Johns v. Horton

• Decision Date: 26 July 2002
• Docket Number: No. C-010672.,C-010672.
• Citation: 2002 Ohio 3802,149 Ohio App.3d 252,776 N.E.2d 1146
• Parties: JOHNS, Appellant, v. HORTON, Appellee; University of Cincinnati Medical Associates, Inc. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Ohio Court of Appeals

776 N.E.2d 1146

149 Ohio App.3d 252

2002 Ohio 3802

JOHNS, Appellant, v. HORTON, Appellee; University of Cincinnati Medical Associates, Inc. et al.^*

No. C-010672.

Court of Appeals of Ohio, First District, Hamilton County.

Decided July 26, 2002.

Lamkin, Van Eman, Trimble, Beals & Rourke and Kenneth S. Blumenthal, Columbus, for appellant.

Freund, Freeze & Arnold, Mark A. MacDonald, Cincinnati, and David A. Ranz, for appellee.

MARK P. PAINTER, Presiding Judge.

{¶ 1} In this case, we have antithetical holdings from two courts on an issue of law. The Court of Claims determined that appellee, Dr. Robert Horton, an oral surgeon, was not entitled to immunity under R.C. 9.86 and 2743.02 and could be sued in his individual capacity in the court of common pleas. Subsequently, the court of common pleas determined that Horton was entitled to immunity from civil suit under R.C. 9.86 and 2743.02.

{¶ 2} This case also involved the consequences — intended or not intended — of University Hospital's ceasing to be a state agency. Now, actions against the hospital are brought in the common pleas court, but suits against the medical college or its subdivisions or employees must be litigated in the Court of Claims. Thus essentially one allegation of medical malpractice generates lawsuits in two forums, with the possibility of differing and perhaps conflicting results.

{¶ 3} Appellant Janice L. Johns appeals the determination by the court of common pleas, arguing that it lacked subject-matter jurisdiction to determine whether Horton, a state employee, was entitled to immunity from civil suit. Johns is correct. Thus, not only do we reverse the trial court's well-reasoned decision because its decision is a nullity, we also overrule our prior holding in Jennings v. Univ. Ear, Nose & Throat Specialists, Inc.,¹ upon which the trial court relied.

I. The Common Pleas Complaint

{¶ 4} Johns initially sued, in the court of common pleas, for damages against six defendants: (1) University of Cincinnati Medical Associates, Inc. Division of Oral and Maxillofacial Surgery (University of Cincinnati Medical Associates, Inc.), (2) University of Cincinnati Medical Center University Oral & Maxillofacial Surgery Associates, (3) Horton, (4) Eve Bluestein, D.D.S., (5) V. Russell Boudreau, D.D.S., and (6) William B. Gibson, D.M.D. She later amended her complaint to add University Hospital, Inc., a private corporation. In her complaint, Johns alleged that Horton, Bluestein, Boudreau, and Gibson were acting within the scope of their employment and as employees or agents of University Medical Associates, Inc., University of Cincinnati Medical Center University Oral and Maxillofacial Surgery Associates, or University Hospital, Inc., when they caused permanent injury as a result of negligently performing oral surgery. She later requested and was granted leave to amend her complaint to add claims of fraud and battery.

{¶ 5} In their answer to the amended complaint, University of Cincinnati Medical Center University Oral & Maxillofacial Surgery Associates and Horton claimed, in part, that they were agents of the University of Cincinnati, a state institution, and were entitled to immunity. They also claimed that the Court of Claims had exclusive jurisdiction over the matter under R.C. Chapter 2743.

{¶ 6} Evidence in the record indicates that University of Cincinnati Medical Associates, Inc., was a billing entity that prepared and sent billing notices and collected money for medical services rendered by University of Cincinnati College of Medicine faculty members. Johns indicated on the record that she would dismiss this entity without prejudice, but the record fails to reflect such a dismissal.

{¶ 7} The record also indicates that University of Cincinnati Medical Center University Oral & Maxillofacial Surgery Associates was not a separate entity from the University of Cincinnati. Thus, that defendant was actually the state for purposes of R.C. Chapter 2743.² (After the Court of Claims had determined in the action filed before it that Horton was not entitled to immunity, Johns indicated on the record in common pleas court that she would dismiss her claims against University of Cincinnati Medical Center University Oral & Maxillofacial Surgery Associates. The record reflects no such dismissal.)

