Schmitt v. Educational Serv. Ctr. of Cuyahoga Cty.
970 N.E.2d 1187
Ohio Ct. App.
2012
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Case Information

*1 [Cite as Schmitt v. Educational Serv. Ctr. of Cuyahoga Cty. , 2012-Ohio-2210.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97623

SUSAN BOUTON SCHMITT PLAINTIFF-APPELLEE vs.

EDUCATIONAL SERVICE CENTER OF CUYAHOGA COUNTY, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT:

AFFIRMED IN PART; REVERSED IN PART

AND REMANDED

Civil Appeal from the

Cuyahoga County Court of Common Pleas

Case No. CV-748667

BEFORE: Keough, J., Jones, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: May 17, 2012

ATTORNEYS FOR APPELLANTS

For Educational Service Center of Cuyahoga County

David Kane Smith

Krista K. Keim

Andrea E.M. Stone

Britton, Smith, Peters & Kalail Co., L.P.A.

3 Summit Park Drive

Suite 400

Cleveland, OH 44131-2582

For Berea City School District

John D. Pinzone

James A. Climer

Frank H. Scialdone

John T. McLandrich

Mazanec, Raskin & Ryder Co., L.P.A.

100 Franklin’s Row

34305 Solon Road

Solon, OH 44139

Susan McGown

McGown & Markling Co., LPA

1894 North Cleveland-Massillon Road

Akron, OH 44333

ATTORNEY FOR APPELLEE

Robert A. Pecchio

2305 E. Aurora Road

Suite A-1

Twinsburg, OH 44087-1940

KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Educational Service Center of Cuyahoga County (“ESC”), appeals from the trial court’s judgment denying its Civ.R. 12(C) motion for judgment on the pleadings. For the reasons that follow, we affirm in part, reverse in part, and remand.

I. Facts and Procedural History Plaintiff-appellee, Susan Bouton Schmitt, filed a complaint against Berea

City School District (“BCS”) and ESC in which she alleged that she was hired by BCS and ESC in February 2002 as a school psychologist for BCS. She further alleged that as reflected in her yearly evaluations, she performed her job duties satisfactorily until she was forced to resign her employment on March 4, 2009, after a meeting with her supervisors from BCS and ESC. She alleged that as a result of the termination, she became depressed and was incapacitated for some time, and eventually was forced to relocate to Colorado to find comparable employment. Schmitt’s complaint asserted claims for (1) wrongful termination in violation of Ohio’s public policy favoring due process and fair dealing in employment relations, (2) breach of an implied contract of employment, (3) promissory estoppel, and (4) negligent and intentional infliction of emotional distress. In its answer to the complaint, ESC admitted that it hired Schmitt in 2002 as

a psychologist under a one-year contract and assigned her to work at BCS. ESC further admitted that Schmitt was assigned to work at BCS until her resignation on March 9, 2009. In its answer, BCS admitted that Schmitt was an employee of ESC and provided services *4 to BCS. Neither BCS nor ESC made any other reference in their answers to Schmitt’s employment status, i.e., whether she was an at-will or contract employee after her one-year contract expired in 2003. Both BCS and ESC asserted, among other affirmative defenses, that they were political subdivisions entitled to statutory immunity. BCS and ESC each subsequently filed a Civ.R. 12(C) motion for judgment

on the pleadings. In its motion, ESC argued that Schmitt’s breach of implied contract and promissory estoppel claims failed as a matter of law because neither claim is viable against a political subdivision. ESC further argued that as a political subdivision, it was statutorily immune from liability as to Schmitt’s negligent and intentional infliction of emotional distress claims puruant to R.C. Chapter 2744. Finally, ESC argued that Schmitt’s wrongful termination in violation of public policy claim failed because the public policy exception to the employment-at-will doctrine applies only to at-will employees, and Schmitt was a contract employee. As evidence to support its argument, ESC attached to its motion a copy of “Administrative Recommendations Resolution 12-08,” which showed that Schmitt was contracted by ESC as a psychologist for BCS for the period August 15, 2008 through August 14, 2009. [1] In her brief in opposition to ESC’s motion, Schmitt asserted that the court

