Lanzer v. Louisville ( 2016 )

[Cite as Lanzer v. Louisville, 2016-Ohio-8071.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KEVIN LANZER JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellant Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 2015 CA 00170
CITY OF LOUISVILLE, OHIO, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2014 CV 02007
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 5, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellees City, et al.
CHARLES W. OLDFIELD JOHN D. LATCHNEY
DENNIS HAINES O’TOOLE, MCLAUGHLIN, DOOLEY
GREEN HAINES SGAMBATI & PECORA
City Centre One, Suite 800 5455 Detroit Road
100 Federal Plaza East Sheffield Village, Ohio 44054
Youngstown, Ohio 44503
For Defendant-Appellee Ault For Defendant-Appellee Jeffries
JAMES M. LYONS, JR. JAMES L. MESSENGER
HANNA, CAMPBELL, & POWELL RICHARD J. THOMAS
3737 Embassy Parkway JERRY R. KRZYS
Suite 100 HENDERSON, COVINGTON,
Akron, Ohio 44333 MESSENGER, NEWMAN & THOMAS
6 Federal Plaza Central, Suite 1300
Youngstown, Ohio 44503
Stark County, Case No. 2015 CA 00170 2
Wise, J.
{¶1} Plaintiff-Appellant Kevin Lanzer appeals the May 28, 2015, decisions of the
Stark County Court of Common Pleas granting partial summary judgment in favor of
Appellees City of Louisville, Ohio, Patricia Fallot, Richard Guiley, Guy Guidone, Cheryle
Casar and Thomas McAllister; granting summary judgment in favor of E. Thomas Ault,
City Manager; and granting Appellee William Jeffries’ motion to dismiss.
STATEMENT OF THE FACTS AND CASE
{¶2} The facts of the case are as follows:
{¶3} On June 25, 2012, the City of Louisville hired Appellant Kevin Lanzer as its
Fire Chief. The Louisville Fire Department is an “all-call paid part-time” department. (Ault
Depo. at 79).
{¶4} The City of Louisville conducts fire safety inspections through the Fire
Department. As of July, 2013, the Louisville Fire Department had four designated fire
inspectors. (Lanzer Depo. at 21). At the beginning of the year each of those inspectors
is given a list, prepared by Capt. Rob Yoder (one of the four inspectors), of the buildings
that they are responsible for inspecting. (Id. at 27). The inspectors were given discretion
and flexibility as to when they inspect the buildings on their list. (Id at 21, 28-29).
{¶5} In 2012, 111 fire safety inspections were conducted and between January
1 and September 7, 2013, 88 fire safety inspections were conducted. (Ault Depo. at 25,
42).
{¶6} On July 31, 2013, Capt. Rob Yoder conducted a fire safety inspection of the
property known as Parksite Warehouse #2, located at 3663 Tulane Street in the city of
Louisville. Parksite Warehouse #2 is owned, in part, by William Jeffries, a local
Stark County, Case No. 2015 CA 00170 3
businessman and property owner in the City of Louisville. At the time of the inspection,
part of the building was leased to a tenant.
{¶7} Captain Yoder's fire safety inspection revealed violations of the Ohio Fire
Code, so he issued a notice of the alleged violations. The City Defendants admitted that
this inspection was conducted in accordance with Ohio law.
{¶8} Jeffries was displeased with the manner in which Captain Yoder conducted
the fire safety inspection. Jeffries contacted Ault and asked that he be personally
contacted prior to any fire safety inspections at properties he owned but leased to others.
(Ault Depo. at 42). Jeffries also expressed his displeasure with the use of red ink in the
paperwork used to document fire safety violations. (Ault Depo., pp.43-45). According to
Lanzer and Ault, Jeffries didn't like that the Fire Department documents used red ink
because it made it seem like the Fire Department was "hollering at him." (Lanzer Depo.
at 44; Ault Depo. at 43-45).
{¶9} Ault discussed these issues with Lanzer, and Lanzer instructed his fire
safety inspectors to contact Jeffries prior to inspecting any property Jeffries owned. (Ault
Depo. at 42). This prior notification policy was only instituted as to Jeffries and his
properties, not to other property owners in the City of Louisville. (Ault Depo. at 137-138.)
The color of the ink used on the inspection reports was also changed. (Lanzer Depo. at
45-46).
