MARCELLA KING PIAZZA v. CUYAHOGA COUNTY, ET AL.
No. 104724
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 12, 2017
[Cite as Piazza v. Cuyahoga Cty., 2017-Ohio-8163.]
KEOUGH, A.J., STEWART, J., and BOYLE, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-15-850042
Robert J. Triozzi
Director of Law
Robin M. Wilson
Assistant Director of Law
Cuyahoga County Law Department
2079 East 9th Street, Seventh Floor
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Nancy C. Schuster
Shuster & Simmons Co.
2913 Clinton Avenue
Cleveland, Ohio 44113
Brian M. White
4815 Fulton Drive, N.W., Suite 200
Canton, Ohio 44735
Michael K. Farrell
Mark Keller Norris
Baker & Hostetler, L.L.P.
Key Tower
127 Public Square, Suite 2000
Cleveland, Ohio 44114
{¶1} Defendant-appellant, Cuyahoga County, appeals the trial court‘s decision denying its motion for summary judgment based on political subdivision immunity and the statute of limitations. For the reasons that follow, we affirm in part and dismiss in part.
{¶2} Marcella King Piazza (“Piazza“) began working for the county auditor‘s office in July 2003. She was transferred to the county board of revision and served as the office manager. Subsequently, in August 2010, Piazza was transferred to the Department of Justice Affairs as a victim advocate. Around the time of Piazza‘s transfer, the Plain Dealer Publishing Company (“Plain Dealer“) started publishing a series of articles about the Cuyahoga County Board of Revision, claiming that an investigation was underway into the employees and board members’ work habits and mismanagement within the department. One article characterized the matter as a “scandal.”
{¶3} On March 9, 2011, Piazza was terminated from employment with the county, along with Robert Chambers and Hanane Hmada, who previously worked in the board of revision.
{¶4} Within 90 minutes of her discharge, Piazza received a telephone call from a Plain Dealer reporter seeking comment on her discharge; Piazza declined to comment. Approximately 20 minutes later, at 11:50 a.m., the Plain Dealer published the initial article on www.cleveland.com, under the headline: “Cuyahoga County Executive Ed
{¶5} A second article, titled, “Cuyahoga County Executive Ed FitzGerald says he couldn‘t justify keeping reassigned board of revision workers in new positions,” was posted later that day at 6:22 p.m. The Plain Dealer stated that “FitzGerald said he can‘t justify budgeting money for the positions Chambers and two other board castoffs were moved to, so * * * he fired all three.” The article then identified the three employees — one of whom was Piazza. FitzGerald was quoted as saying “instead of terminating them, the previous administration reassigned them. * * * We can‘t afford to reshuffle people for their own job security.” Included in this article was a photograph of Piazza — a photograph that was provided by the county.
{¶6} Although she was not a board member, Piazza claimed that the articles created an inference that she was a board member and involved in the “county corruption scandal.”
{¶8} The county moved for summary judgment, contending that it was immune from liability pursuant to
{¶9} The county appeals on the authority of
I. Political Subdivision Immunity
{¶10} In its first, second, third, and fourth assignments of error, the county contends that the trial court erred in denying its motion for political subdivision immunity on Piazza‘s sole claim for false light invasion of privacy. Specifically, the county raises the following assignments of error:
Error No. 1: The trial court erred in finding that political subdivision immunity did not apply to plaintiff‘s sole claim for false light invasion of privacy.
Error No. 3: The trial court erred in finding that plaintiff‘s claim arose from her employment relationship where plaintiff was not an employee and no causal connection or causal relationship between plaintiff‘s false light claim and the employment relationship was established.
Error No. 4: The trial court erred in denying Cuyahoga County‘s Motion for Summary Judgment where Plaintiff‘s sole opposition was an erroneous contention that res judicata barred Appellant‘s statutory immunity and statute of limitations arguments and failed to oppose summary judgment with proper evidence.
{¶11} An appellate court review a trial court‘s decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can only reach a conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).
{¶12} The party moving for summary judgment bears the burden of demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmoving party‘s claims. Id. After the moving party has satisfied this
{¶13} Determining whether a governmental entity is immune from tort liability involves a three-step analysis. Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First,
{¶14} Piazza does not dispute that the county is a political subdivision and that none of the exceptions under
This chapter does not apply to, and shall not be construed to apply to, the following:
* * *
(B) Civil actions by an employee * * * against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision[.]
