Stewart v. Gentile

[Cite as Stewart v. Gentile, 2025-Ohio-5012.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

JEFFERSON COUNTY

ANNETTE STEWART,

Plaintiff-Appellant,

v.

THOMAS GENTILE ET AL.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY

Case No. 24 JE 0024

Civil Appeal from the

Court of Common Pleas of Jefferson County, Ohio

Case No. 23-CV-375

BEFORE:

Katelyn Dickey, Cheryl L. Waite, Carol Ann Robb, Judges.

JUDGMENT:

Affirmed.

Atty. W. Jeffrey Moore, Moore & Yaklevich, for Plaintiff-Appellant Annette Stewart and

Atty. Jeffrey A. Stankunas, Atty. Aaron M. Glasgow and Atty. Dale D. Cook, Isaac Wiles

Burkholder & Miller, LLC, for Defendants-Appellees Thomas Gentile, Robert Bell,

Jefferson County Health Department, Jefferson County Board of Commissioners, and

Jefferson County, Ohio and

Atty. Matthew S. Teeter and Atty. Andrew N. Yosowitz, Teetor Westfall, for Defendant-

Appellee Denese Nicole Balakos.

Dated: November 3, 2025

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DICKEY, J.

{¶1} Appellant, Annette Stewart, appeals from the September 26, 2024 judgment

of the Jefferson County Court of Common Pleas granting the motions for judgment on the

pleadings filed by Appellee Denese Nicole Balakos, and by Appellees Thomas Gentile,

Robert Terry Bell, Sheryl Suppa, Carla Gampolo, Jefferson County Health Department

(“Health Department” or “Board of Health”), Jefferson County Board of County

Commissioners (“Board”), and Jefferson County (collectively Appellees). The trial court

dismissed Appellant’s amended complaint in its entirety based on Appellees’ absolute

immunity in a judicial proceeding (litigation privilege). On appeal, Appellant contends the

court erred in determining Appellees were entitled to the litigation privilege. Appellant

also asserts the court erred in finding that some of the facts she presented in her amended

complaint were insufficient to constitute actionable claims.

{¶2} For the following reasons, we find the trial court correctly applied the

litigation privilege to bar all of Appellant’s claims because Appellees’ statements and

reports provided to the Ohio Auditor Office’s Special Investigations Unit (“SIU”) are

protected from civil liability. We further find that the SIU is a quasi-judicial body and as

such, Appellees are absolutely immune from civil liability for statements, affidavits, and

reports made during and relevant to judicial and quasi-judicial proceedings. Accordingly,

we affirm.

FACTS AND PROCEDURAL HISTORY

{¶3} On January 5, 2022, the Jefferson County Grand Jury indicted Appellant on

four counts: (1) count one, theft in office; (2) count two, record tampering; (3) count three,

making false statements; and (4) count four, having an unlawful interest in a public

contract.

{¶4} Count one alleged Appellant committed theft in office by using her public

office to falsify records to increase her salary without knowledge or approval of the Board

of Health resulting in an overpayment of $63,107. Count two charged Appellant with

record tampering in violation of R.C. 2913.42(A)(1) by falsifying or altering the minutes of

an April 25, 2017 Board of Director’s Meeting of the Board of Health. Count three,

falsification in violation of R.C. 2921.13(A)(9), alleged Appellant made a false statement

Case No. 24 JE 0024

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with the intent to commit or facilitate the commission of a theft offense. Count four

charged Appellant with having an unlawful interest in a public contract in violation of R.C.

2921.42(A)(2) by using her authority or influence of her public office to secure a public

contract for the employment of her son by forwarding a document to the Jefferson County

Auditor.

{¶5} Appellant was acquitted on all four counts following a jury trial. Thereafter,

Appellant filed a complaint against Appellees. All individual Appellees were sued in

official and individual capacities. Appellant subsequently filed an amended complaint on

May 15, 2024. Both the original and amended complaints contain the same amounts,

everything in excess of $25,000. Neither the original nor amended complaints contain

specific titles/headings. However, both the original and amended complaints specify the

following by name: malicious prosecution, abuse of process, false light, and civil

conspiracy.

