Nichols v. Villarreal, 93API10-1432

Decision Date31 March 1994
Docket NumberNo. 93API10-1432,93API10-1432
Citation94 Ohio App.3d 173,640 N.E.2d 557
PartiesNICHOLS, Admr., et al., Appellees, v. VILLARREAL et al., Appellants; Ohio Department of Mental Health, Appellee. *
CourtOhio Court of Appeals

Luper, Wolinetz, Sheriff & Neidenthal, Frederick M. Luper and Jack L. Stewart, Columbus, for appellees John Nichols et al.

Bannon, Howland & Dever and Robert E. Dever, Portsmouth, for appellants.

Lee I. Fisher, Atty. Gen. and Mary Kirchner Crawford, Asst. Atty. Gen., for appellee Ohio Dept. of Mental Health.

PEGGY L. BRYANT, Judge.

Defendants and third-party plaintiffs-appellants, Richard R. Villarreal, M.D. and Richard R. Villarreal, M.D., Inc., appeal from a judgment of the Ohio Court of Claims finding pursuant to R.C. 2743.02(F) that Villarreal was not an officer or employee of the state of Ohio as defined in R.C. 109.36, and that appellants were not entitled to immunity under R.C. 9.86. Appellants' single assignment of error states:

"The Court of Claims erred in finding that Dr. Villarreal was not an employee of the state of Ohio pursuant to the personal service contract among the Ohio Department of Mental Health, Portsmouth Receiving Hospital and Shawnee Mental Health."

On December 6, 1991, plaintiffs, John Nichols, John Nichols as administrator of the estate of William Nichols, Dorthea Nichols and Jerry Nichols, filed a complaint against appellants in the Scioto County Common Pleas Court, asserting that appellants' negligence directly and proximately caused the death of plaintiffs' decedent, William Nichols.

Appellants in turn filed a third-party complaint against the Ohio Department of Mental Health and the Ohio Department of Mental Retardation and Developmental Disabilities; pursuant to R.C. 2743.03, appellants then filed a petition for removal. Although the Ohio Department of Mental Retardation and Developmental Disabilities ultimately was dismissed from the action, on June 7, 1993, appellants filed a motion pursuant to R.C. 2743.02(F) for a determination of whether Villarreal was an officer or employee of the state of Ohio, and in particular, the Ohio Department of Mental Health, and thereby entitled to immunity under R.C. 9.86.

The trial court conducted an evidentiary hearing on appellants' motion, and issued a decision finding that Villarreal was not an officer or employee of the state of Ohio and that appellants were not entitled to immunity under R.C. 9.86. Following a modified entry journalizing the trial court's decision and finding no just cause for delay, appellants appealed to this court, asserting that the trial court had erred in its conclusion regarding appellants' immunity.

Pursuant to R.C. 2743.02(F), the trial court had the exclusive original jurisdiction to determine initially Villarreal's immunity under R.C. 9.86, which provides:

"[N]o officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer's or employee's actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner."

By its terms, R.C. 9.86 requires a preliminary determination concerning the status of an individual defendant, as the immunity provided under that section applies to officers or employees of the state. R.C. 109.36 defines a "state officer" or "employee" as:

"[A]ny person who, at the time a cause of action against him arises, is serving in an elected or appointed office or position with the state; is employed by the state; or is rendering medical, nursing, dental, podiatric, optometric, physical therapeutic, psychiatric or psychological services pursuant to a personal services contract with a department, agency, or institution of the state. Officer or employee does not include any person elected, appointed, or employed by any political subdivision of the state."

The testimony presented was complicated, but largely undisputed. By statute, local alcohol, drug addiction, and mental health services boards, referred to in the trial court and in this opinion as 648 boards, are charged with the statutory responsibility of ensuring that members of its service area are provided with a full range of mental health services according to a plan submitted to the state. Pursuant to R.C. Chapter 340, 648 boards can be single-county or multicounty; in the present case, the 648 board encompassed Adams, Lawrence and Scioto Counties.

Funded by a line item in the state budget, the 648 boards receive money transferred through the Ohio Department of Mental Health to the appropriate county treasury. With those funds, the 648 board is able to enter into contracts for the provision of services in its service area. A local 648 board can determine which agency to contract with as well as the amount of money to be paid under such contracts.

In this case, the local 648 board for Adams, Lawrence and Scioto Counties entered into a tripartite contract with Portsmouth Receiving Hospital ("PRH"), operated by the Ohio Department of...

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8 cases
  • Nichols v. Villarreal
    • United States
    • Ohio Court of Appeals
    • August 8, 1996
    ...9.86. On March 31, 1994, the Franklin County Court of Appeals affirmed the decision of the Court of Claims. See Nichols v. Villarreal (1994), 94 Ohio App.3d 173, 640 N.E.2d 557. The Franklin County Court of Appeals discussed the statutes and the facts involved in this action as "Pursuant to......
  • Cullen v. Ohio Dept. of Rehab. & Corr., 97API08-1113
    • United States
    • Ohio Court of Appeals
    • April 14, 1998
    ...because the immunity provided under that section applies to officers or employees of the state. Nichols v. Villarreal (1994), 94 Ohio App.3d 173, 175-176, 640 N.E.2d 557, 558. Appellant was not an R.C. 109.36(A) "state employee or officer," as defined in R.C. 109.361(A), nor was appellant r......
  • John Nichols v. Richard R. Villarreal, M.D., 96-LW-3428
    • United States
    • Ohio Court of Appeals
    • August 8, 1996
  • Craig Cullen, M.D. v. Ohio Department of Rehabilitation and Correction
    • United States
    • Ohio Court of Appeals
    • April 14, 1998
    ... ... applies to officers or employees of the state. Nichols v ... Villarreal (1994), 94 Ohio App.3d 173, 175-176, 640 ... N.E.2d 557, 558 ... ...
  • Request a trial to view additional results

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