Board of Ed. of Miami Trace Local School Dist., Fayette County v. Marting

• Decision Date: 23 May 1966
• Docket Number: No. 22692,22692
• Citation: 7 Ohio Misc. 64,217 N.E.2d 712
• Parties: , 36 O.O.2d 134 The BOARD OF EDUCATION OF the MIAMI TRACE LOCAL SCHOOL DISTRICT, FAYETTE COUNTY, Ohio, Plaintiff, v. Sam B. MARTING et al., Defendants.
• Court: Ohio Court of Common Pleas

Page 64

7 Ohio Misc. 64

217 N.E.2d 712, 36 O.O.2d 134

The BOARD OF EDUCATION OF the MIAMI TRACE LOCAL SCHOOL DISTRICT, FAYETTE COUNTY, Ohio, Plaintiff, v. Sam B. MARTING et al., Defendants.

No. 22692.

Court of Common Pleas of Ohio, Madison County.

May 23, 1966.

[217 N.E.2d 714] Butler, Addison & Smith, Columbus, Richard C. Addison and Ralph G. Smith, Columbus, of counsel, for plaintiff.

George, Greek, King & McMahon, Columbus, Charles E. Shanklin, Columbus, of counsel, Sebastian, Fais & Durst, Columbus, Arthur M. Sebastian, Columbus, of counsel, for defendant Sam B. Marting.

Vorys, Sater, Seymour & Pease, Columbus, John C. Elam, Columbus, of counsel, for defendant Paul A. Griffith.

Wonnell, Malone & Kropp, Columbus, Harold E. Wonnell, Columbus, of counsel, for defendant C. William Malone.

OPINION

PER CURIAM.

This case comes to this Court by reason of an order of the Common Pleas Court of Fayette County, Ohio sustaining defendants' motion for a change of venue. The parties waived a trial by jury and requested trial to a three judge panel.

Prior and subsequent to opening statements the defendants moved the Court to dismiss the case, which motions were reserved by the Court. At the close of plaintiff's case these motions were renewed and reserved by the Court. A motion for verdict and judgment for each of the defendants was made and overruled. The case was submitted on an extensive record including voluminous exhibits.

Plaintiff's petition purports to allege a cause of action in malicious prosecution against a resident of its district jointly and severally with his attorneys. The case was filed November 19, 1959, six and one-half years ago. Needless to state it gave rise to many basic legal questions first and foremost because there is nothing in the reported cases, digests or treatises disclosing any such prior case. In other words it is unique in legal annals. Ruling on the motions to the original petition and demurrer to the amended petition are reported in Ohio Com.Pl., 185 N.E.2d 583 and 597.

The original case on which plaintiff's present action is based is reported in Marting v. Groff, Ohio Com.Pl., 162 N.E.2d 177, affirmed 162 N.E.2d 186, m. c. o. October 7, 1959. In that case filed July 10, 1958, defendant Marting, represented by the attorney defendants filed a suit to enjoin the proposed sale of bonds to be issued as a result of vote of the electors of the district on November 6, 1956.

That petition contained five causes of action. No temporary injunction was sought. The petition did not name the Board of Education as defendant, but named five members, individually, and the Clerk and they were so served with summons. On August 9, the Board of Education filed a motion for orders: 1. To make the Board a party defendant; 2. To dismiss as parties the members individually; 3. To dismiss the entire petition on each of the five causes of action as sham and frivolous; and 4. In the alternative to require plaintiff to make definite and certain his petition.

Without hearing, and apparently without opportunity for contra memorandum, the trial court made the Board a party defendant and dismissed the petition; see 162 N.E.2d 177. It is noted that the dismissal found the petition to be vexatious, albeit no such specific claim was contained in the Board's motion.

The Board in the case now before us claims that the defendants brought the injunction action maliciously and without probable cause with malicious intent to vex, trouble and harass the Board so as to prevent, and did prevent, consummation of sale of the bonds on July 10, 1958. That as a direct and proximate cause the interest charges on the bonds subsequently issued, land and building costs increased and attorney fee expense caused a loss of $394,581.99 for which judgment is sought plus $100,000 in punitive or exemplary damages.

The amended answer of the defendant attorneys pleads defenses of statute of limitations; failure of plaintiff to plead a cause of action; lack of plaintiff's capacity, power, or authority to bring or maintain this form of action; pendency of another and separate injunction suit concurrent with the suit on which the present action is brought; failure of plaintiff to comply with the Uniform Bond Act and releasing the successful bond bidder without valid reason; that Plaintiff Board was not a party to the suit but became so on its own motion; and that there was probable cause that proceedings to issue the bonds were invalid.