{¶6} In her amended complaint, Appellant related that she began working for the

Health Department in 1989 and became Assistant Administrator in 2017. Appellant

worked under the direction of Frank Petrola, the President/Director of the Health

Department, and was his “right-hand” woman. Appellee Gentile was a county

commissioner. The commissioners owned the building that the Health Department

occupied. Appellees Balakos and Bell were Health Department board members.

Appellees Suppa and Gampolo were employees of the Health Department during the

relevant times.

{¶7} Appellant alleged that Appellee Gentile had a long-standing feud with

Petrola concerning the disrepair of the building. The Health Department closed for

several days due to the condition of the building which forced the commissioners to make

repairs. Appellant alleged that Petrola told the public he was going to force Gentile and

the commissioners to spend the money of Gentile’s “daddy” to repair the building.

Appellant claimed Gentile became furious and set out to cause problems for Petrola and

gain power over the Health Department.

{¶8} Appellant alleged that Appellee Gentile engaged the Ohio Auditor’s Office

to conduct a forensic audit of the Health Department in hopes of discovering information

that would force her and Petrola out of their positions. Appellant indicated that Appellee

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Balakos’ husband works for the Ohio Auditor’s Office and said he gathered evidence from

the Jefferson County Auditor’s Office at the direction of Appellees Gentile, Balakos and

Bell to use against her and Petrola.

{¶9} Appellant further alleged that Appellees Gentile, Balakos and Bell solicited

her help to smear and politically injure Petrola. Appellant claims Gentile and Bell told her

that if she helped them, she would not have to fear losing her job and that things would

be better for her. Appellant claims Balakos told her she did not trust Appellant and

Appellant would have to earn her trust.

{¶10} Appellant maintained that when she refused to help, Appellees Gentile,

Balakos, and Bell began humiliating and criticizing her and overloaded her with work.

Appellant alleged they also began questioning her past practices, including the financial

transactions she performed with Petrola, and even asked her to recommend that the

Board eliminate her job. Appellant also indicated that Balakos, with the help of Gentile

and Bell, began modifying policies and procedures to create violations and discrepancies

for her and Petrola. Appellant said that Bell restricted her email and internet access which

rendered her unable to complete her job duties.

{¶11} Appellant also alleged that after Appellee Gentile’s contact with the Ohio

Auditor’s Office, Appellees Balakos and Bell independently requested an investigation

and audit. Appellant claimed Balakos and Bell accused her and Petrola of

misappropriating funds, theft, giving themselves fraudulent raises, wrongfully hiring

Appellant’s son, creating false meeting minutes, and other illegal behaviors.

{¶12} Appellant indicated she and Petrola were required to attend a public

meeting where Appellee Bell appeared on behalf of Appellees Gentile and Balakos.

Appellant said that in front of all attendees, Bell requested a forensic review and audit of

the Health Department and the activities of Appellant and Petrola because it appeared

they lacked professionalism and competency. Appellant alleged that Appellees Suppa

and Gampolo also falsely accused her of hiring her son knowing she could not do so,

which resulted in criminal charges against her for illegal interest in a public contract.

{¶13} Appellant claimed that from 2018 until 2022, Appellees Gentile, Balakos,

Bell, Suppa, and Gampolo continued to harass and intimidate her with these false

allegations by telling newspapers, the media, and the public of her alleged theft, fraud,

Case No. 24 JE 0024

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tampering, and illegal hiring of her son. Appellant claimed she was falsely charged,

maliciously prosecuted, and faced a maximum of nine years in prison. Appellant alleged

that Appellees did this to ruin her employment reputation and good name, made the

allegations without investigation or probable cause, and knew the allegations were false.

