Young v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities , 2011 Ohio 2291 ( 2011 )

[Cite as Young v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities, 2011-Ohio-2291.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95955
JAMES YOUNG, ADMINISTRATOR
PLAINTIFF-APPELLEE
vs.
CUYAHOGA COUNTY BOARD OF MRDD, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-656218
BEFORE: E. Gallagher, J., Sweeney, P.J., and Keough, J.
RELEASED AND JOURNALIZED: May 12, 2011
ATTORNEY FOR APPELLANTS
Nick C. Tomino, Esq.
Tomino & Latchney, L.L.C., L.P.A.
803 East Washington Street, Suite 200
Medina, Ohio 44256
ATTORNEYS FOR APPELLEE
Stuart E. Scott, Esq.
Peter J. Brodhead, Esq.
Nicholas A. Dicello, Esq.
Melissa Z. Kelly, Esq.
Spangenberg, Shibley & Liber, L.L.P.
1001 Lakeside Avenue, East
Suite 1700
Cleveland, Ohio 44114
Mark S. Fishman, Esq.
526 Superior Avenue
The Leader Building, Suite 853
Cleveland, Ohio 44114
EILEEN A. GALLAGHER, J.:
{¶ 1} The Cuyahoga County Board of Mental Retardation and
Developmental Disabilities (hereinafter the Board), appeals from the decision
of the trial court denying its motion for judgment on the pleadings. The
Board claims it was entitled to immunity under Ohio’s Political Subdivision
Tort Liability Act and that the trial court committed reversible error in not
recognizing such immunity. For the following reasons, we dismiss the
appeal for lack of a final appealable order.
{¶ 2} According to the complaint filed by James Young, this case arises
out of the March 17, 2008 death of Young’s daughter, Kimberly Young, who
died when Dennis Simpson, a bus driver employed by the Board, struck her
as she was walking southbound in the crosswalk of Chester Avenue in
Cleveland at the intersection of East 55th Street. Young’s complaint alleges
that mandatory post-crash drug testing revealed that Simpson had cocaine in
his system. Simpson later pleaded guilty to aggravated vehicular homicide
and driving under the influence of alcohol and drugs.
{¶ 3} Young, as administrator of his daughter’s estate, alleged in his
brief that during Simpson’s employ with the Board, Simpson incurred two
traffic violations for driving under the influence, one in the late 1980’s or
early 1990’s and a second on June 20, 2003. Young further alleged that the
Board was aware of each of Simpson’s convictions prior to March 17, 2008.
{¶ 4} Accordingly, on April 4, 2008, Young filed a wrongful death
action, alleging that the Board was vicariously liable for Kimberly’s death on
the basis of Simpson’s negligent driving. Young amended his complaint on
March 29, 2010, in which he added a claim against the Board for reckless
retention and/or supervision.
{¶ 5} In response, the Board filed a Civ.R. 12(C) motion for judgment
on the pleadings, seeking dismissal of Young’s reckless retention and/or
supervision claim. In its motion, the Board argued that it was entitled to
immunity under Ohio’s Political Subdivision Tort Liability Act, R.C. 2744.01,
et seq. On November 1, 2010, the trial court denied the Board’s motion
without elaboration.
{¶ 6} The Board filed the instant appeal from that order, on the same
date, alleging the following assignment of error:
{¶ 7} “The trial court committed reversible error when it denied
Defendant’s Motion for Judgment on the Pleadings based on immunity under
Revised Code Chapter 2744 as to Count Two of Plaintiff’s Second Amended
Complaint for Defendant’s negligent retention and/or supervision of its
employee.”
{¶ 8} Before addressing the merits of appellants’ claims, we must first
address Young’s argument that this Court is without jurisdiction to hear the
instant appeal. Young argues that the trial court’s journal entry of
November 1, 2010 does not vest this Court with jurisdiction because it does
not set forth the reasons for the trial court’s decision and is therefore not a
final appealable order, regardless of the Board’s reliance on R.C. 2744.02(C)
as the basis for jurisdiction. We agree with Young’s argument.
