Morelia Group-DE, L.L.C. v. WeidmanMorelia Group-DE, L.L.C. v. Weidman
Green & Green, Jared A. Wagner and Jane M. Lynch, for Defendant-Appellant.
{¶1} Defendant-appellant Thomas Weidman, a trustee for Sycamore Township, appeals the trial court‘s denial of his
I. Procedural History
{¶2} In April 2021, Morelia Group filed suit against Weidman for tortious interference with a business relationship. In his answer, Weidman counterclaimed for defamation, intentional infliction of emotional distress, and false light invasion of privacy. After a series of motions, the trial court granted Morelia Group‘s motion to dismiss Weidman‘s counterclaims on the basis that the claims were time-barred by the statute of limitations. The trial court then denied Weidman‘s motion for judgment on the pleadings, concluding that the complaint sets forth adequate facts to survive an immunity challenge at the pleading stage. This timely appeal followed.
II. Factual History
{¶3} Morelia Group is a commercial real estate developer led by founder and CEO Christopher Hildebrant. Thomas Weidman has been a member of the Sycamore Township Board of Trustees since 2006. Hildebrant and Weidman have known each other since as early as 2005 through Hildebrant‘s business dealings in and around
{¶4} According to Morelia Group, beginning in 2007, Hildebrant attempted to acquire several adjacent parcels of land near the intersection of Montgomery Road and Kenwood Road in Sycamore Township for commercial development (the “Development Property“). The parcels were owned by various separate owners, and Hildebrant had negotiated to acquire all but one before the entire plan fell through due to the 2008 economic downturn.
{¶5} In 2009, Hildebrant learned from Weidman that the township sought to buy the Development Property with the same goal of consolidating ownership and using the combined property for commercial development. According to Morelia Group, Weidman sought Hildebrant‘s assistance in negotiating the purchase of the various parcels for the Township.
{¶6} In a series of transactions from 2009 through 2011, Hildebrant successfully negotiated various real estate transactions at Weidman‘s request. According to Morelia Group, Hildebrant was to be paid consulting fees in the various arrangements. Morelia Group claims that in each transaction, Weidman demanded to be paid a kickback from the consulting fee that Hildebrant collected. Over the course of these transactions, Hildebrant feigned agreement that he would pay Weidman the kickback. However, Morelia Group claims that every time Weidman asked Hildebrant for payment, Hildebrant made excuses as to why he could not pay the expected kickback, such as not having received the promised consulting fee.
{¶7} Morelia Group claims that in early 2012, Weidman learned of Hildebrant‘s deception regarding the nonpayment of the kickbacks. As a result, Weidman threatened to withhold zoning approval for Hildebrant‘s latest deal unless
{¶8} Between 2010 and 2019, the township bought or contracted to buy all of the parcels constituting the Development Property for a combined total of nearly $11 million. Morelia Group only describes Hildebrant‘s involvement in transactions prior to 2012, implying that he was no longer involved in negotiating purchases on behalf of the township after that time.
{¶9} In the fall of 2019, Morelia Group offered to purchase the Development Property from Sycamore Township. Hildebrant and Morelia Group‘s architect made a formal presentation on Morelia Group‘s offer and proposed site plan at the October 3, 2019 Sycamore Township Board of Trustees meeting.
{¶10} The minutes of the meeting reflect that the township law director had various concerns with the submitted contract, including: (1) the township did not yet own part of the property Morelia Group sought to buy; (2) state law requires the township to make a determination about what part of the property is needed for a public purpose before selling, and no study of that question had been started since the township did not yet own the entire property; and (3) the contract would require the township to approve certain zoning changes, which could not be done through the contract. The law director also noted that Morelia Group‘s offer of $10,820,000 is equal to what the township paid to acquire the property, and that an appraisal of the land was likely to show that the entire property sold together was worth more than the
{¶11} The minutes also show that Weidman repeated the concerns raised by the law director. Weidman further suggested that the process for selling the land should be more transparent, including a request-for-proposals process that would invite multiple developers to submit proposals for the site in accordance with an access-management plan to be specified by the township.
