[Cite as Schmitt v. Educational Serv. Ctr. of Cuyahoga Cty.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97605

SUSAN BOUTON SCHMITT PLAINTIFF-APPELLEE

vs.

EDUCATIONAL SERVICE CENTER OF CUYAHOGA COUNTY, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-748667

BEFORE: Keough, J., Jones, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: May 17, 2012 ATTORNEYS FOR APPELLANTS

For Berea City School District

John D. Pinzone James A. Climer Frank H. Scialdone John T. McLandrich Mazanec, Raskin & Ryder Co., L.P.A. 100 Franklin’s Row 34305 Solon Road Solon, OH 44139

Susan McGown McGown & Markling Co., LPA 1894 North Cleveland-Massillon Road Akron, OH 44333

For Educational Service Center of Cuyahoga County

David Kane Smith Krista K. Keim Andrea E.M. Stone Britton, Smith, Peters & Kalail Co., L.P.A. 3 Summit Park Drive Suite 400 Cleveland, OH 44131-2582

ATTORNEY FOR APPELLEE

Robert A. Pecchio 2305 E. Aurora Road Suite A-1 Twinsburg, OH 44087-1940 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Berea City School District (“BCS”), appeals from the

trial court’s judgment denying its Civ.R. 12(C) motion for judgment on the pleadings.

For the reasons that follow, we affirm in part, reverse in part, and remand.

I. Facts and Procedural History

{¶2} Plaintiff-appellee, Susan Bouton Schmitt, filed a complaint against BCS

and Educational Service Center of Cuyahoga County (“ESC”) in which she alleged that

she was hired by BCS and ESC in February 2002 as a school psychologist for BCS. She

further alleged that as reflected in her yearly evaluations, she performed her job duties

satisfactorily until she was forced to resign her employment on March 4, 2009, after a

meeting with her supervisors from BCS and ESC. She alleged that as a result of the

termination, she became depressed and was incapacitated for some time, and eventually

was forced to relocate to Colorado to find comparable employment. Schmitt’s complaint

asserted claims for (1) wrongful termination in violation of Ohio’s public policy favoring

due process and fair dealing in employment relations; (2) breach of an implied contract of

employment; (3) promissory estoppel; and (4) negligent and intentional infliction of

emotional distress.

{¶3} In its answer to the complaint, ESC admitted that it hired Schmitt in 2002

as a psychologist under a one-year contract and assigned her to work at BCS. ESC

further admitted that Schmitt was assigned to work at BCS until her resignation on March

9, 2009. In its answer, BCS admitted that Schmitt was an employee of ESC and provided services to BCS. Neither BCS nor ESC made any other reference in their

answers to Schmitt’s employment status, i.e., whether she was an at-will or contract

employee after her one-year contract expired in 2003. Both BCS and ESC asserted,

among other affirmative defenses, that they were political subdivisions entitled to

statutory immunity.

{¶4} BCS and ESC each subsequently filed a Civ.R. 12(C) motion for judgment

on the pleadings. In its motion, BCS argued that Schmitt’s claims against it failed

because all of her claims arose out of the termination of her employment with ESC, and

BCS was not a party to the employment contract between Schmitt and ESC. As evidence

that Schmitt’s employment agreement was with ESC, BCS attached to its motion a copy

of a contract dated March 31, 2008, executed by Schmitt and ESC, in which ESC agreed

to hire Schmitt as a psychologist for BCS for the one-year period August 15, 2008 to

August 14, 2009.1

{¶5} In addition to arguing that it was not Schmitt’s employer, BCS further

argued that (1) Schmitt’s wrongful termination in violation of public policy claim failed

because the public policy exception for wrongful discharge only applies when the

plaintiff was an at-will employee, and Schmitt was a contract employee; (2) Schmitt’s

breach of implied contract claim failed because a political subdivision cannot be liable on

the basis of an implied contract; (3) the wrongful termination and implied contract claims

Similarly, ESC attached to its motion for judgment on the pleadings a copy of 1

“Administrative Recommendations Resolution 12-08,” which showed that Schmitt was contracted by ESC as a psychologist for BCS for the period August 15, 2008 through August 14, 2009. failed because as a year-to-year contract employee, Schmitt did not have a property

interest in continued employment and thus was not entitled to due process; (4) Schmitt’s

promissory estoppel claim failed because the provision of public education is a

governmental function and promissory estoppel is not applicable to a political subdivision

engaged in a governmental function; and (5) under the three-tiered analysis set forth in

R.C. Chapter 2744, Ohio’s Political Subdivision Tort Liability Act, BCS was entitled to

immunity as to all of Schmitt’s claims.

{¶6} In her brief in opposition to BCS’s motion, Schmitt asserted that the court

could not consider the contract attached to BCS’s motion because a determination on a

Civ.R. 12(C) motion is restricted to the allegations in the pleadings and any writings

attached to the pleadings. Schmitt argued further that BCS’s motion should be denied

because (1) a breach of implied contract claim can be maintained against a political

subdivision; (2) issues of fact remained for determination regarding the promissory

estoppel claim; (3) BCS’s immunity defense was dependent upon consideration of

evidence beyond the facts of the pleadings; (4) damages for emotional distress can be

recovered in the context of a breach of contract action such as Schmitt’s; (5) and the

wrongful termination claim was viable because the allegations of the complaint were

sufficient to establish that Schmitt was an at-will, rather than contract, employee who was

terminated from employment.