{¶14} On May 29, 2024, Appellee Balakos filed an answer. The next day,

Appellees Gentile, Bell, Suppa, Gampolo, Health Department, Board, and Jefferson

County filed an answer.

{¶15} On July 8, 2024, Appellees Gentile, Bell, Suppa, Gampolo, Health

Department, Board, and Jefferson County filed a Civ.R. 12(C) motion for judgment on the

pleadings. On July 29, 2024, Appellee Balakos filed a Civ.R. 12(C) motion for judgment

on the pleadings. On September 23, 2024, the trial court held a hearing on the motions.

{¶16} On September 26, 2024, the trial court granted Appellees’ motions and

dismissed Appellant’s amended complaint. The court found some of the facts in

Appellant’s complaint not actionable and even accepting Appellant’s other allegations as

true, Appellees were absolutely immune from civil liability in judicial proceedings. The

court held that this immunity covered pre-indictment, statements, and affidavits. The

court further held that Appellant’s allegations of willful and wanton behavior failed to

overcome absolute immunity.

{¶17} Appellant filed a timely notice of appeal and raises five assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRONEOUSLY DETERMINED THAT THE

DEFENDANTS WERE ENTITLED TO ABSOLUTE IMMUNITY IN

GRANTING DEFENDANTS’ MOTIONS FOR JUDGMENT ON THE

PLEADINGS.

{¶18} In her first assignment of error, Appellant asserts the litigation privilege does

not apply to any person or entity that provides false information to the police or

investigators which helps them to initiate criminal charges. In support, Appellant cites to

Scott v. Patterson, 2003-Ohio-3353 (8th Dist.). Appellant contends Appellees are not

absolutely immune from civil liability because they helped initiate and pursue criminal

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charges by insisting that the State of Ohio investigate and audit her actions, books, and

work. Appellant also maintains that political subdivision immunity does not apply to a

motion for judgment on the pleadings because immunity is an affirmative defense that

relies on information outside of the complaint. Appellant asserts a plaintiff is not required

to anticipate or predict a political subdivision’s defenses or to plead facts to counteract

them.

{¶19} In response, Appellees posit that Appellant misreads and misapplies Scott.

Appellees submit that the court in Scott properly applied the Ohio Supreme Court’s

decision in M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497 (1994), that absolute

immunity attaches to statements, affidavits, or other information a person provides to a

prosecutor in reporting a crime. Citing Sweeney and Barnes v. Beachwood, 2006-Ohio-

3948 (8th Dist.), Appellees submit that absolute immunity protects any person who makes

statements reporting a crime to a prosecutor, even if those statements are false or made

in bad faith with actual malice. Appellees also cite Daher v. Cuyahoga Community

College Dist., 2021-Ohio-2103 (8th Dist.), and submit that as long as the statements

made bear some reasonable relation to the activity reported, the person reporting is

absolutely immune from civil liability.

{¶20} Appellees further counter that R.C. 2921.22(A)(1) imposes a duty on them

to provide information about Appellant’s potential felony conduct. Appellees assert that

Appellant based her entire amended complaint on Appellees’ disclosure of information to

law enforcement and R.C. 2921.22(A)(1) provides that no person shall fail to report to law

enforcement any felony that they know has been or is being committed. Appellees

conclude they are protected under former R.C. 2921.22(H) from civil liability.

{¶21} The trial court dismissed Appellant’s amended complaint solely on the basis

of the litigation privilege. The court relied on Sweeney holding that “absolute immunity in

judicial process goes from beginning to end and that includes pre-indictment, statements

and even affidavits.” (9/26/2024 Judgment Entry, p. 2). The court held that allegations

of willful and wanton conduct do not overcome absolute immunity.

{¶22} This Court conducts a de novo review of a trial court’s ruling on a Civ.R.

