[Cite as Schaad v. Buckeye Valley Local School Dist. Bd. of Edn.,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

ERIC SCHAAD, et al. JUDGES: Hon. John W. Wise, P. J. Plaintiffs-Appellees Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 15 CAE 08 0063 BUCKEYE VALLEY LOCAL SCHOOL DISTRICT BOARD of EDUCATION, et al.

Defendants-Appellants OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 14 CVC 110831

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 12, 2016

APPEARANCES:

For Plaintiffs-Appellees For Defendant-Appellant Spencer

SHAKEBA DUBOSE MATTHEW JOHN MARKLING THE DUBOSE LAW FIRM LLC PATRICK VROBEL 20 South Third Street SEAN KORAN Suite 210 MCGOWN & MARKLING CO., LPA Columbus, Ohio 43215 1894 North Cleveland-Massillon Road Akron, Ohio 44333 Delaware County, Case No. 15 CAE 08 0063 2

Wise, P. J.

{¶1} Defendant-Appellant Jason Spencer appeals the decision of the Court of

Common Pleas, Delaware County, which granted in part and denied in part his Civ.R.

12(C) motion for judgment on the pleadings in a civil lawsuit filed by Plaintiffs-Appellees

Eric and Trish Schaad against Appellant Spencer, the Buckeye Valley Local School

District Board of Education, and others. The relevant facts leading to this appeal are as

follows.

{¶2} Appellant Spencer is a middle school principal in the Buckeye Valley Local

school system. Appellees Eric and Trish Schaad are the parents of the minor child L.S.,

who at the times pertinent to this case was a Buckeye Valley Local student. According to

appellees’ complaint, in early August 2014, appellees met with appellant, along with two

other school officials (a Buckeye Valley district administrator and a case manager), in

order to develop a “504 Intervention Plan,” which would set forth accommodations to be

implemented by the school for L.S., who had recently undergone back surgery. During

the meeting, appellees allegedly presented the school representatives with school

excuse/accommodation form issued on July 23, 2014 by Dr. Walter Samora of Nationwide

Children’s Hospital, Department of Orthopedic Surgery. According to appellees, on or

about August 12, 2014, also for purposes of the 504 Intervention Plan, L.S. was issued a

second school excuse/accommodation form that included the same restrictions set forth

in the July 23, 2014 form regarding L.S.'s physical activity while at school, as well as

accommodations to be provided to L.S. by Buckeye Valley while at school. The 504

Intervention Plan was to take effect at the start of the school year, i.e., in mid-August

2014. Delaware County, Case No. 15 CAE 08 0063 3

{¶3} Appellees have alleged that Appellant Spencer, without contacting or

receiving authorization from appellees, thereafter called Nationwide Children's Hospital

and spoke to an administrative assistant from the hospital, Danielle D. Greco, and

persuaded Greco to make changes to L.S.'s August 12, 2014 school excuse/

accommodation documents without authorization. Appellees further allege that during this

conversation with Greco, appellant misrepresented information to Greco to induce the

changes to the accommodation, and that Greco also discussed details of L.S.’s surgery

and course of treatment.

{¶4} On November 14, 2014, appellees filed a complaint in Delaware County

Court of Common Pleas, raising claims against the Buckeye Valley Local School District,

Appellant Spencer, Nationwide Children's Hospital, and Danielle D. Greco.

{¶5} On December 11, 2014, Buckeye Valley and appellant filed an answer to

the appellees’ complaint.

{¶6} On January 20, 2015, Buckeye Valley and appellant filed a motion for

judgment on the pleadings (Civ.R. 12(C)), raising R.C. Chapter 2744 immunity grounds.

{¶7} On January 30, 2015, appellees voluntarily dismissed Buckeye Valley, i.e.,

the school district itself, from the lawsuit. Furthermore, on February 6, 2015, appellees

filed an amended complaint, naming the Buckeye Valley Local School District Board of

Education (“Board”) as a party to the lawsuit.

{¶8} On February 13, 2015, the Board and appellant filed an answer to the

amended complaint, as well as a second motion for judgment on the pleadings on

immunity grounds. Delaware County, Case No. 15 CAE 08 0063 4

{¶9} Via a nine-page judgment entry issued July 20, 2015, the trial court granted

in part and denied in part the motion for judgment on the pleadings. Specifically, the trial

court held inter alia that "none of the claims raised by the parents against the school board

impose specific liability on a political subdivision that undercuts the immunity afforded to

the board by R.C. 2744.02(A)(1)." See Judgment Entry at 5. The trial court further held

that the "intentional-conduct claims in the fifth cause of action (a claim that [appellant]

induced a hospital employee to disclose nonpublic medical information to him), in the

sixth cause of action (the general claim that [appellant] acted in bad faith or in a malicious,

wanton, or reckless or bad-faith manner), and a portion of the seventh cause of action

(the invasion of privacy claim)" would survive judgment on the pleadings. See Judgment

Entry at 7-8.