{¶12} In its complaint, Morelia Group alleges that Weidman‘s objections to Morelia Group‘s proposal were pretextual and that Weidman had acted “with malicious purpose, in bad faith, and/or in a wanton or reckless manner” to prevent Morelia Group from contracting with the township. Morelia Group claims that Weidman harbors personal animus against Hildebrant because of Hildebrant‘s prior refusal to pay kickbacks to Weidman, and that this personal animus was the true motivation behind Weidman‘s objections to Morelia Group‘s offer. Further, Morelia Group claims that the other two members of the township board of trustees viewed the offer favorably, and that but for Weidman‘s objection, the board would have voted to accept the offer.
III. Analysis
{¶13} In his sole assignment of error, Weidman claims that the pleadings and evidence properly before the court show that Weidman is entitled to the benefit of the statutory immunity conferred upon employees of political subdivisions under
A. Jurisdiction and Standard of Review
{¶14} Our jurisdiction over this interlocutory appeal is based on the trial court‘s denial of civil immunity to Weidman as an employee of a political subdivision. See
{¶15} Weidman appeals from the trial court‘s denial of his motion for judgment on the pleadings under
{¶16} As recently noted by the Supreme Court, “Ohio is a notice-pleading state.” Maternal Grandmother, Admr. v. Hamilton Cty. Dept. of Job & Family Servs., 167 Ohio St.3d 390, 2021-Ohio-4096, 193 N.E.3d 536, ¶ 10. To counter a defendant‘s anticipated claim of political-subdivision-employee immunity under
B. Minutes of the October 3 Trustee Meeting
{¶17} Before we address the merits of Weidman‘s appeal, we must determine what materials are properly before the court. “A motion for judgment on the pleadings tests the sufficiency of a complaint and is restricted solely to the allegations in the pleadings.” Gilman v. Physna, LLC, 1st Dist. Hamilton No. C-200457, 2021-Ohio-3575, ¶ 14, citing Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581, 752 N.E.2d 267 (2001). “The ‘pleadings’ consist of the complaint, the answer, and any attached written instruments.” Id., citing
{¶19} We hold that even if the minutes were attached to the complaint or answer, they would not be appropriate to consider. The minutes of the trustee meeting do not evidence the parties’ rights and obligations. Rather, they set forth a view of the facts in dispute. They are not the kind of written instrument that we may consider as an attachment to the pleadings.
{¶20} Further, insofar as we may take judicial notice of the minutes as a public record, the value of the minutes is limited. We have held that a court ruling on a motion for judgment on the pleadings may take judicial notice of “appropriate matters” without converting the motion to one for summary judgment. Buchenroth v. City of Cincinnati, 2019-Ohio-2560, 140 N.E.3d 114, ¶ 9 (1st Dist.). Such appropriate matters include those that are “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned” and are “not subject to reasonable dispute.” Id., quoting
{¶21} The minutes of the trustee meeting are a public record. However, while “a court may take judicial notice of matters of public record, it may not take judicial notice of disputed facts stated in those public records.” McKenzie v. Davies, 2d Dist. Montgomery No. 22932, 2009-Ohio-1960, ¶ 24. “A court cannot take judicial notice of a ‘fact’ that is controverted.” Id. Thus, while we may take judicial notice of the
{¶22} Accordingly, we accept the minutes as a public record of the October 3, 2019 meeting of the Sycamore Township Board of Trustees, but we decline to take notice of the disputed statements made at the meeting in support of Weidman‘s and Morelia Group‘s arguments.
C. Political-Subdivision-Employee Immunity
{¶23} We turn now to the substance of Weidman‘s appeal. Weidman argues that his conduct at the October 3 trustee meeting was within the scope of his duties as a township trustee. Weidman also argues that his conduct was without malicious purpose or bad faith. Thus, he claims immunity from personal liability for his actions under Ohio‘s statutory immunity for political-subdivision employees, set forth in
{¶24}
{¶25} The specific provision at issue,
(a) The employee‘s acts or omissions were manifestly outside the scope of the employee‘s employment or official responsibilities;
(b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code.
