[Cite as Field v. Summit Cty. Child Support Agency,

.]

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

DALE P. FIELD, JR. C.A. No. 27817

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE SUMMIT COUNTY CSEA, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV 2014 09 4355

DECISION AND JOURNAL ENTRY

Dated: September 28, 2016

WHITMORE, Judge.

{¶1} Plaintiff-Appellant, Dale Field, Jr., appeals from the judgment of the Summit

County Court of Common Pleas, dismissing his complaint against Defendant-Appellees, the

Summit County Child Support Enforcement Agency (“CSEA”) and E*Trade Clearing LLC

(“E*Trade”). This Court affirms.

I

{¶2} This suit commenced when Field filed a pro se complaint against CSEA and

E*Trade in which he alleged five separate claims for relief. Four of the claims pertained to

CSEA and alleged that: (1) CSEA fraudulently informed the federal government that Field owed

child support arrears in excess of $5,000; (2) CSEA wrongfully collected more than $4,000 from

him after placing a tax lien on his 2011 tax return; (3) CSEA ignored a court order granting him

a credit toward his arrears that exceeded the wrongfully collected amount; and (4) CSEA placed

an illegal hold on his E*Trade account despite the fact that it contained funds that were exempt 2

from garnishment or attachment. In his single claim against E*Trade, Field alleged that the

company misappropriated his funds by freezing his account and selling its assets in spite of their

exempt status.

{¶3} In response to Field’s complaint, both CSEA and E*Trade filed motions to

dismiss. CSEA argued that the trial court ought to dismiss Field’s complaint because it did not

set forth any claims upon which relief could be granted, Field had failed to name a necessary

party, and CSEA was statutorily immune from suit. Meanwhile, E*Trade argued that the court

ought to dismiss Field’s complaint because it also was statutorily immune from suit. Field

opposed both motions and also filed a motion to add Summit County Prosecutor Sherri Bevan

Walsh as a party defendant. Subsequently, the trial court granted both motions to dismiss and

denied Field’s motion to add Walsh as a defendant.

{¶4} Field now appeals from the court’s judgment and raises five assignments of error

for our review. For ease of analysis, we consolidate several of the assignments of error.

II

{¶5} Initially, we note that Field acted pro se in the trial court and has appeared pro se

before this Court on appeal. With respect to pro se litigants, this Court has held that:

[p]ro se litigants should be granted reasonable leeway such that their motions and pleadings should be liberally construed so as to decide the issues on the merits, as opposed to technicalities. However, a pro se litigant is presumed to have knowledge of the law and correct legal procedures so that he remains subject to the same rules and procedures to which represented litigants are bound. He is not given greater rights than represented parties, and must bear the consequences of his mistakes. This Court, therefore, must hold [pro se appellants] to the same standard as any represented party.

(Second alteration sic.) State v. Taylor, 9th Dist. Lorain No. 14CA010549,

,

quoting Sherlock v. Myers, 9th Dist. Summit No. 22071,

, ¶ 3. With that in

mind, we turn to Field’s assignments of error. 3

Assignment of Error Number One

THE TRIAL COURT ERRD (sic) BY GRANTING STATUTORY IMMUNITY TO THE COUNTY AGENCY FOR CHILD SUPPORT ENFORCEMENT AGENCY[.]

{¶6} In his first assignment of error, Field argues that the trial court erred when it

granted CSEA’s motion to dismiss on the basis of sovereign immunity. We do not agree that the

court erred when it granted CSEA’s motion to dismiss.

{¶7} We review a trial court’s granting of a motion to dismiss for failure to state a

claim under Civ.R. 12(B)(6) de novo. State ex rel. Dellagnese v. Bath-Akron-Fairlawn Joint

Economic Dev. Dist., 9th Dist. Summit No. 23196,

. Factual allegations

contained in the complaint are presumed true and all reasonable inferences are drawn in favor of

the nonmoving party.

citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs.,

(1992). “To prevail on a Civ.R. 12(B)(6) motion to dismiss, it must appear on the

face of the complaint that the plaintiff cannot prove any set of facts that would entitle him to

recover.” Raub v. Garwood, 9th Dist. Summit No. 22210,

, citing O’Brien

v. Univ. Community Tenants Union,

(1975). “The defense of immunity

may be raised in a motion to dismiss pursuant to Civ.R. 12(B)(6).” Thomas v. Bauschlinger, 9th

Dist. Summit No. 26485,

.

{¶8} “In order to determine whether a political subdivision is immune from liability,

we engage in a three-tiered analysis.” Moss v. Lorain Cty. Bd. of Mental Retardation, 9th Dist.

Lorain No. 13CA010335,

, citing Cater v. Cleveland,

(1998). The first tier sets forth the premise that,

[e]xcept as provided in division (B) of [R.C. 2744.02], a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or an 4

employee of the political subdivision in connection with a governmental or proprietary function.

