Sweeney v. PfanSweeney v. Pfan
For Plaintiff-Appellee
LYLE SWEENEY Pro Se
5701 Whitecraigs Ct.
Dublin, OH 43017
For Defendant-Appellant
VINCE VILLIO
Delaware County Prosecutor‘s Office
145 North Union Street
Delaware, OH 43015
Gwin, P.J.
{¶1} Appellant appeals the April 4, 2019 judgment entry of the Delaware County Municipal Court denying her motion to dismiss pursuant to
Facts & Procedural History
{¶2} On January 17, 2019, appellee Lyle Sweeney filed a small claims complaint against appellant Shelley Pfan. Appellee alleged that while in the custody of the Delaware County Jail and while being transferred to the hospital, his possessions were stolen.
{¶3} Appellant filed a motion to dismiss on March 6, 2019 pursuant to
{¶4} In her motion, appellant argues her duties as Jail Administrator involve governmental functions and render her immune in this case pursuant to
{¶5} The magistrate issued an order on March 13, 2019 denying the motion to dismiss. The magistrate found
{¶6} Appellant filed objections to the magistrate‘s decision on March 21, 2019. Appellant argued the magistrate‘s order should be set aside because appellant is being sued in her official capacity as the Delaware County Jail Administrator and thus political subdivision immunity extends to her because all of the conduct complained of occurred as part of a governmental function.
{¶7} The trial court issued a judgment entry on April 4, 2019 overruling appellant‘s objections to the magistrate‘s order. The trial court found the magistrate‘s order was proper, given the evidence and the procedural posture of the case. Specifically, the trial court found there is no evidence appellant is a county employee triggering any claim of immunity, as the complaint in this case does not allege appellant is a county employee; thus the complaint does not assert facts required to establish the immunity defense. Further, that the averments in appellant‘s motion are not evidence. The trial court emphasized that a pretrial motion to dismiss solely upon the pleadings merely tests the sufficiency of the complaint and the small claims complaint is sufficient to allege a claim against appellant stemming from the alleged loss of appellee‘s belongings. The trial court stated, “where, as here, a pretrial motion to dismiss the complaint presents facts
{¶8} Appellant appeals the April 4, 2019 judgment entry of the Delaware County Municipal Court and assigns the following as error:
{¶9} “I. DEFENDANT-APPELLANT IS NAMED IN THE CAUSE OF ACTION AS AN EMPLOYEE OF A POLITICAL SUBDIVISION, THUS ENTITLING HER TO POLITICAL SUBDIVISION TORT IMMUNITY UNDER
{¶10} II. THE TRIAL COURT‘S DECISION TO CONVERT DEFENDANT-APPELLANT‘S MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT WITHOUT PROPER NOTICE IS REVERSIBLE ERROR.”
I.
{¶11} In her first assignment of error, appellant argues she is entitled to political subdivision employee immunity as a matter of law, as
{¶12} Our standard of review on a
{¶13} Generally, political subdivisions are “not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee in connection with a governmental or proprietary function.”
{¶14} Due to the procedural posture of this case, all allegations in the complaint are presumed to be true for the purposes of our analysis. Further, neither this Court, nor the trial court, may rely on any materials or evidence outside the complaint in considering a motion to dismiss. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 680 N.E.2d 985 (1997). Consideration by the court of anything outside the four corners of the
{¶15} In this case, nothing in the complaint establishes that appellant is an employee of a political subdivision or that appellee is suing appellant in her capacity as an employee of a political subdivision, as appellee alleges that while in the custody of the Delaware County Jail and while being transferred to the hospital, his possessions were stolen. Accordingly, taking the allegations in the complaint to be true and not relying on any materials or evidence outside the complaint, we find appellant is not entitled to political subdivision immunity.
{¶16} In this case, appellee filed a small claims complaint against appellant that was sufficient to allege a claim against appellant for the alleged loss of his belongings. As this Court has previously recognized, procedures in small claims are generally more “elastic” to accommodate pro se litigants. Abdalla v. Wilson, 5th Dist. Licking No. 17 CA 0056, 2018-Ohio-500.
