Schmitt v. Educ. Serv. Ctr. of Cuyahoga Cnty.

• Decision Date: 17 May 2012
• Docket Number: No. 97605.,97605.
• Citation: 281 Ed. Law Rep. 1202,2012 -Ohio- 2208,970 N.E.2d 1187
• Parties: Susan Bouton SCHMITT, Plaintiff–Appellee v. EDUCATIONAL SERVICE CENTER OF CUYAHOGA COUNTY, et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

970 N.E.2d 1187

281 Ed. Law Rep. 1202

2012 -Ohio- 2208

Susan Bouton SCHMITT, Plaintiff–Appellee

v.EDUCATIONAL SERVICE CENTER OF CUYAHOGA COUNTY, et al., Defendants–Appellants.

No. 97605.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

May 17, 2012.

John D. Pinzone, James A. Climer, Frank H. Scialdone, John T. McLandrich, Mazanec, Raskin & Ryder Co., L.P.A., Solon, OH, Susan McGown, McGown & Markling Co., LPA, Akron, OH, for Berea City School District.

David Kane Smith, Krista K. Keim, Andrea E.M. Stone, Britton, Smith, Peters & Kalail Co., L.P.A., Cleveland, OH, for Educational Service Center of Cuyahoga County.

Robert A. Pecchio, Twinsburg, OH, for appellee.

Before: JONES, P.J., KEOUGH, J., and S. GALLAGHER, J.

KATHLEEN ANN KEOUGH, J.

{¶ 1} Defendant-appellant, Berea City School District (“BCS”), appeals from the trial court's judgment denying its Civ.R. 12(C) motion for judgment on the pleadings. For the reasons that follow, we affirm in part, reverse in part, and remand.

I. Facts and Procedural History

{¶ 2} Plaintiff-appellee, Susan Bouton Schmitt, filed a complaint against BCS and Educational Service Center of Cuyahoga County (“ESC”) in which she alleged that she was hired by BCS and ESC in February 2002 as a school psychologist for BCS. She further alleged that as reflected in her yearly evaluations, she performed her job duties satisfactorily until she was forced to resign her employment on March 4, 2009, after a meeting with her supervisors from BCS and ESC. She alleged that as a result of the termination, she became depressed and was incapacitated for some time, and eventually was forced to relocate to Coloradoto find comparable employment. Schmitt's complaint asserted claims for (1) wrongful termination in violation of Ohio's public policy favoring due process and fair dealing in employment relations; (2) breach of an implied contract of employment; (3) promissory estoppel; and (4) negligent and intentional infliction of emotional distress.

{¶ 3} In its answer to the complaint, ESC admitted that it hired Schmitt in 2002 as a psychologist under a one-year contract and assigned her to work at BCS. ESC further admitted that Schmitt was assigned to work at BCS until her resignation on March 9, 2009. In its answer, BCS admitted that Schmitt was an employee of ESC and provided services to BCS. Neither BCS nor ESC made any other reference in their answers to Schmitt's employment status, i.e., whether she was an at-will or contract employee after her one-year contract expired in 2003. Both BCS and ESC asserted, among other affirmative defenses, that they were political subdivisions entitled to statutory immunity.

{¶ 4} BCS and ESC each subsequently filed a Civ.R. 12(C) motion for judgment on the pleadings. In its motion, BCS argued that Schmitt's claims against it failed because all of her claims arose out of the termination of her employment with ESC, and BCS was not a party to the employment contract between Schmitt and ESC. As evidence that Schmitt's employment agreement was with ESC, BCS attached to its motion a copy of a contract dated March 31, 2008, executed by Schmitt and ESC, in which ESC agreed to hire Schmitt as a psychologist for BCS for the one-year period August 15, 2008 to August 14, 2009.¹

{¶ 5} In addition to arguing that it was not Schmitt's employer, BCS further argued that (1) Schmitt's wrongful termination in violation of public policy claim failed because the public policy exception for wrongful discharge only applies when the plaintiff was an at-will employee, and Schmitt was a contract employee; (2) Schmitt's breach of implied contract claim failed because a political subdivision cannot be liable on the basis of an implied contract; (3) the wrongful termination and implied contract claims failed because as a year-to-year contract employee, Schmitt did not have a property interest in continued employment and thus was not entitled to due process; (4) Schmitt's promissory estoppel claim failed because the provision of public education is a governmental function and promissory estoppel is not applicable to a political subdivision engaged in a governmental function; and (5) under the three-tiered analysis set forth in R.C. Chapter 2744, Ohio's Political Subdivision Tort Liability Act, BCS was entitled to immunity as to all of Schmitt's claims.

