[Cite as Johnson v. Godsey,

.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

WILLIAM S. JOHNSON :

Plaintiff-Appellant : C.A. CASE NO. 2012 CA 80

v. : T.C. NO. 11CVI656

ALICE J. GODSEY : (Civil appeal from Municipal Court) Defendant-Appellee :

:

..........

OPINION

Rendered on the 26th day of July , 2013.

..........

WILLIAM S. JOHNSON, P. O. Box 62, Clifton, Ohio 45316 Plaintiff-Appellant

THADDIUS A. TOWNSEND, Atty. Reg. No. 0089197, Assistant Clark County Prosecutor, 50 E. Columbia Street, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Defendant-Appellee

..........

FROELICH, J.

{¶ 1} William S. Johnson appeals from a judgment of the Clark County 2

Municipal Court, which granted summary judgment to Alice J. Godsey on Johnson’s claims and

denied Johnson’s request for expenses due to Godsey’s filing of a counterclaim against him. For

the following reasons, the trial court’s judgment will be affirmed.

I. Factual and Procedural History

{¶ 2} Johnson is the owner of residential rental property located at 5307 Waverly

Drive in Clark County. The property receives water services through the Clark County Utilities

Department. At all relevant times, Alice Godsey was the director of the Clark County Utilities

Department.

{¶ 3} On February 18, 2011, Johnson filed a small claims complaint against Godsey,

claiming that Godsey was “extorting money” from Johnson for water service to the Waverly

Drive property. Johnson also alleged that Godsey was “harassing and terrorizing” the new

tenant at the property by seeking payment for services provided to a prior tenant and by

threatening to shut off water service to the new tenant. Johnson alleged that Godsey’s conduct

was outside the scope of her employment as the director of utilities. Johnson’s complaint cited

to case law, the Rules and Regulations of the Clark County Utilities Department, and the

Application and Contract form of the Clark County Utilities Department. Johnson sought

$1,079.51, plus penalties, living expenses, and costs.

{¶ 4} Godsey was served with the complaint on February 25, 2011, and a pretrial

conference was held on March 15, 2011. Based on the discussions at that conference, the trial

court transferred the case to the court’s regular docket and granted Godsey 30 days to file an

answer and counterclaim. Both parties were given 90 days to conduct discovery and file

dispositive motions. [Cite as Johnson v. Godsey,

.] {¶ 5} On April 14, 2011, Godsey, as director of utilities for Clark County, filed an

answer denying all of the allegations of wrongdoing in the complaint. She also brought a

counterclaim against Johnson, alleging that $282.32 was due and owing for water service to 5307

Waverly Drive and that Johnson was responsible for paying for that arrearage. Johnson

answered the counterclaim, stating in part that the Clark County Utilities Department had not

been joined in the lawsuit, that he (Johnson) had no contract with Godsey, and that Godsey could

not seek damages against him.

{¶ 6} On June 2011, Godsey moved for summary judgment, claiming that her actions

were taken in furtherance of her position as director of utilities and that she was entitled to

sovereign immunity. Two days later, Johnson filed an amended complaint, which included

additional allegations that Godsey had improperly levied tax liens and charges for arrearages.

{¶ 7} Godsey filed an amended summary judgment motion, again claiming sovereign

immunity. She supported the motion with an affidavit stating that her actions were taken in the

scope of her employment and were pursuant to regular department procedures. She indicated

that an arrearage on the property grew to $268.88 between October 20, 2010 and January 26,

2011. On November 1, 2010, water service was discontinued due to an arrearage. Despite the

unpaid balance, water service was restored on December 2, 2010, based on an understanding that

the owner (Johnson) would pay the arrearage. Godsey stated that the current tenant is up-to-date

in his water payments. Johnson subsequently opposed Godsey’s motion for summary judgment

and asked for “reasonable expenses,” arguing that Godsey had not claimed sovereign immunity

in her answer.