II. The Court of Claims Complaint

{¶ 8} Johns had filed a complaint for damages in the Court of Claims one day before she filed her lawsuit in the court of common pleas. She asserted the same claims raised in the court of common pleas, naming University Hospital, Inc., as the only defendant. She apparently amended her complaint, substituting the University of Cincinnati for University Hospital, Inc. (We do not have the record of that case, only copies of the complaint, a stipulation, and the judgment entry.)

{¶ 9} The Court of Claims stated in its judgment that it had held an evidentiary hearing to determine Horton's immunity under R.C. 9.86 and 2743.02(F). It explained, "At the hearing, counsel submitted a joint stipulation stating that during 1998 and 1999, Dr. Horton was an employee of the defendant; that plaintiffs claims against Dr. Horton do not arise out of the performance of his duties as an employee of defendant; and that Dr. Horton is not entitled to immunity under 9.86 with regard to the plaintiff's claims." (The stipulation actually was that Horton was an employee of the University of Cincinnati, but that the claims against him "d[id] not arise out of the performance of his university duties as defined by this court [Court of Claims] and by the Tenth District Court of Appeals.") The judgment further stated that "counsel for defendant" had produced a copy of a letter to Horton's counsel notifying him of the evidentiary hearing.

{¶ 10} Based on the evidence presented at the hearing, the Court of Claims determined that Horton had "acted outside the scope of his employment with defendant regarding any interactions with plaintiff" that were at issue. It concluded that Horton was not entitled to immunity under R.C. 9.86 and that the court of common pleas had jurisdiction over the underlying civil claims against him. This determination was not appealed.

III. Court of Common Pleas — Motion for Immunity

{¶ 11} Approximately one year after the Court of Claims had determined that he was not immune from liability under R.C. 9.86, Horton moved for a determination of immunity in the common pleas court, asserting that he was entitled to immunity and that the court of common pleas had no jurisdiction over the claims against him. According to Horton, the care he had provided to Johns was rendered in the course of his appointment as a faculty member of University of Cincinnati, a state university.

{¶ 12} The trial court, after concluding that it was not precluded from doing so under Tschantz v. Ferguson,³ Jennings v. Univ. Ear, Nose, & Throat Specialists Inc.,⁴ and Hopper v. Univ. Hosp., Inc.,⁵ engaged in a careful analysis of the law and the facts, concluding that Horton was entitled to immunity because he was not acting manifestly outside the scope of his employment with "University Hospital" during Johns's surgery. (The court seemingly misspoke in its entry, meaning to refer to the University of Cincinnati, because University Hospital, Inc., is a private entity, and immunity for Horton under R.C. Chapter 2743 and R.C. 9.86 is inapplicable.)

{¶ 13} The common pleas court neither stayed nor dismissed the complaint before it pending the determination of the Court of Claims, nor did Horton request such action.

{¶ 14} The Ohio Supreme Court has determined that the Court of Claims is the only court with jurisdiction over a claim filed against the state and that the court of common pleas does not have concurrent jurisdiction.⁶ It has also held that "the common pleas court's exercise of jurisdiction over the merits of [a] case is unauthorized by law until the Court of Claims decides whether [the employee] is immune from suit."⁷ In this case, the court of common pleas exercised concurrent jurisdiction with the Court of Claims for ten months, during which time the depositions of Johns and Horton were taken, discovery proceeded, and the common pleas court granted leave to file an amended complaint.

{¶ 15} The court of common pleas relied heavily on Horton's deposition and attachments in its decision to grant immunity. Under Civ.R. 30, depositions may be taken after an action commences. And, as with all discovery proceedings, depositions are taken under the auspices of a court with subject-matter jurisdiction over the case. In this situation, the court of common pleas had no subject-matter jurisdiction over the case from the time it was filed, including when Horton's deposition was taken. Neither party has raised this issue. We mention it only to point out the morass we are confronted with.

IV. The Appeal

{¶ 16} Johns raises two assignments of error in her appeal. In her first assignment, she contends that the trial court "abused its discretion" by exercising jurisdiction over the determination of Horton's immunity because the Court of Claims had exclusive, original jurisdiction to make that determination. In her second assignment, Johns argues that the trial court's determination itself was erroneous. We need not answer Johns's second assignment because it is rendered moot by our conclusion that the Court of Claims has exclusive jurisdiction to determine whether a state employee is entitled to immunity.

V. The Court of Claims Act

{¶ 17} It is only in the last century that a claimant has been allowed to sue the state or its employees for tort liability. (Though governmental immunity, at least in America, was the result of a legal blunder,⁸ that issue is not before us.) It was in 1912 that the Ohio Constitution was amended so that actions could be brought against the state.⁹ The amendment "constituted only an authorization for subsequent statutes in which the...