MICHAEL BOYD v. ARCHDIOCESE OF CINCINNATI, et al.
Appellate Case No. 25950
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
April 10, 2015
[Cite as Boyd v. Archdiocese of Cincinnati, 2015-Ohio-1394.]
Trial Court Case No. 09-CV-975 (Civil Appeal from Common Pleas Court)
Rendered on the 10th day of April, 2015.
. . . . . . . . . . .
MARK J. BAMBERGER, Atty. Reg. #0082053, 8 South 3rd Street, Tipp City, Ohio 45371
Attorney for Plaintiff-Appellant, Michael Boyd
MARK A. VANDERLAAN, Atty. Reg. #0013297, and MARK G. ARNZEN, JR., Atty. Reg. #0081394, Dinsmore&Shohl LLP, 1900 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio 45202
Attorneys for Defendant-Appellee, Archdiocese of Cincinnati
CHRISTOPHER JOHNSON, Atty. Reg. #0005240, One South Main Street, Suite 1800, Dayton, Ohio 45402-2017
and
THOMAS WHELLEY, Atty. Reg. #0010493, 1100 Courthouse Plaza, SW, 10 North Ludlow Street, Dayton, Ohio 45402
Attorneys for Defendant-Appellee, Mathile Family Foundation
. . . . . . . . . . . . .
{¶ 1} Michael Boyd appeals the dismissal of the 14 claims for relief asserted in his second amended complaint against multiple defendants. We conclude that the trial court properly dismissed all of the claims except the one for breach of written contract against Our Lady of the Rosary Parish.1 We therefore affirm in part and reverse in part.
I. FACTS
{¶ 2} The trial court dismissed the claims under
{¶ 3} In 2007, Boyd applied for the position of principal at Our Lady of the Rosary School, a Catholic school in Dayton run by Our Lady of the Rosary Parish. The parish is part of the Archdiocese of Cincinnati, which at the time was led by Archbishop Daniel E. Pilarczyk and had the Rev. Joseph R. Binzer as its chancellor. In July 2007, Boyd was
{¶ 4} Later that year, in October, a few days after Boyd started, Father Holloran stopped by Boyd‘s office with a written employment agreement (“Elementary School Lay Principal Contract“) for Boyd to sign. Reading over the agreement, Boyd noticed that several terms were different from the terms that Father Holloran had mentioned at the interview. In particular, paragraph two of the written agreement states that his employment term was to be only 9 months: “The term of Employee‘s employment hereunder shall commence on October 1, 2007 and shall terminate on June 30, 2008 unless sooner terminated by either party as provided in this Agreement.”2 When Boyd asked about the differences, it was alleged that Father Holloran said that the agreement had been drafted by the Archdiocese and was the standard employment agreement for all school principals. Having already left his previous job, Boyd felt that he had no choice but to sign, and so he did.
{¶ 5} Early on in his tenure, Boyd applied for a $107,000 grant from the Mathile Family Foundation, which the foundation approved. The foundation stated, however, that the money must be used for certain types of projects. Not long after the school received word of the grant, Boyd learned that Father Holloran and Al Dix, the parish‘s business manager, planned to temporarily ” ‘use some of it [the grant money] to resolve cash flow issues for the Parish,’ ” (Second Amended Complaint, ¶ 28). On January 9, 2008, the day
{¶ 6} Almost two weeks after the January meeting, Father Holloran called Boyd into his office and gave him an undated memo with the subject line “Final Warning Concerning Threats and Other Serious Misconduct.”3 Father Holloran told Boyd that he had “shared that memo‘s assertions with others,” “including Archdiocesan personnel,” who Father Holloran said had “assisted in ‘creating’ the memo‘s final form.” (Id. at ¶ 31).