could not consider the evidence attached to ESC’s motion because a determination on a Civ.R. 12(C) motion is restricted to the allegations in the pleadings and any writings *5 attached to the pleadings. Schmitt argued further that ESC’s motion should be denied because (1) ESC was not a political subdivision, and even if it were, a breach of implied contract claim can be maintained against a political subdivision; (2) issues of fact remained for determination regarding the promissory estoppel claim and the extent of ESC’s immunity regarding the negligent and intentional infliction of emotional distress claims; and (3) the complaint alleged sufficient facts demonstrating that Schmitt was an at-will employee who was terminated from her employment and, therefore, the wrongful termination claim survived. The trial court subsequently denied both BCS’s and ESC’s motions. The

court denied BCS’s motion without explanation; it denied ESC’s motion because ESC had attached matters outside the pleadings. Although it denied the motions, in its judgment entry, the court granted BCS and ESC leave to file a motion for summary judgment. Instead of filing a motion for summary judgment, ESC filed a notice of appeal. [2]

II. Final, Appealable Order As an initial matter, we reject Schmitt’s argument that this appeal does not

involve a final, appealable order because the trial court made no determination regarding immunity when it denied BCS and ESC’s motions for judgment on the pleadings. This court recently held in DiGiorgio v. Cleveland , 8th Dist. No. 95945, 2011-Ohio-5824, that trial court orders denying motions for judgment on the pleadings or motions to dismiss *6 where a political subdivision has asserted immunity are final, appealable orders, even where the trial court does not explain the basis for its decision on the immunity issue. Id. at ¶ 15, citing Hubbell v. Xenia , 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878. Accordingly, we have jurisdiction to consider BCS’s appeal of the denial of its motion for judgment on the pleadings.

III. Analysis In its single assignment of error, ESC argues that it is a political subdivison

entitled to statutory immunity under R.C. Chapter 2744 as to Schmitt’s intentional infliction of emotional distress claim and, therefore, the trial court erred in denying its motion for judgment on the pleadings with respect to this claim. We note that in its motion for judgment on the pleadings, ESC asserted that all of Schmitt’s claims failed as a matter of law. Because our review of a trial court’s determination regarding a motion for judgment on the pleadings is de novo, State ex rel. Midwest Pride IV, Inc. v. Pontious , 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996), we consider whether the trial court properly denied ESC’s motion with respect to all of Schmitt’s claims. Civ.R. 12(C) states that “[a]fter the pleadings are closed but within such time

as not to delay the trial, any party may move for judgment on the pleadings.” Determination of a motion for judgment on the pleadings is restricted solely to the allegations in the complaint and answer, as well as any material attached as exhibits to those pleadings. Id. ; State ex rel. Montgomery v. Purchase Plus Buyer’s Group, Inc. , 10th Dist. No. 01AP-1073, 2002-Ohio-2014. A court must construe as true all of the *7 material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party. Whaley v. Franklin Cty. Bd. of Commrs. , 92 Ohio St.3d 574, 581, 752 N.E.2d 267 (2001). Dismissal of a complaint is appropriate where a court finds beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Pontious at 570.