{¶26} Weidman argues that the challenged action, preventing a favorable vote on Morelia Group‘s proposed purchase, was within the scope of his employment as a township trustee, and therefore the exception to immunity under
{¶27} However, where a state or political-subdivision employee‘s conduct is motivated by actual malice, it is outside the scope of employment. See Jackson v. McDonald, 144 Ohio App.3d 301, 307, 760 N.E.2d 24 (5th Dist.2001) (“It is only where the acts of the governmental employee are motivated by actual malice or other situations giving rise to punitive damages that their conduct may be outside the scope of their state employment.“); Curry v. Village of Blanchester, 12th Dist. Clinton Nos. CA2009-08-010 and CA2009-08-012, 2010-Ohio-3368, ¶ 30 (same); Drain v. Kosydar, 54 Ohio St.2d 49, 56, 374 N.E.2d 1253 (1978) (“Where it is alleged that the
{¶28} Weidman argues that, even if Morelia Group‘s allegation of actual malice is true, his claim of a facially valid justification for his actions negates the effect of any malicious purpose or bad faith and therefore the exception to immunity under
{¶29} For the purposes of
{¶30} Applying those definitions, Weidman contends that his opposition to Morelia Group‘s proposal to buy the Development Property was appropriate and prudent at the October 3 trustee meeting. Weidman points out that the township‘s law director had identified specific reasons that any board action at that time would be premature. Additionally, Weidman notes that Morelia Group‘s proposed purchase price was exactly what the township had paid for the land when buying the parcels piecemeal. Both Weidman and the law director expressed their concern at the trustee meeting that the value of the entire Development Property could substantially exceed that amount.
{¶31} At the pleading stage, we are constrained to credit as true Morelia
{¶32} Although reasonable justification for Weidman‘s actions may ultimately serve to disprove malice or bad faith, Morelia Group pled that Weidman‘s opposition to the purchase offer was pretextual and that despite the purported justification for Weidman‘s opposition, the other township trustees were in favor of accepting Morelia Group‘s offer. Because we are unable to take judicial notice of the contents of the October 3 meeting minutes as conclusively proving the truth of the disputed contents, we are unable to credit as fact Weidman‘s claim of justification. Because we must, at the pleading stage, make all favorable inferences against the moving party, we infer from Morelia Group‘s claim that the other trustees favored Morelia Group‘s offer and that Weidman‘s purported justifications were invalid and pretextual grounds upon which to refuse to consider the offer.
{¶33} We therefore conclude that Morelia Group has pled sufficient facts to overcome Weidman‘s claim of immunity under
D. Qualified Privilege
{¶34} In addition to his claim of civil immunity as a political-subdivision employee under
{¶35} Morelia Group responds that the defense of qualified privilege challenges the merits of the tortious-interference claim and does not provide immunity from suit. Thus, Morelia Group argues that we are without jurisdiction to review this issue on this interlocutory appeal. We agree.
{¶36} “Qualified privilege” has been recognized by Ohio courts as a defense to both defamation and tortious-interference claims. Smith v. Ameriflora 1992, 96 Ohio App.3d 179, 187, 644 N.E.2d 1038 (10th Dist.1994). Qualified privilege does not provide immunity from suit, but rather it is an attack on the merits of a defamation or tortious-interference claim. Thus, we are without jurisdiction to consider the issue on interlocutory appeal.
{¶37} Even if we agreed with Weidman‘s characterization of qualified privilege as a common law immunity, we would still lack jurisdiction over this issue.
{¶38}
“Law” means any provision of the constitution, statutes, or rules of the United States or of this state; provisions of charters, ordinances, resolutions, and rules of political subdivisions; and written policies
adopted by boards of education. When used in connection with the ‘common law,’ this definition does not apply.
{¶39} The term “rule” is not expressly defined, but we observe that, ” ‘[r]ule’ includes regulation.”
{¶40}
IV. Conclusion
{¶42} The trial court properly denied Weidman‘s motion for judgment on the pleadings. Accordingly, we overrule Weidman‘s sole assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
BERGERON, P.J., and BOCK, J., concur.