Nagel v. Horner

• Decision Date: 11 July 2005
• Docket Number: No. 04CA2975.,04CA2975.
• Citation: 833 N.E.2d 300,2005 Ohio 3574,162 Ohio App.3d 221
• Court: Ohio Supreme Court
• Parties: NAGEL, Appellee, v. HORNER et al., Appellants.

Page 300

833 N.E.2d 300

162 Ohio App.3d 221

2005-Ohio-3574

NAGEL, Appellee, v. HORNER et al., Appellants.

No. 04CA2975.

Court of Appeals of Ohio, Fourth District, Scioto County.

Decided July 11, 2005.

James H. Banks and Nina M. Najjar, Dublin, for appellee.

Lawrence E. Barbiere, Cincinnati, for appellants.

HARSHA, Judge.

{¶ 1} Using R.C. 2744.02(C),¹ Charles H. Horner, the Portsmouth Police Department, and the city of Portsmouth, Ohio, appeal the trial court's judgment denying them sovereign immunity on Steven E. Nagel's retaliation and hostile-work-environment claims. R.C. 2744.09 provides that sovereign immunity does not apply to claims arising out of the employment relationship. Regardless of whether they can be classified as intentional torts, retaliation and hostile-work-environment claims are causally connected to the employment relationship and thus arise out of it. Therefore, the trial court correctly determined that appellants were not entitled to statutory immunity on those two claims. Appellants raise two additional arguments, neither of which concerns the trial court's decision that they are not entitled to sovereign-immunity.² Our review under R.C. 2744.02(C) is limited to the sovereign-immunity issue. Because the order they appeal from is not otherwise final, we lack jurisdiction to consider these other arguments. Therefore, we affirm the court's judgment.

{¶ 2} The underlying facts remain disputed. Appellants terminated Nagel's employment for reasons that they claim were justified. Nagel contends otherwise and alleges that appellants wrongfully terminated him because he refused to participate in appellants' alleged attempts to discredit another law-enforcement officer. Thus, Nagel filed a complaint against appellants that contained various claims for relief, including retaliation and hostile-work-environment claims. Appellants moved for summary judgment, arguing that they were entitled to sovereign immunity on all claims. The trial court determined that appellants were entitled to summary judgment and granted them immunity on all claims except for retaliation and creating a hostile work environment.

{¶ 3} Appellants appealed from the denial of immunity and assign the following errors:

FIRST ASSIGNMENT OF ERROR

The trial court erred in determining defendants were not entitled to statutory immunity on any state claims for retaliation and hostile work environment.

SECOND ASSIGNMENT OF ERROR

The trial court erred in determining that the city of Portsmouth was not entitled to summary judgment on plaintiff's federal claims for retaliation and hostile work environment.

THIRD ASSIGNMENT OF ERROR

The trial court erred in proceeding with plaintiff's claims where his administrative remedies under the collective bargaining agreement had not yet been exhausted.

I. Constitutionality of R.C. 2744.02

{¶ 4} Before we address the merits of appellants' first assignment of error, we consider Nagel's argument that we lack jurisdiction. He claims that R.C. 2744.02 is unconstitutional based upon Kammeyer v. Sharonville (S.D.Ohio 2003), 311 F.Supp.2d 653, and Butler v. Jordan (2001), 92 Ohio St.3d 354, 750 N.E.2d 554. Nagel also argues that, assuming we do have jurisdiction, we are limited to reviewing the trial court's decision that appellants are not entitled to sovereign immunity. We agree with this latter proposition, but reject the former.

{¶ 5} In Butler, the court held:

1. Within the meaning of R.C. 2744.02(B)(5), R.C. 5104.11 does not expressly impose liability on a political subdivision for failure to inspect or for the negligent certification of a type-B family day-care home even where the political subdivision has completely ignored the obligations imposed upon it by the statute.

2. Within the meaning of R.C. 2744.02(B)(5), no other section of the Revised Code expressly imposes liability on a political subdivision for failure to inspect or for the negligent certification of a type-B family day-care home.

Id. at paragraphs one and two of the syllabus. Butler was decided on July 25, 2001, when the Supreme Court Rules for Reporting of Opinions provided that the syllabus of Supreme Court opinions stated the controlling law. See former S.Ct.Rep. 1 R.1(B), 3 Ohio St.3d xxi, which was replaced by the current version, effective May 1, 2002. Nowhere in the syllabus did the Ohio Supreme Court declare R.C. 2744.02 unconstitutional. Instead, a plurality of the court discussed reasons why R.C. 2744.02 might be unconstitutional. This discussion is pure dicta, and Butler falls short of declaring R.C. 2744.02 unconstitutional.