{¶ 6} In her brief in opposition to BCS's motion, Schmitt asserted that the court could not consider the contract attached to BCS's motion because a determination on a Civ.R. 12(C) motion is restricted to the allegations in the pleadings and any writings attached to the pleadings. Schmitt argued further that BCS's motion should be denied because (1) a breach of implied contract claim can be maintained against a political subdivision; (2) issues of fact remained for determination regarding the promissory estoppel claim; (3) BCS's immunity defense was dependent upon consideration of evidence beyond the facts of the pleadings; (4) damages for emotional distress can be recovered in the context of a breach of contract action such as Schmitt's; (5) and the wrongful termination claim was viable because the allegations of the complaint were sufficient to establish that Schmitt was an at-will, rather than contract, employee who was terminated from employment.

{¶ 7} The trial court subsequently denied both BCS's and ESC's motions. The court denied BCS's motion without explanation; it denied ESC's motion because ESC had attached matters outside the pleadings to its motion. Although it denied the motions, in its judgment entry, the court granted BCS and ESC leave to file a motion for summary judgment. Instead of filing a motion for summary judgment, BCS filed a notice of appeal.²

II. Final, Appealable Order

{¶ 8} As an initial matter, we reject Schmitt's argument that this appeal does not involve a final, appealable order because the trial court made no determination regarding immunity when it denied BCS and ESC's motions for judgment on the pleadings. This court recently held in DiGiorgio v. Cleveland, 196 Ohio App.3d 575, 2011-Ohio-5824, 964 N.E.2d 495, that trial court orders denying motions for judgment on the pleadings or motions to dismiss where a political subdivision has asserted immunity are final, appealable orders, even where the trial court does not explain the basis for its decision on the immunity issue. Id. at ¶ 15, citing Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878. Accordingly, we have jurisdiction to consider BCS's appeal of the denial of its motion for judgment on the pleadings.

III. Analysis

{¶ 9} In its single assignment of error, BCS argues that the trial court erred in denying its motion for judgment on the pleadings because it is a political subdivision entitled to statutory immunity under R.C. Chapter 2744 as to all of Schmitt's claims.

{¶ 10} Civ.R. 12(C) states that “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Because Civ.R. 12(C) motions test the legal basis for the claims asserted in a complaint, our standard of review is de novo. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996). Determination of a motion for judgment on the pleadings is restricted solely to the allegations in the complaint and answer, as well as any material attached as exhibits to those pleadings. Id.;State ex rel. Montgomery v. Purchase Plus Buyer's Group, Inc., 10th Dist. No. 01AP–1073, 2002-Ohio-2014, 2002 WL 723707. A court must construe as true all of the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party. Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581, 752 N.E.2d 267 (2001). Dismissal of a complaint is appropriate where a court finds beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Pontious at 570, 664 N.E.2d 931.

{¶ 11} Determining whether a governmental entity is immune from tort liability involves a three-step analysis. Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10.First, R.C. 2744.02(A)(1) sets forth the general blanket immunity applicable to political subdivisions. It provides that a political subdivision is generally not liable in a civil action for injury, death, or loss to person or property incurred while performing governmental or proprietary functions. To overcome this statutory immunity, a plaintiff must show that one of the five exceptions contained in R.C. 2744.02(B) applies. These exceptions are (1) negligent operation of a motor vehicle; (2) negligent conduct of employees while carrying out a proprietary function; (3) a municipality's failure to keep roads and sidewalks free from nuisance; (4) injury or loss that occurs on or within buildings used for governmental functions and is caused by the negligence of the municipality's employees; and (5) any other situation in which liability is expressly imposed by the Revised Code.

{¶ 12} If a plaintiff demonstrates that one of the five enumerated exceptions to governmental immunity applies, a political subdivision may then assert one of the defenses set forth in R.C. 2744.03(A) to revive its immunity.

{¶ 13} As applicable to this case, however, R.C. 2744.09(B) provides that R.C. Chapter 2744 does not apply to “[c]ivil actions by an employee * * * against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.” The Ohio Supreme Court recently analyzed this exception to political-subdivision immunity from tort liability and held that it “applies in a civil action for damages filed by an employee who alleges that his political-subdivision employer committed an intentional tort against him and engaged in negligent conduct.”...