Case Information
*1
[Cite as
Owens v. Haynes
,
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
CHERYL OWENS C.A. No.
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE PENNY HAYNES, еt al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO Appellant CASE No. CV 2013-01-0688 DECISION AND JOURNAL ENTRY Dated: April 9, 2014
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. After Ms. Owens’ husband passed аway in 2006, she went to the Veteran’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 aрplications for benefits on her behalf. Ms. Owens began receiving benefit checks at some later point in 2006. 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 *2 Veteran’s Administration, she brought suit against Ms. Haynes and the State of Ohio. Her complaint set forth counts of fraud, negligence, and intentional misrepresentation against Ms. Haynes and sought to hold the State of Ohio liable as Ms. Haynes’ employer. The complaint alleged that Ms. Haynes had disregarded Ms. Owens’ express desire to apply strictly for death benefits and had fraudulently filed aрplications for additional benefits on Ms. Owens’ behalf after having Ms. Owens sign several application forms in blank.
{¶4} Subsequently, Ms. Haynes filed a Civ.R. 12(B)(6) motion to dismiss on several grounds, including that she was immune from suit. Ms. Owens filed a memorandum in opposition. She also voluntarily dismissed the State of Ohio from the law suit and sought leave to file an amended complaint. The amended complaint, which she later filed, named Summit County as Ms. Haynes’ employer and as a defendant. The amended complaint also set forth additional allegations regarding Ms. Haynes’ allegedly fraudulent conduct. 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 сourt also determined, however, 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. Ms. Haynes nоw appeals from the trial court’s decision and raises two
assignments of error for our review.
II.
ASSIGNMENT OF ERROR I *3 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. 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 the court should hаve 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. 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,
{¶9} In her Civ.R. 12(B)(6) motion to dismiss the complaint against her on the basis of immunity, Ms. Haynes alsо argued that Ms. Owens’ fraud claim should be dismissed because Ms. Owens failed to plead it with particularity. In its ruling on immunity, the trial court rejected Ms. Haynes’ additional argument and concluded that Ms. Owens had sufficiently pleaded a claim of fraud against Ms. Haynes. Ms. Haynes now argues that the trial court erred by doing so. The court’s additional ruling on the fraud claim, however, did not deny Ms. Haynes the benefit of immunity such that it would be immediately appealable. See Hubbell at syllabus. “Therefore, the general rule that an appeal from the denial of a motion [to dismiss for failure to state a claim upon which relief can be granted] is not final applies to this assignment of error.” Makowski at ¶ 8. As such, we are without jurisdiction to examine the merits of Ms. Haynes’ first assignment of error.
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). 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. “The defense of immunity may be raised in a motion to dismiss pursuant to Civ.R.
12(B)(6).”
Thomas v. Bauschlinger
, 9th Dist. Summit No. 26485,
In reviewing a motion to dismiss, this Court must accept as true all factual allegations in the complaint and all reasonablе 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 any set of facts that would entitle [her] to recovеr.
(Internal quotations and citations omitted.)
Spradlin v. Elyria
, 9th Dist. Lorain No.
11CA010102,
employеe acted outside the scope of his or her employment or official responsibilities, (2) the
employee acted with malicious purpose, in bad faith, wantonly, or recklessly, or (3) the Revised
Code expressly imposes liability оn the employee.”
Moss v. Lorain Cty. Bd. of Mental
Retardation
,
conduct that involves a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a
*6
known duty through some ulterior motive or ill will partaking of the nature of fraud.” (Internal
quotations and citations omitted.)
Thomas
,
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 additional benefits. Nevertheless, according to the сomplaint, 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 *7 bills, loss of credit, attorney’s fees, and extreme emotional distress” as a result of Ms. Haynes’ conduct. Ms. Haynes criticizes Ms. Owens’ complаint 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 to any authority standing for the proposition
that a complaint must еxplicitly use the words “bad faith” or “wanton” or “reckless” in order to
trigger the immunity exception contained in R.C. 2744.03(A)(6)(b).
See
App.R. 16(A)(7).
See
also Kelley v. Cairns & Brothers, Inc.
, 89 Ohio App.3d 598, 604 (9th Dist.1993). The focal
point in our analysis must be the underlying factual allegations in the complaint and all the
reasonable infеrences that can be drawn from those allegations.
See Spradlin
,
III. Ms. Haynes’ first assignment of еrror 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.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified cоpy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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.