{¶ 8} Godsey moved to amend her answer, stating that her counsel had inadvertently 4

failed to allege sovereign immunity. (At the pretrial conference, Godsey’s counsel had told the

court that he believed Godsey was entitled to sovereign immunity.) The trial court granted

Godsey’s motion. Before filing an amended answer, Godsey filed a notice of dismissal of her

counterclaim.

{¶ 9} Godsey filed an amended answer on August 12, 2011. She again denied

Johnson’s allegations, raised five affirmative defenses (including sovereign immunity), and

asserted, as director of utilities, a new counterclaim for “all reasonable attorney fees in defending

this action, as well as costs to Clark County, Ohio for wages spent in defense of this action.”

Johnson filed an answer to the counterclaim, stating that Godsey had been sued personally and

that she responded to his interrogatories stating that she personally had not lost any wages as a

result of this action and was not personally responsible for her attorney fees. Johnson claimed

that the counterclaim was frivolous and not made in good faith.

{¶ 10} On October 3, 2011, Johnson moved to dismiss Godsey’s counterclaim. He also

asked for “reasonable expenses incurred as a result of the Defendant’s frivolous Counterclaim

and cross-claim pursuant to Rule 56 G.” Johnson argued that the “claims were without merit

and made in bad faith in an attempt to intimidate a pro se Plaintiff.” In his supporting

memorandum, Johnson stated that he had spent at least five hours defending and answering the

counterclaim, and he sought $525 in expenses.

{¶ 11} Godsey voluntarily dismissed her amended counterclaim on November 4, 2011.

Five days later, Johnson filed a “motion for judgment on the pleadings to grant plaintiff

expenses for frivolous counterclaim/crossclaim,” pursuant to Civ.R. 56(G). Johnson again

sought $525 in expenses. Godsey opposed the motion. 5

{¶ 12} Later in November 2011, Johnson filed a supplemental memorandum addressing

Godsey’s claim that she was entitled to sovereign immunity. He asserted that he had alleged

several instances where Godsey had acted contrary to law, outside the scope of her employment,

and in bad faith and in a wanton manner. Johnson provided a detailed timeline of his

communications with Godsey and the Clark County Utilities Department regarding unpaid water

bills at the Waverly Drive property. Johnson supported his memorandum with an affidavit

affirming that his statements in the supplemental memorandum were true and that his exhibits

were accurate copies of documents provided by Godsey during discovery.

{¶ 13} In February 2012, a magistrate ruled on both Johnson’s request for reasonable

expenses and Godsey’s motion for summary judgment. The magistrate denied Johnson’s

request for reasonable expenses, noting first that Civ.R. 56(G) has no application to an allegedly

frivolous pleading. The magistrate further found:

Even if Plaintiff had properly moved for sanctions under Civil Rule 11 or R.C.

2323.51 there has been no showing of any improper conduct on the part of

Defendant sufficient to support any award of expenses. Whereas Ms. Godsey, in

her individual capacity, has no standing to bring a counterclaim for unpaid utility

services, it was not unreasonable for Defendant’s counsel to initially assume,

given the subject matter of Plaintiff’s allegations, that Ms. Godsey was being sued

in a representative capacity as Director of the Clark County Utilities Department.

The counterclaim was later voluntarily withdrawn; there has been no showing of

any bad faith or improper purpose in its assertion, nor has it been shown that

Plaintiff suffered any significant loss or injury as a result. Accordingly, 6

Plaintiff’s Motion is denied.

{¶ 14} The magistrate granted Godsey’s motion for summary judgment based on

sovereign immunity under R.C. 2744.03(A)(6). The magistrate noted that Johnson had not cited

to any section of the Revised Code that imposed liability on Godsey. It further concluded that

Godsey’s actions “were unquestionably within the scope of [her] official responsibilities to

pursue payment for those services.” The magistrate stated that Godsey’s affidavit “belies

Plaintiff’s apparent belief that Defendant is pursuing some sort of malicious personal vendetta, or

that the billing and collection activities engaged in under her supervision were done in bad faith,

or in a wanton or reckless manner.” The magistrate thus concluded that none of the exceptions

to sovereign immunity under R.C. 2744.03(A)(6) applied, and Godsey was entitled to summary

judgment.