12(C) motion for judgment on the pleadings. Pelletier v. Mercy Health Youngstown, LLC.,

2024-Ohio-2131, ¶ 10 (7th Dist.), citing Ahmed v. Sargus, 2005-Ohio-2382, ¶ 7 (7th Dist.).

Case No. 24 JE 0024

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We give no deference to the trial court’s decision and apply the same principles as those

used in analyzing a Civ.R. 12(B)(6) motion to dismiss. See Woods v. Sharkin, 2022-Ohio-

1949, ¶ 29 (8th Dist.). Thus, we construe the material allegations of the complaint as true

with all reasonable inferences taken in favor of the nonmoving party. Dismissal under

Civ.R. 12(C) is proper “only if it appears beyond doubt that the plaintiff can prove no set

of facts entitling him or her to relief.” Maternal Grandmother v. Hamilton Cty. Dept. of Job

and Fam. Servs., 2021-Ohio-4096, ¶ 13, quoting Reister v. Gardner, 2020-Ohio-5484, ¶

17.

{¶23} We also note that Civ.R. 8(A) requires only a “short and plain statement of

the claim showing that the party is entitled to relief, and a demand for judgment for the

relief to which the party claims to be entitled.” Further, a motion for judgment on the

pleadings tests the legal sufficiency of the allegations and not their evidentiary support.

Hill v. Schildmeyer, 2024-Ohio-3261, ¶ 1 (1st Dist.).

{¶24} The litigation privilege grants absolute immunity from civil liability to “judges,

counsel, parties, and witnesses” for statements they make “during and relevant to judicial

proceedings.” Willitzer v. McCloud, 6 Ohio St.3d 447, 448-449 (1983) (citations omitted).

This privilege protects the judicial process by removing the fear of future civil liability by

those providing relevant information to help courts seek the truth. Reister at ¶ 14, citing

Willitzer at 449 and Surace v. Wuliger, 25 Ohio St.3d 229, 233 (1986). The litigation

privilege applies to “statements made which bear some reasonable relation to the activity

reported.” Sweeney, 69 Ohio St.3d at 497. The privilege applies even if the statements

made are intentionally false or made with ill will or malice. See Theisler v. DiDomenico,

140 Ohio App.3d 379, 385 (7th Dist. 2000). The litigation privilege extends to statements

made during every step of a judicial proceeding. Sweeney at 506.

{¶25} Ohio courts have extended the litigation privilege to statements made in

quasi-judicial proceedings, including statements to the Equal Employment Opportunity

Commission (Akarah v. Ohio Dept. of Rehab. & Correction, 2024-Ohio-4499, ¶ 18 (10th

Dist.)); the Ohio Civil Rights Commission (Newman v. Univ. of Dayton, 2021-Ohio-1609,

¶ 39 (2d Dist.)); and the police (Lasater v. Vidahl, 2012-Ohio-4918, ¶ 13 (9th Dist.)). Ohio

courts have also expanded the litigation privilege to bar claims in addition to defamation

claims. Such claims include fraud, intentional infliction of emotional distress, and civil

Case No. 24 JE 0024

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conspiracy. See Newman at ¶ 44, citing Nationstar Mtge., LLC v. Ritter, 2015-Ohio-3900

(10th Dist.) (aiding and abetting civil claim); Daher, 2021-Ohio-2103, at ¶ 26 (8th Dist.)

(privilege applies to malicious prosecution, defamation, intentional infliction of emotional

distress, civil conspiracy, aiding and abetting); Seminatore v. Dukes, 2004-Ohio-6417 (8th

Dist.) (civil conspiracy and other state law claims).

{¶26} In Michael v. Kleiboemer, 2024 WL 51172 (N.D. Ohio Jan. 4, 2024), the

court denied the plaintiff’s motion to amend her complaint to add allegations of defamation

against a village councilmember. The plaintiff was a fiscal officer for one township and a

temporary deputy fiscal officer for another. She sought to amend her complaint to include

the defendant’s reported allegations of fraud and criminal misconduct against her to the

Ohio Auditor’s Office. The plaintiff alleged that the defendant reported to the Ohio

Auditor’s Office that she overcharged the village on an invoice and illegally used township

monies to fund her federal lawsuit.