On January 9, 2008 you met with myself and Al Dix, the parish business manager, to review new procedures for payment of school bills and other school related financial matters. The meeting was fairly constructive and I thought that the three months of strained relations between yourself and Mr. Dix was on the mend. Then there were some mutual irritations, and a remark made that you interpreted as a jab at you by Mr. Dix. You challenged him on this, which by itself would not have been inappropriate, but in a very heated and defiant manner. This was tided over. At the end of the meeting Mr. Dix cut short extended remarks being made by you about procedures that would affect primarily parish personnel in the rectory office by asking “What‘s it to you?” This could have been phrased more diplomatically, but your reaction was extreme, saying that he was asking a disrespectful question, was acting like an ass as he had at a previous meeting between the two of you, and that if it didn‘t stop you would be across the table at him. When I tried to calm things by observing that your Irish was up and Mr. Dix‘s Dutch was up and that none of this was helpful, your retort was that in a contest between your Irish and his Dutch his Dutch would not be worth much. As you got up from the table Mr. Dix responded saying, “Don‘t threaten me“. Your response was, while standing over him, “I just did!“. With that you walked out of the room.
Upon your exit I brought to Mr. Dix‘s attention the way in which he
provoked you with his disrespectful tone and choice of words. However, your threat to physically assault Mr. Dix, and your reiteration of the threat before leaving the room, was behavior that one would expect from a street thug rather than a composed professional, and can only be interpreted as the kind of intimidation that the Archdiocesan Personnel Policies mentions as conduct that may justify immediate dismissal. In those policies, March 2002 revision, reasons are given for immediate dismissal of an employee, which are as follows:
- Insubordination or intimidation.
- Reporting to work under the influence of alcohol or drugs.
- Theft or misappropriation of property or funds.
- Conduct contrary to or detrimental to the religious and professional character of the Parish or the policies.
- Serious breach of confidentiality.
- Other inappropriate behavior of a significant nature or degree.
Your threat against Mr. Dix is clearly intimidation, and also contrary to the religious and professional character of the parish. I am giving this written warning as notice to you that if there are any further violations on your part of any of the above reasons for immediate dismissal you will be immediately dismissed from the employ of Our Lady of the Rosary Parish.
{¶ 7} On the morning of February 4, a week or two after Boyd was given this disciplinary memo, he emailed the Archbishop and the Chancellor a letter regarding “intentional underreporting of income on annual canon reporting; advisement of Parish‘s
{¶ 8} A year later, in 2009, Boyd filed suit pro se against Father Holloran, the parish, Dix, the Archdiocese, the Archbishop, and the Chancellor. He also named as defendants Genevieve Ritzel and Brenda Stampfli, both teachers at the school, and John Does 1-75. Boyd later identified John Doe 1 as the Cincinnati Catholic Religious Communities (CCRC), which, he alleges, is the actual employer of the Archdiocese‘s teachers and principals, and identified John Doe 2 as the Joseph L. Bernardin-Archdiocese of Cincinnati Trust, which, alleges Boyd, owns the Archdiocese‘s school property. The 232-paragraph second amended complaint asserts 14 claims: fraud in the inducement - job misrepresentation, fraud, fraudulent misrepresentation, breach of contract not in writing, breach of promise, estoppel, breach of written contract, intentional interference with contract, libel, slander, intentional infliction of emotional distress, failure to supervise, civil conspiracy (individual), and civil conspiracy (organizational).
{¶ 9} The defendants moved to dismiss all of the claims. The trial court granted the motions and dismissed the claims under
{¶ 10} Boyd appealed.
II. ANALYSIS
A. The Dismissal of the Claims
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{¶ 13} “When reviewing a judgment granting a
{¶ 14} Review of a
{¶ 15} In sum, in deciding a
1. Fraud, breach of oral contract, estoppel
{¶ 16} The sixth and seventh assignments of error allege that the trial court erred by dismissing the claims for fraud, fraud in the inducement - job misrepresentation, fraudulent misrepresentation, breach of promise, breach of contract not in writing, and estoppel. Each of these claims is based on the conflict between Father Holloran‘s alleged oral promise of a 3-year term of employment and the written employment agreement‘s promise of only 9 months. The trial court dismissed all of the claims after concluding that they are barred by the parol evidence rule. The trial court‘s conclusion is correct.
