Kenney v. Cleveland , 2018 Ohio 1186 ( 2018 )

[Cite as Kenney v. Cleveland, 2018-Ohio-1186.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105664
MICHELLE KENNEY
PLAINTIFF-APPELLANT
vs.
CITY OF CLEVELAND, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-849922
BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: March 29, 2018
FOR APPELLANT
Michelle Kenney, pro se
19409 Kewanee Avenue
Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEES
Barbara A. Langhenry
Director of Law
Austin Tyler Opalich
City of Cleveland, Law Department
Assistant Director of Law
Tiffany C. Fischbach
Mark V. Webber
Law Department Assistants
601 Lakeside Ave., Room 106
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, J.:
{¶1} Michelle Kenney (“Kenney”) appeals pro se from the trial court’s granting
summary judgment to the city of Cleveland (“the City”)1 in this breach of contract case
and assign the following errors for our review:
I. The trial court granted the defendants[’] motion for summary judgment
made pursuant to Civ.R. 56.
II. The trial court[’s] determination that the plaintiff filed [this] action
after the expiration of the statute of limitations for an oral breach of
contract pursuant to O.R.C. 2305.07 was a mis[s]tatement of fact.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
judgment. The apposite facts follow.
{¶3} In August 2008, Kenney, who worked for the City, transferred positions
from the Department of Economic Development to the Department of Public Utilities
(“DPU”). This transfer was a lateral move. However, Kenney alleges that “several
months” earlier, when Eric Myles, who works for the City’s Human Resources
Department, offered her the position via a telephone conversation, he also promised her a
$3,000 salary increase. Kenney noticed that the first paycheck she received after the
transfer, as well as every other paycheck she received through September 2013, when she
stopped working for the City, did not reflect her alleged salary increase. According to
1
Kenney also listed the Department of Public Utilities, Robert Davis, and Barry “Whithers”
[sic] as defendants; however, Kenney’s complaint alleges no claims against the Department of
Utilities, Davis, or “Whithers”[sic]. In its final appealable order, the court disposed of all claims
against all parties. For ease of this opinion, however, we refer only to the defendant “the City.”
Kenney, she inquired about the discrepancy many times and, although “[e]verybody said
they would do what they can to fix it,” she never received the $3,000 raise.
{¶4} On August 18, 2015, Kenney, who was represented by counsel at the time,
filed a complaint against the City alleging breach of contract, promissory estoppel, and
equitable estoppel. 2 The court granted summary judgment in favor of the City on
Kenney’s breach of contract claim, finding that the action was filed after the expiration of
the statute of limitations. The court also granted summary judgment in favor of the City
on the remainder of Kenney’s claims, finding that they were barred by sovereign
immunity. It is from this order that Kenney appeals, pro se.
Law and Analysis
{¶5} We first note that pro se litigants are “held to the same standard as other
litigants and [are] not entitled to special treatment from the court.” Lenard v. Miller, 8th
Dist. Cuyahoga No. 99460, 2013-Ohio-4703, ¶ 19. In the case at hand, Kenney’s first
assigned error does not allege that the court committed an error at all; rather, it simply
states that the court granted summary judgment. Additionally, in Kenney’s second
assigned error, she alleges that the trial court committed a “misstatement of fact,” rather
than an error. Nonetheless, in the interest of justice, we review Kenney’s appeal based
on whether the court erred by granting summary judgment to the City. See Northern
Frozen Good, Inc. v. Moton, 8th Dist. Cuyahoga No. 99938, 2014-Ohio-825, ¶ 9
2
Kenney also alleged a claim entitled “plus adjustment for working out of classification.”
We know of no such legal claim in Ohio. It appears that the essence of Kenney’s complaint is that
the City owes her money based on an oral contract, or, in the alternative, a theory of estoppel.
(although a pro se litigant’s appellate brief was “very difficult to decipher,” the court
reviewed the case on its merits, stating, “we will address what we discern to be his
assignments of error”).
Summary Judgment
{¶6} Appellate review of granting summary judgment is de novo. Pursuant to
Civ.R. 56(C), the party seeking summary judgment must prove that (1) there is no
genuine issue of material fact; (2) they are 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
nonmoving party. Dresher v. Burt, 75 Ohio St. 3d 280, 662 N.E.2d 264 (1996).