{¶ 15} Johnson objected to the magistrate’s decision. On October 29, 2012, the trial

court rejected Johnson’s objections and entered judgment in favor of Godsey. The trial court’s

judgment entry was almost identical to the magistrate’s decision.

{¶ 16} Johnson appeals from the trial court’s judgment, raising numerous assignments

of error. He challenges both the denial of his motion for reasonable expenses and the trial

court’s grant of summary judgment to Godsey.

II. Motion for Expenses for Frivolous Filing

{¶ 17} Johnson raises six assignments of error concerning the trial court’s denial of his

motion for expenses for Godsey’s allegedly frivolous counterclaims. Johnson claims that the

trial court erred in finding (1) that the initial counterclaim was dismissed “upon clarification that

Ms. Godsey was being sued personally as a private individual, and not in her capacity as Director 7

of the Clark County Utilities Department”, (2) that it was not unreasonable for Godsey’s counsel

to initially assume that Godsey was being sued in a representative capacity, (3) that there had

been no showing of any improper conduct by Godsey to warrant an award of expenses, (4) that

the voluntary withdrawal of the counterclaim mitigated the frivolous nature of its original filing,

(5) that there was no showing of “bad faith” or “improper purpose” in the filing of the

counterclaim, and (6) that there was no showing of “any significant loss or injury” to Johnson

due to the filing. To summarize, Johnson contends that the trial court’s factual and legal reasons

for denying his motion were not supported by the record.

{¶ 18} Johnson’s motion for reasonable expenses was brought under Civ.R. 56(G),

which provides:

Should it appear to the satisfaction of the court at any time that any of the

affidavits presented pursuant to this rule are presented in bad faith or solely for the

purpose of delay, the court shall forthwith order the party employing them to pay

to the other party the amount of the reasonable expenses which the filing of the

affidavits caused the other party to incur, including reasonable attorney’s fees, and

any offending party or attorney may be adjudged guilty of contempt.

By its terms, Civ.R. 56(G) applies to summary judgment affidavits, not pleadings. Because

Johnson failed to provide a proper basis for his motion, the trial court did not err in denying

Johnson’s motion for reasonable expenses related to the filing of Godsey’s counterclaims.

{¶ 19} Moreover, the trial court reasonably concluded that Johnson was not entitled to

expenses under Civ.R.11 or R.C. 2323.51, even if Johnson had sought expenses under those

provisions. 8

{¶ 20} Civ.R. 11 requires every pleading, motion, or other document of a party

represented by an attorney to be signed by at least one attorney of record in the attorney’s

individual name and to state the attorney’s registration number, telephone number, facsimile

number, if any, and business e-mail address, if any. The signature of an attorney constitutes a

certificate by that attorney that the attorney has read the document, that to the best of the

attorney’s knowledge, information, and belief there is good ground to support it, and that it is not

interposed for delay. Civ.R. 11. “For a willful violation of this rule, an attorney * * * may be

subjected to appropriate action, including an award to the opposing party of expenses and

reasonable attorney fees incurred in bringing any motion under this rule.”

{¶ 21} Under R.C. 2323.51(B), “at any time not more than thirty days after the entry of

final judgment in a civil action or appeal, any party adversely affected by frivolous conduct may

file a motion for an award of court costs, reasonable attorney’s fees, and other reasonable

expenses incurred in connection with the civil action or appeal. The court may assess and make

an award to any party to the civil action or appeal who was adversely affected by frivolous

conduct * * *.” Of relevance to this action, “frivolous conduct” means the conduct of a party to

a civil action or of the party’s counsel that satisfies any of four criteria:

(1) It obviously serves merely to harass or maliciously injure

another party to the civil action or appeal or is for

another improper purpose, including, but not limited

to, causing unnecessary delay or a needless increase

in the cost of litigation.

