CHERYL OWENS v. PENNY HAYNES, et al.
C.A. No. 27027
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
April 9, 2014
[Cite as Owens v. Haynes, 2014-Ohio-1503.]
BELFANCE, Presiding Judge.
STATE OF OHIO COUNTY OF SUMMIT APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nо. CV 2013-01-0688
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant, Penny Haynes, appeals from the decision of the Summit County Court of Common Pleas in favor of Plaintiff-Appellee, Cheryl Owens. This Court affirms in part and dismisses in part.
I.
{¶2} After Ms. Owens’ husband passed away in 2006, she went to the Veterаn‘s Administration office in Akron to apply for certain death benefits for his burial. Ms. Haynes, an employee of the Veteran‘s Administration office, spoke with Ms. Owens regarding her request for benefits and ultimately submitted applications for benеfits on her behalf. Ms. Owens began receiving benefit checks at some later point in 2006.
{¶3} In 2011, the Veteran‘s Administration office informed Ms. Owens that she had received benefits to which she was not entitled, cancelled her cash benefits, and demanded that she repay more than $34,000 in benefits. After Ms. Owens resolved the matter with the
{¶4} Subsequently, Ms. Haynes filed a
{¶5} On July 8, 2013, the trial court issued its decision. The court determined that Summit County was immune from suit altogether and that Ms. Haynes was immune from suit with regard to Ms. Owens’ claim for negligence. The court also determined, hоwever, that Ms. Haynes was not entitled to the benefit of immunity with regard to Ms. Owens’ claims for fraud and intentional misrepresentation. Consequently, the court denied Ms. Haynes’ motion to dismiss with respect to those claims.
{¶6} Ms. Haynes now appeals frоm the trial court‘s decision and raises two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRERD (sic) TO THE PREJUDICE OF APPELLANT BY DENYING HER MOTION TO DISMISS THE COMPLAINT FOR FRAUD FOR FAILURE TO PLEAD WITH PARTICULARITY.
{¶7} In her first assignment of error, Ms. Haynes argues that the trial court erred by denying the portion of her motion to dismiss that addressed Ms. Owens’ claim of fraud. Ms. Haynes argues that thе court should have dismissed the fraud count against her because Ms. Owens failed to plead that count with particularity. Because Ms. Haynes’ first assignment of error does not pertain to the portion of the trial court‘s decision that denied her the benefit of immunity, we are without jurisdiction to examine its merits.
{¶8} Generally, “[a]n order that denies a motion to dismiss for failure to state a claim upon which relief can be granted is not a final order within the jurisdiction of this [C]ourt.” Sumskis v. Medina Cty. Bd. of Mental Retardation and Dev., 9th Dist. Medina Nos. 2886-M & 2887-M, 2000 WL 141078, *1 (Feb. 2, 2000). See also McGuire v. Zarle, 9th Dist. Summit No. 26058, 2012-Ohio-2976, ¶ 7, quoting State ex rel. Keith v. McMonagle, 103 Ohio St.3d 430, 2004-Ohio-5580, ¶ 4 (“A judgment that leаves issues unresolved and contemplates that further action must be taken is not a final appealable order.“). However, “[w]hen a trial court denies a motion in which a political subdivision or its employee seeks immunity under
{¶9} In her
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING IMMUNITY AFFORDED TO HER PURSUANT TO
R.C. 2744.03(A)(6) .
{¶10} In her second assignment of error, Ms. Haynes argues that the trial court erred by denying her the benefit of immunity with regard to Ms. Owens’ claims of fraud and intentional misrepresentation. We disagree.
{¶11} “The defense of immunity may be raised in a motion to dismiss pursuant to
In reviewing a motion to dismiss, this Court must accept as true all factual allegаtions in the complaint and all reasonable inferences must be drawn in favor of the nonmoving party. To prevail on a
Civ.R. 12(B)(6) motion to dismiss, it must appear on the face of the complaint that the plaintiff cannot prove аny set of facts that would entitle [her] to recover.
(Internal quotations and citations omitted.) Spradlin v. Elyria, 9th Dist. Lorain No. 11CA010102, 2013-Ohio-1602, ¶ 4. “[I]n deciding whether it is appropriate to grant a party‘s motion to dismiss, a court may not consider any materials or evidence outside the complaint.” Equable Ascent Fin., L.L.C. v. Ybarra, 9th Dist. Lorain Nos. 12CA010290 & 12CA010296, 2013-Ohio-4283, ¶ 13.
{¶12} “An employee оf a political subdivision is immune from liability unless (1) the employee acted outside the scope of his or her employment or official responsibilities, (2) the employee acted with malicious purpose, in bad faith, wantonly, or rеcklessly, or (3) the Revised Code expressly imposes liability on the employee.” Moss v. Lorain Cty. Bd. of Mental Retardation, 185 Ohio App.3d 395, 2009-Ohio-6931, ¶ 21 (9th Dist.), citing
{¶13} “The term ‘bad faith’ embraces more than bad judgment or negligence; it is conduct that involves a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a
{¶14} In her amended complaint, Ms. Owens stated that she went to the Veteran‘s Administration office strictly to apply for death benefits and that Ms. Haynes “urged her on several different occasions” to apply for benefits she did not want. Ms. Owens stated that she “adamantly refused” to allow Ms. Haynes to seek additional benefits on her behalf and that Ms. Haynes told her she would not apply for those additionаl benefits. Nevertheless, according to the complaint, Ms. Haynes had Ms. Owens sign several application forms in blank because she claimed those forms were necessary to apply for burial expenses. She then allegedly completed the forms using “false information” and filed the forms on Ms. Owens’ behalf. Ms. Owens alleged that Ms. Haynes “filed said applications for benefits with knowledge of their falsity and with intent to defraud [her] and in furtherance of [Ms.] Haynes’ overall scheme to increase her work output and reach her incentives set by her employer * * *.” Ms. Owens stated that, when the Veteran‘s Administration office discovered she had received benefits for which she was ineligible, they sought repayment and cancelled her benefit checks until she was able to prove that she had personally not committed fraud. Ms. Owens alleged that she suffered “credit card
{¶15} Ms. Haynes criticizes Ms. Owens’ complaint on the basis that it fails to specifically allege that Ms. Haynes acted either in bad faith or in a wanton or reckless manner. Ms. Haynes, however, has not pointed this Court tо any authority standing for the proposition that a complaint must explicitly use the words “bad faith” or “wanton” or “reckless” in order to trigger the immunity exception contained in
{¶16} Accepting the above facts as true, see id., we must conclude that Ms. Owens’ amended complaint contains sufficient allegations that Ms. Haynes acted “in bad faith, or in a wanton or reckless manner.”
III.
{¶17} Ms. Haynes’ first assignment of error is dismissed, as this Court lacks jurisdiction to examine its merits. Her second assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed in part, dismissed in part, and the cause is remanded for further proceedings consistent with the foregoing opinion.
Judgment affirmed in part, dismissed in part, and cause remanded.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
HENSAL, J.
WHITMORE, J.
CONCUR
APPEARANCES:
SHERRI BEVAN WALSH, Prosecuting Attorney, and JOHN F. GALONSKI, Assistant Prosecuting Attorney, for Appellant.
JONATHAN D. TUCKER, Attorney at Law, for Appellee.