{¶10} On August 29, 2013, Captain Yoder re-inspected the Parksite property but
failed to give prior notice to Jeffries. (Ault Depo. at 42). Captain Yoder later explained that
he thought the special requirement to notify Jeffries applied only to the initial inspection
and not the re-inspection. (Lanzer Depo. at 41).
Stark County, Case No. 2015 CA 00170 4
{¶11} Jeffries was very upset that he was not notified of the re-inspection. (Ault
Depo. at 27-28). Jeffries contacted Ault “*** and stated very bluntly that he wanted Mr.
Lanzer fired and *** he would go to council to see that that happened." (Ault Depo. at 28,
42). Ault informed Jeffries that, as City Manager, he alone had sole authority to fire
Lanzer. (Ault Depo. at 42).
{¶12} At both the inspection and re-inspection, Captain Yoder was granted entry
to the premises and accompanied on the inspection by a supervisor or manager of the
business entity that leased the premises from Jeffries. (Ault Depo. at 122; Lanzer Depo.
at 56). There is no evidence the inspection or re-inspection was conducted in a manner
that violated Ohio law or the policies and procedures of the Louisville Fire Department.
(Ault Depo. at 39-40, 72-73). In fact, Ault and other city officials later met with a
representative of the State Fire Marshall's Office and that person, Jamie Snyder, did not
indicate that the manner in which the inspections of the Parksite property occurred
violated Ohio law. (Ault Depo. at 69-70).
{¶13} Even though Captain Yoder had failed to follow Lanzer's instruction to notify
Jeffries before any fire safety inspection at one of his properties, Ault determined that
Captain Yoder should not be disciplined because it was a new procedure. (Ault Depo. at
47-48). Further, Ault stated that at that time he had no plans to fire Lanzer. (Ault Depo. at
52, 138- 139).
{¶14} Jeffries approached City Council with regard to this incident. On September
9, 2013, City Council held a special council meeting and went into executive session.
Initially, Bill Jeffries, and his brother, Mike Jeffries, were in the executive session. (Rod
Guiley Depo. at 32-33). Either Bill Jeffries or Mike Jeffries expressed during that executive
Stark County, Case No. 2015 CA 00170 5
session that they did not believe the fire inspection process was business friendly. (Guiley
Depo. at 34). Prior to the executive session, Bill Jeffries had met with Councilman Rod
Guiley regarding the inspection and re-inspection and discussed with Guiley how the
inspections "would impact the *** relationship relative to the Joseph A. Jeffries Company
dealing -- or having business with the City of Louisville." (Guiley Depo. at 11).
{¶15} During the special council meeting on September 9, 2013, Robert Duffrin,
the City Law Director, came out of the executive session and told Ault that: "*** it was
council's intent that [he] terminate the employment of Kevin Lanzer, or be terminated
[himself] and have someone else do it." (Ault Depo. at 37, 58).
{¶16} Ault understood that council was telling him to fire Lanzer or that City
Council would fire Ault, then someone else would fire Lanzer. (Ault Depo. at 63). Ault
stated that although he thought it was wrong that he was being told to fire Lanzer, he
weighed the impact to himself and his family and determined he had no choice but to
follow City Council's instructions. (Ault Depo. at 61-63). Ault called Lanzer and requested
that he come to Council's chambers, where he proceeded to tell Lanzer that he was fired.
(Ault Depo., at 62).
{¶17} The Louisville City Charter gives the Louisville City Manager the sole
authority to terminate City officers and employees. The Charter states:
The City Manager shall be the chief executive officer and the head
of the administrative branch of the City government. He shall be responsible
to the Council for the proper administration of all affairs of the City and ***
he shall have power and shall be required to:
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(1) Appoint and, when necessary for the good of the service, remove
all officers and employees of the City ***.
{¶18} On August 29, 2014, Appellant Lanzer filed a Complaint in the Stark County
Court of Common Pleas asserting claims of wrongful discharge in violation of public
policy, tortious interference with employment, and civil conspiracy against the City of
Louisville, Ohio, Patricia Fallot, Richard Guiley, Guy Guidone, Cheryle Casar and Thomas
McAllister (members of Louisville City Council), E. Thomas Ault, Louisville's City
Manager, and William "Bill" Jeffries.
{¶19} On October 3, 2014, Appellee Jeffries filed a Motion to Dismiss.
{¶20} On November 24, 2014, City of Louisville moved for partial summary
judgment on Lanzer's wrongful termination claim
{¶21} On December 29, 2014, Appellee Ault filed a Motion for Summary Judgment
an all claims.