Statute of Limitations
Breach of Oral Contract and Promissory Estoppel
{¶7} Pursuant to Civ.R. 10(D), “[w]hen any claim * * * is founded on [a] written
instrument, a copy of the * * * written instrument must be attached to the pleading.” In
the instant case, there are no written instruments attached to Kenney’s complaint.
Additionally, Kenney admitted in her deposition that there are no written documents in
which the proper authority from the City “signs off” on her alleged raise. Rather,
Kenney argues that “everybody approved” of Myles offering her the $3,000 raise over the
phone. Therefore, although Kenney’s complaint never expressly states it, we surmise
that her claims are based on an alleged breach of oral contract.
{¶8} The statute of limitations for a breach of oral contract claim is six years.
R.C. 2305.07. “The cause of action arises when the plaintiff discovers the omission to
perform as agreed in the oral contract.” Aluminum Line Prods. Co. v. Brad Smith
Roofing Co., 109 Ohio App. 3d 246, 258, 671 N.E.2d 1343 (8th Dist.1996). Additionally,
a cause of action for promissory estoppel is also subject to the six-year statute of
limitations found in R.C. 2305.07. See Cleveland Hts. v. Cleveland, 8th Dist. Cuyahoga
No. 79167, 2001 Ohio App. LEXIS 5010 (Nov. 8, 2001).
{¶9} In the case at hand, it is undisputed that Kenney discovered the alleged
breach when she received her first paycheck from the DPU. That exact date is not
established in the record, although the evidence shows that Kenney started her new job in
August 2008 and received her first paycheck shortly thereafter. Kenney filed her claim
in August 2015, which is approximately seven years after the causes of action accrued
and one year after the statute of limitations expired. Accordingly, we find that Kenney’s
claims are barred by the statute of limitations.
Immunity for Estoppel Claims
{¶10} Determining whether a political subdivision has immunity generally
involves an analysis under Chapter 2744 of the Ohio Revised Code. However, under
R.C. 2744.09, immunity under this chapter is not applicable to “[c]ivil actions by an
employee of a political subdivision against the political subdivision * * * relative to any
matter that arises out of the employment relationship between the employee and the
political subdivision [including] wages, hours, conditions, or other terms of his
employment * * *.” R.C. 2744.09(A) and (B). Furthermore, Chapter 2744 immunity
does not apply to “actions that seek to recover damages from a political subdivision * * *
for contractual liability * * *.”
{¶11} Kenney’s claims, whether they sound in contract or quasi-contract, clearly
arise out of the employment relationship between her and the City. Therefore, we
conclude that the City is not entitled to immunity under R.C. Chapter 2744 et seq.
{¶12} The City alternately argues that it is immune from liability for promissory
and equitable estoppel claims. We note that the Ohio Supreme Court has held that “the
doctrines of equitable estoppel and promissory estoppel are inapplicable against a
political subdivision when the political subdivision is engaged in a governmental
function.” Hortman v. Miamisburg, 110 Ohio St. 3d 194, 2006-Ohio-4251, 852 N.E.2d
716, ¶ 25. See also Campolieti v. Cleveland, 184 Ohio App. 3d 419, 2009-Ohio-5224,
921 N.E.2d 286, ¶ 36 (8th Dist.2009) (“Employment decisions made in the exercise of a
government function fall within this protection”).
{¶13} The “operation of a utility,” however, is not a governmental function; rather,
R.C. 2744.01(G)(2)(c) expressly lists this as a proprietary function. Therefore, we find
that Hortman is not applicable to the case at hand.
{¶14} Although we do not find that political subdivision immunity bars Kenney’s
claims against the City, the outcome of this case is controlled by Kenney’s failure to file
her complaint before the six-year statute of limitations expired. See, e.g., Argabrite v.
Neer, 149 Ohio St. 3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 32 (“although on a
different ground, we affirm the court of appeals’ judgment affirming the trial court’s
entry of summary judgment * * *”).
{¶15} Accordingly, there are no issues of material fact concerning Kelley’s claims,
including one breach of contract claim, one promissory estoppel claim, two equitable
estoppel claims, and one claim entitled “plus adjustment for working out of
classification,” and the City, as well as all other defendants, are entitled to judgment as a
matter of law. The court did not err by granting summary judgment on Kenney’s
complaint, and her two assigned errors are overruled.
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas
Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
EILEEN T. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR