CIVIL CASE FROM COMMON PLEAS COURT
James H. Banks, COUNSEL FOR APPELLANT
Randall Lambert, COUNSEL FOR APPELLEES
DECISION AND JUDGMENT ENTRY
Peter B. Abele, Judge
(¶1} This is an appeal from a Scioto County Common Pleas Court decision that partially granted and partially denied the summary judgment motion filed by Wheelersburg Local School District Board of Education, Mark Knapp (individually and in his capacity as superintendent), and George Grice (individually and in his capacity as treasurer), defendants below and appellees herein.
(¶2} Dana Jones, plaintiff below and appellant herein, assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN CONSIDERING THE AFFIDAVITS OF DEFENDANTS-APPELLEES MARK KNAPP AND GEORGE GRICE IN SUPPORT OF DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT"
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN DETERMINING THAT STATUTORY IMMUNITY UNDER R.C. CHAPTER 2744 SHIELDS DEFENDANTS-APPELLEES GRICE AND KNAPP FROM LIABILITY" THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF-APPELLANT'S CLAIMS, SUCH THAT THE JUDGMENT BELOW MUST BE REVERSED."
(¶ 3} Appellant was terminated from her position with Wheelersburg Local School District due to allegations of misappropriated funds. Appellant subsequently filed a complaint against appellees and alleged that (1) appellees caused her "severe and intense emotional and physical distress * * * mental anguish, humiliation, and embarrassment, " (2) appellees slandered or defamed her, (3) appellees interfered with contractual relations, and (4) appellees intentionally inflicted emotional distress upon her.
(¶ 4} On October 15, 2010, appellees requested summary judgment. To support their motion, appellees attached Knapp's and Grice's affidavits. In his affidavit, Superintendent Knapp averred that an employee informed him that the latchkey program had received cash payments and that the deposit records failed to show that the cash had been deposited. Knapp explained that he believed he had a duty to report the discrepancy to the State Auditor's Office. Knapp contacted the auditor and the office advised that it would perform the investigation. Knapp stated that after the auditor's initial review, appellant was placed on administrative leave with pay.
(¶ 5} Knapp explained that after the auditor completed the investigation, the auditor's office prepared a report for the prosecuting attorney and recommended that the prosecuting attorney investigate whether to file criminal charges.
(¶ 6} Knapp stated that he never made "any statements concerning [appellant] other than statements necessary for [him] to fulfill [his] duties concerning the employment investigation and disciplinary procedure."
(¶ 7} Knapp further relayed the outcome of the disciplinary proceeding and stated that the hearing officer determined that appellant misappropriated funds and recommended that she be terminated. Knapp attached to his affidavit the auditor's report and the hearing officer's report.
(¶ 8} In his affidavit, Treasurer Grice testified similarly to Knapp. He stated that after he learned about the discrepancy between the cash receipts and deposits, he consulted with Knapp and decided to contact the auditor's office. Grice averred that he believed he had a duty to contact the auditor's office once he learned of the discrepancy.
(¶ 9} In her opposition memorandum, appellant argued that the court should strike Knapp's and Grice's affidavits and the accompanying documents because the affidavits contained hearsay and that the documents are not proper summary judgment evidence. Appellant further contended that genuine issues of material fact remain for trial regarding: (1) who was responsible for the funds on a daily basis; (2) whether individual defendants were aware of each employee's responsibilities; (3) whether appellees acted in bad faith or in reckless disregard for appellant's rights and/or for the truth as to the missing money; and (4) whether appellant "was a scapegoat to protect [appellees] from negative public scrutiny and whether they knew or should have known that the accusations made against plaintiff were false."
(¶ 10} On July 5, 2011, the trial court partially granted and partially denied appellees' summary judgment motion. The court first noted that it would not consider certain documents appellees attached to their summary judgment motion: the auditor's report; a letter from Grice to the auditor; or the Unemployment Compensation Review Commission's decision. The court found that the documents fall outside the type of evidence described in Civ.R. 56(C).
