Burks v. Dayton Pub. Schools Bd. of Edn. , 2023 Ohio 1227 ( 2023 )

[Cite as Burks v. Dayton Public Schools BOE, 2023-Ohio-1227.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
SHIRLETTE “PEGGY” C. BURKS :
:
Appellant : C.A. No. 29583
:
v. : Trial Court Case No. 2022 CV 01157
:
DAYTON PUBLIC SCHOOLS BOARD : (Civil Appeal from Common Pleas
OF EDUCATION, ET AL. : Court)
:
Appellees :
...........
OPINION
Rendered on April 14, 2023
...........
PETER K. NEWMAN, Attorney for Appellant
W. JOSEPH SCHOLLER, CHARLES B. GALVIN, JONATHAN E. ROACH, MARION H.
LITTLE, JR., & KRIS BANVARD, Attorneys for Appellee
.............
LEWIS, J.
{¶ 1} Plaintiff-Appellant Shirlette C. Burks appeals from two orders of the
Montgomery County Common Pleas Court. The first order granted the Dayton Public
Schools Board of Education’s Civ.R. 12(B)(6) motion to dismiss; the second order denied
Burks’s motion for leave to amend the complaint regarding additional defendants, Jason
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Stuckey and the Law Firm of Bricker & Eckler, LLP. For the following reasons, we affirm
the judgments of the trial court.
I. Procedural History and Facts
{¶ 2} On March 16, 2022, Burks filed a complaint against the Dayton Public
Schools Board of Education, Joseph Lacey in his capacity as a Dayton Public Schools
Board of Education Member, Judith Spurlock in her capacity as the Former Executive
Director of Human Resources for Dayton Public Schools, Jason Stuckey in his capacity
as an attorney for Dayton Public Schools Board of Education, by and through his law firm
Bricker & Eckler, LLP, as well as the law firm itself.
{¶ 3} The facts alleged in the complaint stated that Burks worked for Dayton Public
Schools (“DPS”) for over 50 years, most recently as the Principal of Charity Adams Earley
Academy for Girls. In the fall of 2017, based on an allegation that another teacher had
observed two students engaging in a public display of affection, Burks called the students
into her office and engaged in a conversation with them. According to Burks, during the
meeting she explained the school’s policy against public displays of affection and advised
the students not to engage in it at school. According to the mothers of the two students,
Burks made derogatory statements to the students during the meeting. The mothers
complained to Joseph Lacey, which purportedly resulted in Judith Spurlock’s asking
Burks to either resign or be terminated. Although Burks denied the allegations made by
the mothers and intended to continue working for another five years, she agreed to resign
early so long as the Board of Education agreed to two conditions: 1) the Board would
keep the parents’ allegations “strictly confidential and [they] would never be discussed in
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the future,” and 2) the Board would not interfere with Burks’ retirement and medical
benefits. Complaint at ¶ 10. Based on an oral representation from Spurlock on behalf
of the Board of Education agreeing to Burks’ two conditions, Burks submitted her
resignation on March 16, 2018. Id. No written document was ever produced regarding
the alleged confidentiality agreement to keep the parents’ allegations “strictly
confidential.”
{¶ 4} On March 14, 2019, Burks testified at an unrelated administrative hearing
involving the termination of a DPS teacher. During that hearing, Jason Stuckey, who
represented the DPS Board of Education, attempted to attack Burks’ credibility during
cross-examination. Id. at ¶ 12. A copy of the transcript from that hearing was attached
to the complaint as Plaintiff’s Exhibit A. The transcript reflects that Stuckey questioned
Burks regarding the charges and specifications made against her by the school district
for which she had been placed on paid administrative leave. Complaint Exhibit A, Tr.
439-443. This included the allegations the parents made in 2017. Id. According to the
complaint, after Burks’ testimony was completed, an unnamed attorney informed Stuckey
that he had broken the Board’s agreement with Burks to keep the allegations confidential,
and Stuckey was warned not to breach the confidentiality agreement again. Complaint
at ¶ 13.
{¶ 5} On June 5, 2019, Burks testified again during a separate unrelated
administrative hearing regarding another DPS teacher’s termination. Id. at ¶ 14. A copy
of the transcript from that hearing was attached to the complaint as Plaintiff’s Exhibit B.
The transcript reflects that during that hearing, Stuckey again questioned Burks during
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cross-examination regarding the charges and specifications made against her by the
school district. Complaint Exhibit B, Tr. 693-698. When confronted with an objection to
that line of questioning, Stuckey stated that he was “not aware of any confidentiality
agreement regarding this.” Id. at 695. Burks alleged in her complaint that as a
proximate cause of Stuckey’s first and second breaches of the DPS Board of Education’s
confidentiality agreement with Burks to keep the parents’ false allegations against her
confidential, and Stuckey’s false assertion that he had not known about the confidentiality
agreement, Burks suffered, and continued to suffer, severe emotional distress.
Complaint at ¶ 15.
{¶ 6} Based on these facts, in March 2022, Burks alleged a cause of action against
DPS Board of Education, Lacey, and Spurlock (collectively identified as “ the DPS Board”)
for tortious interference with a contract. The remaining two causes of action were
against all the listed defendants and alleged promissory estoppel and intentional infliction
of emotional distress (“IIED”).