{¶22} On January 20, 2015, Appellant filed an amended Complaint.
{¶23} On February 5, 2015, Appellee Jeffries filed a Motion to Dismiss all claims
against him in the Amended Complaint.
{¶24} On May 28, 2015, the trial court entered separate judgment entries granting
the City Defendants' motion for partial summary judgment; granting Ault's motion for
summary judgment; and granting Jeffries' motion to dismiss.
{¶25} Appellant dismissed his remaining claims against the City Defendants with
prejudice.
{¶26} Appellant now appeals, raising the following Assignments of Error for
review:
Stark County, Case No. 2015 CA 00170 7
ASSIGNMENTS OF ERROR
{¶27} “I. THE TRIAL COURT ERRED WHEN IT GRANTED THE CITY
DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT.
{¶28} “II. THE TRIAL COURT ERRED WHEN IT GRANTED AULT'S MOTION
FOR SUMMARY JUDGMENT.
{¶29} “III. THE TRIAL COURT ERRED WHEN IT GRANTED JEFFRIES' MOTION
TO DISMISS.”
I., II.
{¶30} We shall address Appellant’s First and Second Assignments of Error
simultaneously as we find they are closely related and raise similar issues. In his first
assignment of error, Appellant argues that the trial court erred in granting summary
judgment in favor of the Louisville City appellees on his wrongful termination in violation
of public policy claim. In his second assignment of error, Appellant argues that the trial
court erred in granting summary judgment in favor of Appellee Ault on all of his claims:
wrongful termination, tortious interference with employment, and civil conspiracy.
“Summary Judgment Standard”
{¶31} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides, in pertinent
part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case, and written stipulations of fact,
Stark County, Case No. 2015 CA 00170 8
if any, timely filed in the action, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a
matter of law. * * * A summary judgment shall not be rendered unless it
appears from such evidence or stipulation and only therefrom, that
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, such party being entitled to have the evidence or stipulation
construed most strongly in his favor.
{¶32} Pursuant to the above rule, a trial court may not enter a summary judgment
if it appears a material fact is genuinely disputed. The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for its motion and
identifying those portions of the record that demonstrate the absence of a genuine issue
of material fact. The moving party may not make a conclusory assertion that the non-
moving party has no evidence to prove its case. The moving party must specifically point
to some evidence which demonstrates the non-moving party cannot support its claim. If
the moving party satisfies this requirement, the burden shifts to the non-moving party to
set forth specific facts demonstrating there is a genuine issue of material fact for trial.
Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio
St.3d 280, 1996-Ohio-107.
Wrongful Termination in violation of public policy -
City of Louisville Appellees/Appellee Thomas Ault
{¶33} The City of Louisville had employed Appellant Lanzer as an at-will
employee. Under the common law employment-at-will doctrine, either party may
Stark County, Case No. 2015 CA 00170 9
terminate the employment relationship for any reason, with or without cause, without
giving rise to an action for damages. See Collins v. Rizkana, 73 Ohio St.3d 65, 67, 652
N.E.2d 653 (1995). The Ohio Supreme Court created a narrow exception to this
employment-at-will doctrine in Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio
St.3d 228, 551 N.E.2d 981 (1990). In Greeley, the court held that an employee-at-will who
is discharged in violation of a public policy may maintain a cause of action for wrongful
discharge. Id. at 234, 551 N.E.2d 981.
{¶34} To prove a claim for wrongful discharge in violation of public policy, an
employee must establish: (1) that clear public policy existed and was manifested in a
state or federal constitution, statute or administrative regulation, or in the common law
(the clarity element); (2) that dismissing employees under circumstances like those
involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy
element); (3) the plaintiff's dismissal was motivated by conduct related to the public policy
(the causation element); and (4) the employer lacked overriding legitimate business
justification for the dismissal (the overriding justification element). Leininger v. Pioneer
Natl. Latex, 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶10, 12.
{¶35} While the first two elements (clarity and jeopardy) involve questions of law,
elements three and four (causation and overriding-justification) involve questions of fact.
Collins v. Rizkana, 73 Ohio St.3d 65, 69–70, 652 N.E.2d 653 (1995).