{¶27} The Ohio federal court reviewed the Ohio Supreme Court’s expansive view

of the litigation privilege and the circumstances of when a statement is made in a judicial

proceeding. Id. at *2, citing Surace, 25 Ohio St.3d 229, 233 (1986). In denying the

plaintiff’s motion to amend her complaint to include the defamation claim, the court found

that absolute privilege applied to the defendant’s statements to the auditor’s office. Id. at

*4. The court observed the Ohio Supreme Court’s expansive view of the litigation

privilege and the Court’s rationale that public policy required the free exchange of

statements about possible criminal activity to help courts seek the truth without reporters

fearing civil liability. Id. at *4. The court relied on Sweeney and the appellate court’s

decision in Lasater, 2012-Ohio-4918 (9th Dist.) and held that the statements made to the

Ohio Auditor’s Office were covered by the litigation privilege because they were

statements reporting criminal activity to a law enforcement agency as the public fraud and

corruption section of the Auditor’s Office investigated and developed criminal cases,

which protected public integrity. Kleiboemer at *4. The federal court concluded it would

be futile for the plaintiff to amend her complaint to include defamation based on these

statements because they were subject to absolute immunity under the litigation privilege.

Id.

Case No. 24 JE 0024

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{¶28} In the instant case, we find that all of Appellees’ statements, requests, and

reports made to the SIU are absolutely immune under the litigation privilege. Appellant

asserted in her amended complaint that Appellees requested a forensic audit by the Ohio

Auditor’s Office and provided false statements and reports to the SIU, a quasi-judicial

body.

{¶29} Accordingly, Appellees’ requests for an audit and their statements and

reports made to the SIU are protected by the litigation privilege. Moreover, the statements

made at public meetings and elsewhere are also protected by the litigation privilege

because they are reasonably related to the charges.

{¶30} Appellant’s first assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF-APPELLANT’S

CLAIMS FOR MALICIOUS PROSECUTION, AS THERE WAS

SUFFICIENT EVIDENCE TO ESTABLISH THAT DEFENDANTS

PURSUED THE CHARGES AGAINST HER WITHOUT PROBABLE

CAUSE AND WITH MALICIOUS INTENT.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT’S INSUFFICIENCY FINDINGS ON THE PLAINTIFF-

APPELLANT’S ABUSE OF PROCESS CLAIM WERE CLEARLY AND

MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR NO. 5

THE TRIAL COURT ERRED WHEN FINDING THAT PLAINTIFF-

APPELLANT DID NOT STATE A CLAIM FOR INTENTIONAL

INFLICTION OF EMOTIONAL DISTRESS.

{¶31} In her second assignment of error, Appellant contends she presented

sufficient evidence of a malicious prosecution claim to survive Appellees’ motions for

judgment on the pleadings. In her third assignment of error, Appellant asserts the trial

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court’s determination as to her abuse of process claim was against the manifest weight

of the evidence. Appellant also challenges Appellees’ assertion that we must dismiss her

abuse of process claim because it conflicts with her malicious prosecution claim. In her

fifth assignment of error, Appellant contends she stated a claim for intentional infliction of

emotional distress in paragraphs 49-54 and 58 of her amended complaint. Appellant

argues that even though she failed to identify the claim by name, she nevertheless

presented facts to establish it.

{¶32} Because Appellant’s second, third, and fifth assignments of error are

interrelated, we will consider them together.

{¶33} The amended complaint specifies by name malicious prosecution and

abuse of process claims. Regarding malicious prosecution and abuse of process,

Appellees contend Appellant cannot sustain the claims because she alleged that the

criminal charges lacked probable cause. A malicious prosecution claim requires a plaintiff

to prove a lack of probable cause in order to sustain the claim. Trussell v. Gen. Motors

Corp., 53 Ohio St.3d 142, 146 (1990). An abuse of process claim requires the existence

of probable cause as one of its elements to sustain the claim. Yaklevich v. Kemp,

Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 294 (1994).