{¶7} The trial court subsequently denied both BCS’s and ESC’s motions. The

court denied BCS’s motion without explanation; it denied ESC’s motion because ESC had attached matters outside the pleadings to its motion. Although it denied the motions,

in its judgment entry, the court granted BCS and ESC leave to file a motion for summary

judgment. Instead of filing a motion for summary judgment, BCS filed a notice of

appeal.2

II. Final, Appealable Order

{¶8} As an initial matter, we reject Schmitt’s argument that this appeal does not

involve a final, appealable order because the trial court made no determination regarding

immunity when it denied BCS and ESC’s motions for judgment on the pleadings. This

court recently held in DiGiorgio v. Cleveland, 8th Dist. No. 95945,

, that

trial court orders denying motions for judgment on the pleadings or motions to dismiss

where a political subdivision has asserted immunity are final, appealable orders, even

where the trial court does not explain the basis for its decision on the immunity issue. Id.

at ¶ 15, citing Hubbell v. Xenia,

,

,

.

Accordingly, we have jurisdiction to consider BCS’s appeal of the denial of its motion for

judgment on the pleadings.

III. Analysis

{¶9} In its single assignment of error, BCS argues that the trial court erred in

denying its motion for judgment on the pleadings because it is a political subdivision

entitled to statutory immunity under R.C. Chapter 2744 as to all of Schmitt’s claims.

ESC also appealed. See Schmitt v. Educational Serv. Ctr. of Cuyahoga Cty., 8th Dist. No. 2

97623,

. {¶10} Civ.R. 12(C) states that “[a]fter the pleadings are closed but within such

time as not to delay the trial, any party may move for judgment on the pleadings.”

Because Civ.R. 12(C) motions test the legal basis for the claims asserted in a complaint,

our standard of review is de novo. State ex rel. Midwest Pride IV, Inc. v. Pontious,

,

(1996). Determination of a motion for judgment

on the pleadings is restricted solely to the allegations in the complaint and answer, as well

as any material attached as exhibits to those pleadings. Id.; State ex rel. Montgomery v.

Purchase Plus Buyer’s Group, Inc., 10th Dist. No. 01AP-1073,

. A

court must construe as true all of the material allegations in the complaint, with all

reasonable inferences to be drawn therefrom, in favor of the nonmoving party. Whaley v.

Franklin Cty. Bd. of Commrs.,

,

(2001).

Dismissal of a complaint is appropriate where a court finds beyond doubt that the plaintiff

could prove no set of facts in support of his claim that would entitle him to relief.

.

{¶11} Determining whether a governmental entity is immune from tort liability

involves a three-step analysis. Elston v. Howland Local Schools,

,

,

. First, R.C. 2744.02(A)(1) sets forth the general

blanket immunity applicable to political subdivisions. It provides that a political

subdivision is generally not liable in a civil action for injury, death, or loss to person or

property incurred while performing governmental or proprietary functions. To overcome

this statutory immunity, a plaintiff must show that one of the five exceptions contained in R.C. 2744.02(B) applies. These exceptions are (1) negligent operation of a motor

vehicle; (2) negligent conduct of employees while carrying out a proprietary function; (3)

a municipality’s failure to keep roads and sidewalks free from nuisance; (4) injury or loss

that occurs on or within buildings used for governmental functions and is caused by the

negligence of the municipality’s employees; and (5) any other situation in which liability

is expressly imposed by the Revised Code.

{¶12} If a plaintiff demonstrates that one of the five enumerated exceptions to

governmental immunity applies, a political subdivision may then assert one of the

defenses set forth in R.C. 2744.03(A) to revive its immunity.

{¶13} As applicable to this case, however, R.C. 2744.09(B) provides that R.C.

Chapter 2744 does not apply to “[c]ivil actions by an employee * * * against his political

subdivision relative to any matter that arises out of the employment relationship between

the employee and the political subdivision.” The Ohio Supreme Court recently analyzed

this exception to political-subdivision immunity from tort liability and held that it “applies

in a civil action for damages filed by an employee who alleges that his

political-subdivision employer committed an intentional tort against him and engaged in

negligent conduct.” Sampson v. Cuyahoga Metro. Hous. Auth., Slip Opinion No.

. The Court held that an employee’s action against his or her

political-subdivision employer “arises out of the employment relationship between the

employee and the political subdivision” within the meaning of R.C. 2744.09(B) if there is

a “causal connection or a causal relationship” between the claims raised by the employee and the employment relationship. Id. at ¶ 17.

{¶14} Here, because all of Schmitt’s claims stem from the termination of her

employment, it is apparent there is a causal connection between her claims and her

employment relationship with BCS and ESC. Thus, pursuant to R.C. 2744.09(B), BCS is

barred from asserting immunity.

