Coterel v. Reed

72 N.E.3d 1159

2016 Ohio 7411

David W. COTEREL, Jr., et al., Plaintiff–Appellees

v.James Paul REED, Defendant–Appellant.

No. 2015–CA–69.

Court of Appeals of Ohio, Second District, Greene County.

Oct. 21, 2016.

Michael P. McNamee, and Gregory B. O'Connor, McNamee & McNamee, PLL, Beavercreek, OH, for Plaintiff–Appellees.

Lawrence E. Barbiere, and Scott A. Sollmann, Schroeder, Maundrell, Barbiere & Powers, Mason, OH, and Andrew T. Vollmar, Freund, Freeze & Arnold, Dayton, OH, for Defendant–Appellant.

OPINION

FAIN, J.

{¶ 1} Defendant-appellant James Paul Reed appeals from an order of the trial court overruling a motion for summary judgment on the issue of statutory immunity for actions taken as an employee of a political subdivision. Reed argues that Coterel has failed to present genuine issues of fact to prevail on his claims for relief. Coterel argues that genuine issues of fact preclude summary judgment.

{¶ 2} We agree with the trial court that there are genuine issues of material fact whether Reed acted with a malicious purpose, in bad faith, in a wanton or reckless manner, or manifestly outside the scope of his employment. Therefore, the order of the trial court overruling the motion for summary judgment is Affirmed.

I. The Relationship Between Coterel and Reed

{¶ 3} Reed was elected to the Xenia Township Board of Trustees, and served as a Trustee for a four year term, 2010–2014. Early in his term of office, Reed befriended Coterel, a local business owner. Coterel is the owner of a motorcycle dealership, Buckminn's D & D Harley Davidson; a motor vehicle racetrack, Kil–Kare, Inc.; and a salvage yard, Kil–Kare Auto Wrecking. Both the racetrack and the salvage yard are primarily located in Xenia Township. Reed stated that during the time when he and Coterel were on friendly terms, he did numerous favors for Coterel, saving Coterel a substantial sum of money. Coterel stated that in exchange for those favors, Reed expected money or other favors in return, in the form of campaign contributions, referral fees, discounts on sales, and a job for Reed's wife at the racetrack. One such expected quid pro quo was described by Darana Edmondson, a Buckminn's employee, in her deposition and affidavit. Edmondson testified that when Reed came into the business and became irate because Darana would not give Reed's wife an employee discount on a clearance priced item, Reed declared that if it wasn't for him, Coterel would be in jail and the business would be closed. Coterel believes that Reed was responsible for numerous inspections and inquiries from other governmental officials, including the zoning inspector, the fire inspector, the health department and the liquor control authorities. Coterel stated that very few infractions were found, and all were immediately remedied.

{¶ 4} The friendly relationship between Reed and Coterel ended in the spring of 2012, after Reed's wife worked at the racetrack for about a month. In his affidavit, Coterel avers that Reed called him to complain that Reed's wife was being harassed on the job and Reed insisted that Coterel protect her by hiring an off-duty deputy during her work shift. Coterel avers that when he refused, Reed made comments suggesting that the county sheriff was concerned about the situation at Kil–Kare, but Reed insisted that the sheriff would not meet with Coterel to discuss it. Coterel testified in his deposition that during this conversation with Reed, Coterel asked, "what's it going to take to get you off my back, fifteen, twenty thousand dollars?", and Reed replied, "I think twenty-five would do it." Coterel Deposition, Dkt. # 84, pg. 160, lines 17–22.

{¶ 5} In the fall of 2012, Coterel hired a contractor, Slip–Tech, Inc., to do some construction at the racetrack. Michael Fouts, the President of Slip–Tech provided an affidavit in which it is averred that Fouts was instructed by Reed to stop work immediately, and that Kil–Kare would not be permitted to do any further construction without Reed's approval. Fouts worked with the zoning inspector and provided an engineer's report to verify compliance with local floodplain regulations, but the project was delayed several months until a variance was approved. Marshall Foiles, the manager of Buckminn's, stated in an affidavit and at his deposition that Reed also had direct contact with two other contractors by asking one for a campaign contribution, and the other for some type of referral fee, because he expected them to "share the love." When questioned at his deposition, Reed did not remember these events or asserted they did not happen.

II. The Course of Proceedings

{¶ 6} Coterel, in his individual capacity and as the principal of Buckminns and Kil–Kare, Inc., brought this action against Reed in June, 2013, alleging five claims for relief: Violations of the Corrupt Activities Act; Tortious Interference with Business Relations; Breach of Public Trust and Official Duty; Violations of the Ohio Sunshine Law; and Defamation. The claim alleging Breach of the Public Trust was voluntarily dismissed. The claim for violations of the Sunshine law was dismissed by the trial court, and is not raised as an issue in this appeal.

{¶ 7} In this action, Coterel seeks to hold Reed personally liable for actions taken while he served as an elected official for Xenia Township. Xenia Township is not named as a party. Reed moved for summary judgment, seeking a dismissal of the claims based on statutory immunity. The trial court overruled the motion for summary judgment, concluding that genuine issues of fact exist regarding Reed's alleged malicious conduct. From the trial court order overruling his motion for summary judgment upon the ground of governmental employee immunity, Reed appeals.

III. The Scope of this Appeal and the Standard of Review

{¶ 8} The trial court's order denying summary judgment on the merits of the claims for relief is not a final appealable order, those claims not having been reduced to judgment. The trial court order overruling summary judgment on any issue other than the immunity defense is not a final appealable order. Therefore, our decision is solely addressed to the immunity defenses, and is not concerned with the merits of the pending claims, or the other, non-immunity, defenses that remain pending in the trial court.

{¶ 9} The Supreme Court of Ohio has declared that an order that denies the benefit of an alleged immunity is a final appealable order under R.C. 2744.02(C). Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 2 ; Summerville v. City of Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 33. Generally, a trial court's denial of a motion for summary judgment based on the existence of genuine issues of fact is not a final appealable order. Vlcek v. Chodkowski, 2015-Ohio-1943, 34 N.E.3d 446, ¶ 33 (2d Dist.). We have held that, "an appeal from an order denying immunity is limited to the review of alleged errors in the portion of the trial court's decision which denied the political subdivision the benefit of immunity." Id. at ¶ 35, citing Guenther v. Springfield Twp. Trustees, 2012-Ohio-203, 970 N.E.2d 1058, ¶ 24 (2d Dist.).

{¶ 10} The Fourth District Court of Appeals has addressed the reviewing court's role in an appeal involving statutory immunity by stating:

"Generally, the denial of summary judgment is not a final, appealable order." (Citations omitted.) However, a trial court's order to deny summary judgment on the basis of statutory immunity constitutes a final order. (Citations omitted.) R.C. 2744.02(C) explicitly states that an order denying "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." However, appellate review under R.C. 2744.02(C) is limited to the denial of immunity. See Nagel v. Horner, 162 Ohio App.3d 221, 2005-Ohio-3574, 833 N.E.2d 300, ¶ 21 (stating that R.C. 2744.02(C) limits appellate review to denial of immunity and does not authorize court to review merits of the action); Makowski v. Kohler, Summit App. No. 25219, 2011-Ohio-2382 [2011 WL 1992032], ¶ 7 (stating that an R.C. 2744.02(C) appeal "is limited to the review of alleged errors in the portion of the trial court's decision which denied the political subdivision the benefit of immunity"); see, also, Essman [v. Portsmouth, 4th Dist. Scioto No. 08CA3244, 2009-Ohio-3367, 2009 WL 1943672 ]; CAC Bldg. Properties v. City of Cleveland, Cuyahoga App. No. 91991, 2009-Ohio-1786 [2009 WL 1019901], ¶ 9, fn. 1 ; Carter v. Complete Gen. Constr. Co., Franklin App. No. 08AP–309, 2008-Ohio-6308 [2008 WL 5104787], ¶ 8. Thus, a party may not raise other alleged errors concerning the denial of summary judgment.

Long v. Hanging Rock, 4th Dist. Lawrence No. 09CA30, 2011-Ohio-5137, 2011 WL 4584930, ¶ 10.

{¶ 11} The issue of governmental immunity is a question of law. Conley v. Shearer, 64 Ohio St.3d 284, 595 N.E.2d 862 (1992). When presented with a question of law, we apply a de novo standard of review. Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 23. Appellate courts also employ a de novo standard of review for reviewing summary judgment motions. Gilson v. Am. Inst. of Alternative Medicine, 10th Dist. Franklin No. 15AP–548, 2016-Ohio-1324, 62 N.E.3d 754, ¶ 48. In a de novo review, the trial court's decision is not given deference by the reviewing appellate court; the same standard that the trial court should have used is applied, and we examine the evidence to determine whether as a matter of law no genuine issues of material¹ fact exist for trial. Riverside v. State, 2d Dist. Montgomery No. 26840, 2016-Ohio-2881, 64 N.E.3d 504, ¶ 21, citing Dupler v. Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980).

{¶ 12} In a summary judgment review, the court may not weigh the proof or choose among reasonable inferences,...