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James R. Fincham, A.K.A. v. Geauga County Bd. of Health

October 14, 2011


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 08 P 001358. Judgment: Affirmed.

The opinion of the court was delivered by: Mary Jane Trapp, J.

Cite as Fincham v. Geauga Cty. Bd. of Health,


{¶1} Appellant, James R. Fincham, appeals the decision of the Geauga County Court of Common Pleas granting summary judgment to appellees, Geauga County Board of Health ("GCBH"), Robert Weisdack, Richard Lang, J. David Benenati, Donald Bowers, Nan Burr, Melanie Eppich, Chris Livers, Janet O'Hara and Timothy Goergen. The ruling also denied both Mr. Fincham's initial partial motion for summary judgment relating to his requests for admissions, and a subsequent motion for summary judgment. Mr. Fincham challenges the trial court's determination that all of the appellees are immune from suit, and that he could prove no set of facts that would allow him to prevail on the substance of his claims for fraud, defamation, intentional infliction of emotional distress, tortious interference with business relations, and civil conspiracy.

{¶2} Mr. Fincham's claims stemmed from a show cause hearing convened to address allegedly faulty reports he submitted to the GCBH. After a de novo review of the record, we agree with the trial court that the actions of the individual board members at the hearing did not fall outside of the scope of their authority so as to remove the cloak of immunity from suit. We also agree that there is no genuine issue of material fact as to whether the Health Commissioner acted with malice and in bad faith in issuing charges and providing information to the board during the hearing. Thus, we affirm the judgment of the trial court.

{¶3} Substantive Facts and Procedural History

{¶4} Mr. Fincham is a soil scientist, and is certified and registered as a soil professional. He makes his living by providing soil analysis services, with a particular focus on the identification of different soils and the suitability of various septic systems for those soils. At the time this case commenced, and pursuant to the Geauga County General Health District's ("Heath District") regulations, soil scientists were required to maintain a valid registration with the GCBH in order to perform or provide soil analysis services for the siting of septic disposal systems. Furthermore, soil scientists were required, under the regulations, to submit written reports of their findings and maintain those reports in their own files.

{¶5} The version of the Geauga County General Health District Regulation 3701-29-06A in effect at the time this suit commenced provided that "[w]henever the Health Commissioner finds that a soil professional is or has engaged in practices which are in violation of any provision of regulations 3701-29-01 to 3701-29-21 of the

Household Sewage Disposal System Regulations or has provided information that is incorrect, the Board of Health shall give written notice to the registrant describing the alleged violation and state that an opportunity for a hearing will be provided by the Board of Health to show cause why his registration should not be suspended or revoked."

{¶6} During 2005 and 2006, Mr. Fincham received seven violation letters from the GCBH, citing a number of discrepancies between his reports for certain lots he had been hired to analyze and what was subsequently found on those lots. According to the GCBH, these discrepancies mostly related to misidentification of certain soil types, as well as failures to identify the presence of bedrock on particular properties. The violation letters were included in Mr. Fincham's file with the GCBH, and, on September 6, 2006, the GCBH sent Mr. Fincham notice of a show cause hearing that would be convened to address the seven violation letters and the discrepancies contained within his reports.

{¶7} The show cause hearing was held on December 18, 2006, and Mr. Fincham appeared with counsel. GCBH laid out the allegations against Mr. Fincham and asked him to address each of the discrepancies they had identified in his reports. Mr. Fincham was afforded the opportunity to defend his reports and to explain any discrepancies contained within them. At the end of the two-hour hearing, Mr. Weisdack, the Geauga County Health Commissioner, called for a vote on a motion to suspend Mr. Fincham's registration. By a three to two vote, the GCBH voted to suspend Mr. Fincham's registration for a minimum of six months and to send record of his suspension to the American Registry of Certified Professionals in Agronomy Crops and Soils (ARCPACS).

{¶8} Mr. Fincham filed a timely appeal from the GCBH's decision in the Geauga County Common Pleas Court. Shortly thereafter, Mr. Weidack sent a letter to Mr. Fincham indicating that his office "had been notified by the State that after January 1, 2007, the registration of soils professionals at the county level is not permitted," and that "the December 18, 2006 Board of Health order is vacated in its entirety."*fn1 Upon receipt of this letter, Mr. Fincham voluntarily dismissed his appeal.

