Tschantz v. Ferguson

• Decision Date: 30 January 1991
• Docket Number: No. 89-1842,89-1842
• Citation: 57 Ohio St.3d 131,566 N.E.2d 655
• Parties: TSCHANTZ, Appellee, v. FERGUSON, Appellant.
• Court: Ohio Supreme Court

Page 131

57 Ohio St.3d 131

566 N.E.2d 655

TSCHANTZ, Appellee, v. FERGUSON, Appellant.

No. 89-1842.

Supreme Court of Ohio.

Submitted Sept. 25, 1990.

Decided Jan. 30, 1991.

On June 4, 1987, Elizabeth Tschantz, a state employee in the office of the State Auditor, brought two intentional tort claims in the Court of Common Pleas of Cuyahoga County. The first claim sought damages from Auditor of State Thomas E. Ferguson for tortious conduct committed outside the scope of his employment. The second claim, pleaded in the alternative, sought damages from the state of Ohio for Ferguson's conduct should it be determined that Ferguson acted within the scope of his employment.

Ferguson moved for judgment on the pleadings, asserting that the court of common pleas lacked subject matter jurisdiction over the case pursuant to R.C. 2743.02(F). ¹ Enacted after Tschantz filed her suit in common pleas court, R.C. 2743.02(F) ² vests exclusive jurisdiction in the Ohio Court of Claims to determine whether a state employee's conduct is within the scope of his or her employment and, hence, whether the employee is entitled to immunity pursuant to R.C. 9.86. ³ Based upon R.C. 2743.02(F), the court of common pleas dismissed Tschantz's suit.

Tschantz appealed the dismissal of her claim against Ferguson to the Cuyahoga County Court of Appeals on June 13, 1988. The next day she also filed an R.C. 2743.02(F) suit in the Court of Claims. On September 12, 1989, the Cuyahoga County Court of Appeals reversed the order of dismissal by the common pleas court in favor of a stay pending the outcome of the Court of Claims suit.

On December 7, 1988, the Court of Claims held that Ferguson was not entitled to immunity pursuant to R.C. 9.86 and that Tschantz, therefore, was free to pursue her remedy in the court of common pleas. The Franklin County Court of Appeals affirmed the Court of Claims' decision on August 22, 1989. See Tschantz v. Ferguson (1989), 49 Ohio App.3d 9, 550 N.E.2d 544. The court of appeals' decision was not appealed.

Ferguson now appeals the Cuyahoga County Court of Appeals' decision reinstating the tort claim in the court of common pleas pending disposition of the immunity question in the Court of Claims.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

John E. Duda, for appellee.

Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A., Michael L. Climaco, Jack L. Petronelli and Jack D. Maistros, for appellant.

WRIGHT, Justice.

Appellant, Thomas E. Ferguson, contends that R.C. 2743.02(F) mandated dismissal of the action in the court of common pleas due to a failure of jurisdiction.

Appellee, Elizabeth Tschantz, responds threefold. First, due to the decision of the Court of Claims, this case is moot; second, R.C. 2743.02(F) cannot be retroactively applied to a suit filed before its enactment; and third the stay of proceedings in the court of common pleas complies with R.C. 2743.02(F).

We agree with appellee's first proposition. This case was rendered moot by the decision in the Court of Claims denying immunity and thus dispelling any doubts as to the jurisdiction of the court of common pleas to hear this case.

Ohio courts have long exercised judicial restraint in cases which are not actual controversies. Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257 N.E.2d 371, 372. No actual controversy exists where a case has been rendered moot by an outside event. "It is not the duty of the court to answer moot questions, and when, pending proceedings in error in this court, an event occurs without the fault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error." Miner v. Witt (1910), 82 Ohio St. 237, 92 N.E. 21, syllabus.

The substance of the issue presented to this court concerns the jurisdiction, or lack thereof, of a common pleas court to stay an action which requires an R.C. 2743.02(F) initial determination by the Court of Claims. The court of common pleas ruled against jurisdiction. The court of appeals ruled there was jurisdiction in the common pleas court for the limited purpose of staying the action pending the initial determination by the Court of Claims. Prudently, while she appealed to the Cuyahoga County Court of Appeals, Tschantz also filed an R.C. 2743.02(F) action in the Court of Claims. Before the appeal from the Cuyahoga County Court of Appeals reached this court, the Court of Claims and the Franklin County Court of Appeals had determined, pursuant to R.C. 2743.02(F), that Ferguson was not entitled to immunity.

The determination by the Court of Claims denying immunity vested jurisdiction over the tort claim in the court of common pleas, thus rendering the present appeal to this court moot.

Appellant contends that this court should decide the case regardless. Appellant accurately represents that Ohio recognizes an exception to the mootness doctrine for cases which present a debatable constitutional question or a matter of great public or general interest. Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28, 31, 30 OBR 33, 36, 505 N.E.2d 966, 969. However, this is not such a case. Whether dismissed by the common pleas court or stayed therein, that a case of this nature proceed to the Court of Claims is of paramount importance. This case did just that. There is no real prejudice to either party using either procedure, and therefore this case presents no issue of public importance worthy of an advisory opinion from this court. See Wallace v. University Hospitals of Cleveland (1961), 171 Ohio St. 487, 14 O.O.2d 383, 172 N.E.2d 459.

This appeal is therefore dismissed as being moot.

Appeal dismissed.

MOYER, C.J., and HOLMES and DOUGLAS, JJ., concur.

SWEENEY, HERBERT R. BROWN and ALICE ROBIE RESNICK, JJ., dissent.

ALICE ROBIE RESNICK, Justice, dissenting.

The majority finds that ...