{¶34} Appellant asserts Civ.R. 8(E) allows for alternative pleading and

inconsistent claims. Appellees respond that the proper standard of review is de novo and

not insufficiency of the evidence or manifest weight. Appellees further contend that

Appellant cannot sustain her malicious prosecution claim because she failed to establish

a nexus between the conduct she alleged they performed and the initiation of criminal

proceedings against her. Appellees submit that the prosecutor filed the charges and

Appellant failed to allege how their conduct was connected to the indictment or her

prosecution.

{¶35} Appellees further contend Appellant cannot establish the elements of an

abuse of process claim because she alleges that no probable cause existed for the

charges brought against her. Appellees submit that a necessary element to establish an

abuse of process claim is to show that probable cause existed for the charges.

{¶36} As Appellees note, the proper standard of appellate review is de novo as

we are reviewing the trial court’s judgment on the motions for judgment on the pleadings.

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To establish a malicious prosecution claim, the plaintiff must be able to prove: “(1) malice

in initiating or continuing the prosecution, (2) lack of probable cause, and (3) termination

of the prosecution in favor of the accused.” Trussell, 53 Ohio St.3d at 146 (1990). To

establish an abuse of process claim, the plaintiff must show: “(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.” Yaklevich, 68 Ohio

St.3d at 294 (1994).

{¶37} The Ohio Supreme Court in Yaklevich acknowledged the significant

differences between malicious prosecution and abuse of process claims. Id. at 300. It

held that the key consideration in a malicious prosecution claim was whether probable

cause existed to bring the criminal action, while the key consideration in an abuse of

process claim was whether “an improper purpose was sought to be achieved by the use

of a lawfully brought previous action.” Id.

{¶38} In Daher, 2021-Ohio-2103, at ¶ 2 (8th Dist.), the plaintiff filed a civil

complaint against the college and campus security officers after he was fired from his

part-time job as a police dispatcher. He was indicted for the unauthorized use of campus

property and the case was dismissed at the state’s request four months later. Daher’s

civil complaint against the defendants included malicious prosecution and intimidation

claims. He alleged that the defendants knowingly and maliciously initiated proceedings

with the prosecutor by providing false writings about his access to the computer systems

to improperly influence the office. Id. at ¶ 2, 17.

{¶39} In affirming the trial court’s granting of the motion for judgment on the

pleadings, the appellate court held that the litigation privilege barred Daher’s malicious

prosecution and intimidation claims. The court identified the elements of malicious

prosecution and recognized that the “privilege is known to protect against any claim

regarding the privileged statements including but not limited to malicious prosecution

claims, defamation claims, intentional infliction of emotional distress, civil conspiracy, and

aiding and abetting claims.” Id. at ¶ 26. The court noted that no known exception existed

to this privilege and found that the defendants were “entitled to absolute immunity for any

cause of action regarding those statements.” Id. at ¶ 19, 25. The appellate court also

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applied the litigation privilege to bar Daher’s intimidation claim. The court held that the

litigation privilege applied not only to bar the claim, but the writings he relied upon for his

claims were protected by the litigation privilege so that he could not use them to prove his

claim. Id. at ¶ 27.

{¶40} Accordingly, the litigation privilege bars Appellant’s malicious prosecution

and abuse of process claims. Moreover, the statements and reports submitted to the SIU

are protected by the privilege and they cannot be used to prove Appellant’s claims.

{¶41} Further, Appellant could not maintain her malicious prosecution and abuse

of process claims. As outlined above, one of the elements to establish her malicious

prosecution claim is that the criminal charges must have lacked probable cause.

Contrarily, to establish her abuse of process claim, Appellant must allege that: “(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.”