{¶16} False light invasion of privacy is an intentional tort. Typically, “an employer‘s intentional tort against an employee does not arise out of the employment relationship, but occurs outside the scope of employment.” Brady v. Safety-Kleen Corp., 61 Ohio St.3d 624, 576 N.E.2d 722 (1991), paragraph one of the syllabus. However, when the conduct forming the basis of the intentional tort arose out of the employment relationship, the employer may not have the benefit of immunity pursuant to the plain language of
{¶17} The county contends that neither the holding in Sampson nor
{¶18} The Eleventh District addressed this precise matter in Fleming and concluded that
{¶19} We agree with Fleming that a strict reading of the statute would deny a former employee a remedy for intentional tortious comments made after his or her employment has ended. Id. “To hold otherwise would encourage employers to terminate employees to avoid potential liability when an incident has occurred.” Id. at ¶ 31.
{¶20} Fleming‘s interpretation of
{¶21} This court concluded that “the totality of the circumstances indicates that Detective George‘s claim * * * flowed from the actions taken by the Village in response to the internal investigation he was conducting. * * * [I]t is clear * * * that Detective George‘s claims stem from his employment with the Village.” Id. at ¶ 23-24. This court made no distinction between the alleged comments made before George was laid off (employed) and after he was laid off (formerly employed) when determining whether George‘s claims stemmed from his “employment relationship with the Village.” Accordingly, this court found that the village was not immune from liability under
{¶22} Whether there is a causal connection or causal relationship between Piazza‘s intentional-tort claim and her employment relationship depends on the circumstances of the case. Looking at the factual basis for Piazza‘s claim, it is the alleged conduct and Piazza‘s employment relationship that govern the applicability of
{¶23} Accordingly, Piazza‘s claims arose out of her employment relationship with the county, and the county is not immune from liability pursuant to the express exception in
II. Statute of Limitations
{¶24} In its fifth assignment of error, the county contends that the trial court erred by finding that the false light invasion of privacy claim was not barred by the relevant statute of limitations period. This court lacks jurisdiction to address this assignment of error.
{¶25} Generally, an order denying a motion to dismiss is not a final, appealable order. DiGiorgio v. Cleveland, 196 Ohio App.3d 575, 2011-Ohio-5824, 964 N.E.2d 495, ¶ 4 (8th Dist.), citing Polikoff v. Adam, 67 Ohio St.3d 100, 103, 616 N.E.2d 213 (1993). However, under
{¶26} While the county‘s claim that the trial court erred by denying its motion for summary judgment based on immunity was final, its appeal from the denial of its motion for summary judgment based on the statute of limitations was not. Riscatti v. Prime Props. Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 19-20
{¶27} Accordingly, this assignment of error is disregarded for lack of jurisdiction.
{¶28} Judgment affirmed in part and dismissed in part.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., CONCURS;
MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
MARCELLA KING PIAZZA v. CUYAHOGA COUNTY, ET AL.
No. 104724
{¶29} I agree with the part of the majority opinion finding that we lack jurisdiction to address the county‘s statute of limitations argument. I disagree, however, with the majority‘s resolution of Piazza‘s false light invasion of privacy claim.
{¶30}
{¶31} The same statutory interpretation applies to the term “employment relationship.” The Ohio Supreme Court has defined the “employment relationship” as “a contract of hire express or implied” with “hire” defined as “the price, reward or compensation paid for personal service of labor.” Coviello v. Indus. Comm. of Ohio, 129 Ohio St. 589, 196 N.E. 661 (1935), paragraphs three and four of the syllabus. There can
{¶32} The majority relies on Fleming v. Ashtabula Area City Schools Bd. of Edn., 11th Dist. Ashtabula No. 2006-A-0030, 2008-Ohio-1892, in which the Eleventh District Court of Appeals held that
{¶33} Respectfully,
{¶34} In any event, to the extent that it is possible to give
{¶36} But even if Sampson could be read to indicate that the Supreme Court was not reading
{¶37} The Legislative Service Commission report2 on
{¶38} The construction that the majority and the Fleming case give to the statute could also lead to unintended results. Because the false light cause of action would accrue when the allegedly defamatory statement is made, it seems that there would be no point in time when a political subdivision would no longer be exposed to liability for any statements made about a former employee regardless of how long the person has been a former employee, as long as the statement related to the former employee‘s employment.
{¶39} I share some of the majority‘s misgivings with the impact of