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William J. Long v. Village of Hanging Rock

September 28, 2011

WILLIAM J. LONG, PLAINTIFF-APPELLEE,
v.
VILLAGE OF HANGING ROCK, ET AL., DEFENDANTS-APPELLANTS.



CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 9-28-11

The opinion of the court was delivered by: Abele, J.

Cite as Long v. Hanging Rock,

DECISION AND JUDGMENT ENTRY

{¶1} This is an appeal from a Lawrence County Common Pleas Court judgment that denied summary judgment to the Village of Hanging Rock and Chris Steed, defendants below and appellants herein. Appellants raise the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN OVERRULING CHIEF LAWRENCE, 09CA30 2 STEED'S MOTION FOR SUMMARY JUDGMENT WITH REFERENCE TO LONG'S CLAIM FOR INVASION OF PRIVACY." SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN OVERRULING THE VILLAGE'S MOTION FOR SUMMARY JUDGMENT AS TO LONG'S CLAIM FOR WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY."

{¶2} On June 21, 2005, appellee, the Hanging Rock Chief of Police, suffered an injury in the course and scope of employment. Appellee subsequently received workers' compensation benefits as a result of this injury. On June 29, 2006, the Hanging Rock mayor advised appellee that he was being terminated because his doctor restricted him from running, which rendered him unable to perform a fitness and agility test.

{¶3} On December 18, 2007, appellee filed a complaint against Hanging Rock and Chris Steed that contained several claims arising out of his termination. On April 7, 2009, appellee filed an amended complaint against Hanging Rock, Christopher Davidson (the mayor), Carole Goldcamp (the clerk-treasurer), and Chris Steed (police chief). His first claim asserted that Hanging Rock violated R.C. 4123.90 by discharging him in retaliation for filing a workers' compensation claim. Appellee's second claim alleged that Hanging Rock wrongfully discharged him in violation of public policy. In his third claim, appellee asserted that Hanging Rock and the mayor converted his pension fund contributions. Appellee's fourth claim alleged that his discharge violated 42 U.S.C. 1983. In his fifth claim, appellee requested the trial court to enter a declaratory judgment that the fitness policy was invalid. In his sixth claim, appellee requested the trial court to issue a writ of mandamus compelling Hanging Rock to restore appellee to his employment. Appellee's seventh claim alleged that Steed invaded his privacy by: (1) intruding into appellee's seclusion, solitude or private affairs; (2) publishing appellee's likeness in such a way that placed appellee in a false light; and (3) appropriating appellee's name or likeness for his advantage, which proximately caused appellee humiliation, embarrassment, harm and damages.

{¶4} Both parties requested summary judgment. On November 17, 2009, the trial court overruled appellee's summary judgment motion, and overruled in part and granted in part appellants' summary judgment motion. The court entered summary judgment in favor of the mayor and the clerk-treasurer, and granted appellants summary judgment with respect to all claims except appellee's wrongful discharge in violation of public policy claim, appellee's 42 U.S.C. 1983 claim, appellee's claim against Steed for invasion of privacy, and appellee's mandamus claim. This appeal followed.

{¶5} In their two assignments of error, appellants challenge the trial court's partial denial of their summary judgment motion. Because the same standard and some general principles apply to both assignments of error, we will consider them together.

{¶6} In their first assignment of error, appellants assert that the trial court erred by denying Steed statutory immunity with respect to appellee's invasion of privacy claim. They contend that Steed is statutorily immune from liability because no genuine issues of material fact exist as to whether (1) Steed acted with malicious purpose, in bad faith, or in a wanton or reckless manner, or (2) Steed acted outside the scope of his employment. Appellants posit that whether Steed acted with malicious purpose, in bad faith, or in a wanton or reckless manner, or whether he acted outside the scope of his employment turns upon whether appellee possesses a legally sufficient invasion of privacy claim. Appellants claim that if appellee cannot establish the elements of his invasion of privacy claim, then he ipso facto cannot demonstrate that Steed acted with malicious purpose, in bad faith, or in a wanton or reckless manner, or that he acted outside the scope of his employment. Specifically, appellants assert:

"If [appellee] has no legally sufficient claim for invasion of privacy, then [appellee] cannot demonstrate that * * * Steed acted with malicious purpose, in bad faith, or in a wanton and reckless manner, or that * * * Steed acted outside the scope of his employment, pre-requisites for defeating the immunity of an employee of a political subdivision."

{¶7} In their second assignment of error, appellants contend that the trial court erred by overruling Hanging Rock's summary judgment motion regarding appellee's wrongful discharge in violation of public policy claim. They argue that under R.C. Chapter 2744, Hanging Rock is immune from liability for appellee's wrongful discharge claim, i.e., an intentional tort claim. Appellant's further claim that appellee's wrongful discharge claim is subsumed within his R.C. 4123.90 claim (retaliatory discharge claim), which is time-barred. Appellants additionally assert that appellee does not have a valid wrongful discharge in violation of public policy claim. I

SCOPE OF REVIEW

{¶8} Before we examine appellants' assignments of error, we first must define our scope of review.

{¶9} Ohio appellate courts have jurisdiction to review the final orders of inferior courts within their district. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2501.02. A final, appealable order is one that affects a substantial right and determines the action. R.C. 2505.02(B)(1). If a judgment is not final and appealable, an appellate court does not have jurisdiction to review the judgment and the appeal must be dismissed. See, e.g., Mtge.

Electronic Registrations Sys. v. Mullins, 161 Ohio App.3d 12, 2005-Ohio-2303, 829 N.E.2d 326, ¶17. In the event that the parties involved with the appeal do not raise a jurisdictional issue, the appellate court must raise it sua sponte. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus; Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184, 186, 58 O.O.2d 399, 280 N.E.2d 922.

{¶10} "Generally, the denial of summary judgment is not a final, appealable order."

Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶9, citing State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 24, 37 O.O.2d 358, 222 N.E.2d 312. However, a trial court's order to deny summary judgment on the basis of statutory immunity constitutes a final order. See R.C. 2744.02(C); Sullivan v. Anderson Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88, syllabus; Hubbell, syllabus; Essman v. Portsmouth, Scioto App. No. 08CA3244, 2009-Ohio-3367, ¶10, motion to certify allowed, 127 Ohio St.3d 1544, 2011-Ohio-647, 941 N.E.2d 802, and discretionary appeal accepted, 127 Ohio St.3d 1545, 2011-Ohio-647, 941 N.E.2d 803. R.C. 2744.02(C) explicitly states that an order denying "a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order." However, appellate review under R.C. 2744.02(C) is limited to the denial of immunity. See Nagel v. Horner, 162 Ohio App.3d 221, 2005-Ohio-3574, 833 N.E.2d 300, ¶21 (stating that R.C. 2744.02(C) limits appellate review to denial of immunity and does not authorize court to review merits of the action); Makowski v. Kohler, Summit App. No. 25219, 2011-Ohio-2382, ¶7 (stating that an R.C. 2744.02(C) appeal "is limited to the review of alleged errors in the portion of the trial court's decision which ...


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