{¶ 17} ” ‘The parol evidence rule is a rule of substantive law that prohibits parties to a contract from later contradicting the express terms of the contract with evidence of other alleged or actual agreements. Absent claims of fraud, mistake or some other invalidating cause, the parties’ written agreement may therefore not be varied, contradicted, or supplemented by or on account of evidence of prior or contemporaneous oral agreements, or by written agreements which the terms of the principal contract do not expressly authorize.’ ” Katz, Teller, Brant & Hild, L.P.A. v. Farra, 2d Dist. Montgomery No. 24093, 2011-Ohio-1985, ¶ 23, quoting Evilsizor v. Becraft & Sons Gen. Contractors, Ltd., 156 Ohio App.3d 474, 2004-Ohio-1306, 806 N.E.2d 614, ¶ 12 (2d Dist.). “An integration clause is essentially a contract‘s embodiment of the parol evidence rule, i.e., that matters occurring prior to or contemporaneous with the signing of a contract are merged into and superseded by the contract.” Simon Property Group, L.P. v. Kill, 3d Dist. Allen No. 1-09-30, 2010-Ohio-1492, ¶ 15, citing Galmish v. Cicchini, 90 Ohio St.3d 22, 27-28, 734 N.E.2d 782 (2000).
{¶ 19} Paragraph nine of the written employment agreement here contains an integration clause, providing that the written agreement “contains the entire agreement of the parties and fully supersedes any and all prior agreements or understandings, whether oral or written.” Boyd‘s fraud and breach-of-oral-contract claims require evidence that Father Holloran orally promised Boyd a 3-year term of employment,5 but paragraph two of the written employment agreement expressly defines the term of employment as 9 months. The parol evidence rule therefore would prevent Boyd from introducing evidence
{¶ 20} The promissory estoppel claim was also properly dismissed. The equitable doctrine of promissory estoppel applies to enforce an oral promise when justice requires it. Walker v. Univ. Med. Services, 2d Dist. Montgomery No. 20141, 2004-Ohio-1321, ¶ 14. But ” ‘[t]he unambiguous conditions of a written employment agreement are controlling of any contrary oral promises concerning the same matters that either party made prior to executing the employment agreement.’ ” Vickers v. Wren Industries, Inc., 2d Dist. Montgomery No. 20914, 2005-Ohio-3656, ¶ 43 (quoting the trial court). Therefore a promissory estoppel claim ” ‘cannot lie where a subsequent unambiguous written agreement relieves the obligations imposed by prior oral promises.’ ” Id. (quoting the trial court); see also Baker v. Northwest Hauling, 6th Dist. Wood No. WD-02-050, 2003-Ohio-3420, ¶ 10 (holding that a signed employment application that stated the plaintiff “may be terminated at any time” rendered the plaintiff‘s breach-of-contract and promissory estoppel claims invalid).
{¶ 21} The sixth and seventh assignments of error are overruled.
2. Breach of written contract
{¶ 22} The eighth assignment of error alleges that the trial court erred by dismissing the claim for breach of written contract.
{¶ 23} Paragraph 1(f) of the written employment agreement provides that the principal of the school “shall” “work cooperatively and civilly with the Archdiocesan staff, the School staff, the Parish Pastor, parent/guardians of those having custody of students,
{¶ 24} But what Cottrell actually says is that “[a]n employee‘s act or threat of physical harm to another employee may constitute just cause for discharge.” (Citation omitted.) (Emphasis added.) Cottrell at ¶ 13. Moreover, Cottrell concerned the determination of just cause for discharge under the Unemployment Compensation Act, which implicates concerns that are not relevant to a just-cause determination under a private employment agreement. See Hicks v. Ohio Department of Job and Family Services, 10th Dist. Franklin No. 13AP-902, 2014-Ohio-2735, ¶ 33 (“A just-cause determination must be consistent with the legislative purpose underlying the Unemployment Compensation Act: to provide financial assistance to individuals who are involuntarily unemployed through no fault or agreement of their own.“).