{¶ 7} In lieu of an answer, on April 15, 2022, defendants Stuckey and Bricker &
Eckler, LLP (collectively identified as “the Bricker Defendants”) filed a motion to dismiss
Burks’ complaint pursuant to Civ.R. 12(B)(6). The Bricker Defendants stated that not
only did Burks not make any claims that the Bricker Defendants had been involved in
making the alleged promises, but her claim for promissory estoppel failed to state a claim
against them based on the law of agency. They argued that, as agents of a disclosed
principal, the agents could not be held vicariously liable for the actions of the principal in
making the promise or agreement. Additionally, the Bricker Defendants argued that the
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claim of IIED failed because it was premised on a breach of contract, which is not a tort
under Ohio law. Further, they contended that Burks failed to set forth sufficient facts to
constitute “extreme and outrageous” conduct as a matter of law.
{¶ 8} In response, Burks alleged that the “promissory estoppel claim is based on
[the Bricker Defendants’] breach of the fiduciary duty which they owed her to comply with
their clients – the [DPS Board] – confidentiality agreement[.]” Burks Motion in Opposition
to Bricker Defendants’ Motion to Dismiss, p. 1-2. Burks declared that although she “did
not specifically allege her breach of fiduciary duty claim against [the Bricker Defendants],
her Complaint presents sufficient facts on which this Court can recognize her claim.” Id.
at p. 4. Burks stated that if the trial court disagreed, then “the appropriate remedy would
be to grant Mrs. Burks leave to amend her Complaint.” Id. at p. 6. Burks attached
additional documentation to her motion that was not attached to her original complaint.
{¶ 9} On May 12, 2022, the Bricker Defendants filed a reply in support of their
motion to dismiss in which they chided Burks for attempting to add a new claim for breach
of fiduciary duty when it had not previously been raised. Further, they opposed the
introduction of any new materials filed with Burks’ response.
{¶ 10} The trial court sustained the Bricker Defendants’ motion to dismiss in its
entirety on June 2, 2022. On June 29, 2022, Burks filed a motion for leave to amend her
complaint to add a claim of breach of fiduciary duty related only to the Bricker Defendants.
The amended complaint also repeated the original claim for IIED but did not include a
cause of action for promissory estoppel as to the Bricker Defendants. The trial court
denied her motion on August 25, 2022.
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{¶ 11} Meanwhile, on May 18, 2022, the DPS Board filed a motion to dismiss
pursuant to Civ.R. 12(B)(6). The DPS Board alleged that Burks’ tortious interference
with a contract claim must fail because the Board could not interfere with its own
employment contract. Likewise, the DPS Board argued that a cause of action for tortious
interference with an employment contract cannot lie against a supervisory employee
acting within the scope of his or her duties such that neither Lacey nor Spurlock could be
found liable. The DPS Board further argued that as a political subdivision engaged in a
governmental function, the DPS Board and its employees could not be found liable under
a theory of promissory estoppel and were entitled to immunity. Finally, the DPS Board
stated that Burks’ claim for IIED was facially deficient as there were no allegations in the
complaint that the DPS Board had intended to cause Burks serious emotional distress or
that any extreme and outrageous conduct had occurred as a matter of law.
{¶ 12} In her response, Burks acknowledged that she could not bring a tortious
interference claim against the DPS Board because it was a party to her employment
contract. However, she argued that Lacey and Spurlock had acted outside the scope of
their duties by engaging in unlawful conduct. Burks further acknowledged that she could
not bring a promissory estoppel claim against either Lacey or Spurlock but argued that
her promissory estoppel claim against the DPS Board survived because the DPS Board
had not been engaged in a governmental function but rather unlawful conduct when (1)
Spurlock induced Burks to resign, and (2) the DPS Board breached the confidentiality
agreement, i.e., when Stuckey cross-examined Burks during the administrative hearings.
Lastly, Burks claimed she alleged sufficient facts to state a claim for IIED because a claim
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of IIED implicitly alleges that the defendant acted intentionally since the claim is titled
intentional infliction of emotional distress. Alternatively, Burks alleged that if the trial
court disagreed, then it could grant her leave to file an amended complaint. Finally,
Burks claimed that she had sufficiently alleged extreme and outrageous conduct because
Lacey and Spurlock failed to investigate the allegations and induced Burks to resign early,
and then Stuckey, acting on behalf of the DPS Board, violated the confidentiality
agreement. As a result of those actions, Burks suffered severe emotional distress.
{¶ 13} The trial court granted the DPS Board’s motion to dismiss in its entirety on
August 25, 2022. Burks had never filed a motion to amend her complaint as to the DPS
Board.
{¶ 14} Burks filed a timely notice of appeal and raises the following two
assignments of error:
I. The trial court’s denial of Burks’ Civ.R. 15(A) motion to file an
amended complaint alleging breach of fiduciary duty claims against
Stuckey and his firm was an abuse of discretion.
II. The trial court also erred in granting the Board, Lacey, and Spurlock’s
Civ.R. 12(B)(6) motion to dismiss because they did not satisfy their
high burden of proof regarding their motion.
II. The Bricker Defendants Claims
Burks does not contest the trial court’s dismissal of her complaint against the
Bricker Defendants but challenges the trial court’s denial of her motion for leave to amend
the complaint to add a claim for breach of fiduciary duty. Relevant to this case, Civ.R.
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15(A) provides that a party may amend its pleading once as a matter of course within 28
days after serving it or within 28 days after service of a Civ.R. 12(B) motion, whichever
comes first. Absent compliance with the deadlines, a party may amend its pleading only
with the opposing party’s written consent or after obtaining leave of court. Civ.R. 15(A).
