DSS Services, LLC, Plaintiff-Appellee, v. Eitel‘s Towing, LLC, Defendant-Appellee, Pleasant Township Fire Department et al., Defendants-Appellants.
No. 18AP-567
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 6, 2019
2019-Ohio-3158
KLATT, P. J.
(C.P.C. No. 17CV-10621) (REGULAR CALENDAR)
Rendered on August 6, 2019
On brief: Florey Todd, Ltd., Adam F. Florey, and Adam R. Todd, for appellee DSS Services, LLC. Argued: Adam F. Florey.
On brief: Reminger Co., L.P.A., and Patrick Kasson, for appellants. Argued: Patrick Kasson.
APPEAL from the Franklin County Court of Common Pleas
KLATT, P. J.
{¶ 1} Defendants-appellants, Pleasant Township and the Pleasant Township Fire Department (collectively “Pleasant Township” or “the township“), appeal a judgment of the Franklin County Court of Common Pleas that denied the township‘s motion for judgment on the pleadings. For the following reasons, we affirm that judgment in part and reverse it in part.
{¶ 2} On October 31, 2017, plaintiff-appellee, DSS Services, LLC, attempted to deliver a load of gravel to a private residence located in Pleasant Township. During the delivery, DSS’ dump truck overturned. The Pleasant Township Fire Department responded
{¶ 3} On December 1, 2017, DSS filed suit against Pleasant Township and Eitel‘s, asserting claims for negligence and conversion.2 Pleasant Township answered the complaint and moved for judgment on the pleadings pursuant to
{¶ 4} In a decision and entry dated July 5, 2018, the trial court denied Pleasant Township‘s motion for judgment on the pleadings. Pleasant Township now appeals from that judgment, and it assigns the following error:
The trial court erred when it denied Pleasant Township‘s Motion for Judgment on the Pleadings asserting political[-]subdivision immunity because Pleasant Township, as a political subdivision engaged in the governmental function of providing fire services or protection, is entitled to immunity, and no exception applies to remove that immunity.
{¶ 5} Initially, we must address whether this appeal is moot, which requires further examination of the procedural history of this case. When confronted with Pleasant Township‘s motion for judgment on the pleadings, DSS filed both a memorandum in opposition and a motion for leave to file an amended complaint instanter. The proposed amended complaint, which DSS attached to its motion, included additional factual allegations to strengthen DSS’ assertion that political-subdivision immunity did not preclude its claims against Pleasant Township. According to DSS, the July 5, 2018 decision and entry that ruled on Pleasant Township‘s motion for judgment on the pleadings also
{¶ 6} An amended complaint supplants the original complaint, so the allegations in an amended complaint supersede those in the original complaint. Morris v. Morris, 189 Ohio App.3d 608, 2010-Ohio-4750, ¶ 32 (10th Dist.); S. Ohio Risk Mgt. v. Michael, 4th Dist. No. 05CA11, 2005-Ohio-5862, ¶ 8. Thus, DSS argues, when the trial court granted it leave to file the amended complaint instanter, the trial court rendered moot the ruling on the motion for judgment on the pleadings because that ruling was based on the allegations contained in the original, defunct complaint.
{¶ 7} DSS’ argument rests on an incorrect premise. The trial court did not grant DSS leave to file its amended complaint in the July 5, 2018 decision and entry. That judgment only ruled on the motions for judgment on the pleadings filed by Pleasant Township and Eitel‘s.3 An administrative addendum to the judgment, intended to assist the clerk in managing the docket, indicated that the judgment granted DSS’ motion for leave. A review of the contents of the judgment, however, reveals that the trial court made no such ruling. This appeal, therefore, is not moot. We thus turn to reviewing the merits of the parties’ arguments.4
{¶ 8} By its only assignment of error, Pleasant Township argues that the trial court erred in denying its motion for judgment on the pleadings. Pleasant Township contends that the trial court should have granted it judgment on the pleadings because
{¶ 9} In reviewing a
{¶ 10} In reviewing a motion for judgment on the pleadings, a court must remain mindful that a plaintiff need not prove its case at the pleading stage. York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144-45 (1991). Under the rubric of notice pleading, a plaintiff has no obligation to anticipate the assertion of an affirmative defense and allege facts to disprove that defense in its complaint. Savoy v. Univ. of Akron, 10th Dist. No. 11AP-183, 2012-Ohio-1962, ¶ 8. As a complainant does not have the burden of refuting possible affirmative defenses, a court may not grant a motion for judgment on the pleadings on the grounds that the plaintiff did not plead specific facts negating an affirmative defense. Mangelluzzi v. Morley, 8th Dist. No. 102272, 2015-Ohio-3143, ¶ 13. Judgment on the pleadings is inappropriate where the pleadings only contain sufficient factual allegations to raise a question of material fact regarding the applicability of an affirmative defense. Fontbank, Inc. v. CompuServe, Inc., 138 Ohio App.3d 801, 813 (10th Dist.2000); accord Harris Farms, LLC v. Madison Twp. Trustees, 4th Dist. No. 17CA3817, 2018-Ohio-4123, ¶ 18, quoting Cristino v. Admr., Bur. of Workers’ Comp., 10th Dist. No. 12AP-60, 2012-Ohio-4420, ¶ 21 (“[U]nless the pleadings ‘obviously or conclusively establish[ ] the affirmative defense,’ a court may not grant a motion for judgment on the pleadings.“); Amzee Corp. v. Comerica Bank-Midwest, 10th Dist. No. 01AP-465, 2002-Ohio-3084, ¶ 36 (“[A] motion for judgment on the pleadings cannot be used to obtain an adjudication of the validity of [affirmative] defenses unless the validity can be determined solely from the allegations in the pleadings.“).
{¶ 11} Political-subdivision immunity is an affirmative defense. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, ¶ 6. Although a political subdivision may seek a judgment on the pleadings on the basis of that affirmative defense, asserting political-subdivision immunity “does not place a burden on the non-moving party to affirmatively demonstrate or plead the absence of, or any exception to, immunity.” Ganzhorn v. R&T Fence Co., 11th Dist. No. 2010-P-0059, 2011-Ohio-6851, ¶ 13; accord Harris Farms at ¶ 17 (quoting Ganzhorn). In other words, “a plaintiff need not affirmatively dispose of the immunity question altogether at the pleading stage.” Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-Ohio-677, ¶ 8 (10th Dist.). Thus, where the face of the complaint does not clearly establish a political subdivision‘s immunity, a court must deny a motion for judgment on the pleadings. Id. at ¶ 17.
{¶ 12} Courts employ a three-tier test to determine whether a political subdivision is immune from liability for tort claims under
{¶ 13} With regard to DSS’ negligence claim, Pleasant Township argues that it is immune under the first tier of the test because it is a political subdivision and it was performing a governmental function when DSS’ truck sustained damage. In response, DSS contends that Pleasant Township was engaged in a proprietary, not governmental, function when the alleged negligence in righting and towing the truck occurred. By raising this contention, DSS does not contest Pleasant Township‘s receipt of immunity under the first tier of the analysis. Because a political subdivision is immune under the first tier if its activities are either governmental or proprietary, the distinction between the two functions is irrelevant in the first tier. Rather, DSS challenges the nature of the function at issue because it affects the second tier of the analysis. In addressing the second tier, DSS argues that Pleasant Township is subject to liability under the exception set forth in
{¶ 14} To obtain a reversal of the denial of judgment on the pleadings, Pleasant Township must demonstrate that the allegations in the complaint establish, beyond a doubt, that it is entitled to political-subdivision immunity. See Ohio Mfrs.’ Assn., 147 Ohio St.3d 42, 2016-Ohio-3038, at ¶ 10 (“Judgment [on the pleadings] is proper only if it appears beyond doubt that the nonmoving party can prove no set of facts entitling it to relief.“). To accomplish this, Pleasant Township argues that the
{¶ 15}
{¶ 16} To support its contention it was engaged in a governmental function, Pleasant Township points this court to
{¶ 17} In response, DSS contends that Pleasant Township looks at the wrong conduct to determine whether its actions are governmental or proprietary. According to DSS, this court should examine whether the righting and towing of an overturned truck is a governmental or propriety function because its negligence claim arises from those activities. DSS argues that the conduct at issue falls within the definition of “proprietary function” because accident recovery and towing services satisfy the test set forth in
{¶ 18} In determining whether a function is governmental or propriety, courts look at the particular, specific activity that allegedly resulted in the plaintiff‘s injury. Plank v. Bellefontaine, 3d Dist. No. 8-17-18, 2017-Ohio-8623, ¶ 20; Hignett v. Schwarz, 9th Dist. No. 10CA009762, 2011-Ohio-3252, ¶ 18; Allied Erecting Dismantling Co. v. Youngstown, 151 Ohio App.3d 16, 2002-Ohio-5179, ¶ 41 (7th Dist.); accord Greene, 89 Ohio St.3d at 560 (“[T]he issue here is not whether holding a county fair is a governmental function; rather, it is the more specific question of whether conducting the hog show at the county fair and conducting the investigation into the allegations of irregularity surrounding the entry of Big Fat in that hog show are governmental functions.“); Scott, 192 Ohio App.3d 465, 2011-Ohio-677, at ¶ 11 (Emphasis sic.) (“[T]he central issue resolves to whether the action for which [the plaintiff] seeks to hold the city liable is part of a governmental function or part of a proprietary function.“). Whether a particular function is proprietary or governmental may
{¶ 19} Here, based on the allegations in the complaint, it appears that the method used to right DSS’ truck and haul it from the DSS’ customer‘s property caused the damage to the truck. Thus, we must focus on the specific activity of righting and towing the truck, not the more general actions of responding to and handling an accident scene, to determine the nature of the function at issue. The question before us, therefore, is whether righting and towing a truck constitutes a fire service and thereby qualifies as a governmental function.
{¶ 20}
{¶ 21} While we do not disagree with the cited statement, we cannot deduce from it that any activity that preserves public health, safety, and welfare is a fire service. Moreover, the factual allegations in the complaint undermine Pleasant Township‘s assertion that public safety was in jeopardy during the hoisting and hauling of the truck. According to the complaint, the Pleasant Township Fire Department oversaw the containment of the fluids leaking from the truck before the truck was dragged upright. The complaint further provides, “Upon the damming and diking of fluids leaking from the [t]ruck, it presented no further immediate environmental or other public risk.” (Compl. at ¶ 16.) Consequently, the factual allegations in the complaint do not support Pleasant Township‘s assertion that a danger to public safety existed at the relevant time. Without such a danger, Pleasant Township loses its justification for classifying the righting and towing of DSS’ truck as a fire service.
{¶ 22} Next, Pleasant Township argues that righting and towing a truck are fire services under
{¶ 23} Conceivably,
{¶ 24} In light of the factual allegations contained in the complaint, we must conclude that a material question of fact remains as to whether Pleasant Township was performing fire services when DSS’ truck suffered damage during the hoisting and hauling process. Consequently, Pleasant Township has failed to show, beyond a doubt, that DSS’ injury occurred as a result of the exercise of a governmental function, thus precluding application of the
{¶ 25} We next turn to Pleasant Township‘s second argument: an independent contractor, not township employees, engaged in the negligent conduct at issue. As we stated above, under the
{¶ 26} As used in
an officer, agent, employee, or servant, whether or not compensated or full-time or part-time, who is authorized to act and is acting within the scope of the officer‘s, agent‘s, employee‘s, or servant‘s employment for a political subdivision. “Employee” does not include an independent contractor * * *.
{¶ 27} Here, Pleasant Township argues that the
{¶ 28} In an attempt to meet its burden, Pleasant Township asserts that Eitel‘s is a private, independent company wholly separate from Pleasant Township. Beyond alleging that Eitel‘s is an Ohio limited liability company, the complaint contains no factual allegations that support this assertion. Pleasant Township‘s assertion also ignores the complaint‘s allegation that, “in the righting of the overturned [t]ruck, Eitel‘s acted as an instrument, and/or under the control of” Pleasant Township. (Compl. at ¶ 87.) This factual allegation would suggest that Eitel‘s was, in fact, operating as Pleasant Township‘s employee when it righted DSS’ truck. See Lakota v. Ashtabula, 11th Dist. No. 2015-A-0010, 2015-Ohio-3413, ¶ 37 (holding that evidence of a political subdivision‘s control over the
{¶ 29} Consequently, a material question of fact remains regarding whether Eitel‘s was Pleasant Township‘s employee when it allegedly negligently hoisted and towed the truck. Pleasant Township, therefore, failed to show, beyond a doubt, the inapplicability of the
{¶ 30} In sum, due to the existence of material facts, we conclude that the trial court did not err in denying Pleasant Township judgment on the pleadings with regard to the negligence claim. As a matter of law, Pleasant Township has not demonstrated entitlement to immunity from liability for its alleged negligence.5
{¶ 31} We next examine the question of whether the trial court erred in denying Pleasant Township judgment on the pleadings with regard to the conversion claim. To address this argument, we begin with the same, unchallenged proposition as we began with above: Pleasant Township is generally immune from liability under the first tier of the political-subdivision immunity test. Pleasant Township argues that it retains this immunity under the second tier of the test because none of the
{¶ 32} The
{¶ 33} To avoid this result, DSS argued below that conversion is not an intentional tort because intent is not a necessary element of conversion. DSS is mistaken. While conversion does not require a showing of wrongful intent to interfere with the owner‘s property rights, a plaintiff must demonstrate that the defendant intentionally exercised dominion or control over the property. Vienna Beauty Prods. Co. v. Cook, 2d Dist. No. 2015-CA-1, 2015-Ohio-5017, ¶ 12; Lansberry at ¶ 67. Therefore, conversion is an intentional tort, and the
{¶ 34} To summarize, we find the trial court did not err in denying Pleasant Township judgment on the pleadings with regard to DSS’ negligence claim. However, the trial court erred in denying Pleasant Township judgment on the pleadings with regard to DSS’ conversion claim. Accordingly, we overrule Pleasant Township‘s assignment of error in part and we sustain it in part. We thus affirm the judgment of the Franklin County Court of Common Pleas to the extent that it denied judgment on the pleadings on the negligence claim, but we reverse that judgment to the extent that it denied judgment on the pleadings on the conversion claim. We remand this matter to the trial court for further proceedings consistent with law and this decision.
Judgment affirmed in part; reversed in part; cause remanded.
BRUNNER and McGRATH, JJ., concur.
McGRATH, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Ohio Constitution, Article IV, Section 6(C).