R.C. 2744.02(A)(1). “At the second tier, this comprehensive immunity can be abrogated

pursuant to any of the five exceptions set forth at R.C. 2744.02(B).” Shalkhauser v. Medina, 9th

Dist. Medina Nos. 3238-M & 3249-M,

, ¶ 16. “Lastly, immunity may be

restored, and the political subdivision will not be liable, if one of the defenses enumerated in

R.C. 2744.03(A) applies.”

.

{¶9} It is undisputed that Field only brought suit against CSEA and E*Trade. CSEA,

however, is not a political subdivision. See R.C. 2744.01(F). The agency is a “part of Summit

County,” and “only the county can be sued * * *.” Smith v. McCarty, 9th Dist. Summit No.

15670,

, *1 (Jan. 13, 1993). In its motion to dismiss, CSEA specifically argued

that Field had failed to state a claim upon which relief could be granted and had failed to name a

necessary party because, as an agency of Summit County, “CSEA does not constitute a separate

legal entity eligible for suit.” In response, Field sought to add Sherri Bevan Walsh as a

defendant. Field identified Walsh as the “Director of CSEA” and argued that her inclusion in the

suit would “satisf[y] [CSEA’s] request that a necessary party be named in this claim against

CSEA.” Field never sought to join Summit County or the State of Ohio1 as a defendant.

{¶10} The trial court found that CSEA was an agency of Summit County and that it was

not a separate legal entity eligible for suit. The court then went on to determine that, even if

CSEA was a properly named party, it was statutorily immune from suit. On appeal, Field does

not address the trial court’s finding that CSEA cannot be sued as a separate legal entity. His

1 In its motion to dismiss, CSEA also argued that the State of Ohio was a necessary party to the litigation. Because Field’s complaint included allegations pertaining to a tax offset and the State of Ohio is responsible for tax offsets, CSEA argued, Field also was required to name the State of Ohio as a defendant. 5

brief contains a blanket statement that CSEA can be held liable for civil damages to an individual

because it “is a political subdivision at the County Level * * *.” As previously noted, however,

CSEA is not a political subdivision. It is only a “part of Summit County” and cannot be

separately sued.

. Moreover, even if Field had named the appropriate party as a

defendant here, he failed to show that the conduct upon which he based his claims satisfied any

of the five sovereign immunity exceptions set forth in R.C. 2744.02(B).

{¶11} Once an entity demonstrates that it is entitled to the general presumption of

immunity afforded by R.C. 2744.02(A)(1), the burden shifts to the claimant to establish that an

exception to that immunity exists. Szefcyk v. Kucirek, 9th Dist. Lorain No. 15CA010742, 2016-

Ohio-171, ¶ 13. In his brief in opposition to CSEA’s motion to dismiss, Field did not cite to any

specific subdivision of R.C. 2744.02(B). Instead, he argued that political subdivisions are liable

when their employees commit negligent acts or “acts done in a wanton or reckless manner.” A

political subdivision is only liable for the negligent acts of its employees, however, “with respect

to proprietary functions.” R.C. 2744.02(B)(2). Field made no attempt to show that the collection

of child support is a proprietary function. Nor did he tie his claim of wanton or reckless behavior

to any statutory subsection. Although R.C. 2744.03(A)(6)(b) references reckless and wanton

behavior, that exception applies to employees of political subdivisions, not the political

subdivisions themselves. See Lamtman v. Ward, 9th Dist. Summit No. 26156,

. Accordingly, even assuming that Field could properly bring a suit against CSEA, he failed

to demonstrate that any exception to the general presumption of immunity applied here. See

Szefcyk at ¶ 13.

{¶12} This Court has reviewed Field’s complaint, as well as CSEA’s motion to dismiss

and Field’s brief in opposition to the same. Even viewing all the factual allegations here as true 6

and drawing all reasonable inferences in Field’s favor, we cannot conclude that the trial court

erred by granting CSEA’s motion to dismiss. See State ex rel. Dellagnese,

. Consequently, Field’s first assignment of error is overruled.

Assignment of Error Number Three

THE TRIAL COURT ERRD (sic) BY DENYING THE MOTION ALLOWING PLAINTIFF TO AMEND HIS COMPLAINT, ADDING SHERRI BEVAN WALSH AS A DEFENDANT[.]

Assignment of Error Number Four

THE TRIAL COURT ERRD (sic) IN RULING THAT PROSECUTOR WALSH ENJOYS IMMUNITY[.]

{¶13} In his third assignment of error, Field argues that the trial court erred by denying

his motion to add Sherri Bevan Walsh as a defendant. In his fourth assignment of error, he

argues that the court erred when it concluded that, even if Walsh were made a defendant, she

would be immune from suit. Because his assignments of error are interrelated, we address them

together.