“The mandate of Civ.R. 15(A) as to amendments requiring leave of court, is that leave
‘shall be freely given when justice so requires.’ Although the grant or denial of leave to
amend a pleading is discretionary, where it is possible that the plaintiff, by an amended
complaint, may set forth a claim upon which relief can be granted, and it is tendered timely
and in good faith and no reason is apparent or disclosed for denying leave, the denial of
leave to file such amended complaint is an abuse of discretion.” Peterson v. Teodosio,
34 Ohio St.2d 161, 175, 297 N.E.2d 113 (1973). However, a motion for leave to amend
should not be granted upon a showing of bad faith, undue delay, or undue prejudice to
the opposing party. Hoover v. Sumlin, 12 Ohio St.3d 1, 6, 465 N.E.2d 377 (1984),
paragraph two of the syllabus. Further, “[a] trial court properly refuses to grant leave to
amend when amendment would be futile.” Maas v. Maas, 2020-Ohio-5160, 161 N.E.3d
863, ¶ 85 (1st Dist.); accord Cruz v. Kettering Health Network, 2d Dist. Montgomery No.
24465, 2012-Ohio-24, ¶ 34.
{¶ 15} “Despite the liberal policy in granting motions to amend, the appellate
review of a trial court's decision regarding a motion to amend consists of determining
whether the trial judge's decision was an abuse of discretion, not whether it was the same
decision we might have made.” Han v. Univ. of Dayton, 2015-Ohio-346, 28 N.E.3d 547,
¶ 57 (2d Dist.), citing Wilmington Steel Prod., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio
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St.3d 120, 122, 573 N.E.2d 622 (1991). To establish an abuse of discretion, we must
conclude that the trial court's decision was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 16} Burks filed her complaint on March 16, 2022. The Bricker Defendants filed
a Civ.R. 12(B)(6) motion to dismiss on April 15, 2022. Rather than filing an amended
complaint, Burks filed a memorandum in opposition to the Bricker Defendants’ motion to
dismiss. Eventually, Burks filed a motion for leave to amend her complaint on June 29,
2022, nearly a month after the trial court had granted the Bricker Defendants’ motion to
dismiss the complaint against them in its entirety.
{¶ 17} In her motion to amend the complaint, Burks alleged that because the
Bricker Defendants had breached their fiduciary duty, then justice required the court to
allow her leave to amend her complaint. However, the facts alleged in her original
complaint were identical to the facts she relied upon in her amended complaint. In
addition to arguing for the amendment to add a breach of fiduciary duty claim as an
independent claim, rather than as part of her promissory estoppel claim, the amended
complaint also renewed a claim for IIED, the same one the trial court had previously
dismissed.
{¶ 18} In denying Burks’ motion to amend her complaint, the trial court explained
that it had “granted Defendants’ request to dismiss these claims on June 2, 2022.
Moreover, as Defendants correctly assert in their Memo Contra, filed on July 13, 2022,
the Court finds that the amendments Plaintiff proposes to make to the Complaint would
not change the Court’s previous ruling and are, therefore, futile.” Order Overruling
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Motion to Amend Complaint (Aug. 25, 2022). Burks alleges that the trial court’s decision
was an abuse of discretion because the trial court did not previously dismiss her breach
of fiduciary duty claim and her new breach of fiduciary duty claim would not have been
futile.
{¶ 19} Burks’ Civ.R. 15(A) motion was not timely filed, and the Bricker Defendants
did not consent to an amendment; therefore, Burks necessarily had to obtain leave to file
an amended complaint. In denying Burks’ untimely motion for leave to amend, the trial
court provided a reasonable explanation supported by the record. Thus, the decision did
not constitute an abuse of discretion.
{¶ 20} First, Burks’ claim of IIED had already been rejected by the trial court in
granting the Bricker Defendants’ motion to dismiss. Likewise, Burks had previously
argued that the breach of fiduciary duty was an element of her promissory estoppel claim.
Memorandum of Plaintiff in Opposition to Bricker Defendants’ Motion to Dismiss at p. 1-
2. If the breach of fiduciary claim was subsumed into the promissory estoppel claim, as
Burks contended, then the proposed amended complaint would not have made a
separate breach of fiduciary duty claim any more viable than it had been previously.
Burks also had argued that her original complaint sufficiently pleaded a separate fiduciary
claim, although she contended that if it did not, then the proper remedy would have been
to grant Burks leave to amend her complaint. Id. at p. 5-6. But nothing in the amended
complaint remedied the lack of support for the breach of fiduciary duty claim, particularly
where Burks’ amended complaint relied on exactly the same facts as alleged in the
original complaint. We cannot find that the trial court abused its discretion in rejecting
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Burks’ attempt to revive the dismissed claims absent any variation in the facts or evidence
alleged in the original complaint.
{¶ 21} Second, we agree with the trial court that Burks’ claim of breach of fiduciary
duty was futile. “Where a plaintiff fails to make a prima facie showing of support for new
matters sought to be pleaded, a trial court acts within its discretion to deny a motion to
amend the pleading.” Wilmington Steel Prods., Inc., 60 Ohio St.3d 120, 573 N.E.2d 622,
at syllabus. Here, Burks’ amended complaint did not set forth sufficient facts to establish
a prima facie showing of support for a claim of breach of fiduciary duty.
{¶ 22} “In order to prove a breach of fiduciary duty claim, the plaintiff must establish
(1) the existence of a duty arising from a fiduciary relationship; (2) a failure to observe the
duty; and (3) an injury resulting proximately therefrom.” Sacksteder v. Senney, 2d Dist.