(2) It is not warranted under existing law, cannot be supported by a good 9

faith argument for an extension, modification, or reversal of

existing law, or cannot be supported by a good faith argument for

the establishment of new law.

(3) The conduct consists of allegations or other factual contentions that have no

evidentiary support or, if specifically so identified, are not likely to have

evidentiary support after a reasonable opportunity for further investigation or

discovery.

(4) The conduct consists of denials or factual contentions that are not warranted

by the evidence or, if specifically so identified, are not reasonably based on a lack

of information or belief.

R.C. 2323.51(A)(2)(a)(i)-(iv).

{¶ 22} We find no indication in the record that Godsey’s original counterclaim

constituted a willful violation of Civ.R. 11 or met any of the criteria set forth in R.C.

2323.51(A)(2)(a). Johnson claims that it was “clearly known by all parties by March 15, 2011

Pre-Trial Conference” that he had sued Godsey in an individual, not a representative, capacity

and thus Godsey’s attorney should not have drafted any counterclaim in Godsey’s capacity as

director of utilities for Clark County. However, during the March 15, 2011 pretrial conference,

Godsey’s counsel told the court that he intended to file a counterclaim for the unpaid bill if

Johnson did not pay the bill, and the trial court granted Godsey leave to file an answer and

counterclaim. We cannot say that Godsey acted unreasonably in filing such a counterclaim, as

allowed by the trial court. And, given the nature of Johnson’s claims and the fact that Johnson 10

repeatedly served interrogatories on “Defendant and Clark County Department of Utilities,”1 it

was not initially clear that the Clark County Utilities Department was not intended by Johnson to

be a party to the litigation.

{¶ 23} Godsey’s counterclaim in her amended answer sought reasonable attorney fees

and costs to Clark County for defending the action. Although Godsey did not cite to any

authority for this claim in her amended answer, Godsey’s claim was not unsupportable, and we

find no suggestion that it was filed for purposes of harassment or to increase the cost of litigation.

{¶ 24} Johnson’s assignments of error concerning the denial of his motion for

reasonable expenses are overruled.

III. Sovereign Immunity

{¶ 25} Johnson raises five assignments of error challenging the trial court’s granting of

Godsey’s motion for summary judgment. He claims that both the magistrate and the trial court

erred in finding (1) that Godsey’s conduct was not manifestly outside the scope of her

employment, (2) that Godsey did not act in bad faith or in a wanton manner, (3) that Johnson had

to show that Godsey’s action were taken for a personal reason or with an ulterior motive, (4) that

Johnson cited no section of the Revised Code that imposed personal civil liability upon utilities

directors, and (5) that Godsey’s actions were taken within the scope of her employment.

{¶ 26} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of

law, and (3) reasonable minds, after construing the evidence most strongly in favor of the

1 Under Civ.R. 33, any party may serve interrogatories “upon any other party.” Interrogatories should not be directed to non-parties. 11

nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc.,

,

(1998). The moving party carries the initial

burden of affirmatively demonstrating that no genuine issue of material fact remains to be

litigated. Mitseff v. Wheeler,

,

(1988). To this end, the

movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a

court is to consider in rendering summary judgment. Dresher v. Burt,

,

(1996). Those materials include “the pleadings, depositions, answers

to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations

of fact, if any, filed in the action.”

; Civ.R. 56(C).

{¶ 27} Once the moving party satisfies its burden, the nonmoving party may not rest

upon the mere allegations or denials of the party’s pleadings.

; Civ.R. 56(E).

Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as otherwise

permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of

material fact for trial.

Throughout, the evidence must be construed in favor of the

nonmoving party.