{¶14} Field’s motion to add Walsh as a defendant was, in essence, a motion for leave to

amend his complaint. Generally, a party may amend his or her complaint “once as a matter of

course” so long as the amendment occurs “within twenty-eight days after service of a responsive

pleading or twenty-eight days after service of a motion under Civ.R. 12(B) * * *, whichever is

earlier.” Civ.R. 15(A). Here, however, the trial court would not permit Field to amend his

complaint because it found that the amendment would not change the disposition in this matter.

The court found that, even if Walsh were added to the suit, she would be entitled to immunity, so

Field would not benefit from her inclusion. Accordingly, we begin by reviewing the court’s

immunity determination. 7

{¶15} A complainant may sue an elected official in either his or her official capacity or

in his or her individual capacity. See Lambert v. Clancy,

,

.

When the complainant sues an elected official in his or her individual capacity, R.C.

2744.03(A)(6) applies and the official will be immune from suit unless the complainant can

show that one of the exceptions set forth in that subdivision applies. See id. at ¶ 10, citing R.C.

2744.03(A)(6). Conversely, “[t]he political-subdivision-immunity analysis set forth in R.C.

2774.02 applies to lawsuits in which the named defendant holds an elected office within a

political subdivision and that officeholder is sued in his or her official capacity.” Id. at paragraph

two of the syllabus. “[I]f the allegations are directed against the holder of an office in his official

capacity, it is the equivalent of suing the political subdivision itself.” Thompson v. Buckeye Joint

Vocational Sch. Dist., 5th Dist. Tuscarawas No. 2015 AP 08 0047,

.

{¶16} Field sought to add Walsh as a defendant because he identified her as the

“Director of CSEA.” In his motion to add her as a named defendant, he argued that “the ultimate

responsibility of any governmental agency resides with the director of that agency.”

Accordingly, Field did not allege any individual conduct on the part of Walsh; rather, he sought

to include her strictly because of her employment status. On appeal, he maintains that Walsh is

liable because she either negligently or recklessly failed to perform her duties as the “Director of

CSEA.” He argues that it was her duty to ensure that CSEA operated “within the [para]meters of

the law.”

{¶17} Because Field sought to bring suit against Walsh in her official capacity as the

“Director of CSEA,” Walsh would have been entitled to immunity under R.C. 2774.02, had she

been added as a defendant. See

In reviewing Field’s first assignment of error, this Court set

forth the three-tiered analysis that applies to an immunity determination under R.C. 2774.02. We 8

determined that CSEA was immune from suit because Field failed to demonstrate that any

exception to the general presumption of immunity applied. See Szefcyk,

.

We reach the same conclusion with respect to Walsh.

{¶18} Field has not shown that the trial court erred when it concluded that Walsh and/or

Summit County would be immune from suit, if added as a defendant. See R.C. 2744.03(A)(7).

See also Thompson,

. As previously noted, a political subdivision is

only liable for the negligent acts of its employees “with respect to proprietary functions.” R.C.

2744.02(B)(2). See also Lambert,

,

. Even if Field

could have added Walsh and/or Summit County as defendants, he made no attempt to show that

the collection of child support is a proprietary function. Absent any allegation that Walsh and/or

Summit County had negligently engaged in a proprietary function, Field could not hope to

withstand a dismissal on the basis of sovereign immunity. See R.C. 2744.02(A)(1).

{¶19} On appeal, Field also argues that Walsh would have been liable if added as a

defendant because she acted in a wanton and reckless manner. R.C. 2744.03(A)(6) provides that

an employee of a political subdivision will be immune from suit unless the “employee’s acts or

omissions were manifestly outside the scope of [his or her] employment” or undertaken “with

malicious purpose, in bad faith, or in a wanton or reckless manner * * *.’” That subdivision

would only apply, however, if Field also sought to bring suit against Walsh in her individual

capacity. See

Moreover, even assuming that Field meant to bring suit against

Walsh in both her elected and individual capacities, he failed to set forth any factual allegations

that would even suggest that she acted in a wanton or reckless manner. Instead, Field indicated

that he wished to bring suit against her strictly due to her purported role as the “Director of 9

CSEA.” Walsh, therefore, would have been entitled to absolute immunity under R.C.

2744.03(A)(6) as well.

{¶20} Even assuming that the trial court erred by not allowing Field to amend his

complaint as a matter of course, Field cannot demonstrate prejudice as a result of the trial court’s

error. See Princess Kim, L.L.C. v. U.S. Bank, N.A., 9th Dist. Summit No. 27401, 2015-Ohio-

4472, ¶ 18 (“To demonstrate reversible error, an aggrieved party must demonstrate both error

and resulting prejudice.”). We agree with the trial court’s determination that, had Walsh been

added as a defendant, she would have been immune from suit in either her elected or individual

capacity. Consequently, Field would not have benefitted from her inclusion in the suit. For the

reasons set forth above, Field’s third and fourth assignments of error are overruled.