Montgomery No. 24993, 2012-Ohio-4452, ¶ 87. “A ‘fiduciary relationship’ is one in which
special confidence and trust is reposed in the integrity and fidelity of another and there is
a resulting position of superiority or influence, acquired by virtue of this special trust.” In
re Termination of Emp. of Pratt, 40 Ohio St.2d 107, 115, 321 N.E.2d 603 (1974). “In
determining whether a fiduciary relationship has been created, the main question is
whether a party agreed to act primarily for the benefit of another in matters connected
with its undertaking.” Hope Acad. Broadway Campus v. White Hat Mgt., L.L.C., 145 Ohio
St.3d 29, 2015-Ohio-3716, 46 N.E.3d 665, ¶ 43, citing Strock v. Pressnell, 38 Ohio St.3d
207, 216, 527 N.E.2d 1235 (1988).
{¶ 23} “A fiduciary relationship need not be created by contract; it may arise out of
an informal relationship [but only] where both parties understand that a special trust or
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confidence has been reposed.” Stone v. Davis, 66 Ohio St.2d 74, 78, 419 N.E.2d 1094(1981), citing Umbaugh Pole Bldg. Co., Inc. v. Scott, 58 Ohio St.2d 282, 390 N.E.2d 320(1979), paragraph one of the syllabus. However, “[o]ne does not owe a fiduciary duty to
another absent proof of a fiduciary relationship, out of which the duties arise.” RPM, Inc.
v. Oatey Co., 9th Dist. Medina Nos. 3282-M, 3289-M, 2005-Ohio-1280, ¶ 19, citing In re
Termination of Emp. of Pratt at 115. “The burden of proving the existence of a fiduciary
relationship is on the party asserting it.” RPM, Inc. at ¶ 20, citing Craggett v. Adell Ins.
Agency, 92 Ohio App.3d 443, 451, 635 N.E.2d 1326 (8th Dist.1993).
{¶ 24} Burks did not establish a prima facie existence of a fiduciary relationship
based on the factual allegations provided in Burks’ amended complaint. A tort claim
alleging a breach of fiduciary duty necessarily fails when no fiduciary relationship exists
out of which the duties arise. “Indeed, a fundamental principle of the law of all torts is
that a legal right must exist and that this right must be violated in order to warrant redress.”
(Emphasis sic.) Pressnell at 217.
{¶ 25} Burks’ claim for breach of a fiduciary duty in her amended complaint was
based on the following:
Stuckey and Bricker Law Firm owed fiduciary duties to Burks under both the
Restatement of Law Governing Lawyers, §56 and the Ohio Rules of
Professional Conduct. Stuckey and his firm breached their fiduciary duties
to Burks when Stuckey breached the Board’s confidentiality agreement in
cross-examining Burks and Stuckey’s supervising attorney ratified his
misconduct. Stuckey and his firm’s breach of their fiduciary duties to Burks
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proximately caused her to suffer injuries to which she is entitled to all of the
damages she requests including, but not limited to, five years of front pay.
Amended Complaint at ¶ 24.
{¶ 26} Burks first relies on the Restatement of Law Governing Lawyers
(“Restatement”) section 56, comments c and h to support her claim that the Bricker
Defendants owed her fiduciary duties. Burks has not cited any cases or legal authority,
nor have we found any, that demonstrate Ohio has adopted the Restatement section 56
in the manner Burks suggests. Restatement section 56, comment c, provides in part
that,
When a lawyer advises or assists a client in acts that subject the
client to civil liability to others, those others may seek to hold the lawyer
liable along with or instead of the client. Whether a lawyer is liable
depends on the elements of liability under the law upon which the claim of
liability is predicated and may therefore turn on such factors as how the
lawyer's acts contributed to the plaintiff's harm, what the lawyer knew or
believed as to the relevant facts and law, the lawyer's intent, and how
culpable the client's conduct is under the law. * * *
A lawyer, like other agents, is not as such liable for acts of a client
that make the client liable. Thus, a lawyer is not liable to a nonclient for
advising a client whether proposed client conduct would be lawful or for
counseling a client to break a contract in the client's interest[.]
In this instance, the Restatement does not create a fiduciary duty where one does not
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already exist.
{¶ 27} Likewise, Restatement section 56, comment h, provides in relevant part that
“[l]awyers are also liable to nonclients for knowingly participating in their clients' breach
of fiduciary duties owed by clients to nonclients * * *. A lawyer may also assume fiduciary
duties to a nonclient, for example by becoming a trustee or in some jurisdictions by
seeking and obtaining a nonclient's trust, and the lawyer is then liable to such a nonclient
under the general law on the same basis as other fiduciaries.” Again, the Restatement
does not create a fiduciary duty imposed upon a lawyer where the fiduciary duty was not
already imposed upon the client, or where special circumstances exist, neither of which
apply here. Burks did not allege that the Bricker Defendants were involved in making
the alleged oral agreement or that any attorney-client relationship existed between them.
To the contrary, the Bricker Defendants were performing under an obviously conflicting
and independent duty to their client, the DPS Board, during the administrative hearings.
We see nothing in the Restatement that imposes a fiduciary duty on the Bricker
Defendants under these facts. Thus, Burks’ reliance on the Restatement is unavailing.