{¶10} Despite Schmitt’s assertion otherwise, in this case and on these facts, ESC is a political subdivision. As stated in the syllabus to 2001 Ohio Atty.Gen.Ops. No. 2001-043, 2001 WL 1654716, “[s]chool district and educational service centers are political subdivisons as defined in R.C. 2744.01(F).” Further, Ohio courts have viewed educational service centers as political subdivisions of the state in the context of R.C. Chapter 2744 immunity. See, e.g., Quinn v. Montgomery Cty. Educ. Serv. Ctr. , 2d Dist. No. Civ.A. 20596, 2005-Ohio-808; Tracy v. Tinnerman , 2d Dist. No. 2003-CA-21, 2003-Ohio-6675. 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, R.C. 2744.02(A)(1) sets forth the general blanket immunity applicable to political subdivisions. It provides that a political subdivision is generally not liable in a civil action for injury, death, or loss to person or property incurred while performing governmental or proprietary functions. To overcome this statutory immunity, a plaintiff must show that one of the five exceptions contained in R.C. 2744.02(B) applies. These exceptions are (1) negligent operation of a motor vehicle; *8 (2) negligent conduct of employees while carrying out a proprietary function; (3) a municipality’s failure to keep roads and sidewalks free from nuisance; (4) injury or loss that occurs on or within buildings used for governmental functions and is caused by the negligence of the municipality’s employees; and (5) any other situation in which liability is expressly imposed by the Revised Code. If a plaintiff demonstrates that one of the five enumerated exceptions to

governmental immunity applies, a political subdivision may then assert one of the defenses set forth in R.C. 2744.03(A) to revive its immunity. As applicable to this case, however, R.C. 2744.09(B) provides that R.C.

Chapter 2744 does not apply to “[c]ivil 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.” The Ohio Supreme Court recently analyzed this exception to political-subdivision immunity from tort liability and held that it “applies in a civil action for damages filed by an employee who alleges that his political-subdivision employer committed an intentional tort against him and engaged in negligent conduct.” Sampson v. Cuyahoga Metro. Hous. Auth. , Slip Opinion No. 2012-Ohio-570, ¶ 1. The Court held that an employee’s action against his or her political-subdivision employer “arises out of the employment relationship between the employee and the political subdivision” within the meaning of R.C. 2744.09(B) if there is a “causal connection or a causal relationship” between the claims raised by the employee and the employment relationship. Id. at ¶ 17. Here, because all of Schmitt’s claims stem from the termination of her

employment, it is apparent there is a causal connection between her claims and her employment relationship with BCS and ESC. Thus, pursuant to R.C. 2744.09(B), ESC is barred from asserting immunity. Accordingly, the trial court properly denied ESC’s motion as to Count 4, negligent and intentional infliction of emotional distress. The court also properly denied ESC’s motion regarding Count 1, wrongful termination in violation of public policy. In its motion, ESC argued that Schmitt’s wrongful termination claim failed because, as demonstrated by the evidence attached to its motion, Schmitt was a contract rather than at-will employee. [3] This court has repeatedly held, however, that a determination on a Civ.R. 12(C) motion is limited “solely to the allegations in the pleadings and any writing attached to those pleadings.” Ferchill v. Beach Cliff Bd. of Trustees , 162 Ohio App.3d 144, 2005-Ohio-3475, 832 N.E.2d 1238, ¶ 6 (8th Dist.), citing Thomas v. Byrd-Bennett , 8th Dist. No. 79930, 2001 WL 1557516 (Dec. 6, 2001). See also C & K Ind. Serv., Inc. v. McIntyre, Kahn & Kruse Co., L.P.A. , 8th Dist. No. 92233, 2009-Ohio-2373, ¶ 12 (trial court erred in granting Civ.R. 12(C) motion for judgment on the pleadings where court’s ruling was based on evidence attached to the motion. “Such evidence cannot be considered on a motion for judgment on the pleadings.”) Accordingly, the trial court could not consider the Administrative Resolution regarding Schmitt’s contract with ESC when ruling on ESC’s motion.

Schmitt’s complaint alleged that she was hired in 2002 and continued her employment with BCS and ESC until her termination, an allegation that could reasonably be construed to mean that her employment was at-will. Neither BCS nor ESC’s answers established that Schmitt was a contract employee. Although ESC answered that Schmitt was hired in 2002 under a one-year contract, it made no reference anywhere else in its answer to Schmitt’s employment status in subsequent years. In its answer, BCS admitted that Schmitt was an employee of ESC but made no reference to whether Schmitt was a contract or at-will employee. Most importantly, neither BCS nor ESC attached any documents establishing that Schmitt was a contract employee to their answers . Accordingly, construing the allegations of the complaint as true and making all reasonable inferences in favor of Schmitt, we find that the trial court properly denied ESC’s motion for judgment on the pleadings as to Count 1.