{¶ 25} The complaint here alleges that Boyd performed his obligations and that the parish‘s proffered reason for his termination is pretext. Boyd‘s words to Dix could
{¶ 26} There remains the issue of who may be liable for any proved breach of the written contract. “[A] contract is binding only upon parties to a contract and those in privity with them.” (Citation omitted.) Samadder v. DMF of Ohio, Inc., 154 Ohio App.3d 770, 2003-Ohio-5340, 798 N.E.2d 1141, ¶ 25 (10th Dist.). The issue of contractual privity ” ‘goes to the very heart of actionable breach’ and, consequently, is essential to a claim for breach of contract.” DVCC, Inc. v. Medical College, 10th Dist. Franklin No. 05AP-237, 2006-Ohio-945, ¶ 55, quoting Mark-it Place Foods, Inc. v. New Plan Excel Realty Trust, 156 Ohio App.3d 65, 2004-Ohio-411, 804 N.E.2d 979, ¶ 22 (4th Dist.). Generally, “only a party to a contract or an intended third-party beneficiary thereof may be named as a defendant in an action for breach of a contract.” Kirby v. Cole, 163 Ohio App.3d 297, 2005-Ohio-4753, 837 N.E.2d 839, ¶ 11 (3d Dist.), citing Grant Thornton v. Windsor House, Inc., 57 Ohio St.3d 158, 161, 566 N.E.2d 1220 (1991).
{¶ 27} This breach-of-contract claim here names as defendants the Archdiocese, the parish, the CCRC, and the Trust. Only the parish is a party to the written employment agreement. The first paragraph of the agreement states that the agreement is “between Michael Boyd (‘Employee‘) and the Our Lady of the Rosary Parish (‘Employer‘),” and the agreement is signed only by Father Holloran and Boyd. The only way that the agreement could be enforced against these nonparties is through a liability theory like ” ‘assumption,
{¶ 28} The Archdiocese, the CCRC, and the Trust were properly dismissed from the breach-of-written-contract claim. But the trial court erred by dismissing that claim against the parish.
3. Intentional interference with contract
{¶ 30} The ninth assignment of error alleges that the trial court erred by dismissing the claim for intentional interference with contract. The complaint asserts that the Archbishop, the Chancellor, Father Holloran, Dix, Ritzel, and Stampfli interfered with the written employment agreement.
{¶ 31} “Tortious interference with contract requires an actor to improperly interfere with the performance of a contract between two other persons.” Dorricott v. Fairhill Ctr. for Aging, 2 F.Supp.2d 982, 989-990 (N.D.Ohio 1998), citing Miller v. Wikel Mfg. Co., Inc., 46 Ohio St.3d 76, 79, 545 N.E.2d 76 (1989). The interference must be “by someone who is not a party or agent of the party to the contract or relationship at issue.” Id.; see also Condon v. Body, Vickers & Daniels, 99 Ohio App.3d 12, 22, 649 N.E.2d 1259 (8th Dist.1994) (“Tortious interference with a business contract occurs when one party to a contract is induced to breach the contract by the malicious acts of a third person who is not a party to the contract.” (Emphasis sic.)). For an agent to have tortiously interfered with a principal‘s contract, the agent must have “benefited solely in a personal capacity.” Miller at 79. Accordingly, “[t]o maintain a tortious interference claim against an employee of a party to the relationship at issue, a plaintiff must demonstrate that the employee acted solely in his or her individual capacity and benefitted from the alleged interference.” (Citations omitted.) Fitzgerald v. Roadway Express, Inc., 262 F.Supp.2d 849, 860 (N.D.Ohio 2003). See Condon at 22 (concluding that an office manager of a firm was not a third party subject to liability for tortiously interfering with an employment contract to which the firm was a party).
{¶ 33} The ninth assignment of error is overruled.
