Moss v. Lorain Cty. Bd. of Mental Retardation

[Cite as Moss v. Lorain Cty. Bd. of Mental Retardation, 2014-Ohio-969.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
JACOB MOSS, et al. C.A. No. 13CA010335
Appellees
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LORAIN COUNTY BOARD OF MENTAL COURT OF COMMON PLEAS
RETARDATION, et al. COUNTY OF LORAIN, OHIO
CASE No. 08CV157287
Appellants
DECISION AND JOURNAL ENTRY
Dated: March 17, 2014
MOORE, Presiding Judge.
{¶1} Defendant-Appellants, the Lorain County Board of Mental Retardation and the
Lorain County Board of Mental Retardation and Developmental Disabilities (collectively, “the
Board”), appeal from the decision of the Lorain County Court of Common Pleas in favor of
Plaintiff-Appellees, Kim and Jacob Moss (collectively, “the Mosses”). This Court affirms.
I.
{¶2} In August 2007, seven-year-old Jacob Moss was severely burned when he
wandered into the kitchen area of his classroom at Murray Ridge School and spilled a pot of hot
coffee on himself. Because Jacob had Down syndrome and several other diagnosed disorders, he
required constant supervision. Moreover, it was the policy of Murray Ridge School, which was
owned and operated by the Board, not to allow students in the kitchen area by themselves.
{¶3} After Jacob was injured, his mother brought a personal injury and loss of
consortium suit against the Board and its employees. The Board and several of its employees
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filed a motion for judgment on the pleadings, claiming that they were statutorily immune from
suit under R.C. 2744.02. The Mosses opposed the motion, and the trial court ultimately denied
it. The Board and its employees then appealed from the court’s denial of their motion.
{¶4} On appeal, this Court affirmed the trial court’s decision. See Moss, et al. v.
Lorain County Board of Mental Retardation, 185 Ohio App.3d 395, 2009-Ohio-6931 (9th Dist.).
We held that the Mosses’ complaint alleged sufficient facts that, if proven, would demonstrate
that (1) the sovereign immunity exception contained in R.C. 2744.02(B)(4) applied so as to
expose the Board to liability for damages, and (2) the Board’s employees had acted in a wanton
and reckless manner such that the Board’s immunity could not be restored. Id. at ¶ 16-20. We
concluded that the Board and its employees were not immune from liability with respect to the
Mosses’ complaint. Id. at ¶ 33. The Board appealed our decision to the Ohio Supreme Court,
but the Supreme Court denied review.
{¶5} After this Court’s decision, the Mosses voluntarily dismissed their claims against
several of the Board’s employees, leaving intact the suit against the Board and one of its
employees, Amanda Hamilton. The Board then filed an amended answer and third-party
complaint with the court’s permission. In its amended answer, the Board asserted a cross-claim
against Hamilton. In its third-party complaint, the Board impleaded the Elyria City School
District (“the School District”), the entity that allegedly had employed, trained, and assigned
Hamilton to Jacob’s classroom. Both pleadings sought contribution from the named parties in
the event the Board was held liable for Jacob’s injuries.
{¶6} Subsequently, Hamilton and the School District filed a motion for summary
judgment. The motion alleged that Hamilton and the School District were not liable in an action
for contribution because they had entered into a good faith settlement with the Mosses in
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exchange for the Mosses releasing any potential claims against them. The Board filed a brief in
opposition, “or, in the alternative, [a] motion for judgment on the pleadings on R.C. Chapter
2744 immunity grounds only.” With regard to the latter, the Board alleged that Hamilton and the
School District’s removal from the suit would “alter[]” the Mosses’ complaint and entitle the
Board to sovereign immunity. Specifically, the Board alleged that their removal would negate
the allegation of employee negligence in the Mosses’ complaint such that the complaint would
no longer expose the Board to liability under R.C. 2744.02(B)(4)’s exception to immunity. The
Mosses filed a memorandum in opposition to the portion of the Board’s motion that sought a
judgment on the pleadings.
{¶7} On December 21, 2012, the trial court granted Hamilton and the School District’s
motion for summary judgment and denied the Board’s motion for judgment on the pleadings.
The Board has appealed solely from the trial court’s denial of its motion for judgment on the
pleadings and has raised one assignment of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING [THE BOARD] THE BENEFITS
OF STATUTORY IMMUNITY UNDER R.C. CHAPTER 2744.
{¶8} In its sole assignment of error, the Board argues that the trial court erred by
denying its motion for judgment on the pleadings. We disagree.
{¶9} “[W]e review a trial court’s ruling on a motion for judgment on the pleadings
pursuant to the de novo standard, * * * affording no deference to the findings of the trial court.”
(Internal citation omitted.) Moss, 185 Ohio App.3d 395, 2009-Ohio-6931, at ¶ 8. In doing so,
we “confine our review to the pleadings, accepting all factual allegations in the complaint as
true, and making all reasonable inferences in favor of the nonmoving party.” Id. “Judgment on
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the pleadings is appropriate if it is clear that the nonmoving party can prove no set of facts that
would entitle that party to relief.” Id.{¶10} In order to determine whether a political subdivision is immune from liability, we
engage in a three-tiered analysis. Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998), abrogated on
other grounds, M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336. The first tier sets
forth the premise that
[e]xcept as provided in division (B) of [R.C. 2744.02], a political subdivision is
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 of the political subdivision in connection with a governmental or
proprietary function.