{¶36} “To satisfy the clarity element of a claim of wrongful discharge in violation
of public policy, a terminated employee must articulate a clear public policy by citation to
specific provisions in the federal or state constitution, federal or state statutes,
administrative rules and regulations, or common law.” Rebello v. Lender Processing,
Stark County, Case No. 2015 CA 00170 10
Servs. 2015-Ohio-1380, 30 N.E.3d 999, ¶29 (8th Dist.). “A public policy sufficient to
overcome the presumption in favor of employment at will is not limited to instances in
which the statute expressly forbids termination, but may be discerned from legislation
generally, or from other sources of law.” Id. “The wrongful-discharge tort is not limited to
situations where the discharge violates a statute.” Id. “Case law demonstrates that the
cited policy need not prohibit discharge per se.” Id.{¶37} In his Amended Complaint, in support of his claims, Appellant alleged (1)
Ohio has a clear public policy which prohibits an employer from terminating an employee
for complying with his duty to enforce the law, and (2) Ohio has a public policy permitting
fire chiefs and their appointees to examine and inspect property for compliance with
Ohio’s Fire Code to ensure health and safety of the persons and property of Ohio citizens
as set forth in R.C. 3737 and Ohio Adm. Code 1301:7-7. Additionally, Appellant alleged
that Louisville has a public policy which prohibits Council Members from seeking to
directly appoint, hire, give direction to, supervise, suspend, discipline, or terminate any
Louisville employee.
{¶38} Initially, we find that Appellant was not terminated for complying with his
duty to follow the law. The statute and administrative code sections cited by Appellant are
procedural in nature, detailing the procedure which must be followed to gain access to
premises for the purposes of conducting inspections. These statutes do not direct when,
how often, or even if, such inspections must take place.
{¶39} In its judgment entry, in deciding the clarity element, the trial court found
that when conducting the inspections in this case “…, even assuming that Mr. Yoder
obtained consent from the tenant, thte [sic] search of the Parksite Warehouse not only
Stark County, Case No. 2015 CA 00170 11
included the portion of the premeise [sic] occupied by a tenant, but also included the
unoccupied portion of the premises owned and controlled by Mr. Jeffries, whose
permission was not obtained.” (May 28, 2015, J/E at 5).
{¶40} The trial court then went on to find that based on the “undisputed facts in
this case, this Court agrees that there cannot be a clear public policy in Ohio which
permits warrantless administrative searches without the fire department having first
obtained the property owner’s consent.” Id.{¶41} Upon review, while we find that the evidence is unclear as to whether Capt.
Yoder obtained the proper consent to search all parts of the building in question, the fact
that Mr. Jeffries was not notified prior to the follow-up inspections, as promised, is not in
dispute. This Court would emphasize that the decision to provide prior notice to Mr.
Jeffries, or any other property owner, is one which the City of Louisville imposed upon
itself, and is not required by statute. Only consent is required by statute. In fact, it is
possible that prior notice would actually be counter-productive, allowing businesses to
only temporarily rectify violations in anticipation of an upcoming inspections.
{¶42} However, as stated above, the City of Louisville had made assurances to
Mr. Jeffries that he would receive prior notice before any further/additional inspections
were conducted, and that did not happen. From the record it appears that Mr. Jeffries is
a valued, local businessman and constituent, and that City Council terminated Appellant
for breaking the promises which had been made to Mr. Jeffries. We find that such grounds
are sufficient to terminate Appellant’s at-will employment.
{¶43} We do not find that Appellant has proven a violation of a clear public policy
warranting abrogation of the employment-at-will doctrine.
Stark County, Case No. 2015 CA 00170 12
Tortious Interference with Employment – Appellee Thomas Ault
{¶44} In Ohio, the elements of tortious interference with employment relationship
are as follows: 1) the existence of an employment relationship between plaintiff and the
employer; 2) the defendant was aware of this relationship; 3) the defendant intentionally
interfered with this relationship; and 4) the plaintiff was injured as a proximate result of
the defendant's acts. Costaras v. Dunnerstick, Lorain App. No. 04CA008453, 2004-Ohio-
6266. Thus, there are three players in a tortious interference claim: the plaintiff, the
defendant, and a third-party employer.
{¶45} Here, the Louisville City Charter provides that the City Manager, in this case
Appellee Ault, has the express authority to terminate the Fire Chief. Appellee Ault was
therefore Appellant's supervisor. A supervisor of an employee cannot be held liable for
tortious interference with contract. Anderson v. Minter (1972), 32 Ohio St.2d 207. Liability
for tortious interference with an employment relationship “does not extend to a supervisor
who terminates or otherwise impairs the plaintiff's employment while in the course of [the
supervisor's] own duties.” Hatton v. Interim Health Care of Columbus, Inc., Franklin App.
