Sweeney v. Pfan

[Cite as Sweeney v. Pfan, 2019-Ohio-4605.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
LYLE SWEENEY : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 19 CAG 04 0030
SHELLY PFAN :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County
Municipal Court, Case No. 2019 CVI 00126
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 7, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LYLE SWEENEY Pro Se VINCE VILLIO
5701 Whitecraigs Ct. Delaware County Prosecutor’s Office
Dublin, OH 43017 145 North Union Street
Delaware, OH 43015
[Cite as Sweeney v. Pfan, 2019-Ohio-4605.]
Gwin, P.J.
{¶1} Appellant appeals the April 4, 2019 judgment entry of the Delaware County
Municipal Court denying her motion to dismiss pursuant to Civil Rule 12(B)(6).
Facts & Procedural History
{¶2} On January 17, 2019, appellee Lyle Sweeney filed a small claims complaint
against appellant Shelley Pfan. Appellee alleged that while in the custody of the Delaware
County Jail and while being transferred to the hospital, his possessions were stolen.
{¶3} Appellant filed a motion to dismiss on March 6, 2019 pursuant to Civil Rule
12(B)(6) for the naming of an improper party as defendant and based upon immunity
pursuant to R.C. 2744.02(A). In her motion to dismiss, appellant alleges the following:
appellee was booked into the Delaware County Jail on October 10, 2018; upon his
booking, an inventory of his personal property was taken and documented; appellant, as
the jail director, had no involvement in taking the inventory; appellee experienced a
medical emergency and was taken for treatment to a hospital in Columbus; appellant had
no involvement in the retrieval or bagging of appellee’s belongings; a sheriff’s deputy
drove appellee’s belongings to the hospital and returned them to him in his hospital room;
and appellant had no involvement in the return of appellee’s belongings. Also in her
motion, appellant alleges there is video footage from the hospital showing the deputy
entering the hospital room with the belongings and leaving the hospital without the
belongings.
{¶4} In her motion, appellant argues her duties as Jail Administrator involve
governmental functions and render her immune in this case pursuant to R.C. 2744.02(A).
Delaware County, Case No. 19 CAG 04 0030 3
Appellant further contends that even if she is not immune, she was not the proximate
cause of the loss appellee suffered and is thus not liable nor the proper party in this case.
{¶5} The magistrate issued an order on March 13, 2019 denying the motion to
dismiss. The magistrate found R.C. 2744.02 is not a basis for immunity in this case
because the statute provides immunity, in limited circumstances, to political subdivisions,
but appellant is a person, not a political subdivision. The magistrate additionally found
the issue of proximate cause is an issue of fact for trial.
{¶6} Appellant filed objections to the magistrate’s decision on March 21, 2019.
Appellant argued the magistrate’s order should be set aside because appellant is being
sued in her official capacity as the Delaware County Jail Administrator and thus political
subdivision immunity extends to her because all of the conduct complained of occurred
as part of a governmental function.
{¶7} The trial court issued a judgment entry on April 4, 2019 overruling
appellant’s objections to the magistrate’s order. The trial court found the magistrate’s
order was proper, given the evidence and the procedural posture of the case. Specifically,
the trial court found there is no evidence appellant is a county employee triggering any
claim of immunity, as the complaint in this case does not allege appellant is a county
employee; thus the complaint does not assert facts required to establish the immunity
defense. Further, that the averments in appellant’s motion are not evidence. The trial
court emphasized that a pretrial motion to dismiss solely upon the pleadings merely tests
the sufficiency of the complaint and the small claims complaint is sufficient to allege a
claim against appellant stemming from the alleged loss of appellee’s belongings. The
trial court stated, “where, as here, a pretrial motion to dismiss the complaint presents facts
Delaware County, Case No. 19 CAG 04 0030 4
not in the pleadings, the motion ordinarily must be treated as a motion for summary
judgment as provided in Civil Rule 56.” The trial court further found that the bare
allegations of facts by counsel in the pretrial motion are not sufficient to establish facts for
consideration of the court, as no evidentiary materials were submitted. Further, that
appellee was entitled to show an exception to the immunity defense. The trial court again
emphasized that nothing in the complaint establishes appellant is an employee of a
political subdivision. The trial court concluded appellant’s motion to dismiss is premature,
given the posture of the case, and specifically stated appellant could reassert the motion
“at the close of evidence at trial.”
{¶8} Appellant appeals the April 4, 2019 judgment entry of the Delaware County
Municipal Court and assigns the following as error:
{¶9} “I. DEFENDANT-APPELLANT IS NAMED IN THE CAUSE OF ACTION AS
AN EMPLOYEE OF A POLITICAL SUBDIVISION, THUS ENTITLING HER TO
POLITICAL SUBDIVISION TORT IMMUNITY UNDER R.C. 2744.02.
