WILLIAM S. JOHNSON v. ALICE J. GODSEY
C.A. CASE NO. 2012 CA 80
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
July 26, 2013
2013-Ohio-3277
T.C. NO. 11CVI656; (Civil appeal from Municipal Court)
Rendered on the 26th day of July, 2013.
WILLIAM S. JOHNSON, P. O. Box 62, Clifton, Ohio 45316
Plaintiff-Appellant
THADDIUS A. TOWNSEND, Atty. Reg. No. 0089197, Assistant Clark County Prosecutor, 50 E. Columbia Street, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Defendant-Appellee
FROELICH, J.
{¶ 1} William S. Johnson appeals from a judgment of the Clark County
I. Factual and Procedural History
{¶ 2} Johnson is the owner of residential rental property located at 5307 Waverly Drive in Clark County. The property receives water services through the Clark County Utilities Department. At all relevant times, Alice Godsey was the director of the Clark County Utilities Department.
{¶ 3} On February 18, 2011, Johnson filed a small claims complaint against Godsey, claiming that Godsey was “extorting money” from Johnson for water service to the Waverly Drive property. Johnson also alleged that Godsey was “harassing and terrorizing” the new tenant at the property by seeking payment for services provided to a prior tenant and by threatening to shut off water service to the new tenant. Johnson alleged that Godsey‘s conduct was outside the scope of her employment as the director of utilities. Johnson‘s complaint cited to case law, the Rules and Regulations of the Clark County Utilities Department, and the Application and Contract form of the Clark County Utilities Department. Johnson sought $1,079.51, plus penalties, living expenses, and costs.
{¶ 4} Godsey was served with the complaint on February 25, 2011, and a рretrial conference was held on March 15, 2011. Based on the discussions at that conference, the trial court transferred the case to the court‘s regular docket and granted Godsey 30 days to file an answer and counterclaim. Both parties were given 90 days to conduct discovery and file dispositive motions.
{¶ 5} On April 14, 2011, Godsey, as director of utilities for Clark County, filed an answer denying all of the allegations of wrongdoing in the complaint. She also brought a countеrclaim against Johnson, alleging that $282.32 was due and owing for water service to 5307 Waverly Drive and that Johnson was responsible for paying for that arrearage. Johnson answered the counterclaim, stating in part that the Clark County Utilities Department had not been joined in the lawsuit, that he (Johnson) had no contract with Godsey, and that Godsey could not seek damages against him.
{¶ 6} On June 2011, Godsey moved for summary judgment, claiming that her actions were taken in furtherance of her pоsition as director of utilities and that she was entitled to sovereign immunity. Two days later, Johnson filed an amended complaint, which included additional allegations that Godsey had improperly levied tax liens and charges for arrearages.
{¶ 7} Godsey filed an amended summary judgment motion, again claiming sovereign immunity. She supported the motion with an affidavit stating that her actions were taken in the scope of her employment and were pursuant to regular department procedures. She indicated that an arrearage on the property grew to $268.88 between October 20, 2010 and January 26, 2011. On November 1, 2010, water service was discontinued due to an arrearage. Despite the unpaid balance, water service was restored on December 2, 2010, based on an understanding that the owner (Johnson) would pay the arrearage. Godsey stated that the current tenant is up-to-date in his water payments. Johnson subsequently opposеd Godsey‘s motion for summary judgment and asked for “reasonable expenses,” arguing that Godsey had not claimed sovereign immunity in her answer.
{¶ 8} Godsey moved to amend her answer, stating that her counsel had inadvertently
{¶ 9} Godsey filed an amended answer on August 12, 2011. She again denied Johnson‘s allegations, raised five affirmative defenses (including sovereign immunity), and asserted, as director of utilities, a new counterclaim for “all reasonable attorney fees in defending this action, as well as costs to Clark County, Ohio for wages spent in defense of this action.” Johnson filed an answer to the counterclaim, stating that Godsey had been sued personally and that she resрonded to his interrogatories stating that she personally had not lost any wages as a result of this action and was not personally responsible for her attorney fees. Johnson claimed that the counterclaim was frivolous and not made in good faith.
{¶ 10} On October 3, 2011, Johnson moved to dismiss Godsey‘s counterclaim. He also asked for “reasonable expenses incurred as a result of the Defendant‘s frivolous Counterclaim and cross-claim pursuant to Rule 56 G.” Johnson argued that the “claims were without merit and made in bad faith in an attempt to intimidate a pro se Plaintiff.” In his supporting memorandum, Johnson stated that he had spent at least five hours defending and answering the counterclaim, and he sought $525 in expenses.