{¶10} Appellant solely filed a notice of appeal on August 6, 2015, regarding the

portion of the July 20, 2015 judgment entry denying his motion for judgment on the

pleadings. He herein raises the following two Assignments of Error:

{¶11} “I. THE DELAWARE COUNTY COURT OF COMMON PLEAS ERRED IN

DENYING DEFENDANT-APPELLANT JASON SPENCER THE BENEFITS OF

STATUTORY IMMUNITY UNDER R.C. CHAPTER 2744.

{¶12} “II. THE DELAWARE COUNTY COURT OF COMMON PLEAS ERRED IN

FAILING TO DETERMINE THAT PRINCIPAL SPENCER HAS BEEN SUED IN HIS

OFFICIAL CAPACITY ONLY.“ Delaware County, Case No. 15 CAE 08 0063 5

I.

{¶13} In his First Assignment of Error, appellant contends the trial court erred in

finding he was not fully protected by the statutory immunities provided in R.C. Chapter

2744. We disagree.

Appellate Court Jurisdiction

{¶14} As an initial matter, because the judgment entry under appeal is, at least in

part, a denial of a Civ.R. 12(C) motion, we are compelled to sua sponte consider the issue

of final appealability. Generally, a judgment overruling a motion for judgment on the

pleadings is not a final appealable order. Paul C. Harger Trust v. Morrow County Regional

Planning Commission, 5th Dist. Morrow No. 03-CA-19,

, citing

Kildow v. Home Town Improvements, 5th Dist. Muskingum No. CT2002-0039, 2003-Ohio-

733. “However, R.C. 2744.02(C) provides that an order denying a political subdivision or

an employee of a political subdivision immunity from liability is a final order from which an

appeal can be taken.” Harger

.

{¶15} Accordingly, we will proceed to the merits of the present appeal. See, also,

Rucker v. Village of Newburgh Hts., 8th Dist. Cuyahoga No. 89487,

(holding that a village’s appeal of the denial of its 12(C) motion for judgment on the

pleadings, which had invoked R.C. Chapter 2744, was based on a final, appealable order

pursuant to the Ohio Supreme Court’s decision in Hubbell v. City of Xenia,

,

). Delaware County, Case No. 15 CAE 08 0063 6

Civ.R. 12(C) Overview

{¶16} Motions for judgment on the pleadings are governed by Civ.R. 12(C), which

states: “After the pleadings are closed but within such time as not to delay the trial, any

party may move for judgment on the pleadings.”

{¶17} Pursuant to Civ.R. 12(C), dismissal is only appropriate “where a court (1)

construes the material allegations in the complaint, with all reasonable inferences to be

drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt that

the plaintiff could prove no set of facts in support of his claim that would entitle him to

relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious (1996),

,

. The very nature of a Civ.R. 12(C) motion is specifically designed for

resolving solely questions of law. See Peterson v. Teodosio (1973),

,

. Appellate review in this realm will be done independent of the trial

court's analysis to determine whether the moving party was entitled to judgment as a

matter of law. State ex rel. Gorgievski v. Massillon, 5th Dist. Stark No. 2008 CA 00239,

2009–Ohio–4533, ¶ 16 (additional citations omitted).

{¶18} Our appellate standard of review on a Civ.R. 12(C) motion is de novo.

Columbus v. Sanders, 5th Dist. Delaware No. 11 CAE 05 0047,

.

Under a de novo analysis, we must accept all factual allegations of the complaint as true

and all reasonable inferences must be drawn in favor of the nonmoving party. Kramer v.

