Fullum v. Columbiana Cnty. Coroner

• Decision Date: 15 December 2014
• Docket Number: No. 12 CO 51.,12 CO 51.
• Court: D.C. Court of Appeals
• Parties: Brian K. FULLUM, Plaintiff–Appellant, v. COLUMBIANA COUNTY CORONER, et al., Defendants–Appellees.

25 N.E.3d 463

Brian K. FULLUM, Plaintiff–Appellant

v.COLUMBIANA COUNTY CORONER, et al., Defendants–Appellees.

No. 12 CO 51.

Court of Appeals of Ohio, Seventh District, Columbiana County.

Dec. 15, 2014.

Brian D. Spitz, Fred M. Bean, The Spitz Law Firm, LLC, Warrensville Heights, OH, for plaintiff-appellant.

James Climer, Frank Scialdone, Neil Sarka, Mazanec, Raskin & Ryder Co., L.P.A., Cleveland, OH, for defendants-appellees.

MARY DeGENARO, J., GENE DONOFRIO, and JOSEPH J. VUKOVICH, J.

OPINION

DeGENARO

, P.J.

{¶ 1} Plaintiff–Appellant Brian K. Fullum appeals the November 29, 2012 decision of the Columbiana Court of Common Pleas granting summary judgment in favor of Appellees Columbiana County Coroner and Dr. William Graham, in an employment law action. On appeal, Fullum argues that the trial court erred by determining Appellee Columbiana County Coroner actually means Dr. Graham in his official capacity instead of the Coroner's Office, a political subdivision, and that the trial court erred in determining that Columbiana County Coroner is immune from suit. Fullum does not challenge the trial court's ruling that Dr. Graham, as an individual employee is immune from suit. Fullum's supplemental assignment of error alleges the trial court erred by failing to recuse itself prior to granting summary judgment. Appellees raise a cross-assignment of error presenting alternative reasons why the trial court's judgment should be upheld.

{¶ 2} Upon review, Fullum's assignments of error regarding immunity are meritorious. Appellee Columbiana County Coroner is properly characterized as a political subdivision, and under either R.C. 2744.09(B)

and/or (C) the Columbiana County Coroner is exempt from immunity with regard to Fullum's claims, because they all arise out of the employment relationship. However, we will not address Fullum's supplemental assignment of error; not only was the issue waived, this court lacks jurisdiction to review a recusal decision. Nor will we address the merits of Appellees cross-assignment of error because these issues, although raised in summary judgment proceedings, they were not addressed by the trial court.

{¶ 3} Accordingly, the trial court's decision granting summary judgment is affirmed in part, reversed in part and remanded for further proceedings, so that the trial court will have the first opportunity to decide the substantive merits of Fullum's claims.

Facts and Procedural History

{¶ 4} From March 9, 2007 to May 4, 2012, Fullum held the position of Coroner's Investigator with Appellee Columbiana County Coroner. Based upon issues arising out of his employment, Fullum initiated the present suit against Appellees on November 16, 2011, in the Columbiana County Court of Common Pleas. In his Amended Complaint filed on May 17, 2012, Fullum identified the parties as follows: “Columbiana County Coroner is a political subdivision of Columbiana County with its principal office located in the city of Lisbon, State of Ohio[;]” “Graham, Jr. is a resident of the city of East Liverpool, Columbiana County, State of Ohio, and is the Coroner of Columbiana County.”

{¶ 5} Fullum asserted five causes of action against Appellees: wage and hour violations, retaliation, hostile work environment, constructive discharge and intentional infliction of emotional distress claims. Appellees filed a joint Answer and an Amended Answer to the Amended Complaint, notably admitting in both pleadings that “Columbiana County Coroner” is a political subdivision of Columbiana County with its principal office located in the city of Lisbon, State of Ohio. Appellees denied the allegations giving rise to Fullum's five causes of action and asserted multiple defenses, including immunity.

{¶ 6} Appellees filed a motion for summary judgment, raising substantive arguments to all of Fullum's causes of action, and, pertinent to this appeal, arguing that Dr. Graham was immune from all liability on all claims as a matter of law pursuant to Chapter 2744 of the Revised Code. The immunity argument centered on Dr. Graham only. Although Appellees did not specifically state they were alleging immunity for Dr. Graham in his individual capacity only, their argument focused on his immunity as an employee of a political subdivision, asserting that R.C. 2744.03(A)(6)

provides immunity from liability to employees of political subdivisions and that “The Columbiana County Coroner's Office is a political subdivision to which immunity under R.C. Ch. 2744 applies.” They asserted that Dr. Graham as the coroner is an employee of the Columbiana County Coroner and is therefore entitled to immunity under R.C. 2744.03(A)(6) unless his actions fell under one of the statutory exceptions. Importantly, Appellees never alleged that the political subdivision itself, i.e., Appellee Columbiana County Coroner, was entitled to immunity.