4. Defamation—libel and slander
{¶ 34} The tenth assignment of error alleges that the trial court erred by dismissing the two defamation claims—libel and slander. For our analysis of those claims, we note that the operative complaint is no more, and no less, than a vitriolic diatribe of sixty-two pages consisting of 232 enumerated paragraphs and four attached documents. But we have sifted through the rhetoric to evaluate the efficacy of allegations of defamation. The complaint attempts to say so much but alleges so little.
{¶ 35} ” ‘Defamation is a false publication causing injury to a person‘s reputation, or exposing the person to public hatred, contempt, ridicule, shame or disgrace or affecting him adversely in his trade or business.’ Defamation can be in the form of either slander or libel. Slander generally refers to spoken defamatory words while libel refers to written or printed defamatory words. The essential elements of a defamation action, whether
{¶ 36} Even if a defamation claim for a particular statement is adequately pleaded, the statement may not be actionable if the statement is privileged. A conditional, or qualified, privilege protects the maker of the statement “in the absence of ill will or malice.” Burkes v. Stidham, 107 Ohio App.3d 363, 372, 668 N.E.2d 982 (8th Dist.1995); see also Evely v. Carlon Co., 4 Ohio St.3d 163, 166, 447 N.E.2d 1290 (1983) (“Once [defendant] asserted the defense that its statements were made in good faith, [plaintiff] had the burden of showing that [defendant] acted with actual malice and could not merely rely on allegations in the complaint.“). A qualified privilege covers statements made about the activities of an employee arising out of employment, and not directed to the employee as an individual separate and apart from his employment, “concerning matters of common business interest between the parties and, accordingly, there must be a showing that they were made with actual malice in order for the appellant to prevail.” Evely at 165; see also Matikas at ¶ 28 (saying that remarks made by a supervisor to superiors that are made within the scope of the supervisor‘s duties are “within the qualified privilege and are not actionable absent a showing of actual malice“); Crase v. Shasta Beverages, Inc., 10th Dist. Franklin No. 11AP-519, 2012-Ohio-326, ¶ 47 (saying that there is “a qualified privilege to allegedly defamatory statements that corporate officers made to other officers
{¶ 37} “[T]he defense of qualified privilege is an affirmative defense.” Stepp v. Wiseco Piston Co., Inc., 11th Dist. Lake No. 2013-L-059, 2013-Ohio-5832, ¶ 28. A court may not dismiss a complaint for failure to state a claim “unless the face of the complaint obviously or conclusively establishes the affirmative defense.” Cristino v. Bur. of Workers’ Comp., 2012-Ohio-4420, 977 N.E.2d 742, ¶ 21 (10th Dist.); see also Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 13 (“A complaint may be dismissed under
i. Libel
{¶ 38} With respect to the libel claim, the complaint alleges four libelous documentations: (1) the disciplinary memo written by Father Holloran about the events of the January 9 meeting; (2) a pre-termination email that Brenda Stampfli sent to Father Holloran requesting Boyd‘s termination; (3) a non-specific wilful campaign of libelous documentation by “one or more persons” sent to Holloran to support Boyd‘s termination and incorporated into the complaint as “attachment 2” (Compl. ¶176); and (4) a letter that Holloran later wrote to the school community about Boyd‘s departure.
{¶ 39} Boyd was dismissed from employment on February 4, 2008, within hours of his electronic transmission of his accusation letter to the Archdiocese. We carefully have combed the allegations of the complaint. There is no “attachment 2” to the complaint and none of the actual attachments (A through D) can reasonably be construed to be the documentation by Holloran to which this portion of the complaint refers. Without doubt, alleged libelous documents one, two and three above were created and published before, and in support of, Boyd‘s dismissal on February 4, 2008. Boyd‘s original complaint was filed February 5, 2009. A cause of action for defamation is barred by the applicable statute of limitations.
