Cool v. Brown-Clark
| Decision Date | 11 December 2020 |
| Docket Number | No. 19 MA 0028,19 MA 0028 |
| Parties | Thomas COOL, et al., Plaintiffs-Appellees, v. Sarah BROWN-CLARK, et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Atty. Richard L. Goodman, Richard L. Goodman Co., L.P.A., 720 Youngstown-Warren Road, Suite E, Niles, Ohio 44446, for Plaintiffs-Appellees.
Atty. Eugene J. Fehr, Youngstown City Law Department, 26 Phelps Street, 4th Floor, Youngstown, Ohio 44503, for Defendants-Appellants.
BEFORE: Cheryl L. Waite, Carol Ann Robb, Judges and Judge Timothy P. Cannon, Judge of the Eleventh District Court of Appeals, Sitting by Assignment.
OPINION AND JUDGMENT ENTRY
{¶1} Appellants Sarah Brown-Clark ("Brown-Clark") and the City of Youngstown ("the City") appeal the judgment of the Mahoning County Common Pleas Court denying their motion for summary judgment. This matter involves a claim filed by Appellees Thomas Cool ("Cool") and Thomas Cool Bail Bonding, LLC ("TCBB") alleging Appellants intentionally and maliciously refused to register him as a bail bondsman in the Youngstown Municipal Court. Appellants argue they are entitled to summary judgment based on governmental immunity. Based on the record, the trial court erred in denying Appellants' motion for summary judgment. No genuine issue of material fact exists as to whether Appellants have immunity pursuant to R.C. 2744.02 based on the evidence presented to the trial court. Appellants' assignment of error is sustained, the judgment of the trial court is reversed and judgment is entered for Appellants.
{¶2} In July of 2011, Cool became a licensed surety bail bonding agent pursuant to R.C. 3905.87. At that time, he formed TCBB. Pursuant to R.C. 3905.87(B), which governs bail bond agents, the agent must submit, along with the application, a copy of a surety bail bond license, the agent's driver's license or state identification card, and a certified copy of the agent's appointment by power of attorney from each insurer the agent represents. Cool filed the requisite documents and the application in the Youngstown Municipal Court on August 11, 2011. Cool's application was not accepted and he was not registered as an agent with the Youngstown Municipal Court for approximately 28 months. Cool alleges he made several inquiries into the status of his registration during that time and was not given any explanation for the delay or failure to accept his registration.
{¶3} On October 23, 2013, Cool filed a petition seeking a writ of mandamus in this Court naming Brown-Clark only in her capacity as Clerk of the Youngstown Municipal Court as the Respondent. In the writ, Cool claimed that he attempted to register his agency as a bonding agent for Youngstown Municipal Court but Brown-Clark failed to accept that registration. He claimed that she was under a clear legal duty pursuant to R.C. 3905.87 " ‘to register Relator as a Surety Bail Bonding Agent and Company and to accept Bail Bonds written by [Cool].’ " State ex rel. Cool v. Clark, 7th Dist. Mahoning No. 13 MA 167, 2014-Ohio-284, 2014 WL 325325, ¶ 1.
{¶4} Brown-Clark filed an answer and affirmative defense on November 20, 2013. She requested the writ be dismissed as moot since Cool's registration had been accepted and he would be added to the list of bond agents for the court beginning in December of 2013. We issued an order requiring Brown-Clark to file a copy of the December, 2013 list. Brown-Clark complied and filed the list, which included Cool as a registered surety agent for the court. We subsequently dismissed the writ as moot. Id. at ¶ 6.
{¶5} Two years later, on March 25, 2015, Appellees filed a complaint in the Mahoning County Court of Common Pleas, Case No. 2015 CV 00811, naming as defendants Brown-Clark in her capacity as Clerk of Courts for the Youngstown Municipal Court, the City of Youngstown, Ohio, and John Does 1-10. The complaint alleged Brown-Clark refused to register Cool as a bail bonding agent from August of 2011 to November 20, 2013, and that her refusal was intentional, wanton, willful, and malicious. Cool alleged that this conduct by Brown-Clark was ratified by the City and the remaining defendants. Cool alleged that Brown-Clark personally disliked him, and had represented to third parties that he was trading bonds for sexual favors and that this conduct deprived Cool of not only business revenue but interfered with due process of law and violated his civil rights. The complaint sought money damages from all defendants individually, jointly and severally. We note that, while Appellees did state Appellants' actions amounted to a violation of due process and civil rights, these were merely mentioned in the complaint. There was no actual civil rights action alleged in the complaint. The complaint was voluntarily dismissed pursuant to Civ.R. 41(A)(1) on August 19, 2016.