{¶ 28} “R.C. Chapter 2744, the Political Subdivision Tort Liability Act, sets forth a

comprehensive statutory scheme for the tort liability of political subdivisions and their

employees.” Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, – Ohio St.3d

–,

, – N.E.2d –, ¶ 11. The statute “is the General Assembly’s response to the

judicial abrogation of common-law sovereign immunity. Its manifest purpose is the

preservation of the fiscal integrity of political subdivisions.” Estate of Graves v. Circleville,

,

,

, citing Wilson v. Stark Cty. Dept. of 12

Human Servs.,

,

(1994).

{¶ 29} R.C. 2744.03(A)(6) grants employees of political subdivisions immunity from

liability, unless any of three exceptions to that immunity apply. Anderson v. Massillon,

,

,

. Those exceptions are (1) the

employee’s acts or omissions were manifestly outside the scope of the employee’s employment

or official responsibilities; (2) the employee’s acts or omissions were with malicious purpose, in

bad faith, or in a wanton or reckless manner; and (3) civil liability is expressly imposed upon the

employee by a section of the Revised Code. R.C. 2744.03(A)(6)(a)-(c).

{¶ 30} Johnson asserts that Godsey’s actions were manifestly outside the scope of her

employment. In his verified supplemental memorandum, Johnson stated that Godsey was

required to contract with the individual tenants, that he had repeatedly attempted to cancel his

contract with the utility department but Godsey would not allow it, that Godsey has never billed

Johnson directly for the unpaid water bill, that Godsey failed to provide a copy of the utility

department’s rules and regulations, that Godsey has allowed water service at the property without

a contract with the individual tenants, and that Godsey unlawfully recommended and allowed tax

liens on his property for water charges.

{¶ 31} In her affidavit, Godsey stated that, as of October 18, 2010, the account for 5307

Waverly Drive had a credit. However, from October 20, 2010 to January 26, 2011, the unpaid

balance grew to $268.66, including usage and penalties. Water service was discontinued on

November 1, 2010 for final reading by the Clark County Utilities Department. Godsey stated

that, despite the arrearage, water service was restored to the property on December 2, 2010

“based on the understanding that the owner would pay the arrearage.” Due to the continued 13

unpaid balance, a disconnection notice was mailed to 5307 Waverly Drive. Subsequently,

arrangements were made to continue service for the current tenant. As of the date of the

affidavit, the tenant was current on his payments and the utilities department had no intention of

discontinuing service to him. Godsey explained that the automated billing process only allows

one bill to be sent, and duplicate billing is impracticable. She stated that she has worked

diligently and professionally to resolve the issue of the arrearage left by the previous tenant.

{¶ 32} For an act to fall within the scope of employment, it must be “calculated to

facilitate or promote the business for which the [employee or agent] was employed.” Osborne v.

Lyles,

,

(1992). In general, if an act is committed within

the scope of employment, it will be authorized, either expressly or impliedly, by the employer.

Anousheh v. Planet Ford, Inc., 2d Dist. Montgomery Nos. 21960 & 21967,

,

, ¶ 45. Intentional and willful acts by an agent or employee “to vent his own

spleen or malevolence against the injured person” are generally outside the scope of employment.

Osborne,

,

. Stated differently, “an employer is not liable

for independent self-serving acts of his employees which in no way facilitate or promote his

business.” Groob v. KeyBank,

,

,

,

citing Byrd v. Faber,

,

(1991).

{¶ 33} Construing the evidence in the light most favorable to Johnson, there is no

genuine issue of material fact whether Godsey’s actions regarding the water service to 5307

Waverly Drive were done within the scope of her employment. It is undisputed that Godsey is

the current director of the Clark County Utilities Department, which has primary responsibility

for providing water for residential properties within its district and billing for those services. 14

Although Johnson claims that he has been improperly billed for the water provided to his rental

property and a tax lien was improperly levied against the property due to the unpaid water bill, all

of the actions about which Johnson complains were taken by Godsey in furtherance of obtaining

payment for the water services to 5307 Waverly Drive by the Clark County Utilities Department.