{¶ 11} Godsey voluntarily dismissed her amended counterclaim on November 4, 2011. Five days later, Johnson filed a “motion for judgment on the pleadings to grant plaintiff expenses for frivolous counterclaim/crossclaim,” pursuant to
{¶ 12} Later in November 2011, Johnson filed a supplemental memorandum addressing Godsey‘s claim that she was entitled to sovereign immunity. He asserted that he had alleged several instances where Godsey had acted contrary to law, outside the scope of her employment, and in bad faith and in a wanton manner. Johnson provided a detailed timeline of his communications with Godsey and the Clark County Utilities Departmеnt regarding unpaid water bills at the Waverly Drive property. Johnson supported his memorandum with an affidavit affirming that his statements in the supplemental memorandum were true and that his exhibits were accurate copies of documents provided by Godsey during discovery.
{¶ 13} In February 2012, a magistrate ruled on both Johnson‘s request for reasonable expenses and Godsey‘s motion for summary judgment. The magistrate denied Johnson‘s request for reasonable expenses, noting first that
Even if Plaintiff had properly moved for sanctions under Civil Rule 11 or
R.C. 2323.51 there has been no showing of any improper conduct on the part of Defendant sufficient to support any award of expenses. Whereas Ms. Godsey, in her individual capacity, has no standing to bring a counterclaim for unpaid utility services, it was not unreasonable for Defendant‘s counsel to initially assume, given the subject matter of Plaintiff‘s allegations, that Ms. Godsey was being sued in a representative capacity as Director of the Clark County Utilities Department. The counterclaim was later voluntarily withdrawn; there has been no showing of any bad faith or improper purpose in its assertion, nor has it been shown that Plaintiff suffered any significant loss or injury as a result. Accordingly,Plaintiff‘s Motion is denied.
{¶ 14} The magistrate granted Godsey‘s motion for summary judgment based on sovereign immunity under
{¶ 15} Johnson objected to the magistrate‘s decision. On October 29, 2012, the trial court rejected Johnson‘s objections and entered judgment in favor of Godsey. The trial court‘s judgment entry was almost identical to the magistrate‘s decision.
{¶ 16} Johnson appeals from the trial court‘s judgment, raising numerous assignments of error. He challenges both the denial оf his motion for reasonable expenses and the trial court‘s grant of summary judgment to Godsey.
II. Motion for Expenses for Frivolous Filing
{¶ 17} Johnson raises six assignments of error concerning the trial court‘s denial of his motion for expenses for Godsey‘s allegedly frivolous counterclaims. Johnson claims that the trial court erred in finding (1) that the initial counterclaim was dismissed “upon clarification that Ms. Godsey was being sued personally as a private individual, and not in her capacity as Director
{¶ 18} Johnson‘s motion for reasonable expenses was brought under
Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order thе party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney‘s fees, and any offending party or attorney may be adjudged guilty of contempt.
By its terms,
{¶ 19} Moreover, the trial court reasonably concluded that Johnson was not entitled to expenses under
{¶ 20}
{¶ 21} Under
(1) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but nоt limited to, causing unnecessary delay or a needless increase in the cost of litigation.
(2) It is not warranted under existing law, cannot be supported by a good
faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law. (3) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief.
{¶ 22} We find no indication in the record that Godsey‘s original counterclaim constituted a willful violation of
{¶ 23} Godsey‘s counterclaim in her amended аnswer sought reasonable attorney fees and costs to Clark County for defending the action. Although Godsey did not cite to any authority for this claim in her amended answer, Godsey‘s claim was not unsupportable, and we find no suggestion that it was filed for purposes of harassment or to increase the cost of litigation.
{¶ 24} Johnson‘s assignments of error concerning the denial of his motion for reasonable expenses are overruled.
III. Sovereign Immunity
{¶ 25} Johnson raises five assignments of errоr challenging the trial court‘s granting of Godsey‘s motion for summary judgment. He claims that both the magistrate and the trial court erred in finding (1) that Godsey‘s conduct was not manifestly outside the scope of her employment, (2) that Godsey did not act in bad faith or in a wanton manner, (3) that Johnson had to show that Godsey‘s action were taken for a personal reason or with an ulterior motive, (4) that Johnson cited no section of the Revised Code that imposed personal civil liability uрon utilities directors, and (5) that Godsey‘s actions were taken within the scope of her employment.