{¶15} BCS argues, however, that all of Schmitt’s claims against it necessarily fail

because, as demonstrated by the contract attached to its motion for judgment on the

pleadings, Schmitt was not an employee of BCS but, rather, a contract employee of ESC.

This court has repeatedly held, however, that a determination on a Civ.R. 12(C) motion is

limited “solely to the allegations in the pleadings and any writing attached to those

pleadings.” Ferchill v. Beach Cliff Bd. of Trustees,

,

,

(8th Dist.), citing Thomas v. Byrd-Bennett, 8th

Dist. No. 79930,

(Dec. 6, 2001). See also C & K Ind. Serv., Inc. v.

McIntyre, Kahn & Kruse Co., L.P.A., 8th Dist. No. 92233,

, ¶ 12 (trial

court erred in granting Civ.R. 12(C) motion for judgment on the pleadings where court’s

ruling was based on evidence attached to the motion. “Such evidence cannot be

considered on a motion for judgment on the pleadings.”) Accordingly, the trial court

could not consider Schmitt’s contract with ESC when ruling on BCS’s motion.

{¶16} Because the trial court could not consider any matters outside the pleadings,

it properly denied BCS’s motion for judgment on the pleadings regarding Count 1,

wrongful termination in violation of public policy. In Ohio, there is a public policy exception to the employment-at-will doctrine, but the exception applies only to at-will

employees. Haynes v. Zoological Soc. of Cincinnati,

,

(1995), syllabus. Schmitt’s complaint alleged that she was hired in 2002 and continued

her employment with BCS and ESC until her termination, an allegation that could be

construed to mean that her employment was at-will. Neither BCS nor ESC’s answers

established that Schmitt was a contract employee. Although ESC answered that Schmitt

was hired in 2002 under a one-year contract, it made no reference anywhere else in its

answer to Schmitt’s employment status in subsequent years. In its answer, BCS admitted

that Schmitt was an employee of ESC but made no reference to whether Schmitt was a

contract or at-will employee. Most importantly, neither BCS nor ESC attached any

documents establishing that Schmitt was a contract employee to their answers.

Accordingly, construing the allegations of the complaint as true and making all

reasonable inferences in favor of Schmitt, the trial court properly denied BCS’s motion

for judgment on the pleadings as to Count 1.

{¶17} Likewise, the trial court properly denied the motion with respect to Count 4,

which alleged negligent and intentional infliction of emotional distress. Although BCS

argues this claim is precluded by its statutory immunity, as the Ohio Supreme Court held

in Sampson, Slip Opinion No.

, “R.C. 2744.09(B) removes the protection

of immunity for a political-subdivision employer for injuries to its employees that arise

out of the employment relationship.” Id. at ¶ 30 (Lanzinger, J., concurring in judgment

only). {¶18} Nevertheless, not all of Schmitt’s claims survive BCS’s motion for

judgment on the pleadings. In Count 2, Schmitt alleged that BCS breached an implied

contract of employment with her that imposed a duty of good faith and fair dealing. But

in Ohio, political subdivisions cannot be bound by contract unless the agreement is in

writing and formally ratified through proper channels. As a result, political subdivisions

cannot be made liable upon theories of implied or quasi contract. Franks v. Bolivar,

N.D.Ohio No. 5:11CV701,

(Nov. 18, 2011), citing Wright v. Dayton,

,

,

(2d Dist.); see also Cleveland

Hts. v. Cleveland, 8th Dist. No. 79167,

(Nov. 8, 2001), citing Eastlake

v. Davis,

,

(7th Dist. 1952); Wellston v. Morgan,

, 228,

(1901); Cuyahoga Cty. Hosp. v. Cleveland,

,

(8th Dist. 1984). Accordingly, Schmitt’s breach of

implied contract claim should have been dismissed.

{¶19} The trial court should have also dismissed Schmitt’s promissory estoppel

claim in Count 3 of her complaint. In Hortman v. Miamisburg,

,

,

, the Ohio Supreme Court unequivocally held that “the

doctrines of equitable estoppel and promissory estoppel are inapplicable against a

political subdivision when the political subdivision is engaged in a governmental

function.” The provision of public education is a governmental function. Doe v.

Marlington Local School Dist. Bd. of Edn.,

,

,

. In addition, the act of hiring personnel to staff public schools has been held to be 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.’” Bucy v. Carlisle, 1st

Dist. No. C-090252,

, ¶ 16; see also Senu-Oke v. Bd. of Edn. of Dayton

City School Dist., 2d Dist. No. 20967,

. Accordingly, Schmitt’s

promissory estoppel claim is barred as a matter of law.

{¶20} BCS’s assignment of error is overruled in part and sustained in part. The

trial court’s denial of BCS’s motion for judgment on the pleadings regarding Schmitt’s

wrongful termination and negligent and intentional infliction of emotional distress claims

is affirmed; the court’s denial of BCS’s motion with respect to Schmitt’s breach of

implied contract and promissory estoppel claims is reversed. The matter is remanded for

further proceedings consistent with this opinion.

{¶21} Affirmed in part; reversed in part and remanded.

It is ordered that the parties share equally the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE LARRY A. JONES, SR., P.J., and SEAN C. GALLAGHER, J., CONCUR