{¶ 28} Burks similarly argued that the Ohio Rules of Professional Conduct created
a fiduciary duty. She again provided no case law or legal authority in support of her
argument, and we have not found any. The Rules of Professional Conduct state that a
“[v]iolation of a rule should not itself give rise to a cause of action against a lawyer nor
should it create any presumption in such a case that a legal duty has been breached. * * *
The rules are designed to provide guidance to lawyers and to provide a structure for
regulating conduct through disciplinary agencies. They are not designed to be a basis
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for civil liability.” Prof.Cond.R. Preamble, ¶ 20. Thus, while the standards established
by the Rules may be relevant in determining the propriety of an attorney’s conduct for
disciplinary proceedings, they do not impose a fiduciary duty on an attorney.
{¶ 29} If Burks believed that Stuckey had violated the Rules of Professional
Conduct, she could have filed a complaint alleging attorney misconduct with the
appropriate authorities. But we see nothing in the Rules that created a fiduciary duty
upon the Bricker Defendants that would have resulted in their being liable under a claim
for breach of fiduciary duties based on the facts alleged in the amended complaint.
{¶ 30} As explained above, the relationship between the parties is what determines
whether a fiduciary duty is owed. There are simply no facts in Burks’ amended complaint
that establish a fiduciary duty owed to her by the Bricker Defendants. Consequently, the
trial court did not abuse its discretion in denying Burks’ untimely motion to amend the
complaint. The first assignment of error is overruled.
III. DPS Board Claims
{¶ 31} Burks’ second assignment of error concerns the trial court’s decision
sustaining DPS Board’s Civ.R. 12(B)(6) motion to dismiss Burks’ claims for tortious
interference with a contract, promissory estoppel, and IIED. According to Burks, she
presented sufficient facts in her complaint to entitle her to relief such that the trial court
erred in dismissing each of her claims. We will address each claim in the order set forth
in the complaint, but first we will outline the standards of review applicable to these claims.
a. Civ.R. 12(B)(6) Motion to Dismiss For Failure to State a Claim
{¶ 32} In Ohio, under notice pleading, a plaintiff need not prove his or her case at
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the pleading stage. DSS Servs., L.L.C. v. Eitel's Towing, L.L.C., 10th Dist. Franklin No.
18AP-567, 2019-Ohio-3158, ¶ 10. A plaintiff is required under Civ.R. 8(A) to provide a
short and plain statement of the claim demonstrating that the claimant is entitled to relief.
McBride v. Parker, 5th Dist. Richland No. 11 CA 122, 2012-Ohio-2522, ¶ 27. “A motion
to dismiss a complaint for failure to state a claim upon which relief can be granted,
pursuant to Civ.R.12(B)(6), tests the sufficiency of a complaint.” Sheldon v. Kettering
Health Network, 2015-Ohio-3268, 40 N.E.3d 661, ¶ 5 (2d Dist.). “Dismissal of a
complaint for failure to state a claim upon which relief can be granted is appropriate if,
after all factual allegations of the complaint are presumed true and all reasonable
inferences are made in [plaintiff’s] favor, it appears beyond doubt that [plaintiff] can prove
no set of facts warranting relief.” Clark v. Connor, 82 Ohio St.3d 309, 311, 695 N.E.2d
751 (1998), citing State ex rel. Lanham v. Ohio Adult Parole Auth., 80 Ohio St.3d 425,
426, 687 N.E.2d 283 (1997).
{¶ 33} In considering a Civ.R. 12(B)(6) motion to dismiss, a trial court may not rely
on allegations or evidence outside the complaint. State ex rel. Fuqua v. Alexander, 79
Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). Nevertheless, if a plaintiff attaches
documents to the complaint or they are incorporated therein, such documents can be
considered, but they may also be used to the plaintiff’s detriment to dismiss the case if
they, along with the complaint itself, establish a failure to state a claim. State ex rel.
Semenchuk v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 19AP-361, 2019-Ohio-
4641, ¶ 11. Although Ohio has liberal pleading rules and a notice-pleading standard, a
cause of action must be factually supported, and courts need not accept as true any
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unsupported or conclusory legal propositions advanced in the complaint. (Citations
omitted.) White v. Family Dollar, 2d Dist. Montgomery No. 29549, 2023-Ohio-329, ¶ 8.
{¶ 34} Appellate review of a trial court’s order granting a Civ.R. 12(B)(6) motion to
dismiss is de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362,
814 N.E.2d 44, ¶ 5. “This means that we conduct an independent review, giving no
deference to the trial court's decision on matters of law.” (Citations omitted.) Jordan v.
Howard, 2d Dist. Montgomery No. 29190, 2021-Ohio-4025, ¶ 23.
b. Tortious Interference with a Contract
{¶ 35} “The elements of the tort of tortious interference with a contract are (1) the
existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the
wrongdoer's intentional procurement of the contract's breach, (4) lack of justification, and
(5) resulting damages.” Fred Siegel Co., LPA v. Arter & Hadden, 85 Ohio St.3d 171, 707
N.E.2d 853 (1999), paragraph one of the syllabus. “An employment relationship is a
contract. An unwarranted or wrongful interference in that contractual relationship by third
persons is an actionable tort. * * * The plaintiff in such an action must prove that the
defendant acted maliciously or wantonly.” (Citation omitted.) DeVilbiss v. Schade, 186
Ohio App.3d 441, 2010-Ohio-493, 928 N.E.2d 785, ¶ 44 (2d Dist.). However, “ ‘liability
for tortious interference does not extend to a supervisor who terminates or otherwise
impairs the plaintiff's employment while in the course of her own duties,’ even if the
supervisor acts maliciously.” Jones v. Wheelersburg Local. School Dist., 4th Dist. Scioto
No. 12CA3513, 2013-Ohio-3685, ¶ 54, quoting Hatton v. Interim Health Care of
Columbus, Inc., 10th Dist. Franklin No. 06AP-828, 2007-Ohio-1418, ¶ 25, citing Anderson
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v. Minter, 32 Ohio St.2d 207, 213-214, 291 N.E.2d 457 (1972).