No. 06AP-828, 2007-Ohio-1418, ¶ 25. “A person in a supervisory capacity or other
position of authority over the employee cannot be sued for interfering with the
employment relationship that it is his duty to monitor, supervise, or enforce.” Smiddy,
2003-Ohio-446 at ¶ 9. Liability will not arise even in instances where a supervisor's
conduct may be characterized as malicious. Anderson v. Minter (1972), 32 Ohio St.2d
207, 213, 291 N.E.2d 457.
{¶46} Appellant, in an attempt to circumvent this rule, asserts that Ault acted
outside the scope of his employment because his motive in terminating Appellant was
Stark County, Case No. 2015 CA 00170 13
self-centered, i.e. protecting his own job. However, plaintiff's contention is misplaced in
both law and fact. “ ‘Malice makes a bad case worse, but does not make wrong that which
is lawful.’ ” Anderson v. Minter (1972), 32 Ohio St.2d 207, 213, 61 O.O.2d 447, 291 N.E.2d
457, quoting Johnson v. Aetna Life Ins. Co. (1914), 158 Wis. 56, 147 N.W. 32. See, also,
Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d
144. Ault's supervisory position over Appellant entitles him to interfere. Ault serves at the
pleasure of City Council. Accordingly, Ault acted within the scope of his duties when he
terminated Appellant at the direction of City Council. For this reason, we affirm the trial
court's decision to grant Appellee Ault summary judgment as to Appellant's claim of
intentional interference with employment.
Civil Conspiracy
{¶47} Appellant's complaint charged all of the above Appellees with participation
in a civil conspiracy. The Ohio Supreme Court has defined civil conspiracy as, “a
malicious combination of two or more persons to injure another in person or property, in
a way not competent for one alone, resulting in actual damages.” Kenty v. Transamerica
Premium Ins. Co. (1995), 72 Ohio St.3d 415, 419, 650 N.E.2d 863. However, if all of the
substantive claims underlying the conspiracy are without merit, the conspiracy claim must
also fail. Brose v. Bartlemay (April 16, 1997), 1st Dist. Nos. C-960423, A-9105270,
unreported, citing Minarik v. Nagy (1963), 8 Ohio App.2d 194, 195, 193 N.E.2d 280. The
substantive claims underlying Appellant's conspiracy theory are wrongful termination and
intentional interference with employment. We have already addressed these claims
above and found that summary judgment was proper. Therefore, we find that the trial
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court was correct in also granting summary judgment on Appellant's civil conspiracy
claim.
{¶48} Appellant’s First and Second Assignments or Error are overruled.
III.
{¶49} In his Third Assignment of Error, Appellant argues that the trial court erred
in granting Appellee Jeffries’ motion to dismiss. We disagree.
{¶50} Appellant's complaint alleged claims of tortious interference with
employment relationship and civil conspiracy against Appellee Jeffries. The trial court
found that the Noerr-Pennington1 doctrine provided immunity for Appellee Jeffries' actions
and granted his 12(b) motion to dismiss.
{¶51} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.
Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228, 551 N.E.2d
981 (1990). A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey County Board of Commissioners, 65 Ohio St.3d 545, 1992–Ohio–73, 605
N.E.2d 378. Under a de novo analysis, we must accept all factual allegations of the
1 Noerr–Pennington immunity is a “doctrine [that] originated in the anti-trust context as
the proposition that ‘joint efforts to influence public officials do not violate the antitrust
laws even though intended to eliminate competition. Such conduct is not illegal, either
standing alone or as part of a broader scheme itself violative of the Sherman Act.’ ” WE,
Inc. v. Philadelphia, Dept. of Licenses & Inspections, 174 F.3d 322, 326 (3d Cir.1999),
quoting United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670, 85 S.Ct. 1585, 14
L.Ed.2d 626 (1965); see also Noerr, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464. The
United States Supreme Court has held, “Those who petition government for redress are
generally immune from antitrust liability.” Professional Real Estate Investors, 508 U.S. at
56, 113 S.Ct. 1920, 123 L.Ed.2d 611. This type of immunity from antitrust liability is
otherwise known as Noerr–Pennington immunity.
Stark County, Case No. 2015 CA 00170 15
complaint as true and all reasonable inferences must be drawn in favor of the nonmoving
party. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).