{¶ 26} Pursuant to
{¶ 27} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party‘s pleadings. Dresher at 293;
{¶ 28} “R.C. Chapter 2744, the Political Subdivision Tort Liability Act, sets forth a comprehensive statutory scheme for the tort liability of political subdivisions and their employees.” Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, – Ohio St.3d –, 2013-Ohio-2410, – N.E.2d –, ¶ 11. The statute “is the General Assembly‘s response to the judicial abrogation of commоn-law sovereign immunity. Its manifest purpose is the preservation of the fiscal integrity of political subdivisions.” Estate of Graves v. Circleville, 124 Ohio St.3d 339, 2010-Ohio-168, 922 N.E.2d 201, ¶ 12, citing Wilson v. Stark Cty. Dept. of Human Servs., 70 Ohio St.3d 450, 453, 639 N.E.2d 105 (1994).
{¶ 29}
{¶ 30} Johnson asserts that Godsey‘s actions were manifestly outside the scope of her employment. In his verified supplemental memorandum, Johnson stated that Godsey was required to contract with the individual tenants, that he had repeatedly attempted to cancel his contract with the utility department but Godsey would not аllow it, that Godsey has never billed Johnson directly for the unpaid water bill, that Godsey failed to provide a copy of the utility department‘s rules and regulations, that Godsey has allowed water service at the property without a contract with the individual tenants, and that Godsey unlawfully recommended and allowed tax liens on his property for water charges.
{¶ 31} In her affidavit, Godsey stated that, as of October 18, 2010, the account for 5307 Waverly Drive had a credit. However, from October 20, 2010 to January 26, 2011, the unpaid balance grew to $268.66, including usage and penalties. Water service was discontinued on November 1, 2010 for final reading by the Clark County Utilities Department. Godsey stated that, despite the arrearage, water service was restored to the property on December 2, 2010 “based on the understanding that the owner would pay the arrearage.” Due to the continued
{¶ 32} For an act to fall within the scope of employment, it must be “calculated to facilitate or promote the business for which the [employee or agent] was employed.” Osborne v. Lyles, 63 Ohio St.3d 326, 329, 587 N.E.2d 825 (1992). In general, if an act is committed within the scope of employment, it will be authorized, either expressly or impliedly, by the employer. Anousheh v. Planet Ford, Inc., 2d Dist. Montgomery Nos. 21960 & 21967, 2007-Ohio-4543, 2007 WL 2482625, ¶ 45. Intentional and willful acts by an agent or employee “to vent his own spleen or malevolence against the injured рerson” are generally outside the scope of employment. Osborne, 63 Ohio St.3d at 329. Stated differently, “an employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his business.” Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 42, citing Byrd v. Faber, 57 Ohio St.3d 56, 59, 565 N.E.2d 584 (1991).
{¶ 33} Construing the evidence in the light most favorable to Johnson, there is no genuine issue of material fact whether Godsey‘s actions regarding the water service to 5307 Waverly Drive were done within the scope of her employment. It is undisputed that Godsey is the current director of the Clark County Utilities Department, which has primary responsibility for providing water for residential properties within its district and billing for those services.
{¶ 34} Next, Johnson asserts that Godsey acted with a malicious purpose, in bad faith, and in a wanton or reckless manner, thus stripping hеr of immunity under
{¶ 35} Recklessness is a high standard. Rankin v. Cuyahoga Cty. Dept. of Children and Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 37. Wanton misconduct has been defined as the failure to exercise any care whatsoever. Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994), citing Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977), syllabus.
{¶ 36} Mere negligence in the performance of Godsey‘s duties is insufficient to meet this high standard. See O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 74. As stated by the Ohio Supreme Court, “‘mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.’ Such perversity must be under such conditions that the actor must be consсious that his [or her] conduct will in all probability result in injury.” Fabrey at 356, quoting Roszman v. Sammett, 26 Ohio St.2d 94, 96-97, 269 N.E.2d 420 (1971). Even when viewing the evidence in
{¶ 37} Finally, Johnson disputes the trial court‘s finding that he did not cite to any statutory provision expressly imposing civil liability on a director of utilities for its billing practices. In his objections to the magistrate‘s decision (and on appeal), Johnson argued that Godsey‘s actions rose to the level of criminal violations, namely theft by deception, extоrtion, and coercion, and thus her actions were not entitled to immunity in a civil lawsuit under
{¶ 38} Regardless, even if
{¶ 39} The trial court did not err in finding that no genuine issues of material fact existed and that Godsey was entitled, as a matter of law, to the immunity set forth in
IV. Conclusion
{¶ 40} The trial court‘s judgment will be affirmed.
HALL, J. and WELBAUM, J., concur.
Copies mailed to:
William S. Johnson
Thaddius A. Townsend
Hon. Eugene S. Nevius