{¶17} Nevertheless, not all of Schmitt’s claims survive ESC’s motion for judgment on the pleadings. In Count 2, Schmitt alleged that ESC breached an implied contract of employment with her that imposed a duty of good faith and fair dealing. But in Ohio, political subdivisions cannot be bound by contract unless the agreement is in writing and formally ratified through proper channels. As a result, political subdivisions cannot be made liable upon theories of implied or quasi contract. Franks v. Bolivar , N.D.Ohio No. 5:11CV701, 2011 WL 5838209 (Nov. 18, 2011), citing Wright v. Dayton , 158 Ohio App.3d 152, 2004-Ohio-3770, 814 N.E.2d 514 (2d Dist.); see also Cleveland Hts. v. Cleveland , 8th Dist. No. 79167, 2001 WL 1400015 (Nov. 8, 2001), citing Eastlake v. *11 Davis , 94 Ohio App. 71, 74, 114 N.E.2d 627 (7th Dist.1952); Wellston v. Morgan , 65 Ohio St. 219, 228, 62 N.E. 127 (1901); Cuyahoga Cty. Hosp. v. Cleveland , 15 Ohio App.3d 70, 72, 472 N.E.2d 757 (8th Dist.1984). Accordingly, Schmitt’s breach of implied contract claim should have been dismissed. The trial court should have also dismissed Schmitt’s promissory estoppel

claim in Count 3 of her complaint. In Hortman v. Miamisburg , 110 Ohio St.3d 194, 199, 2006-Ohio-4251, 852 N.E.2d 716, the Ohio Supreme Court unequivocally held that “the doctrines of equitable estoppel and promissory estoppel are inapplicable against a political subdivision when the political subdivision is engaged in a governmental function.” The provision of public education is a governmental function. Doe v. Marlington Local School Dist. Bd. of Edn. , 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 11. In addition, the act of hiring personnel to staff public schools has been held to be a governmental function because “[t]his activity is so fundamental to the provision of a system of public education that it cannot be considered apart from the governmental function of ‘providing a system of public education.’” Bucy v. Carlisle , 1st Dist. No. C-090252, 2010-Ohio-2262, ¶ 16; see also Senu-Oke v. Bd. of Edn. of Dayton City School Dist. , 2d Dist. No. 20967, 2005-Ohio-5239, ¶ 12. Accordingly, Schmitt’s promissory estoppel claim is barred as a matter of law. ESC’s assignment of error is overruled in part and sustained in part. The

trial court’s denial of ESC’s motion for judgment on the pleadings regarding Schmitt’s wrongful termination and negligent and intentional infliction of emotional distress claims *12 is affirmed; the court’s denial of ESC’s motion with respect to Schmitt’s breach of implied contract and promissory estoppel claims is reversed. The matter is remanded for further proceedings consistent with this opinion.

{¶20} Affirmed in part; reversed in part and remanded.

It is ordered that the parties share equally the 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, JUDGE

LARRY A. JONES, SR., P.J., and

SEAN C. GALLAGHER, J., CONCUR

Notes

[1] Similarly, BCS attached to its motion for judgment on the pleadings a copy of a contract dated March 31, 2008, executed by Schmitt and ESC, in which ESC agreed to hire Schmitt as a psychologist for BCS for the one-year period August 15, 2008 through August 14, 2009.

[2] BCS also appealed. See Schmitt v. Educational Serv. Ctr. of Cuyahoga Cty. , 8th Dist. No. 97605, 2012-Ohio-____.

[3] The public policy exception to the employment-at-will doctrine applies only to at-will employees. See Haynes v. Zoological Soc. of Cincinnati , 73 Ohio St.3d 254, 652 N.E.2d 948 (1995), syllabus.

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