{¶10} II. THE TRIAL COURT’S DECISION TO CONVERT DEFENDANT-
APPELLANT’S MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT
WITHOUT PROPER NOTICE IS REVERSIBLE ERROR.”
I.
{¶11} In her first assignment of error, appellant argues she is entitled to political
subdivision employee immunity as a matter of law, as R.C. 2744.02(A) provides that a
political subdivision is not liable in damages in a civil action for injury, death, or loss to
person or property allegedly caused by any act or omission of the political subdivision or
Delaware County, Case No. 19 CAG 04 0030 5
an employee of the political subdivision in connection with a governmental or proprietary
function.
{¶12} Our standard of review on a Civil Rule 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 is procedural and tests the
sufficiency of the complaint. State ex rel. Hanson v. Guernsey Co. Bd. of Commissioners,
65 Ohio St.3d 545, 605 N.E.2d 378 (1989). Under a de novo analysis, we must accept
all factual allegations of the 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). In order for a court to grant a motion to dismiss for failure to state a claim, it must
appear “beyond a doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” O’Brien v. Univ. Community Tenants Union, Inc., 42
Ohio St.2d 242, 327 N.E.2d 753 (1975).
{¶13} Generally, political subdivisions are “not liable in damages in a civil action
for injury, death, or loss to person or property allegedly caused by an act or omission of
the political subdivision or an employee in connection with a governmental or proprietary
function.” R.C. 2744.02. There are several statutory exceptions to the broad grant of
immunity.
{¶14} Due to the procedural posture of this case, all allegations in the complaint
are presumed to be true for the purposes of our analysis. Further, neither this Court, nor
the trial court, may rely on any materials or evidence outside the complaint in considering
a motion to dismiss. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 680 N.E.2d
985 (1997). Consideration by the court of anything outside the four corners of the
Delaware County, Case No. 19 CAG 04 0030 6
complaint is improper when consider a Civil Rule 12(B)(6) motion. Douglass v. Provia
Door, 5th Dist. Tuscarawas No. 2012 AP 0034, 2013-Ohio-2853.
{¶15} In this case, nothing in the complaint establishes that appellant is an
employee of a political subdivision or that appellee is suing appellant in her capacity as
an employee of a political subdivision, as appellee alleges that while in the custody of the
Delaware County Jail and while being transferred to the hospital, his possessions were
stolen. Accordingly, taking the allegations in the complaint to be true and not relying on
any materials or evidence outside the complaint, we find appellant is not entitled to
political subdivision immunity.
{¶16} In this case, appellee filed a small claims complaint against appellant that
was sufficient to allege a claim against appellant for the alleged loss of his belongings.
As this Court has previously recognized, procedures in small claims are generally more
“elastic” to accommodate pro se litigants. Abdalla v. Wilson, 5th Dist. Licking No. 17 CA
0056, 2018-Ohio-500.
{¶17} Appellant argues the complaint, “when read in conjunction with the
procedural posture of this action and the statements of Plaintiff-appellee’s guardian in the
pretrial conference, indicates that Plaintiff-Appellee brought the action against Shelley
Pfan as the Jail Administrator of the Delaware County Jail, and therefore as an employee
of a political subdivision.” Appellant submits the fact that she is being sued in her official
capacity as an employee of the Delaware County Jail is apparent from a pre-trial letter
and statements at a pre-trial conference and these additional facts, while not contained
within the four corners of the complaint, may be properly considered by the trial court in
its evaluation of a motion to dismiss.
Delaware County, Case No. 19 CAG 04 0030 7
{¶18} We have previously held that a court may take judicial notice of “appropriate
matters” in determining Civil Rule 12(B)(6) motions without converting it to a motion for
summary judgment. Miller v. Medical Mutual of Ohio, 5th Dist. Coshocton No.
2012CA0020, 2013-Ohio-3179. However, such judicial notice is at the discretion of the
trial court and a trial court cannot take judicial notice of court proceedings in another case.
Id. We find the contents of a pre-trial letter and the statements of appellee’s guardian at
a pre-trial conference are not appropriate matters that constitute well-known and
indisputable facts such that judicial notice is appropriate.
{¶19} The Ohio Supreme Court has held that courts are free to consider
memoranda, briefs, and oral arguments on legal issues in determining whether a
complaint should be dismissed for failure to state a claim upon which relief can be granted
and this material is not considered matters outside the pleadings. State ex rel. Scott v.
Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923. However, the
Supreme Court also specifically stated a Civil Rule 12(B)(6) determination “cannot rely
on factual allegations or evidence outside the complaint.” Id. Unlike the cases cited by
appellant, in this case, the materials appellant requests the trial court and this Court
consider are not simply memoranda, briefs, and arguments on legal issues, but are
factual allegations and/or evidence. Accordingly, we find the trial court did not commit
error in not considering facts and evidence outside the four corners of the complaint and
did not commit error in denying appellant’s Civil Rule 12(B)(6) motion to dismiss.