{¶17} Appellant argues the complaint, “when read in conjunction with the procedural posture of this action and the statements of Plaintiff-appellee‘s guardian in the pretrial conference, indicates that Plaintiff-Appellee brought the action against Shelley Pfan as the Jail Administrator of the Delaware County Jail, and therefore as an employee of a political subdivision.” Appellant submits the fact that she is being sued in her official capacity as an employee of the Delaware County Jail is apparent from a pre-trial letter and statements at a pre-trial conference and these additional facts, while not contained within the four corners of the complaint, may be properly considered by the trial court in its evaluation of a motion to dismiss.
{¶18} We have previously held that a court may take judicial notice of “appropriate matters” in determining
{¶19} The Ohio Supreme Court has held that courts are free to consider memoranda, briefs, and oral arguments on legal issues in determining whether a complaint should be dismissed for failure to state a claim upon which relief can be granted and this material is not considered matters outside the pleadings. State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923. However, the Supreme Court also specifically stated a
{¶20} Appellant‘s first assignment of error is overruled.
{¶21} In her second assignment of error, appellant contends the trial court‘s decision to convert her motion to dismiss to a motion for summary judgment without proper notice is reversible error. Appellant seeks a remand from this Court to the trial court to allow her to submit evidence on the issue of immunity.
{¶22} When a party presents evidence outside the pleadings, the trial court bears the responsibility either to disregard the extraneous material or to convert the motion to dismiss into a motion for summary judgment. Keller v. Columbus, 100 Ohio St.3d 192, 797 N.E.2d 964 (2003).
{¶23} In the first portion of its judgment entry, the trial court disregarded the extraneous materials, finding the allegations and evidence in appellant‘s motion to dismiss to be outside the pleadings. We find this determination by the trial court not in error. As detailed above, the factual allegations and/or evidence submitted by appellant are outside the pleadings and cannot be considered in a
{¶24} The trial court also stated in its judgment entry that where a pre-trial motion to dismiss presents facts not in the pleadings, the motion ordinarily must be treated as a motion for summary judgment; but the bare allegations of facts in the motion are not sufficient to establish facts for consideration of the court.
{¶25} Where the trial court chooses to consider evidence or materials outside the complaint, the court must convert the motion to dismiss into a motion for summary judgment and give the parties notice and a reasonable opportunity to present all materials
{¶26} Appellant is correct that this Court and the Ohio Supreme Court have held the failure to notify the parties that a court is converting a motion to dismiss into one for summary judgment is reversible error. State ex rel. Boggs v. Springfield Local Elementary School Dist. Bd. of Education, 72 Ohio St.3d 94, 647 N.E.2d 788 (1995); Douglass v. Provia Door, Inc., 5th Dist. Tuscarawas No. 2012 AP 0034, 2013-Ohio-2853.
{¶27} However, unlike the cases cited by appellant in which the party asserting lack of reasonable notice is the non-moving party, in this case, appellant is the moving party and is also the party who included the extraneous material and factual allegations in their motion. The primary purpose of the notification requirement is to “permit the nonmoving party sufficient opportunity to respond to a converted summary judgment motion.” State ex rel. The V. Cos. v. Marshall, 81 Ohio St.3d 467, 692 N.E.2d 198 (1998). Further, “the primary vice of unexpected conversion to summary judgment is that it denies the surprised party sufficient opportunity to discover and bring forward factual matters * * *.” Petrey v. Simon, 4 Ohio St.3d 154, 447 N.E.2d 1285 (1983).
{¶28} To the extent that the trial court converted the motion to dismiss to a motion for summary judgment and committed error in not providing notice of the conversion to the parties, we find the error is harmless. See Dietelbach v. Ohio Edison Co., 11th Dist. Trumbull No. 2004-T-0063, 2005-Ohio-4902; Rice v. Lewis, 4th Dist. Scioto No. 13CA3551, 2013-Ohio-5890
{¶29}
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
{¶30} Upon review, we find that, to the extent the trial court converted the motion to dismiss to a motion for summary judgment, it was harmless error because it did not affect appellant‘s substantial rights. Appellant made the motion to dismiss with the extraneous material and allegations. Additionally, the trial court specifically stated that though appellant‘s motion was premature due to the procedural posture of the case, appellant could reassert the motion with regards to political immunity at the close of the evidence at trial. Thus, appellant will be allowed to submit further evidence on the issue of immunity to the trial court, as she requests in her appellate brief.
{¶31} Appellant‘s second assignment of error is overruled.
{¶32} Based on the foregoing, appellant‘s assignments of error are overruled.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, concur