{¶9} Despite the fact that he had voluntarily dismissed his administrative appeal, and that the suspension had been vacated, Mr. Fincham filed a complaint alleging a variety of torts arising from the show cause hearing against the GCBH, Mr. Weisdack, Mr. Lang, Mr. Benenati, Mr. Bowers, Ms. Burr, and Ms. Eppich, individually and in their representative capacities as health board members. Ms. Livers, Ms. O'Hara, and Mr. Goergen were later substituted for Mr. Lang, Mr. Bowers, and Ms. Burr in their representative capacities, because the latter three's terms had expired.

{¶10} In his five-count complaint, Mr. Fincham sought compensatory and punitive damages for fraud, defamation, intentional infliction of emotional distress, civil conspiracy, and tortious interference with business relations. Mr. Fincham sought partial summary judgment on the issue of failure of all of the appellees, except for Mr. Weisdack, to properly respond to his requests for admissions, and summary judgment on all counts against the appellees. Appellees also sought summary judgment on all counts.

{¶11} After briefing, the trial court issued a judgment entry granting the appellees' motion for summary judgment and overulling both of Mr. Fincham's motions for summary judgment. All counts of the complaint were dismissed. In an accompanying written decision, the trial court determined all defendants were "immune from liability pursuant to ORC 2744.02 and 2744.03." The trial court considered the immunity exceptions contained within R.C. 2744.02(B)(1)-(5), and determined that Mr. Fincham "failed to show the existence of any of those exceptions which are applicable to the Geauga County General Health District and the Board of Health."

{¶12} Further, as it related to the individual members of the GCBH, the trial court found that "none of the acts performed by those persons were outside the scope of their authority. The members were acting in a quasi-judicial function as they heard, commented upon, and voted upon whether to suspend Mr. Fincham's registration."

{¶13} Finally, as to the allegations that Mr. Weisdack acted with malice and in bad faith, the trial court found that there were "no genuine issues as to any material fact and that reasonable minds [could] come but to one conclusion and that conclusion is adverse to Mr. Fincham."

{¶14} Mr. Fincham filed a timely appeal with this court and we now review his six assignments of error:

{¶15} "[1.] The trial court erred to the prejudice of appellant by granting appellees' motion for summary judgment and denying appellant's motion for summary judgment on the basis of sovereign immunity.

{¶16} "[2.] The trial court erred to the prejudice of appellant by denying his motion for partial summary judgment against all appellees, except appellee commissioner.

{¶17} "[3.] The trial court erred to the prejudice of appellant by dismissing the fraud cause of action.

{¶18} "[4.] The trial court erred to the prejudice of appellant by dismissing the defamation cause of action.

{¶19} "[5.] The trial court erred to the prejudice of appellant by dismissing the tortious interference with business relations cause of action.

{¶20} "[6.] The trial court erred to the prejudice of appellant by dismissing the civil conspiracy cause of action."

{¶21} Effect of the Dismissal of the Administrative Appeal

{¶22} As an initial matter, we note that appellees raise the applicability of the doctrine of res judicata to the merits of this appeal. They argue that the procedure and outcome of the administrative hearing and any question regarding the hearing notice are not subject to collateral attack, because Mr. Fincham ultimately dismissed his appeal of the board of health's decision to suspend his registration.

{¶23} While this argument may have merit, appellees are raising this issue for the first time on appeal, and "[i]t is a well-settled rule of law that issues which were not previously raised at the trial court level cannot be raised for the first time on appeal."

Tryon v. Tryon, 11th Dist. No. 2007-T-0030, 2007-Ohio-6928, ¶29, quoting JP Morgan Chase Bank v. Ritchey, 11th Dist. No. 2006-L-247, 2007-Ohio-4225, ¶27, citing State v. Awan (1986), 22 Ohio St.3d 120, paragraph one of the syllabus. Thus, we will not consider this aspect of appellees' arguments.

{¶24} Summary Judgment Standard of Review

{¶25} We review de novo a trial court's order granting summary judgment. Hapgood v. Conrad, 11th Dist. No. 2000-T-0058, 2002-Ohio-3363, ¶13, citing Cole v. Am. Industries and Resources Corp. (1998), 128 Ohio App.3d 546. "A reviewing court will apply the same standard a trial court is required to apply, which is to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law." Id., citing Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 829.

{ΒΆ26} "Since summary judgment denies the party his or her 'day in court' it is not to be viewed lightly as docket control or as a 'little trial'. The jurisprudence of summary judgment standards has placed burdens on both the moving and the nonmoving party. In Dresher v. Burt [(1996), 75 Ohio St.3d 280], the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. The evidence must be in the record or the motion cannot succeed. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case but must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to set forth specific facts showing there is a ...

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