{¶ 6} However, based upon Butler, Kammeyer predicted that the Ohio Supreme Court would declare R.C. 2744.02 unconstitutional. Kammeyer concluded that "the Ohio Supreme Court has provided more than adequate direction for the Court to conclude that the invocation of sovereign immunity by the City and the individual Defendants violates the Plaintiffs' rights to trial by jury and to remedy under the Ohio Constitution." Thus, it found R.C. Chapter 2744 unconstitutional.

{¶ 7} We choose not to follow Kammeyer because it is not controlling authority. See State v. Steele, Butler App. No. CA2003-11-276, 2005-Ohio-943, 2005 WL 516526, at ¶ 42, citing State v. Burnett (2001), 93 Ohio St.3d 419, 422-24, 755 N.E.2d 857 ("the decisions of federal courts constitute persuasive authority only, and are not binding on this court"). Kammeyer did not involve a federal constitutional question, but instead involved a federal court deciding whether a state law violated the state constitution. Not being bound by federal district court pronouncements on federal law, we leave the interpretation of state constitutional law to our state's highest court. Moreover, Kammeyer does not apply the syllabus law of Butler, but instead expands the plurality's dicta. See Thompson v. Bagley, Paulding App. No. 11-04-12, 2005-Ohio-1921, 2005 WL 940872, at ¶ 19 ("we will not declare a statute unconstitutional based upon the legal reasoning of a plurality of the Supreme Court that was stated in dicta").

{¶ 8} Finally, we have already rejected the proposition that Butler is a proper vehicle for finding R.C. Chapter 2744 unconstitutional. See Ratcliff v. Darby (Dec. 2, 2002), Scioto App. No. 02CA2832, 2002-Ohio-6626, 2002 WL 31721942, at ¶ 23-25. We see nothing in Nagel's argument that causes us to reconsider our previous holding.

II. Immunity under R.C. Chapter 2744

{¶ 9} In their first assignment of error, appellants assert that the trial court erroneously denied their summary judgment motion regarding the retaliation and hostile-work-environment claims because they are entitled to statutory immunity under R.C. Chapter 2744.

A. Nagel's Failure to File a Cross-Appeal

{¶ 10} While Nagel asserts that the trial court properly determined that appellants were not entitled to statutory immunity, he also seems to argue that the trial court erred by determining that appellants were entitled to sovereign immunity on his other claims. Because Nagel did not file a cross-appeal and because this argument seeks to change the trial court's judgment, we cannot address it. See App.R. 3(C)(1) ("A person who intends to defend a judgment or order against an appeal taken by an appellant and who also seeks to change the judgment or order or, in the event the judgment or order may be reversed or modified, an interlocutory ruling merged into the judgment or order, shall file a notice of cross appeal within the time allowed by App.R. 4").

B. Summary Judgment Standard of Review

{¶ 11} When we review a trial court's summary judgment decision, we conduct a de novo review that independently applies the requirements of Civ.R. 56(C). Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411. Summary judgment is appropriate when (1) no genuine issue of material fact remains for trial, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence against it construed most strongly in its favor. Civ.R. 56(C) and Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 375 N.E.2d 46; see, also, State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14, 577 N.E.2d 352. The burden of showing that no genuine issue exists as to any material fact falls upon the moving party. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. If the moving party satisfies this burden, "`the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial, and if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.'" Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, quoting Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264.

{¶ 12} Because the determination whether a political subdivision is immune from liability is a question of law, summary judgment is an appropriate vehicle for that determination. Conley v. Shearer (1992), 64 Ohio St.3d 284, 292, 595 N.E.2d 862.

C. Statutory-Immunity Analysis

{¶ 13} While many opinions begin with the now familiar three-tiered analysis of Greene Cty. Agricultural Soc. v. Liming (2000), 89 Ohio St.3d 551, 556, 733 N.E.2d 1141, the most logical beginning for our political-subdivision-immunity analysis is R.C. 2744.09, which removes certain actions from the purview of R.C. Chapter 2744. It states:

This chapter does not apply to, and shall not be construed to apply to, the following:

(A) Civil actions that seek to recover damages from a political subdivision or any of its employees for contractual...