In addition to like defenses in the answer of defendant Marting he pleads good faith and that he consulted with reputable lawyers and acted on their advice.

The reply alleges that defendant Marting was an active member of the Rural Parents' Association and that he, it and the attorneys brought the suit as a general scheme or design to obstruct and delay issue and sale of the bonds. Then for what would appear to be the keystone of their case plaintiff claims that the judgment of the trial court dismissing Marting's suit as sham, frivolous and vexatious is res judicata in this case as to want of probable cause. In plaintiff's trial brief this was further amplified to include both the question of malice and want of probable cause.

We first determine the motions going to the legal questions raised to the petition and then to the case on the evidence in the record before us.

I

As the pleadings stand we are of the opinion that the Marting suit was, in effect, a suit against the Board even though the members were named and served individually. The they were not volunteers at least in the sense that would foreclose the Board's right to institute a subsequent proceeding against the original plaintiff which it may have the power and authority to bring. We are in general agreement on this aspect with the report in 185 N.E.2d 583, at 587-591 and particularly with the fact the individuals were the Board and the allegations and relief demanded concerned actions of the Board. Moreover, plaintiff Marting is entitled to a presumption that his petition was filed in good faith and that he wanted the suit to be decided on its merits. The appealing of the trial court's judgment tends to corroborate the presumptive intent we find he had.

We therefore conclude that the motion to dismiss the instant case on the basis that the Board was not the party sued is not well made.

II

Subsequent to the transfer of this case a motion was filed to continue the case in the name of the Miami Trace Board by the Fayette County Board of Education. This necessity arose by virtue of enactment of Sections 3311.051 and 3311.052 of the Revised Code of Ohio, effective July 21, 1965. The legislation provides that where a county school district contains only one local school district there shall be only one Board of Education which shall be the county board. This applied to Fayette County. The new Board came into being on Monday following the general election in 1965. We take judicial notice that this was November 8, 1965.

Defendants' motion to dismiss was based on the fact that the Miami Trace Board, the plaintiff, had ceased to exist, that is it had died or was dissolved by legislative act. Since this was so, and since a malicious prosecution suit does not survive the death of the plaintiff, in whom the right is vested, nor is it assignable prior to death, it could not now be prosecuted either by the original plaintiff or its successor.

As we understand plaintiff's theory of the case the Board, either Miami Trace or the County, represent the School District. The present action is brought on behalf of the district for if any loss was suffered it was suffered by the district and that the County Board now represents it. The change in name and identity of control did not in anywise change the district.

We conclude that this action, if the Board had the power and authority to bring it in the first instance, can properly be continued in the name of the original plaintiff and the motion to dismiss because the Miami Trace Board no longer exists is not well made.

III

Defendants moved to dismiss the action on the ground, as stated in the answers, that plaintiff does not possess the legal capacity, power or authority to bring the action which is not authorized.

This question was raised on a demurrer by defendants to plaintiff's amended petition and was resolved in plaintiff's favor, 185 N.E.2d 597, 598-599. A demurrer, unless it results in a dismissal of the case, is not a final appealable order. Our determination on this question is a final appealable order and we regret to say we are not in agreement with the prior view. It was the earlier view that when the Board alleges the defendants, (the taxpayer and his counsel), acted without probable cause and maliciously that this confers legal capacity, power or authority to sue in malicious prosecution. That the only thing which remains is for the jury to determine the facts under proper instruction.

Section 16 of Article I of the Ohio Constitution provides that suits may be brought against the state, in such courts and in such manner as may be provided by law. Section 3313.17 of the Revised Code provides, as here material, that the Board of Education shall be a body politic and corporate, and, as such is capable of suing and being sued. The Board only has such powers as are clearly and expressly granted. Verberg v. Board of Education (1939) 135 Ohio St. 246, 248, 20 N.E.2d 368. There is no statute creating a liability of a Board in tort and there is no such liability at common law. Wayman v. Board of Education (1966) 5 Ohio St.2d 248, 215 N.E.2d 394.

While it does not necessarily follow that because of Board of Education has been judicially clothed with the defense of governmental immunity and cannot be sued in tort that it might not sue in tort if a statute so provided. There is no such statute and Section 3313.17 R.C. does not expressly provide it with any such authority, cf. ...