R.C. 2744.02(A)(1). Pursuant to the second tier, we determine whether one of the five
exceptions to immunity outlined in R.C. 2744.02(B) applies to hold the political subdivision
liable for damages. Cater at 28. Lastly, immunity may be restored, and the political subdivision
will not be liable, if one of the defenses enumerated in R.C. 2744.03(A) applies. Id.{¶11} In the prior appeal in this matter, we examined the Mosses’ complaint and
analyzed whether the Board was entitled to immunity under the three-tiered analysis set forth in
Cater. We held that the Board was a political subdivision performing governmental functions
and, thus, was “entitled to immunity pursuant to R.C. 2744.02(A)(1). Moss at ¶ 11. See also
Cater at 28 (first tier of immunity analysis discussed). We further held, however, that the
Mosses’ complaint alleged sufficient facts that, if proven, would demonstrate an exception to
immunity applied. Moss at ¶ 12-16. See also Cater at 28 (second tier of immunity analysis
discussed). Those factual allegations included allegations of employee negligence in the
supervision of Jacob on the date of the incident, as well as in the design, maintenance, and
construction of the facility where Jacob’s injuries occurred. The allegations also included that
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Jacob’s injuries resulted from a physical defect within the grounds of the school. This Court
held that the allegations, if proven, would satisfy the exception to immunity contained in R.C.
2744.02(B)(4). Moss at ¶ 16. Moreover, because the complaint contained sufficient allegations
that the Board’s employees had acted in a wanton or reckless matter, we concluded that the
Board’s immunity could not be restored under R.C. 2744.03. Moss at ¶ 17-20. See also Cater at
28 (third tier of immunity analysis discussed). This Court held that the trial court did not err by
denying the Board’s motion for judgment on the pleadings on the basis of immunity. Moss at ¶
20.
{¶12} Although the Board acknowledges the Moss decision, it argues that the Mosses
somehow altered their complaint when they later settled with Hamilton and the School District.
The Board notes that the immunity exception contained in R.C. 2744.02(B)(4) requires an injury
to have been “caused by negligence on the part of the [B]oard’s employees.” Moss, 185 Ohio
App.3d 395, 2009-Ohio-6931, at ¶ 13, citing R.C. 2744.02(B)(4). According to the Board,
Hamilton was the only named employee left in the Mosses’ complaint after the Mosses
voluntarily dismissed the other employees from the suit and the School District was the entity
that actually employed Hamilton. As such, the Board contends that, when the Mosses settled
with Hamilton and the School District, they “fundamentally altered the pleadings” and
“effectively lifted the first element of the R.C. 2744.02(B)(4) exception – i.e., employee
negligence – out of the case.”
{¶13} As this Court noted in the original decision in this matter, an appellate court
“must confine [its] review to the pleadings” when reviewing a trial court’s decision to deny a
motion for judgment on the pleadings. Moss at ¶ 8. The settlement into which the Mosses,
Hamilton, and the School District entered is a matter outside the scope of the pleadings.
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Moreover, the Board has failed to cite this Court to any applicable authority in support of its
argument that a settlement somehow retroactively alters a plaintiff’s complaint, absent any
further action on the part of the plaintiff. See App.R. 16(A)(7). This Court will not construct an
argument an appellant’s behalf where none exists. See Cardone v. Cardone, 9th Dist. Summit
No. 18349, 1998 WL 224934, *8 (May 6, 1998) (“If an argument exists that can support [an]
assignment of error, it is not this [C]ourt’s duty to root it out.)”. We, therefore, reject the
Board’s unsupported argument regarding the effect of the Mosses’ settlement with Hamilton and
the School District.
{¶14} The Board also argues that it was entitled to judgment on the pleadings because
the Mosses’ complaint failed to plead a physical defect. See Moss at ¶ 13, citing R.C.
2744.02(B)(4). The record reflects, however, that the Board did not raise the foregoing argument
in its November 2012 motion for judgment on the pleadings. More importantly, this Court held
in the prior appeal in this matter that the Mosses’ complaint satisfied both the negligence and
physical defect aspects of R.C. 2744.02(B)(4). Moss at ¶ 14-16. Those holdings became the law
of the case, and the Board has not demonstrated any “extraordinary circumstances” that would
excuse that doctrine’s application. See Nolan v. Nolan, 11 Ohio St.3d 1 (1984), syllabus
(“Absent extraordinary circumstances, such as an intervening decision by the Supreme Court, an
inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in
the same case.”). The Board is not immune from suit with regard to the Mosses’ complaint. See
Moss, supra. As such, the trial court did not err by denying its motion for judgment on the
pleadings.
{¶15} This Court notes that the Mosses have asked this Court to impose sanctions upon
the Board for filing a frivolous appeal. See App.R. 23. “Under App.R. 23, a frivolous appeal is
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one that presents no reasonable question for review.” W. Res. Logistics v. Hunt Maching & Mfg.
Co., 9th Dist. Summit No. 23124, 2006-Ohio-5070, ¶ 14. “Although [the Board] has raised
some issues that lack substantial basis in the law, [its] actions do not rise to the level of frivolity
required to permit sanctions under the Appellate Rules.” Weber v. Weber, 9th Dist. Lorain No.
98CA007149, 1999 WL 975113, *3 (Oct. 20, 1999). Therefore, we decline to impose sanctions
upon the Board at this time. See In re K.D., 9th Dist. Wayne No. 06CA0027, 2006-Ohio-4730, ¶
13 (“A court of appeals is vested with the discretion to determine whether sanctions are
warranted.”). The Board’s sole assignment of error is overruled.
III.
{¶16} The Board’s sole assignment of error is overruled. The decision of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellants.
CARLA MOORE
FOR THE COURT
WHITMORE, J.
HENSAL, J.
CONCUR.
APPEARANCES:
MATTHEW JOHN MARKLING, PATRICK VROBEL and SEAN KORAN, Attorneys at Law,
for Appellants.
FRANK GALLUCCI, III, and MICHAEL SHROGE, Attorneys at Law, for Appellees.
PAUL W. FLOWERS, Attorney at Law, for Appellees.