Yaklevich, 68 Ohio St.3d at 294 (1994) (emphasis added). The Ohio Supreme Court

acknowledged the significant differences between malicious prosecution and abuse of

process claims in Yaklevich. Id. at 300. The Court held that the key consideration in a

malicious prosecution claim was whether probable cause existed to bring the criminal

action, while the key consideration in an abuse of process claim was whether “an

improper purpose was sought to be achieved by the use of a lawfully brought previous

action.” Id.

{¶42} In Tablack v. Wellman, 2006-Ohio-4688, ¶ 141 (7th Dist.), this court noted

that a malicious prosecution claim is incompatible with an abuse of process claim

because the former requires a plaintiff to show a lack of probable cause while the latter

requires the plaintiff to show that the defendant set in motion a legal proceeding with

probable cause. We distinguished the two claims by acknowledging that while a

malicious prosecution claim “refers to the improper initiation of a lawsuit, abuse of process

deals with the use of a properly initiated lawsuit for an improper purpose.” Id. at ¶ 140,

citing Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 271 (1996).

{¶43} This court also observed the incompatibility of asserting the two claims

based on the probable cause element. Id. at ¶ 141. We determined that the abuse of

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process claim required probable cause as an element and the plaintiff was asserting that

this necessary element did not exist by asserting a malicious prosecution claim that

required a lack of probable cause as a necessary element. We held that the plaintiff

defeated their own abuse of process claim by asserting that the criminal charges against

them were without factual or legal basis. Id. at ¶ 141, 144.

{¶44} This court recently referred to Tablack in Turkoly v. Gentile, 2021-Ohio-965

(7th Dist.). In Gentile, we held that a plaintiff must prove the element of probable cause

when asserting an abuse of process claim. Id. at ¶ 20. We refused to adopt the request

to adopt a different test that omitted the requirement of probable cause. Id. We held that

while the existence of probable cause is usually a jury question, a trial court can decide

the issue when the plaintiff “fails to meet his or her burden of establishing that a defendant

instituted a legal proceeding with probable cause.” Id. at ¶ 23. Citing Tablack, we

affirmed the trial court’s directed verdict in favor of Gentile as to the abuse of process

claim because the Turkolys failed to plead that Gentile initiated his case against them

with probable cause. Id. at ¶ 29-30. We held that while the Turkolys could have

considered raising a malicious prosecution claim, they did not do so. Id.

{¶45} The trial court in the case at bar properly dismissed Appellant’s malicious

prosecution and abuse of process claims based on the litigation privilege. The litigation

privilege bars all civil claims against Appellees for statements and reports to the SIU.

Further, the litigation privilege bars Appellant’s attempts to use the statements and reports

Appellees provided for the criminal indictment as the evidence for her malicious

prosecution and abuse of process claims. Ohio law provides that the litigation privilege

bars these civil claims outright and Daher holds that Appellant cannot use the statements

or reports provided to the SIU to prove her claims.

{¶46} In addition, Appellant repeatedly stated in her amended complaint that

Appellees helped initiate the criminal charges against her without probable cause.

(5/15/2024 Amended Complaint, p. 8-10, ¶ 40, 41, 46, 47, 56). Under our case law,

Appellant cannot maintain her abuse of process claim because she asserted a malicious

prosecution claim and alleged that the charges against her lacked probable cause.

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{¶47} Regarding intentional infliction of emotional distress, as stated, Ohio courts

have expanded the litigation privilege to bar such claims. See Newman, 2021-Ohio-1609,

at ¶ 44 (2d Dist.).

“In order to establish a claim for intentional infliction of emotional

distress, a plaintiff must prove ‘(1) that the defendant intended to cause the

plaintiff serious emotional distress, (2) that the defendant’s conduct was

extreme and outrageous, and (3) that the defendant’s conduct was the

proximate cause of plaintiff’s serious emotional distress.’”

