[Cite as Baab v. Medina City Schools Bd. of Edn.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

RICHARD BAAB, individually and as C.A. No. 14CA0091-M administrator

Appellee APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS MEDINA CITY SCHOOLS BOARD OF COUNTY OF MEDINA, OHIO EDUCATION, et al. CASE No. 13CIV1376

Appellants

DECISION AND JOURNAL ENTRY

Dated: December 21, 2015

MOORE, Judge.

{¶1} Appellants, the Medina City Schools Board of Education and Julia Schwendeman,

appeal an order of the Medina County Court of Common Pleas that denied their motion to

dismiss. This Court reverses and remands for proceedings consistent with this opinion.

I.

{¶2} Richard Baab sued the Medina City Schools Board of Education and Julia

Schwendeman, a middle school counselor, after his son committed suicide. Mr. Baab’s

complaint alleged that his son had been the subject of bullying and harassment, that an

anonymous adult contacted Ms. Schwendeman to report that his son was suicidal, and that Ms.

Schwendeman failed to notify anyone of the situation. Mr. Baab’s complaint alleged claims for

wrongful death, failure to report a threat of physical harm to his son in violation of R.C.

2151.421, deprivation of substantive due process, and on the part of the Board of Education, 2

failure to adequately train its employees. When the Board of Education and Ms. Schwendeman

removed the case to federal court, Mr. Baab dismissed the latter two claims, and the case

returned to state court.

{¶3} The Board of Education and Ms. Schwendeman moved to dismiss the remaining

claims, arguing that they were immune pursuant to R.C. Chapter 2744 and R.C. 2305.51. In the

alternative, they argued that even if their immunity arguments failed, Babb had not stated a claim

upon which relief could be granted because his complaint did not adequately allege facts

supporting his claims and those claims failed as a matter of law. The trial court denied the

motion to dismiss in a brief journal entry that set forth the standard for reviewing a motion to

dismiss under Civ.R. 12(B)(6), concluded that “[u]pon review of plaintiff’s complaint, the court

finds that the facts alleged by plaintiff may allow recovery against defendants on the claims set

forth therein[,]” and ruled that “defendants’ motion to dismiss is denied.” The Board of

Education and Ms. Schwendeman appealed pursuant to R.C. 2744.02(C).

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DENYING [THE BOARD OF EDUCATION’S AND MS. SCHWENDEMAN’S] STATE-LAW IMMUNITY UNDER O.R.C. 2744.02, 2744.03, AND 2305.51.

{¶4} In their only assignment of error, the Board of Education and Ms. Schwendeman

argue that the trial court erred by denying their motion to dismiss because they are immune

pursuant to R.C. 2744.02, that no exceptions to that immunity apply, and should an exception be

determined to apply, R.C. 2744.03 operates to reinstate their immunity. In the alternative, they

have argued that R.C. 2305.51 provides separate grounds for their immunity. 3

{¶5} A motion to dismiss under Civ.R. 12(B)(6) tests the sufficiency of a complaint

and may only be granted if, taking the material allegations as true, it appears beyond doubt that

the plaintiffs can prove no facts that entitle them to recovery. See State ex rel. Hanson v.

Guernsey Cty. Bd. of Commrs.,

(1992). Political subdivision immunity

may be asserted by means of a motion to dismiss filed under Civ.R. 12(B)(6), and this Court

reviews the denial of such a motion to dismiss de novo. Thomas v. Bauschlinger, 9th Dist.

Summit No. 26485,

. Even when this Court’s review is de novo, however,

we must be mindful that our function is to be a reviewing court. When there is no determination

before us to review, this Court cannot step into the role of the trial court and determine a matter

for the first time on appeal. See Collins v. Hearty Invest. Trust, 9th Dist. Summit No. 27173,

.

{¶6} In this case, the trial court denied the motion to dismiss without analysis and

without articulating on which basis it found that the provisions of R.C. Chapter 2744 do not

apply. We recognize that findings of fact and conclusions of law are not required when a trial

court rules on a motion under Civ.R. 12(B)(6). Kennelly v. Anderson, 9th Dist. Lorain No.

97CA006934,

, *1 (Apr. 28, 1999). Nonetheless, in cases such as this, which

essentially require this Court to act in the place of the trial court in order to determine the

arguments on appeal, this Court may reverse the decision of the trial court and remand so that the

trial court can set forth an analysis that permits our review. Hearty Invest. Trust at ¶ 23.

{¶7} The trial court denied the motion to dismiss filed by the Board of Education and

Ms. Schwendeman without explaining the basis on which their statutory immunities did not

apply. Because this Court cannot adequately analyze the trial court’s order in a reviewing

capacity, the assignment of error is sustained. 4

III.

{¶8} The Board of Education’s and Ms. Schwendeman’s assignment of error is

sustained. This matter is remanded to the trial court for proceedings consistent with this opinion.

Judgment reversed and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

CARLA MOORE FOR THE COURT

SCHAFER, J. CONCURS. 5

CARR, P. J. DISSENTING.

{¶9} I respectfully dissent. Mr. Baab’s complaint alleged that the defendants engaged

in reckless, wanton, and willful misconduct. Because I believe that the trial court concluded that

these allegations in the complaint were sufficient to defeat the defendants’ assertion of immunity

at this stage in the proceedings, I would consider the merits of the appeal now.

APPEARANCES:

DAVID KANE SMITH, KRISTA KEIM, and MARIA PEARLMUTTER Attorneys at Law, for Appellants.

JOHN BROOKS CAMERON and CHRISTOPHER JANKOWSKI, Attorneys at Law, for Appellee.