Installations Unlimited (2002),

,

, 2002-Ohio-

1844. Delaware County, Case No. 15 CAE 08 0063 7

R.C. 2744.03(A)(6) Immunities

{¶19} R.C. 2744.03(A) sets forth certain defenses or immunities that may be

asserted to establish non-liability in a civil action brought against a political subdivision or

an employee of a political subdivision to recover damages for injury, death, or loss to

person or property allegedly caused by any act or omission in connection with a

governmental or proprietary function. In the case sub judice, appellant, who is

undisputedly an employee of a political subdivision, urges us to consider subsection

(A)(6) of this statute, which states as follows:

{¶20} “In addition to any immunity or defense referred to in division (A)(7) of this

section and in circumstances not covered by that division or sections 3314.07 and

3746.24 of the Revised Code, the employee is immune from liability unless one of the

following applies:

{¶21} “(a) The employee's acts or omissions were manifestly outside the scope of

the employee's employment or official responsibilities;

{¶22} “(b) The employee's acts or omissions were with malicious purpose, in bad

faith, or in a wanton or reckless manner;

{¶23} “(c) Civil liability is expressly imposed upon the employee by a section of

the Revised Code. Civil liability shall not be construed to exist under another section of

the Revised Code merely because that section imposes a responsibility or mandatory

duty upon an employee, because that section provides for a criminal penalty, because of

a general authorization in that section that an employee may sue and be sued, or because

the section uses the term ‘shall’ in a provision pertaining to an employee.” Delaware County, Case No. 15 CAE 08 0063 8

Legal Definitions

{¶24} “Bad faith” has been defined as a “dishonest purpose, moral obliquity,

conscious wrongdoing, breach of a known duty through some ulterior motive or ill will

partaking of the nature of fraud.” Zieber v. Heffelfinger, 5th Dist. Richland No. 08CA0042,

, quoting Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991),

,

(additional citations and internal quotations

omitted). “Bad faith” has also been defined as “[t]he opposite of ‘good faith,’ generally

implying or involving actual or constructive fraud, or a design to mislead or deceive

another, * * * not prompted by an honest mistake as to one's rights or duties, but by some

interested or sinister motive.” Hicks v. Leffler,

,

(10th Dist. 1997), quoting Black's Law Dictionary (5 Ed. 1979) 127.

{¶25} “Wanton misconduct” is the failure to exercise any care toward those to

whom a duty of care is owed in circumstances in which there is great probability that harm

will result. Anderson v. Massillon,

,

(2012).1

{¶26} “Reckless conduct” is defined as being “characterized by the conscious

disregard of or indifference to a known or obvious risk of harm to another that is

unreasonable under the circumstances and is substantially greater than negligent

conduct.”

, citing Thompson v. McNeill,

, 104-

105,

(1990), adopting 2 Restatement of the Law 2d, Torts, Section 500,

at 587 (1965).

1 The Ohio Supreme Court noted in Anderson that it had abandoned “disposition to perversity” as an element of the definition of wanton misconduct, citing Hawkins v. Ivy,

,

(1977). See

. Delaware County, Case No. 15 CAE 08 0063 9

Analysis

{¶27} In the case sub judice, as indicated in our recitation of facts, the claims that

have survived in the trial court following appellant’s Civ.R. 12(C) motion are that appellant

intentionally induced unauthorized disclosure of L.S.’s medical information (fifth cause of

action), that appellant engaged in malicious, wanton, reckless, or bad-faith conduct (sixth

cause of action), and that appellant invaded appellees’ privacy (seventh cause of action,

in part). Specifically, appellees have alleged that appellant contacted an administrative

assistant, Danielle Greco, at Nationwide Children’s Hospital in early September 2014 and

induced her to discuss medical information about L.S., without the child’s or appellees’

consent. Appellees have also alleged that appellant misrepresented facts in that

conversation regarding the potentiality of L.S. moving between floors in the school

building to reach her classrooms and further argued with Greco about who should be

making decisions regarding the child's health-related accommodations. This purportedly

took place during a time when L.S. was to be careful not to aggravate or injure her back

or spine while engaging in physical activity, including transitioning between classrooms.

{¶28} In considering the issues before us, we recognize, as appellant duly notes

in his brief, that “the [plaintiffs’] obligation to provide the grounds for their entitlement to

relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Parsons v. Greater Cleveland Regional Transit

Auth., 8th Dist. Cuyahoga No. 93523,

, ¶ 11 (addressing Civ.R. 12(B)(6)).

At the same time, however, because Ohio is a notice-pleading state, “the plaintiff need

not prove his or her case at the pleading stage.” Scott v. Columbus Dept. of Pub. Utils.,

10th Dist. Franklin No. 10AP-391,

,

, ¶ 8. Delaware County, Case No. 15 CAE 08 0063 10

Furthermore, issues regarding whether an actor's conduct was malicious, wanton,

reckless, or in bad faith are generally for the jury to decide. Gilbert v. Cleveland, 8th Dist.