{¶6} On September 20, 2016, Appellees filed the instant action naming the same defendants and adding Robert Cregar and Jason Chappell, both competing bond agents. The complaint alleged Cregar and Chappell had interfered with Appellees' business interests and committed civil conspiracy. Appellees voluntarily dismissed their claims against Cregar and Chappell on May 24, 2017. The remaining defendants and claims were identical to the 2015 complaint with the addition of claims against Brown-Clark and the City alleging violations of the Ohio Public Records Act and seeking money damages.
{¶7} On November 17, 2016, Brown-Clark and the City filed an answer as well as a motion to dismiss the public records claims, asserting res judicata, collateral estoppel and mootness.
{¶8} While the motion to dismiss was pending, Appellants filed a motion for summary judgment on September 1, 2017. Both Appellants and Appellees cited the 2015 deposition testimony of both Brown-Clark and Cool, taken while the first complaint was still pending. However, neither deposition was properly filed on the record in this matter.
{¶9} In their summary judgment motion, Appellants argued that Brown-Clark and the City were cloaked with absolute immunity in performing judicial and/or quasi-judicial duties, and that since Appellees had failed to present evidence demonstrating Brown-Clark's conduct was malicious, wanton, or intentional, sovereign immunity applied. Appellants relied on Cool's deposition testimony, where he testified he was "suspicious that [Brown-Clark] was attempting to give business to agencies other than his but had no proof of same." (9/1/17 Defendants' Motion for Summary Judgment, p. 2.) Appellants also referred to Cool's deposition testimony in asserting that "Cool also believes that although he never met Defendant Brown-Clark, she has a personal dislike and that she harbors ill will and hatred towards him and wants to harm him because of this." (9/1/17 Defendants' Motion for Summary Judgment, p. 3.)
{¶10} Additionally, while Cool claimed that, based "on information and belief," Brown-Clark had told third parties that Cool traded bonds for sex, he offered no evidence in support of that claim. Appellants acknowledged that at her deposition, Brown-Clark admitted she had kept a file on Cool containing complaints of problems others had experienced with Cool. However, Brown-Clark testified that Cool had not been registered as a bonding agent with the court for two reasons: (1) because it was her opinion that his application was incomplete; and (2) she believed Cool was ineligible to be a bonding agent because he was already employed as a process server with the court. (9/1/17 Defendants' Motion for Summary Judgment, p. 4.) After Brown-Clark sought the advice of legal counsel regarding Cool's application and his ability to be listed as a bonding agent while at the same time being employed by the court as a process server, based on that advice from counsel she ultimately added Cool on the list as an agent with the court. Because she added Cool as an agent while the mandamus action was pending with this Court, the writ was dismissed as moot.
{¶11} In Appellants' summary judgment motion they asserted that they were protected from suit pursuant to both R.C. 2744.02 and R.C. 2744.03(A)(6). Also, since Cool presented no evidence to support his claim that Brown-Clark harbored personal animosity toward him or that she spread malicious information about him to third parties, there was no evidence of any intentional behaviors and Appellants were acting within the scope of their employment and immune from liability pursuant to R.C. 2744.03(A)(6). Appellants argued that no exceptions to immunity applied to strip them of the presumption of blanket immunity they enjoyed pursuant to R.C. 2744.02. As Brown-Clark was at all times performing a judicial or quasi-judicial function, none of the exceptions to the presumption of immunity applied.
{¶12} Appellees filed a response to the summary judgment motion on February 26, 2018. Attached were affidavits from attorney Gary Van Brocklin who had represented Cool in the mandamus action, reporter Janet Rogers who conducted a telephone interview with Brown-Clark, and an affidavit from Cool. Van Brocklin averred that an Assistant Law Director had told him "Mr. [sic] Brown-Clark did not like Mr. Cool and questioned his character." (2/8/18 Van Brocklin Depo., p. 2.) Rogers testified that Brown-Clark would not register Cool because "he was not a nice man, she focused on his character and told me that he tried to trade bonds in exchange for sex with women, so she was not going to allow him to write bonds in her court." (2/23/18 Rogers Depo., p. 2.) Cool complained that he was never provided any explanation why his application was considered incomplete despite numerous requests from others and that Cool had never met Brown-Clark or spoken to her directly. Appellees' position was that a genuine issue of material fact existed regarding whether Brown-Clark's actions were manifestly outside the scope of her official...
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