Assignment of Error Number Two

THE TRIAL COURT ERRD (sic) BY RULING THAT THE PLAINTIFF FAILED TO STATE A CLAIM AGAINST THE SECOND DEFENDANT, E*TRADE[.]

{¶21} In his second assignment of error, Field argues that the trial court erred by

granting E*Trade’s motion to dismiss. He argues that E*Trade is not immune for its actions

because it failed to act in good faith when it froze and released his assets in contravention of a

court order.

{¶22} We incorporate the standard of review set forth in Field’s first assignment of

error. Consequently, we review this assignment of error de novo. See State ex rel. Dellagnese,

. In doing so, we presume the factual allegations in Field’s complaint are

true and draw all reasonable inferences in his favor.

citing State ex rel. Hanson,

.

{¶23} R.C. 3123.26 requires a financial institution to 10

promptly place an access restriction on the account of an obligor who maintains an account at the financial institution upon receipt of an access restriction notice with respect to the obligor from the child support enforcement agency. The access restriction shall remain on the account until the financial institution complies with a withdrawal directive under [R.C.] 3123.37 * * * or a court or child support enforcement agency orders the financial institution to remove the access restriction.

“On receipt of a withdrawal directive, a financial institution shall withdraw the amount specified

from the account described in the notice and pay it to the office of child support * * *.” R.C.

3123.37(C). “A financial institution is not subject to criminal or civil liability for imposing an

access restriction on an account or complying with a withdrawal directive pursuant to sections

3123.24 to 3123.38 of the Revised Code or for any other action taken in good faith pursuant to

those sections.” R.C. 3123.38.

{¶24} E*Trade moved to dismiss Field’s complaint on the basis that it was statutorily

immune from suit. It argued that it was immune from suit because it froze Field’s account and

removed its assets, pursuant to a withdrawal directive from CSEA. See

Meanwhile, Field

argued that E*Trade was not entitled to the benefit of immunity because it failed to act in good

faith. He argued that E*Trade should have verified that his account funds were eligible for

garnishment or attachment before releasing them. According to Field, E*Trade had previously

frozen his account for thirty days. He argued that, by only freezing his account for two weeks,

E*Trade deprived him of the time he needed to act on the freeze before it released his funds.

According to Field, after he received the access restriction notice, he “promptly issued a letter to

both CSEA, and E*Trade notifying them that the funds were exempt under the Ohio Revised

Code * * *.” On appeal, he maintains that E*Trade did not act in good faith because, before it

released his assets, it was aware of the court-ordered exemption. 11

{¶25} “If [a] statute’s meaning is clear and unambiguous, we apply the statute ‘as

written.’” Gehlmann v. Gehlmann, 9th Dist. Medina No. 13CA0015-M,

,

quoting Boley v. Goodyear Tire & Rubber Co.,

,

. R.C.

3123.38 specifically provides that a financial institution “is not subject to * * * civil liability for

imposing an access restriction on an account or complying with a withdrawal directive * * *.”

Neither act is coupled with a requirement that the financial institution act in good faith. The

immunity for either act is absolute. See

Conversely, “any other action taken” by the financial

institution pursuant to R.C. 3123.24 to 3123.38 must be “taken in good faith.” R.C. 3123.38.

{¶26} Here, Field sought to hold E*Trade civilly liable for placing an access restriction

on his account and for complying with a withdrawal directive it received from CSEA. Pursuant

to R.C. 3123.38, however, E*Trade enjoyed absolute immunity with respect to those two actions.

The trial court, therefore, did not err by granting E*Trade’s motion to dismiss. See Cook Family

Invests. v. Billings, 9th Dist. Lorain Nos. 05CA008689 & 05CA008691,

(appellate court may affirm a judgment that is “legally correct on other grounds”). Field’s

second assignment of error is overruled.

Assignment of Error Number Five

THE TRIAL COURT ERRED BY DENYING PLAINTIFF A JURY BY TRIAL.

{¶27} In his fifth assignment of error, Field argues that the trial court erred by denying

his right to a trial by jury. He argues that, by granting CSEA’s and E*Trade’s motions to

dismiss, the court made an “arbitrary ruling.” We have already determined, however, that the

court did not err by granting the motions to dismiss. Accordingly, we reject Field’s argument

that the court unfairly denied him his right to a jury trial. Field’s fifth assignment of error is

overruled. 12

III

{¶28} Field’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

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 Summit, 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 Appellant.

BETH WHITMORE FOR THE COURT

CARR, P. J. SCHAFER, J. CONCUR. 13

APPEARANCES:

DALE P. FIELD, JR., pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JOHN F. GALONSKI, Assistant Prosecuting Attorney, for Appellee.