Cuyahoga No. 99708, 2013–Ohio–5252, ¶ 15; Nash v. Cleveland Clinic Found., 8th Dist.

Cuyahoga No. 101389,

, ¶ 17.

{¶29} Upon review, presently accepting the aforesaid complaint allegations as

true, we find appellant could be shown to have attempted to supersede without any

authorization the protections to L.S.’s health and safety as duly advised by her own

physician, potentially creating a HIPAA issue in the process.2 Therefore, appellant’s

Civ.R. 12(C) motion was properly denied as to the fifth, sixth, and seventh (partial) causes

of action, as we find appellees at this stage have sufficiently alleged, at minimum, that

appellant engaged in wanton, reckless, or bad-faith conduct. R.C. 2744.03(A)(6)(b),

supra.

{¶30} Accordingly, appellant’s First Assignment of Error is overruled.

II.

{¶31} In his Second Assignment of Error, appellant argues the trial court erred in

failing to determine that he had been sued in his official capacity only. We disagree.

{¶32} Appellant maintains that generally, under R.C. Chapter 2744, an action

against an officeholder or employee in his or her official capacity is considered an action

against the political subdivision he or she represents, and the officeholder in such an

action is entitled to immunity from liability under the R.C. 2744.02 political subdivision

immunity analysis. See Lambert v. Clancy,

,

. Thus,

2 See Health Insurance Portability and Accountability Act of 1996, 42 U.S.C.A. § 1320d, et seq. Delaware County, Case No. 15 CAE 08 0063 11

if the allegations are directed against the holder of an office in his official capacity, it is the

equivalent of suing the political subdivision itself. McCue v. Village of Peninsula, 9th Dist.

Summit No. 25599,

, citing Lambert, supra.3 Appellant herein urges

that when a complaint alleges claims against a political subdivision officeholder or

employee, the trial court must make an initial capacity determination. Appellant maintains

that because in this instance the Board was found immune by the trial court, the alleged

lack of an individual capacity orientation in the complaint means appellant likewise is

immune from liability.

{¶33} Our review of the record indicates that the original complaint, while listing

appellant as one of the defendants in the caption, does not add the words “personally,”

“individually,” or specific language to denote appellant is being sued in his individual

capacity. However, the bottom of the caption in the amended complaint, referring to all of

the defendants, states: “Each in their individual and official capacities, where applicable.”

However, the record reveals appellant was served at his school business address, not at

home, and paragraph 116 of the amended complaint specifically alleges that appellant’s

actions “were done in the course and scope of his employment with Buckeye Valley.”

{¶34} Appellant provides no authority for the proposition that a defendant being

sued in an individual capacity must be served at a home address. Generally, “[s]ervice

must be made to an address where it can be reasonably anticipated that the service will

be delivered to the defendant and apprise him of the pendency of the actions and afford

him an opportunity to present any objections.” J.R. Productions, Inc. v. Young,

As the Ninth District Court noted in McCue, we should recognize that Lambert dealt with a suit against an elected official. Delaware County, Case No. 15 CAE 08 0063 12

App.3d 407, 409,

, (10th Dist. 1982) (additional citations omitted).

Furthermore, the request for punitive damages suggests appellant is being sued

individually as well, as punitive damages cannot be awarded against a political

subdivision performing a governmental function. See R.K. v. Little Miami Golf Ctr., 1st

Dist. Hamilton No. C-130087,

,

, 844, ¶ 47, citing R.C.

2744.05(A). Finally, in order to determine in what capacity a plaintiff has sued a

defendant, courts may examine both the complaint and the “course of proceedings.” UAP-

Columbus JV326132 v. Young, 10th Dist. Franklin No. 11AP-926,

, ¶ 17,

citing Liberty Mut. Ins. Co. v. Paris, 8th Dist. Cuyahoga No. 74064,

,

(May 20, 1999), additional citations omitted.

{¶35} Accordingly, we find no reversible error in the trial court’s lack of a specific

determination at this juncture that appellant is being sued only in his official capacity.

{¶36} Appellant’s Second Assignment of Error is therefore overruled.

{¶37} For the reasons stated in the foregoing opinion, the decision of the Court of

Common Pleas, Delaware County, is hereby affirmed.

By: Wise, P. J. Delaney, J., and Baldwin, J., concur.

JWW/d 0201