{¶ 9} “It is well-established that an order must be final before it can be
reviewed by an appellate court. If an order is not final, then an appellate
court has no jurisdiction.” Gen. Acc. Ins. Co. v. Ins. Co. of Am. (1989), 44
Ohio St.3d 17, 540 N.E.2d 266. Generally, orders denying a political
subdivision the benefit of immunity are final orders. R.C. 2744.02(C),
provides as follows:
{¶ 10} “An order that denies a political subdivision or an employee of a
political subdivision the benefit of an alleged immunity from liability as
provided in this chapter or any other provision of the law is a final order.”
{¶ 11} The Ohio Supreme Court has held, however, that there is no final
appealable order when the trial court does not provide an explanation for its
decision to deny a motion to dismiss. State Auto. Mut. Ins. Co. v. Titanium
Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1199. In that
case, a third-party complaint was filed against Oakwood Village Fire
Department, and the department filed a motion to dismiss based on immunity
under R.C. Chapter 2744. The trial court denied the motion without
elaboration, and the department appealed. On appeal, the court decided the
case on the merits. State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 159
Ohio App.3d 338, 2004-Ohio-6681, 823 N.E.2d 934.
{¶ 12} Without deciding whether R.C. 2744.02(C) applied, the Supreme
Court held:
{¶ 13} “Nevertheless [i.e., regardless of whether R.C. 2744.02(C)
applies], there is no final, appealable order. The trial court provided no
explanation for its decision to deny the motion to dismiss. The court made
no determination as to whether immunity applied, whether there was an
exception to immunity, or whether R.C. 2744.05(B)(1) precludes contribution
as the basis for its decision. The court did not dispose of the case.”
{¶ 14} “At this juncture, the record is devoid of evidence to adjudicate
the issue of immunity because it contains nothing more than Ohio
Briquetting’s third-party complaint and Oakwood’s Civ.R. 12(B)(6) motion to
dismiss. No fact-finding or discovery has occurred. The trial court’s denial
of the motion to dismiss merely determined that the complaint asserted
sufficient facts to state a cause of action.” Id. at ¶10-11.
{¶ 15} The Supreme Court further stated that “[t]he record below must
be developed in order to reach [the] issue of immunity, and remanded the case
to the trial court.” Id. at ¶12.
{¶ 16} Because the court denied the Board’s motion in this case without
elaboration and there is, therefore, no record on the issue of immunity, based
on the authority of the Supreme Court’s decision in State Auto. Mut. Ins. Co.,
there is no final appealable order and we must dismiss.1 See, also, Wade v.
In Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, the
1
Supreme Court held that the denial of a governmental entity’s motion for summary
judgment on the issue of sovereign immunity due to the existence of genuine issues
Stewart, Cuyahoga App. No. 93405, 2010-Ohio-164; Grassia v. Cleveland,
Cuyahoga App. No. 91013, 2008-Ohio-3134; Vaughn v. Cleveland Muni.
School Dist., et al., Cuyahoga App. No. 86848, 2006-Ohio-2572.
Appeal dismissed.
Accordingly, the appeal is dismissed and the matter is remanded for further
proceedings consistent with this opinion.
It is ordered that appellee recover of appellants its costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
of material fact is a final appealable order under R.C. 2744.02(C). Id. at ¶27. The
Court noted, however, that its opinion in State Auto. Mut. Ins. Co. was
distinguishable from Hubbell. Specifically, the court noted the different procedural
postures of the cases: State Auto. Mut. Ins. Co. was not decided under R.C.
2744.02(C), but “[r]ather, relying on traditional concepts, [the Court] held that there
was no final, appealable order in the current posture of the case and sent the case
back to the trial court.” Id. at ¶19. In contrast, in Hubbell, “the record contain[ed]
evidence upon which the trial court denied the motion for summary judgment, so as
to deny Xenia, ‘the benefit of an alleged immunity from liablity.’” Id. at ¶20, quoting
R.C. 2744.02(C).