{¶ 36} Here, the contract Burks claims the DPS Board interfered with was her
employment contract with the DPS Board of Education. Because the DPS Board of
Education was alleged to have committed the interference of which Burks complains, she
cannot recover for interference with a contract as to that party. “It is axiomatic that the
wrongdoer must be a non-party to the contract.” Castle Hill Holdings, L.L.C. v. Al Hut,
Inc., 8th Dist. Cuyahoga No. 86442, 2006-Ohio-1353, ¶ 47. Notably, in Burks’ reply to
the DPS Board’s motion to dismiss, Burks conceded that she could not bring a tortious
interference claim against the Board because it was a party to her employment contract.
Thus, the trial court did not err in dismissing Burks’ claim of tortious interference with a
contract as to the DPS Board.
{¶ 37} However, on appeal, Burks contends that Lacey and Spurlock acted outside
the scope of their official duties by failing to properly investigate the parents’ allegations
before seeking her resignation which, according to Burks, constituted unlawful conduct.
Therefore, she argues, she could pursue a claim of tortious interference with a contract
as to those parties. The trial court found that the complaint had not alleged that Lacey
and Spurlock acted outside the scope of their employment and dismissed Burks’ claim.
We agree with the trial court.
{¶ 38} The acts alleged in the complaint to constitute tortious interference with a
contract were that Lacey and Spurlock:
intentionally procured the breach of Ms. Burks’ employment contract by
forcing her to resign five years earlier than she had planned. Because the
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students’ allegations against Ms. Burks were false and neither Defendant
Lacey nor Defendant Spurlock conducted any independent investigation
into whether the students or parents were telling the truth, Defendants
Lacey and Spurlock had no justification for procuring the breach of Ms.
Burk’s employment contract.
Complaint at ¶ 18.
{¶ 39} According to the complaint, Lacey was a member of the DPS Board of
Education and Spurlock was DPS’s Executive Director of Human Resources when Burks
resigned from her position. Both individuals were identified and served with the
complaint in their official capacities as employees of DPS. Here, the two mothers had
complained directly to Lacey, in his capacity as a member of the DPS Board of Education,
of Burks’ alleged misconduct. Lacey then reported the information to the DPS
Superintendent, who was considered the executive officer of the Board pursuant to R.C.
3319.01, and to Spurlock. Spurlock, acting in her capacity as the Executive Director of
Human Resources on behalf of DPS Board, discussed alternatives for Burks’ dismissal:
either resign or be terminated. According to the documents attached to Burks’ complaint,
by the time Burks agreed to resign in March 2018, the district had issued charges and
specifications against her, which is the initiation of R.C. 3319.16 termination proceedings.
Complaint Exhibit A at Tr. 439-440; Complaint Exhibit B at Tr. 695.
{¶ 40} Generally, the concept of “scope of employment” “denotes an agency
relationship in which the agent or employee is engaged in an activity that is logically
related to the business of the principal or employer.” Theobald v. Univ. of Cincinnati, 111
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Ohio St.3d 541, 2006-Ohio-6208, 857 N.E.2d 573, ¶ 15. Actions of the Board of
Education necessarily include hiring and firing decisions of principals. See R.C. 3319.07
(employment of teachers by board of education); R.C. 3319.09 (“teacher” includes all
persons licensed to teach and who are employed in the public schools of this state as a
principal); R.C. 3319.16 (termination of teacher contracts by board of education).
Accordingly, the actions of Lacey and Spurlock fell within the scope of their respective
employments. We see nothing unlawful about their failure to conduct a more thorough
investigation which would impose liability on either Lacey or Spurlock. The trial court
reasonably dismissed Burks’ remaining claims for tortious interference with a contract.
c. Promissory Estoppel
{¶ 41} In Burks’ response to the DPS Board’s motion to dismiss, she
acknowledged that she could not bring a promissory estoppel claim against either Lacey
or Spurlock. Plaintiff’s Memorandum in Opposition to the DPS Board of Education,
Joseph Lacey, and Judith Spurlock’s Motion to Dismiss, p. 6, fn. 1. Therefore, the trial
court did not err in dismissing the promissory estoppel claim as to Lacey and Spurlock,
and we will only consider the trial court’s dismissal of Burks’ claim against the DPS Board.
{¶ 42} The trial court dismissed Burks’ promissory estoppel claim against the DPS
Board because Burks had not alleged that the DPS Board, Spurlock, or Lacey breached
the alleged agreement, and further, she had “failed to allege any set of facts upon which
[she] could prevail on a claim for promissory estoppel” against the DPS Board. Decision,
Order, and Entry Sustaining Motion to Dismiss, August 25, 2022, p. 4-5. Burks first
asserts that the trial court improperly created a “new defense” for the DPS Board because
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the DPS Board only relied upon the defense that promissory estoppel was inapplicable
against a political subdivision. Thus, she alleges that the trial court granted the dismissal
on grounds other than those raised by the Defendants. We do not agree with Burks’
interpretation.
{¶ 43} A trial court reviews a Civ.R. 12(B)(6) motion to dismiss based on whether,
after presuming the truth of all factual allegations of the complaint and making all
reasonable inferences in a nonmoving party's favor, it appears beyond doubt that the
nonmoving party could prove no set of facts entitling the moving party to the requested
relief. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). In
this case, after reviewing the facts alleged in the complaint, the trial court found that Burks
could prove no set of facts upon which she could prevail. Thus, the trial court was not
“going to bat” for the DPS Board, as Burks contends, but making a legal determination
based on the appropriate standard of review.
{¶ 44} Burks next complains that the trial court erred in dismissing her promissory
estoppel claim against the DPS Board because she presented sufficient facts upon which
she could prevail. At the heart of Burks’ allegations, she claims that Spurlock, on behalf
of the DPS Board, made an oral promise to never disclose the parents’ allegations in
exchange for Burks’ agreeing to submit her resignation earlier than she intended. But
Stuckey, acting as an agent of the Board, broke that negotiated promise approximately
one year later during the cross-examination of Burks in two separate administrative
hearings. Both parties agree that the doctrine of promissory estoppel is “inapplicable
against a political subdivision when the political subdivision is engaged in a governmental
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function.” Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, 852 N.E.2d
716, ¶ 25. However, according to Burks, the DPS Board was not engaged in a
governmental function entitling it to immunity.
{¶ 45} Pursuant to R.C. 2744.01(F), a “political subdivision” includes a school
district. Thus, the DPS Board of Education is a political subdivision. R.C. 2744.01(C)(2)(c)
provides that a “governmental function” means a function of a political subdivision that
includes, but is not limited to, “[t]he provision of a system of public education.” This
governmental function “extends to most school activities and administrative functions of
the educational process, even if not directly comprising part of the classroom teaching
process.” Perkins v. Columbus Bd. of Edn., 10th Dist. Franklin No. 13AP-803, 2014-
Ohio-2783, ¶ 12. A “governmental function” also includes “[j]udicial, quasi-judicial,
prosecutorial, legislative, or quasi legislative functions.” R.C. 2744.01(C)(2)(f).
{¶ 46} In the documents included with Burks’ complaint, Burks acknowledged that
prior to her resignation in March 2018, the district had issued charges and specifications
against her, which constituted the initiation of R.C. 3319.16 termination proceedings.
Complaint Exhibit A at Tr. 439-440; Complaint Exhibit B at Tr. 695. Spurlock, acting in
her official capacity on behalf of the DPS Board, offered Burks the opportunity to either
resign or be fired through the administrative process. The act of hiring or firing principals
in public schools is a governmental function because “[t]his activity is so fundamental to
the provision of a system of public education that it cannot be considered apart from the
governmental function of ‘providing a system of public education.’ ” Bucey v. Carlisle,
1st Dist. Hamilton No. C-090252, 2010-Ohio-2262, ¶ 16. Moreover, the entirety of hiring
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and firing principals in public schools is regulated by the Ohio Revised Code and overseen
by the Board of Education. R.C. 3319.02(D)(3) explicitly states that “[t]ermination of an
assistant superintendent, principal, assistant principal, or other administrator’s contract
shall be pursuant to section 3319.16 of the Revised Code.” Thus, the DPS Board’s
involvement in Burks’ termination was a governmental function.
{¶ 47} Stuckey, acting as an agent of the DPS Board, was actively participating in
R.C. 3319.16 administrative hearings at the time Burks alleged he breached the oral
confidentiality agreement. Administrative proceedings conducted pursuant to R.C.
3319.16 are the result of the procedural requirements that must be followed before a
teacher's contract may be terminated for disciplinary reasons by the Board of Education.
R.C. 3319.16 administrative hearings are presided over by either a referee or a majority
of the members of the Board, notice must be provided, and a hearing must be held
wherein the teacher is afforded the opportunity to be heard and to introduce evidence.
After the hearing, a final determination is made by the Board whether to terminate the
teacher, which can be reviewed by the Court of Common Pleas. Considering the
foregoing, the administrative hearing process is a quasi-judicial function of the Board of
Education. See Rankin-Thoman, Inc. v. Caldwell, 42 Ohio St.2d 436, 438, 329 N.E.2d
686 (1975) (“Quasi-judicial proceedings require notice, hearing and the opportunity for
introduction of evidence.”) Stuckey was not only engaged in quasi-judicial proceedings
but was also participating in the firing process of a DPS teacher and, therefore, was
engaged in a governmental function.
{¶ 48} The facts alleged in Burks’ complaint demonstrate that each of the
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employees, acting on behalf of the Board, were engaged in governmental functions, and
governmental functions retain the blanket protection of immunity for promissory estoppel
claims. Accordingly, Burks’ promissory estoppel claim was barred as a matter of law.
d. Intentional infliction of emotional distress
{¶ 49} Finally, Burks argues that the trial court erred in dismissing her claim for
intentional infliction of emotional distress. In dismissing this cause of action against the
DPS Board, the trial court found that none of the allegations in Burks’ complaint described
behavior that would be considered intolerable in a civilized society or so outrageous as
to go beyond the bounds of decency. We agree with the trial court.
{¶ 50} While not discussed by the parties or the trial court, we are concerned with
the timing of Burks’ complaint. The events that transpired involving Lacey and Spurlock
necessarily occurred prior to Burks’ resignation on March 16, 2018. Burks filed her
complaint on March 16, 2022, four years after her resignation. Ordinarily, claims for
intentional infliction of emotional distress are subject to a four-year statute of limitations.
Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of Am., 6
Ohio St.3d 369, 375, 453 N.E.2d 666 (1983), citing R.C. 2305.09. However, the statute
of limitations for suing a political subdivision and its employees is two years under R.C.
