing, and, apparently, the trial court expressed concern that there may be a conflict if one attorney was representing the defendants in both their individual and official capacities. Eventually, however, theOgles dismissed the individual-capacity claims. Thus, the Ogles assert only claims against the defendants in the defendants' official capacities.

{¶6} The Ogles' allegations generally revolve around alleged misconduct in connection with construction work by private utility companies near the Ogles' property. The Ogles allege that the Hocking County Sheriff entered into an illegal contract with private utility companies to provide security services. According to the Ogles, uniformed off-duty sheriff's deputies subjected the Ogles to illegal searches and seizures on at least two occasions. Additionally, the Ogles claim that the deputies suppressed the Ogles' freedom of speech. The Ogles also allege that the Hocking County Sheriff participated in this alleged misconduct.

{¶7} The defendants filed a motion to dismiss under Civ.R. 12(B)(6). The trial court granted the defendants' motion to dismiss because, according to the trial court, the Ogles failed to state a cause of action in any of the ten counts of their amended complaint.

{¶8} The Ogles appeal and assert the following assignments of error: I. "THE TRIAL COURT ERRED IN NOT STRIKING APPELLEES' MOTION TO DISMISS FOR FAILURE TO ESTABLISH REPRESENTATION OF COUNTY DEFENDANTS OF RECORDS." II. "THE TRIAL COURT ERRED IN MISSTATING THE FACTS OF THIS CASE AND APPELLANTS' AMENDED COMPLAINT." And, III. "THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING APPELLANTS' AMENDED COMPLAINT FOR 'FAILURE TO STATE A CLAIM AGAINST ANY DEFENDANT UPON WHICH RELIEF CAN BE GRANTED.'"

II.

{¶9} We will address the Ogles' third assignment of error out of order. In their third assignment of error, the Ogles claim that the trial court erred when it dismissed their amended complaint for failure to state a claim upon which relief can be granted.

{¶10} A dismissal for failure to state a claim upon which relief can be granted is a question of law that we review de novo. Cleveland Elec. Illum. Co. v. Pub. Util. Comm., 76 Ohio St.3d 521, 523, 668 N.E.2d 889 (1996); Florkey v. Malott, 4th Dist. No. 11CA9, 2011-Ohio-5199, ¶ 13. "In reviewing a complaint upon a motion to dismiss pursuant to Civ.R. 12(B)(6), [the Supreme Court of Ohio] has held that a court must presume that all factual allegations of the complaint are true and that all reasonable inferences must be made in favor of the nonmoving party." Perez v. Cleveland, 66 Ohio St.3d 397, 399, 613 N.E.2d 199 (1993). To dismiss a complaint under Civ.R. 12(B)(6), "[i]t must appear from the face of the complaint that [the Ogles] can prove no set of facts that would entitle [them] to relief." Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, ¶ 11. "However, unsupported conclusions are not considered admitted and are insufficient to withstand a motion to dismiss." J & H Reinforcing & Structural Erectors, Inc. v. Wellston City School Dist., 4th Dist. No. 09CA8, 2010-Ohio-2312, ¶ 25, citing State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989).

{¶11} Based upon our review of the amended complaint, the Ogles allege a potential cause of action in two of the ten counts. However, only one of those two counts states a viable cause of action.

A. Count Three - Trespass and Civil Conspiracy to Commit a Trespass

{¶12} In Count Three, the Ogles allege that the Hocking County Prosecuting Attorney and the Hocking County Sheriff engaged in a conspiracy with "Ohio Power/American Electric Power and Columbia Gas Transmission/Off-Duty Services to provide private security on the private property of Plaintiffs, without warrant or court order, despite repeated demands by Plaintiffs to leave their private property." Amended Complaint ¶ 11.

{¶13} The Ogles allege a civil trespass. "The elements of civil trespass are (1) an unauthorized intentional act and (2) entry upon land in the possession of another." DiPasquale v. Costas, 186 Ohio App.3d 121, 2010-Ohio-832, 926 N.E.2d 682, ¶ 102 (2d Dist.). Here, the Ogles allege that various individuals made at least one unauthorized intentional entry onto the Ogles' property. Thus, the Ogles state a cause of action for civil trespass.

{¶14} Additionally, the Ogles allege a conspiracy to commit the trespass. "The elements of a civil conspiracy claim are: '(1) a malicious combination, (2) involving two or more persons, (3) causing injury to person or property, and (4) the existence of an unlawful act independent from the conspiracy itself.'" Cook v. Kudlacz, 974 N.E.2d 706, 2012-Ohio-2999, ¶ 90 (7th Dist.), quoting State ex rel. Fatur v. Eastlake, 11th Dist. No. 2009-L-037, 2010-Ohio-1448, ¶ 45. Here, the Ogles allege a malicious combination between the Hocking County Prosecuting Attorney, the Hocking County Sheriff, and individuals providing security for American Electric Power and Columbia Gas to trespass upon the Ogles' property. With respect to the injury element of a civil conspiracy claim, "[i]f a property owner proves the elements of trespass, he has a right to nominal damages without proof of actual damages." CitiMortgage, Inc. v. Robson,5th Dist. No. 2011-CA-0017, 2011-Ohio-4617, ¶ 12. Thus, the Ogles state a cause of action in Count Three of their complaint for civil conspiracy to commit a trespass.

{¶15} The defendants argue that "[a] civil conspiracy claim is derivative and cannot be maintained absent an underlying tort that is actionable without the conspiracy." Morrow v. Reminger & Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 40 (10th Dist.). However, the Ogles do allege an "actionable" tort. That is, the Ogles allege a trespass on their property.

{¶16} Thus, for the reasons stated above, the trial court erred in dismissing Count Three of the amended complaint.

B. Count Five: 42 U.S.C. 1983

{¶17} In Count Five, the Ogles allege that uniformed off-duty Hocking County Sheriff's deputies provided security services for private utility companies between September 2009 and December 2009. The Ogles claim that the off-duty deputies were "motivated and directed by the private utility companies to oppress [the Ogles'] freedom of speech, movement and other civil liberties on their private property * * *." Amended Complaint ¶ 15. The Ogles also allege that "the off-duty deputies filed several false police reports and false charges against, and took action on two or more dates to illegally pursue, seize, search, falsely arrest, wrongly imprison and additionally attempt to arrest wrongly imprison one or both Plaintiffs * * *." Id. Furthermore, the Ogles allege that the Hocking County Sheriff participated in the deputies' misconduct.

{¶18} The allegations in Count Five state a potential claim under 42 U.S.C. 1983. That statute provides, in relevant part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an

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