{¶ 7} Fullum opposed the motion, asserting that there were genuine issues of material fact regarding all of his substantive claims. Fullum did not address the immunity argument. Appellees filed a reply brief in support of their motion, arguing that Fullum failed to meet his burden to establish genuine issues of material fact as to all of his claims, and re-asserted that “all claims should be dismissed as to Dr. Graham in his individual capacity, ” because Dr. Graham is entitled to immunity under R.C. 2744.03(A)(6)

. (Emphasis added.) Appellees further argued that Fullum did not allege that Dr. Graham acted maliciously in bad faith, or in a willful, wanton or reckless manner; nor did he contest Dr. Graham's individual immunity. Again, Appellees never alleged that the political subdivision itself, Appellee Columbiana County Coroner, was entitled to immunity.

{¶ 8} On November 29, 2012, the trial court issued an Opinion and Judgment Entry granting summary judgment in favor of Appellees with prejudice. That judgment concluded that the Columbiana County Coroner was not a political subdivision, but rather that Dr. Graham was a person sued in his official capacity and therefore entitled to immunity under R.C. 2744.01, et seq.

The trial court further found that Dr. Graham in his individual capacity is immune from suit. As the trial court dismissed the case with prejudice based upon immunity, it did not address the substantive merits raised in Appellees' motion.

Summary Judgment–Immunity

{¶ 9} Because Fullum's four assignments of error relate to the trial court's decision to grant summary judgment in favor of Appellees based upon immunity, for clarity of analysis they will be discussed together or out of order, and assert, respectively:

{¶ 10} “The Trial Court Committed Reversible Error In Granting The Motion For Summary Judgment Despite Appellees' Failure To Meet Its Burden As The Moving Party Under Civ.R. 56

.”

{¶ 11} “The Trial Court Committed Reversible Error In Determining That Columbiana County Coroner, Defined As Dr. Graham In His Official Capacity, Was Entitled To Immunity.”

{¶ 12} “The Trial Court Committed Reversible Error By Granting The Motion For Summary Judgment Based Upon Its Own Independent And Sua Sponte Analysis Of An Issue Not Previously Raised By Any Party.”

{¶ 13} “The Trial Court Committed Reversible Error in Finding that Columbiana County Coroner, As Pleaded by Fullum in his Amended Complaint, Was a Person Instead Of An Office.”

{¶ 14} An appellate court reviews a trial court's summary judgment decision de novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5

. A motion for summary judgment is properly granted if the court, viewing the evidence in a light most favorable to the party against whom the motion is made, determines that: (1) there are no genuine issues as to any material facts; (2) the movant is entitled to judgment as a matter of law; and (3) the evidence is such that reasonable minds can come to but one conclusion and that conclusion is adverse to the opposing party. Civ.R. 56(C) ; Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10. “[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim.” Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). The nonmoving party has the reciprocal burden of specificity and cannot rest on the mere allegations or denials in the pleadings. Id. at 293, 662 N.E.2d 264.

{¶ 15} The first, second and part of the fourth assignments of error challenge the trial court's decision that “Columbiana County Coroner” was not the Columbiana County Coroner's Office, a political subdivision, but rather Dr. Graham in his official capacity. The trial court's only rationale for making this determination is its conclusion that: “the Amended Complaint does not name the Coroner's Office, but only the Coroner, who is an elected official.” (Emphasis sic.)

{¶ 16} Fullum argues that this is error for several reasons, the first being that the Amended Complaint clearly defines “Columbiana County Coroner” as the political subdivision and Appellees admit this fact in both their Answer and Amended Answer.

{¶ 17} The Ohio Supreme Court has held that “an admission in a pleading dispenses with proof of the fact admitted and is equivalent to the proof of the fact.” Gerrick v. Gorsuch, 172 Ohio St. 417, 178 N.E.2d 40 (1961)

. “A judicial admission presented ‘by pleading and setting forth the fact * * * is binding as between parties to the suit, and in the same suit in which such admission is made.’ ” Dombelek v. Ohio Bur. of Workers' Comp., 154 Ohio App.3d 338, 345, 2003-Ohio-5151, 797 N.E.2d 144, 149, ¶ 22 (7th Dist.), quoting Peckham Iron Co. v. Harper, 41 Ohio St. 100, 106, (1884). For example, in Ferguson v. Neighborhood Housing Services, Inc., 780 F.2d 549, 550 (6th Cir.1986), the Sixth Circuit Court of...