There is no evidence that Godsey has acted “to vent her own spleen” or acted in an

“independent self-serving” manner that in no way was intended to benefit her employer, the

Clark County Utilities Department. Based on the record, the exception to immunity under R.C.

2744.03(A)(6)(a) does not apply, as a matter of law.

{¶ 34} Next, Johnson asserts that Godsey acted with a malicious purpose, in bad faith,

and in a wanton or reckless manner, thus stripping her of immunity under R.C. 2744.03(A)(6)(b).

{¶ 35} Recklessness is a high standard. Rankin v. Cuyahoga Cty. Dept. of Children

and Family Servs.,

,

,

. Wanton

misconduct has been defined as the failure to exercise any care whatsoever. Fabrey v.

McDonald Village Police Dept.,

,

(1994), citing Hawkins

v. Ivy,

,

(1977), syllabus.

{¶ 36} Mere negligence in the performance of Godsey’s duties is insufficient to meet

this high standard. See O’Toole v. Denihan,

,

,

. As stated by the Ohio Supreme Court, “‘mere negligence is not converted into

wanton misconduct unless the evidence establishes a disposition to perversity on the part of the

tortfeasor.’ Such perversity must be under such conditions that the actor must be conscious that

his [or her] conduct will in all probability result in injury.”

, quoting Roszman v.

Sammett,

,

(1971). Even when viewing the evidence in 15

Johnson’s favor, Godsey’s conduct does not meet this high standard, as a matter of law.

{¶ 37} Finally, Johnson disputes the trial court’s finding that he did not cite to any

statutory provision expressly imposing civil liability on a director of utilities for its billing

practices. In his objections to the magistrate’s decision (and on appeal), Johnson argued that

Godsey’s actions rose to the level of criminal violations, namely theft by deception, extortion,

and coercion, and thus her actions were not entitled to immunity in a civil lawsuit under R.C.

2744.03(A)(6)(c). However, his supplemental memorandum opposing summary judgment did

not address R.C. 2744.03(A)(6)(c). Rather, it included sections labeled “Undisputed Facts,”

“2744.03(A)(6) a,” and “2744.03(A)(6) b.” The trial court did not err in finding that Johnson

failed to challenge Godsey’s motion for summary judgment under R.C. 2744.03(A)(6)(c).

{¶ 38} Regardless, even if R.C. 2744.03(A)(6)(c) had been raised, the trial court

nevertheless did not err in granting summary judgment. “[W]hether the exception to immunity

under R.C. 2744.03(A)(6)(c) applies is purely a question of law, for it always involves the

interpretation or application of a statutory provision that is purported to remove the employee's

immunity.” Stachura v. Toledo, 4th Dist. Lucas No. L-12-1068,

, ¶ 23. For

purposes of R.C. 2744.03(A)(6)(c), “expressly” means “in direct or unmistakable terms: in an

express manner: explicitly, definitely, directly.” See Butler v. Jordan,

,

(2001) (discussing R.C. 2744.02(B)(5)), quoting Webster’s Third New

International Dictionary (1986) 803. Assuming that Godsey’s billing activities did not

completely conform to the county’s rules and regulations and contractual terms, we find no

provision in the Revised Code that expressly imposed civil liability on Godsey. And, again

construing the evidence in Johnson’s favor, except for his personal legal conclusions, there was 16

no evidence that Godsey’s alleged actions rose to the level of criminal activity.

{¶ 39} The trial court did not err in finding that no genuine issues of material fact

existed and that Godsey was entitled, as a matter of law, to the immunity set forth in R.C.

2744.03(A)(6). Johnson’s assignments of error regarding the trial court’s grant of Godsey’s

motion for summary judgment are overruled.

IV. Conclusion

{¶ 40} The trial court’s judgment will be affirmed.

..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

William S. Johnson Thaddius A. Townsend Hon. Eugene S. Nevius