(¶ 11} The court also concluded that because R.C. 2744.09(B) applied to appellant's claims against the school district, the district is not immune from liability under R.C. Chapter 2744. The court determined that although R.C. 2744.09(B) removes the school district's immunity, it does not remove Knapp's and Grice's individual immunity. The court thus determined that Grice and Knapp, individually, are entitled to statutory immunity. The court, however, did not examine whether 2744.03(A)(6) imposes liability upon Grice and Knapp in their individual capacities.
(¶ 12} The trial court then examined whether any genuine issues of material fact remained regarding the merits of appellant's claims. The court determined that no genuine issues of material fact remained regarding appellant's intentional infliction of emotional and physical distress claim because reasonable minds could only conclude that appellees did not engage in extreme and outrageous conduct so as to support appellant's intentional infliction of emotional and physical distress claim.
(¶ 13} The trial court also concluded that genuine issues of material fact remained regarding appellant's slander/defamation claim. The court determined that Grice's and Knapp's statements to the auditor and to the prosecutor were conditionally privileged. The court further found, however, that genuine issues of material fact remained as to whether Grice and Knapp acted with sufficient malice to defeat the privilege.
(¶ 14} The court additionally concluded that no genuine issues of material fact remained with the claim regarding appellant's interference with contractual relations. The court found that appellant did not have a valid cause of action against her former employer and its employees for the tort of interference with contractual relations.
(¶ 15} The court thus (1) entered summary judgment in favor of Grice and Knapp in their individual capacities regarding all claims, (2) entered summary judgment in favor of Grice, Knapp, and the school district regarding appellant's intentional infliction of emotional and physical distress and interference with contractual relations claims, and (3) denied appellees summary judgment regarding appellant's slander/defamation claim.
(¶ 16} On August 26, 2011, appellant dismissed "her remaining claims * * * without prejudice." She then appealed. We, however, dismissed that appeal for lack of a final appealable order. Jones v. Wheelersburg Loc. Sch. Dist, 4th Dist. No. 11CA3449, 2012-Ohio-3896.
(¶ 17} On September 4, 2012, the trial court entered an "amended" summary judgment and found "no just cause for delay." This appeal followed.
(¶ 18} Because we find appellant's third assignment of error dispositive of this appeal, we address it first.
(¶ 19} In her third assignment of error, appellant asserts that the trial court erred by entering summary judgment in appellees' favor. In particular, she contends that genuine issues of material fact remain regarding each of her claims for relief malicious prosecution; intentional infliction of emotional distress; and interference with contractual relations.
(¶ 20} Appellant claims that genuine issues of material fact remain regarding her malicious prosecution claim because appellees maliciously initiated or procured a criminal prosecution without probable cause. She asserts that factual issues remain as to the extent of appellees' involvement in attempting to prosecute and convict appellant.
(¶ 21} Appellant further asserts that genuine issues of material fact remain regarding her intentional infliction of emotional distress claim. Appellant argues that appellees did not present any evidence to refute the evidence that she presented showing that she suffered health issues and emotional distress as a result of appellees' actions.
(¶ 22} Appellant additionally contends that genuine issues of material fact remain regarding her interference with contractual relations claim because (1) appellees are not immune from liability, and (2) "the malice which may be imputed them based upon the facts of the case, relevant caselaw and the Trial Court's opinion as to slander and defamation, requires a finding that they may be liable to Appellant Jones for their malicious actions."
(¶ 23} Appellant also argues that the following disputed facts constitute genuine issues of material fact that preclude summary judgment: (1) "who was responsible on a daily basis for the funds at issue"; (2) "whether each Defendant-Appellee was aware of responsibilities of each of their employees"; (3) whether the Appellees acted in bad faith or in reckless disregard for [appellant's] rights and/or for the truth as to the 'missing monies'"; (4) "whether [appellant] was a scapegoat to protect them from negative public scrutiny"; and (5) "whether they ...