Turkoly, 2021-Ohio-965, at ¶ 31 (7th Dist.), quoting Meminger v. Ohio State Univ., 2017-

Ohio-9290, ¶ 14 (quoting Phung v. Waste Mgt., 71 Ohio St.3d 408, 410 (1994)).

{¶48} The amended complaint does not allege a claim for intentional infliction of

emotional distress. Because Appellant did not plead an intentional infliction of emotional

distress claim, the trial court had no reason to address it. See generally Fletcher v. Univ.

Hosps. of Cleveland, 2008-Ohio-5379, ¶ 15.

{¶49} Appellant’s second, third, and fifth assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED WHEN FINDING THAT PLAINTIFF-

APPELLANT’S ALLEGATIONS IN THE COMPLAINT WERE NOT

LEGALLY SUFFICIENT TO SUSTAIN AN ACTIONABLE CLAIM.

{¶50} In her fourth assignment of error, Appellant contends that paragraphs 26,

35, 36, 37, 38, and 39 of her amended complaint provided sufficient facts to show that

Appellees furthered her criminal prosecution. Appellant asserts that construing these

facts as true and taking all inferences in her favor, her amended complaint sufficiently

states her civil claims.

{¶51} Appellee Balakos responds she is not mentioned in paragraphs 26 and 37

of Appellant’s amended complaint and the other allegations are protected by the litigation

privilege. Balakos contends the paragraphs specified by Appellant also contain

unidentified and amorphous claims. All Appellees further assert that Appellant’s

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malicious prosecution claim was filed beyond the one-year statute of limitations and her

other claims were filed beyond the two-year statute of limitations set forth in R.C.

2744.04(A) of the Political Subdivision Tort Liability Act. Appellees submit Appellant was

required to assert her claim against them within a maximum of two years after the cause

of action accrued, which was when Appellant was last employed, since her allegations

discuss retaliatory actions taken by Appellees during her employment. Appellees note

that the latest the allegations should have been brought was before Appellant’s

employment ended on August 16, 2019. Appellees note that the instant lawsuit was not

initiated until September 13, 2023. Appellees implore us to apply the statute of limitations

to dismiss Appellant’s amended complaint even though the trial court did not rely on the

statute of limitations in its judgment.

{¶52} The trial court did not address these statute of limitations arguments and

relied only on the litigation privilege to bar Appellant’s claims. While the court also held

that some of Appellant’s facts were not actionable, it did not identify those facts or

otherwise explain this finding. Appellate courts generally do not address issues that a

trial court did not consider. Fast Tract Title Servs., Inc. v. Barry, 2024-Ohio-5216, ¶ 42

(8th Dist.), citing e.g., Lycan v. Cleveland, 2016-Ohio-422, ¶ 21; (“[A]n appellate court

limits its review to issues actually decided by the trial court in its judgment.”); Fayak v.

Univ. Hosps., 2020-Ohio-5512, ¶ 28 (8th Dist.); and Crestmont Cleveland Partnership v.

Ohio Dept. of Health, 139 Ohio App.3d 928, 935 (10th Dist. 2000). Thus, our review is

limited to the litigation privilege.

{¶53} Appellant’s fourth assignment of error is without merit.

CONCLUSION

{¶54} For the foregoing reasons, Appellant’s assignments of error are not well-

taken. The September 26, 2024 judgment of the Jefferson County Court of Common

Pleas granting Appellees’ motions for judgment on the pleadings and dismissing

Appellant’s amended complaint in its entirety based on Appellees’ absolute immunity in

a judicial proceeding (litigation privilege) is affirmed.

Case No. 24 JE 0024

– 16 –

Waite, J., concurs.

Robb, P.J., concurs.

Case No. 24 JE 0024

[Cite as Stewart v. Gentile, 2025-Ohio-5012.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of

the Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be taxed

against the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

a certified copy be sent by the clerk to the trial court to carry this judgment into

execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.