{¶52} A trial court should dismiss a complaint for failure to state a claim on which
relief can be granted pursuant to Civ.R. 12(B)(6) only when it appears “beyond doubt ***
that the [plaintiff] can prove no set of facts warranting relief.” State ex rel. Crabtree v.
Franklin Cty. Bd. of Health (1997), 77 Ohio St.3d 247, 248, 673 N.E.2d 1281. The court
may look only to the complaint itself, and no evidence or allegation outside the complaint,
when ruling on a Civ.R. 12(B)(6) motion. State ex rel. Fuqua v. Alexander (1997), 79 Ohio
St.3d 206, 680 N.E.2d 985. Nevertheless, the court may consider material incorporated
in the complaint as part of the complaint. State ex rel. Crabtree; State ex rel. Keller v. Cox
(1999), 85 Ohio St.3d 279, 707 N.E.2d 931. Even so, because Ohio has rejected “fact
pleading” in favor of “notice pleading,” a plaintiff is not required to prove his or her case
through the pleadings in the complaint, since the plaintiff's lack of access to relevant
evidence at that stage of the proceedings would allow dismissal of many valid claims.
York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 573 N.E.2d 1063.
{¶53} When a trial court construes a complaint for purposes of a motion to dismiss
for failure to state a claim, the court must assume that “all factual allegations in the
complaint are true.” Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541, 544, 584
N.E.2d 729. The court is also required to construe all reasonable inferences in favor of
the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 532 N.E.2d 753.
“Since all factual allegations in the complaint are presumed true, only legal issues are
presented and an entry of dismissal will be reviewed de novo.” Hunt v. Marksman Prods.
(1995), 101 Ohio App.3d 760, 762, 656 N.E.2d 726.
Stark County, Case No. 2015 CA 00170 16
{¶54} In the instant case, Noerr–Pennington immunity is an affirmative defense
that must be pleaded in an answer or it is waived under Civ.R. 8(C) (affirmative defenses).
Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193.
{¶55} As set forth above, the function of a Civ.R. 12(B)(6) motion to dismiss for
failure to state a claim upon which relief may be granted is to test the legal sufficiency of
a claim, generally contained in the complaint. Zeigler v. Bove (Dec. 23, 1998), Richland
App. No. 98CA65, 1999 WL 4080. The defense of failure to state a claim on which relief
may be granted asserts that the pleader has failed to plead the operative legal grounds
relating to a claim. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 532 N.E.2d
753.
{¶56} Since affirmative defenses typically rely on matters beyond the pleadings,
affirmative defenses normally cannot be raised in a Civ.R. 12(B)(6) motion to dismiss. ***
‘An exception exists, however, where the existence of the affirmative defense is obvious
from the face of the complaint itself.’ * * * Mills v. Whitehouse Trucking Co. (1974), 40
Ohio St.2d 55, 58, 320 N.E.2d 668 (‘a Civ.R. 12(B)(6) motion will lie to raise the bar of the
statute of limitations when the complaint shows on its face the bar of the statute’).
{¶57} The allegations against Jeffries in Appellant’s Complaint state:
{¶58} “19. On or about September 3, 2013, Jeffries contacted Ault and stated he
would contact the members of Louisville City Council and seek to have the Fire Chief
(Lanzer) removed from offices. Jeffries stated he was unhappy with the Ohio Fire Code
Examination and inspection process, reports, and signage.”
Stark County, Case No. 2015 CA 00170 17
{¶59} “22. *** Ault then terminated Lanzer’s employment. Lanzer asked Ault the
reason for which he was being terminated and Ault replied that Lanzer had done nothing
wrong and that Lanzer’s employment was being terminated only for political reasons.”
{¶60} “35. Upon information and belief, Jeffries, in an effort to avoid his obligation
under Ohio law, and to interfere with the duties and responsibilities of the Louisville Fire
Department, sought to influence, and did influence some or all of the other Defendants to
terminate Lanzer’s employment.”
{¶61} Based on the allegations as set forth in the Complaint, we find that the trial
court did not err in finding that the Noerr-Pennington doctrine applies and that Appellee
Jeffries is immune from civil liability for his actions as he had a right to petition City Council
for redress for his grievances.
{¶62} Furthermore, we do not find that Appellee Jeffries was petitioning the City
Council to perform an illegal act by expressing his displeasure and desire to have the Fire
Chief’s employment terminated.
Stark County, Case No. 2015 CA 00170 18
{¶63} Appellant’s Third Assignment of Error is overruled.
{¶64} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Gwin, J., concur.
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