{¶ 40} The letter plaintiff alleges was created and sent on February 5, 2008 to parents, students, and others offering explanations for his dismissal, on the record before us, would not be time barred. Defendants attached the letter they assert was the letter they sent out as attachment “D” to their motion to dismiss filed April 24, 2012. The only reference in that letter to the plaintiff is the first sentence, which says “our principal, Michael Boyd, has left our employ.” We agree with the defendants that nothing in that letter is defamatory. However, we return again to the requirement that a motion to dismiss is limited to the allegations of the complaint. The letter is not included in the complaint. But there is an additional reason why there is no libel claim related to the letter to parents. In his brief, ”Appellant concedes that particular letter is insufficient to constitute libel under Ohio law” (Appellant‘s Brief at pg. 27 (underline in original)). With this concession, there remains no written communication for which the complaint states a claim. Accordingly, we affirm the trial court‘s dismissal of any alleged claim for libel.
ii. Slander
{¶ 41} The slander claim concerns oral statements that were allegedly made beginning around February 4, 2008 to students, parents, and other employees about Boyd‘s personal life and his competence as an educational professional that purported to explain why he no longer was at the school. These statements allegedly included: ” ‘He
{¶ 42} The slander claim is only asserted “Against Defendants Archdiocese, OLR Parish, Holloran, Dix, Rietzel [a parish ‘employee or volunteer‘], Stampfli [‘a part-time employee or/and volunteer‘] and Does 1-75” (Complaint and unfiled Second Amended Complaint “Eleventh Cause of Action.“).6 With respect to the Archdiocese or Parish, they obviously cannot make oral statements themselves. Moreover, Boyd alleges that the slander was committed “in furtherance of their individual conspiratorial purposes” (Second Amended Complaint, ¶ 192), “out of hatred and ill will * * * to retaliate * * * and to intentionally, wilfully and maliciously interfere with Plaintiff‘s career.” (Id., ¶ 195.). There is no allegation of liability alleged to either religious entity on the basis of respondeat superior and no allegation that those entities caused, encouraged, or ratified the alleged slanderous statements. Contrarily, intentional, malicious, and wilful acts, as Boyd has alleged, in furtherance of individual conspiracy, as he also alleged, are the antithesis of
{¶ 43} With respect to Rietzel and Stampfli, the slander portion of the complaint fails to even mention their names (except in the non-allegational heading) and fails to state what they said, or to whom, or how or when. The second amended complaint simply does not state a slander claim against them. Although not in the slander section of the complaint, paragraph 15 does mention that during his employment Rietzel said that Boyd failed to meet deadlines and that Boyd “was in over his head and not interested in meeting deadlines.” Assuming those statements were said, and assuming only for the sake of analysis that the statements were untrue, the statements were alleged to have been made during his employment. As we indicated in our discussion of the libel allegations, Boyd‘s employment ended February 4, 2008. Any claim about statements made before then are barred by the one-year statute of limitation.
{¶ 44} For Dix, the only non-amorphous slander allegation that contains any reference to him is that “Holloran, made those utterances as though they were fact despite his complete awareness that his words were false and defamatory and were created by him and by Dix as a pretext for causing Plaintiff to be terminated.” Id, ¶ 193. We reiterate, Boyd was terminated on February 4, 2008. Any allegation that Dix said anything that resulted in Boyd‘s firing on February 4, 2008 is barred by the one-year statute of limitation. Accordingly, the complaint fails to state a slander claim against Dix.
{¶ 45} That leaves Holloran as the only remaining defendant in regard to the slander allegations. The complaint alleges the following was said: “He [Boyd] threatened Al Dix and wouldn‘t take back the threat,” “He engaged in intimidation,” and “He was given
{¶ 46} Truth is a complete defense to a charge of defamation. ” ‘It is sufficient to show that the imputation is substantially true, or as it is often put, to justify the “gist,” the “sting,” or the “substantial truth” of the defamation.’ ” Scaccia v. Dayton Newspapers, Inc., 2d Dist. Montgomery No. 22813, 2009-Ohio-809, ¶ 9, quoting Prosser, Law of Torts, 798-799 (4th Ed.1971). This broad definition of the truth defense prevents a defamation claim from resulting in an argument over semantics. Here, in the complaint Boyd admits that he “threatened” Dix. (“Plaintiff looked back at Dix and matter-of-factly stated, ‘You put your hand in my face again and I‘ll assume you‘re wanting me to come out of my chair.’ “) (Second Amended Complaint, ¶ 27) (Emphasis sic.). Furthermore, any reasonable interpretation of the complaint acknowledges that Boyd was given a chance to apologize and that he did not. The statements that form the basis of the slander claim must therefore be considered substantially true, sufficiently so that based on the allegations of the complaint, alone, it is apparent that Boyd has failed to state a claim.
{¶ 47} Finally, we return once more to the one-year statute of limitation. Boyd makes the allegation about the assertion that he “coerced and intimidated defendant Dix and that [Boyd‘s] conduct was such as to justify his termination and that plaintiff was purportedly a ‘thug,’ again indicating a need to terminate” (Id., ¶ 178) in regard to the documentation included in the memo Holloran prepared before, and in support of, Boyd‘s termination. Boyd‘s employment ended February 4, 2008. Any claim about statements made on or before then is barred by the one-year statute of limitation.
{¶ 48} The tenth assignment of error is overruled.
{¶ 49} The twelfth assignment of error alleges that the trial court erred by dismissing the claim for intentional infliction of emotional distress. The trial court concluded that the complaint alleges no conduct by any of the defendants that was extreme or outrageous. We agree.
{¶ 50} “One who by extreme and outrageous conduct intentionally or recklessly causes serious emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Yeager v. Local Union 20, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983), syllabus, abrogated on other grounds by Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451, 866 N.E.2d 1051.
“In order to recover damages for the intentional infliction of serious emotional distress, four elements must be proved: a) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; b) that the actor‘s conduct was extreme and outrageous, that it went beyond all possible bounds of decency and that it can be considered as utterly intolerable in a civilized community; c) that the actor‘s actions were the proximate cause of the plaintiff‘s psychic injury; and d) that the mental anguish suffered by plaintiff is serious and of a nature that no reasonable person could be expected to endure it.”
Thomas, 2011-Ohio-6712, 969 N.E.2d 1284, at ¶ 12, quoting Pyle v. Pyle, 11 Ohio App.3d 31, 463 N.E.2d 98 (8th Dist.1983), paragraph two of the syllabus.
“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 been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ”
Yeager at 374-375, quoting Restatement of the Law 2d, Torts, Section 46, Comment (1965). Boyd‘s complaint is that his termination, supported by the alleged defamatory communications, constitutes intentional infliction of emotional distress. We agree with the trial court that none of the factual conduct alleged in the complaint comes close to meeting the standard set out in Yeager. Moreover, where defamation is the basis for an intentional infliction of emotional distress claim, the applicable one-year statute of limitations for defamation also applies to the emotional distress claim. Ibenez v. Hutchins, 10th Dist. Franklin No. 12AP–319, 2012–Ohio–5040, ¶ 9. The claim for intentional infliction of emotional distress was properly dismissed.
6. Failure to supervise
{¶ 53} The eleventh assignment of error alleges that the trial court erred by dismissing the claim for failure to supervise, which the court did because Boyd was an employee and because the claim does not allege an intentional tort.
{¶ 54} ” ‘[A]n underlying requirement in actions for negligent supervision and negligent training is that the employee is individually liable for a tort or guilty of a claimed wrong against a third person, who then seeks recovery against the employer.’ ” Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, ¶ 23, quoting Strock v. Pressnell, 38 Ohio St.3d 207, 216, 527 N.E.2d 1235 (1988). “[A]n employee bringing a claim of negligent supervision against her employer is precluded from doing so by Ohio‘s workers’ compensation scheme.” Blough v. Hawkins Mkt., Inc., 51 F.Supp.2d 858, 865-866 (N.D.Ohio 1999).
{¶ 55} The complaint here alleges that the Archdiocese had a duty to supervise the parish, Father Holloran, Dix, and others, including the Archbishop and the Chancellor, and that Father Holloran had a duty to supervise, among others, Ritzel, Stampfli, and Dix. The Archdiocese and the parish, alleges the complaint, “did not simply negligently fail to supervise, but willfully and tortiously turned their backs to their responsibilities * * *.” (Second Amended Complaint, ¶ 215). Although this language suggests an intentional tort, it is not sufficient by itself to constitute such a claim. An employee may recover for an employer intentional tort only when the employer acts with specific intent to cause an injury. Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 23. An intentional tort does not encompass ”
{¶ 56} The eleventh assignment of error is overruled.
7. Civil conspiracy
{¶ 57} The thirteenth assignment of error7 alleges that the trial court erred by dismissing the two conspiracy claims—one against the individual defendants, the other against the organizational defendants.
{¶ 58} A civil-conspiracy claim requires an underlying bad act:
“A claim for civil conspiracy requires proof of ‘a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damage.’ ”Kimmel v. Lowe‘s, Inc., 2d Dist. Montgomery No. 23982, 2011-Ohio-28, ¶ 20, quoting Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419, 650 N.E.2d 863 (1995). “A claim for conspiracy cannot be made [the] subject of a civil action unless something is done which, in the absence of the conspiracy allegations, would give rise to an independent cause of action.” Cully v. St. Augustine Manor, 8th Dist. Cuyahoga No. 67601, 1995 WL 237129, *4 (April 20, 1995).
{¶ 59} Here, all of the claims alleging unlawful acts were properly dismissed. As for the sole remaining claim, “[i]t is not a tort to breach a contract, no matter how willful or malicious the breach.” The Salvation Army v. Blue Cross & Blue Shield of N. Ohio, 92 Ohio App.3d 571, 578, 636 N.E.2d 399 (8th Dist.1993). Therefore the claims for civil conspiracy cannot succeed and were properly dismissed.
{¶ 60} The thirteenth assignment of error is overruled.
8. Other Assignments of Error
{¶ 61} The first and second assignments of error make general allegations about the trial court‘s dismissal of the all of the claims. The third, fourth, and fifth assignments of error make specific allegations about the dismissal of the Archdiocese, the CCRC, and the Trust. For all of the issues raised in these five assignments of error, they were either addressed in our discussion above or are without merit. These five assignments of error are overruled.
B. The Trial Judge‘s Alleged Bias or Prejudice
{¶ 62} The fourteenth assignment of error asserts that the trial judge should have recused herself under Jud. Cond. R. 2.11(A)(1), which provides that “[a] judge shall disqualify himself or herself in any proceeding in which the judge‘s impartiality might reasonably be questioned, including but not limited to the following circumstances: * * *
{¶ 63} As we have said, “[i]ntermediate appellate courts, such as this one, have no jurisdiction to disqualify a judge based on claims of bias or prejudice; such claims must be brought to the Chief Justice of the Ohio Supreme Court.” Bank of Am., N.A. v. Litteral, 2d Dist. Montgomery No. 25086, 2013-Ohio-38, ¶ 15, citing Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775 (1978). Boyd has not done this.
{¶ 64} The fourteenth assignment of error is overruled.
III. CONCLUSION
{¶ 65} We have considered the other issues raised in Boyd‘s pro se appellate brief and conclude that they are without merit.
{¶ 66} Because we sustained in part the eighth assignment of error, that part of the trial court‘s judgment dismissing the claim for breach of written contract against the parish is reversed. The rest of the judgment is affirmed. This case is remanded for further proceedings.
. . . . . . . . . . . . .
FROELICH, P.J., and WELBAUM, J., concur.
Copies mailed to:
Mark J. Bamberger
Mark A. VanderLaan
Mark G. Arnzen, Jr.
Christopher Johnson
Thomas Whelley
Hon. Richard S. Skelton
(successor to Hon. Frances E. McGee)