{¶20} Appellant’s first assignment of error is overruled.
Delaware County, Case No. 19 CAG 04 0030 8
II.
{¶21} In her second assignment of error, appellant contends the trial court’s
decision to convert her motion to dismiss to a motion for summary judgment without
proper notice is reversible error. Appellant seeks a remand from this Court to the trial
court to allow her to submit evidence on the issue of immunity.
{¶22} When a party presents evidence outside the pleadings, the trial court bears
the responsibility either to disregard the extraneous material or to convert the motion to
dismiss into a motion for summary judgment. Keller v. Columbus, 100 Ohio St.3d 192,
797 N.E.2d 964 (2003).
{¶23} In the first portion of its judgment entry, the trial court disregarded the
extraneous materials, finding the allegations and evidence in appellant’s motion to
dismiss to be outside the pleadings. We find this determination by the trial court not in
error. As detailed above, the factual allegations and/or evidence submitted by appellant
are outside the pleadings and cannot be considered in a Civil Rule 12(B)(6)
determination. Bumpus v. Ward, 5th Dist. Knox No. 2012-CA-5, 2012-Ohio-4674.
{¶24} The trial court also stated in its judgment entry that where a pre-trial motion
to dismiss presents facts not in the pleadings, the motion ordinarily must be treated as a
motion for summary judgment; but the bare allegations of facts in the motion are not
sufficient to establish facts for consideration of the court.
{¶25} Where the trial court chooses to consider evidence or materials outside the
complaint, the court must convert the motion to dismiss into a motion for summary
judgment and give the parties notice and a reasonable opportunity to present all materials
Delaware County, Case No. 19 CAG 04 0030 9
made pertinent to such motion to Civil Rule 56. State ex rel. The V. Cos. V. Marshall, 81
Ohio St.3d 467, 692 N.E.2d 198 (1998).
{¶26} Appellant is correct that this Court and the Ohio Supreme Court have held
the failure to notify the parties that a court is converting a motion to dismiss into one for
summary judgment is reversible error. State ex rel. Boggs v. Springfield Local Elementary
School Dist. Bd. of Education, 72 Ohio St.3d 94, 647 N.E.2d 788 (1995); Douglass v.
Provia Door, Inc., 5th Dist. Tuscarawas No. 2012 AP 0034, 2013-Ohio-2853.
{¶27} However, unlike the cases cited by appellant in which the party asserting
lack of reasonable notice is the non-moving party, in this case, appellant is the moving
party and is also the party who included the extraneous material and factual allegations
in their motion. The primary purpose of the notification requirement is to “permit the
nonmoving party sufficient opportunity to respond to a converted summary judgment
motion.” State ex rel. The V. Cos. V. Marshall, 81 Ohio St.3d 467, 692 N.E.2d 198 (1998).
Further, “the primary vice of unexpected conversion to summary judgment is that it denies
the surprised party sufficient opportunity to discover and bring forward factual matters * *
*.” Petrey v. Simon, 4 Ohio St.3d 154, 447 N.E.2d 1285 (1983).
{¶28} To the extent that the trial court converted the motion to dismiss to a motion
for summary judgment and committed error in not providing notice of the conversion to
the parties, we find the error is harmless. See Dietelbach v. Ohio Edison Co., 11th Dist.
Trumbull No. 2004-T-0063, 2005-Ohio-4902; Rice v. Lewis, 4th Dist. Scioto No.
13CA3551, 2013-Ohio-5890{¶29} Civil Rule 61 governs harmless error and states the following:
Delaware County, Case No. 19 CAG 04 0030 10
No error in either the admission or the exclusion of evidence and no
error or defect in any ruling or order or in anything done or omitted by the
court or by any of the parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying, or otherwise disturbing a judgment
or order, unless refusal to take such action appears to the court inconsistent
with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.
{¶30} Upon review, we find that, to the extent the trial court converted the motion
to dismiss to a motion for summary judgment, it was harmless error because it did not
affect appellant’s substantial rights. Appellant made the motion to dismiss with the
extraneous material and allegations. Additionally, the trial court specifically stated that
though appellant’s motion was premature due to the procedural posture of the case,
appellant could reassert the motion with regards to political immunity at the close of the
evidence at trial. Thus, appellant will be allowed to submit further evidence on the issue
of immunity to the trial court, as she requests in her appellate brief.
{¶31} Appellant’s second assignment of error is overruled.
{¶32} Based on the foregoing, appellant’s assignments of error are overruled.
Delaware County, Case No. 19 CAG 04 0030 11
{¶33} The April 4, 2019 judgment entry of the Delaware County Municipal Court
is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, concur