2744.04(A). “R.C. 2744.04(A) is a special provision governing the statute of limitations
in tort cases against political subdivisions and it prevails over the general statutes of
limitations contained in R.C. Chapter 2305.” (Emphasis sic.) Read v. Fairview Park,
146 Ohio App.3d 15, 20, 764 N.E.2d 1079 (8th Dist.2001). Therefore, the two-year
limitations period of R.C. 2744.04 prevails over the general four-year limitations period
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for claims of intentional infliction of emotional distress under these circumstances. In
any event, because this issue was never considered below and we agree with the trial
court that Burks’ complaint failed to allege sufficient facts to prevail on a claim for IIED,
we need not delve into this issue further.
{¶ 51} In order to establish a claim for intentional infliction of emotional distress, a
plaintiff must prove the following elements: “(1) that the defendant either intended to
cause emotional distress to the plaintiff, or knew or should have known that the actions
would result in serious emotional distress to the plaintiff, (2) that the defendant's conduct
was so extreme and outrageous as to go beyond all bounds of decency and was such
that it can be considered utterly intolerable in a civilized society, (3) that the defendant's
actions were the proximate cause of the plaintiff's psychic injury, and (4) that the mental
anguish suffered by the plaintiff is so serious that no reasonable person could be expected
to endure it.” Cline v. Tecumseh Local Bd. of Edn., 2d Dist. Clark No. 2020-CA-36, 2021-
Ohio-1329, ¶ 26, citing Chaney v. Potsdam, 2d Dist. Miami No. 2004-CA-19, 2005-Ohio-
603, ¶ 98. The emotional injury sustained must be so debilitating and severe that “a
reasonable person, normally constituted, would be unable to cope adequately with the
mental distress engendered by the circumstances of the case.” Paugh v. Hanks, 6 Ohio
St.3d 72, 78, 451 N.E.2d 759 (1983).
{¶ 52} “The issue of whether conduct rises to the level of ‘extreme and outrageous’
is a question of law.” (Citations omitted.) Spitulski v. Bd. of Edn. of the Toledo City
School Dist., 2018-Ohio-3984, 121 N.E.3d 41, ¶ 61 (6th Dist.). Therefore, “[a] trial court
may dismiss a claim for intentional infliction of emotional distress, pursuant to Civ.R.
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12(B)(6), where the alleged conduct does not, as a matter of law, reach the level of
‘extreme and outrageous’ conduct.” Morrow v. Reminger & Reminger Co., LPA, 183
Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 48 (10th Dist.). “Liability has been
found only where the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community. Generally, the case is one in which the
recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” Yeager at 375,
quoting Restatement of the Law 2d, Torts (1965) 71, Section 46(1). Liability for
intentional infliction of emotional distress “does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities.” Id.{¶ 53} In support for her argument that the trial court erred in dismissing her claim
for IIED, Burks merely reasserts the facts alleged in her complaint specifically addressing
IIED. While Burks claimed that “all of the Defendants engaged in extreme and
outrageous conduct against Ms. Burks,” this conclusory legal proposition is not factually
supported. Taking as true all the allegations in the complaint, neither Lacey’s nor
Spurlock’s actions rose to the level of extreme and outrageous conduct as a matter of
law. The claims against Lacey and Spurlock boiled down to the criticism that they should
have conducted an independent investigation into the parents’ allegations prior to offering
Burks the option to resign or be fired. But the failure to conduct additional investigation
and offering Burks the option to resign or be fired did not rise to the level of being so
extreme and outrageous “as to go beyond all possible bounds of decency, and to be
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regarded as atrocious, and utterly intolerable in a civilized community.” Id.{¶ 54} As for the Bricker Defendants, because the trial court properly denied Burks’
motion to amend her complaint, there were no outstanding viable claims against the
Bricker Defendants. Likewise, no viable claims remained regarding Lacey or Spurlock.
Therefore, the DPS Board could not be held liable through the doctrine of respondeat
superior. “It is well-established that in order for an employer to be liable under the
doctrine of respondeat superior, the tort of the employee must be committed within the
scope of employment. Moreover, where the tort is intentional, * * * the behavior giving
rise to the tort must be ‘calculated to facilitate or promote the business for which the
servant was employed * * *.’ ” Byrd v. Faber, 57 Ohio St.3d 56, 58, 565 N.E.2d 584 (1991),
quoting Little Miami RR. Co. v. Wetmore, 19 Ohio St. 110, 132 (1869); Taylor v. Doctor's
Hosp., 21 Ohio App.3d 154, 486 N.E.2d 1249 (10th Dist.1985). “However, when an
employee accused of wrongdoing has been found to have no liability to the party claiming
injury, the employer cannot be independently found liable under a theory of respondeat
superior since any liability of the employer is only derivative of that of the employee.”
Han, 2015-Ohio-346, 28 N.E.3d 547, at ¶ 50.
{¶ 55} We conclude that, because there were no remaining viable claims against
Lacey, Spurlock, or the Bricker Defendants, the DPS Board could not be liable under the
theory of respondeat superior. Accordingly, the trial court properly dismissed Burks’ IIED
claims against the DPS Board.
{¶ 56} Having rejected each of Burks’ arguments relating to the DPS Board, we
overrule her second assignment of error.
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IV. Conclusion
{¶ 57} Having overruled each of Burks’ assignments of error, we affirm the
judgments of the trial court.
.............
WELBAUM, P.J. and TUCKER, J., concur.