[Cite as Schmitt v. Educational Serv. Ctr. of Cuyahoga Cty., 2012-Ohio-2210.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97623



                            SUSAN BOUTON SCHMITT
                                                            PLAINTIFF-APPELLEE

                                                      vs.

                    EDUCATIONAL SERVICE CENTER
                     OF CUYAHOGA COUNTY, ET AL.
                                                            DEFENDANTS-APPELLANTS



                              JUDGMENT:
                  AFFIRMED IN PART; REVERSED IN PART
                            AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-748667

        BEFORE: Keough, J., Jones, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: May 17, 2012
ATTORNEYS FOR APPELLANTS

For Educational Service Center of Cuyahoga County

David Kane Smith
Krista K. Keim
Andrea E.M. Stone
Britton, Smith, Peters & Kalail Co., L.P.A.
3 Summit Park Drive
Suite 400
Cleveland, OH 44131-2582

For Berea City School District

John D. Pinzone
James A. Climer
Frank H. Scialdone
John T. McLandrich
Mazanec, Raskin & Ryder Co., L.P.A.
100 Franklin’s Row
34305 Solon Road
Solon, OH 44139

Susan McGown
McGown & Markling Co., LPA
1894 North Cleveland-Massillon Road
Akron, OH 44333


ATTORNEY FOR APPELLEE

Robert A. Pecchio
2305 E. Aurora Road
Suite A-1
Twinsburg, OH 44087-1940
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Educational Service Center of Cuyahoga County

(“ESC”), appeals from the trial court’s judgment denying its Civ.R. 12(C) motion for

judgment on the pleadings. For the reasons that follow, we affirm in part, reverse in

part, and remand.

                              I. Facts and Procedural History

       {¶2} Plaintiff-appellee, Susan Bouton Schmitt, filed a complaint against Berea

City School District (“BCS”) and ESC in which she alleged that she was hired by BCS and

ESC in February 2002 as a school psychologist for BCS. She further alleged that as

reflected in her yearly evaluations, she performed her job duties satisfactorily until she was

forced to resign her employment on March 4, 2009, after a meeting with her supervisors

from BCS and ESC. She alleged that as a result of the termination, she became depressed

and was incapacitated for some time, and eventually was forced to relocate to Colorado to

find comparable employment.        Schmitt’s complaint asserted claims for (1) wrongful

termination in violation of Ohio’s public policy favoring due process and fair dealing in

employment relations, (2) breach of an implied contract of employment, (3) promissory

estoppel, and (4) negligent and intentional infliction of emotional distress.

       {¶3}    In its answer to the complaint, ESC admitted that it hired Schmitt in 2002 as

a psychologist under a one-year contract and assigned her to work at BCS. ESC further

admitted that Schmitt was assigned to work at BCS until her resignation on March 9, 2009.

 In its answer, BCS admitted that Schmitt was an employee of ESC and provided services
to BCS. Neither BCS nor ESC made any other reference in their answers to Schmitt’s

employment status, i.e., whether she was an at-will or contract employee after her one-year

contract expired in 2003. Both BCS and ESC asserted, among other affirmative defenses,

that they were political subdivisions entitled to statutory immunity.

       {¶4} BCS and ESC each subsequently filed a Civ.R. 12(C) motion for judgment

on the pleadings. In its motion, ESC argued that Schmitt’s breach of implied contract and

promissory estoppel claims failed as a matter of law because neither claim is viable against

a political subdivision.      ESC further argued that as a political subdivision, it was

statutorily immune from liability as to Schmitt’s negligent and intentional infliction of

emotional distress claims puruant to R.C. Chapter 2744. Finally, ESC argued that

Schmitt’s wrongful termination in violation of public policy claim failed because the

public policy exception to the employment-at-will doctrine applies only to at-will

employees, and Schmitt was a contract employee. As evidence to support its argument,

ESC attached to its motion a copy of “Administrative Recommendations Resolution

12-08,” which showed that Schmitt was contracted by ESC as a psychologist for BCS for

the period August 15, 2008 through August 14, 2009.1

       {¶5} In her brief in opposition to ESC’s motion, Schmitt asserted that the court

could not consider the evidence attached to ESC’s motion because a determination on a

Civ.R. 12(C) motion is restricted to the allegations in the pleadings and any writings


       Similarly, BCS attached to its motion for judgment on the pleadings a copy of a contract dated
       1


March 31, 2008, executed by Schmitt and ESC, in which ESC agreed to hire Schmitt as a psychologist
for BCS for the one-year period August 15, 2008 through August 14, 2009.
attached to the pleadings. Schmitt argued further that ESC’s motion should be denied

because (1) ESC was not a political subdivision, and even if it were, a breach of implied

contract claim can be maintained against a political subdivision; (2) issues of fact

remained for determination regarding the promissory estoppel claim and the extent of

ESC’s immunity regarding the negligent and intentional infliction of emotional distress

claims; and (3) the complaint alleged sufficient facts demonstrating that Schmitt was an

at-will employee who was terminated from her employment and, therefore, the wrongful

termination claim survived.

       {¶6} The trial court subsequently denied both BCS’s and ESC’s motions. The

court denied BCS’s motion without explanation; it denied ESC’s motion because ESC had

attached matters outside the pleadings. Although it denied the motions, in its judgment

entry, the court granted BCS and ESC leave to file a motion for summary judgment.

Instead of filing a motion for summary judgment, ESC filed a notice of appeal.2

                                 II. Final, Appealable Order

       {¶7} As an initial matter, we reject Schmitt’s argument that this appeal does not

involve a final, appealable order because the trial court made no determination regarding

immunity when it denied BCS and ESC’s motions for judgment on the pleadings. This

court recently held in DiGiorgio v. Cleveland, 8th Dist. No. 95945, 2011-Ohio-5824, that

trial court orders denying motions for judgment on the pleadings or motions to dismiss


        BCS also appealed. See Schmitt v. Educational Serv. Ctr. of Cuyahoga Cty.,   8th Dist. No.
       2


97605, 2012-Ohio-____.
where a political subdivision has asserted immunity are final, appealable orders, even

where the trial court does not explain the basis for its decision on the immunity issue. Id.

at ¶ 15, citing Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878.

Accordingly, we have jurisdiction to consider BCS’s appeal of the denial of its motion for

judgment on the pleadings.

                                       III. Analysis

       {¶8} In its single assignment of error, ESC argues that it is a political subdivison

entitled to statutory immunity under R.C. Chapter 2744 as to Schmitt’s intentional

infliction of emotional distress claim and, therefore, the trial court erred in denying its

motion for judgment on the pleadings with respect to this claim. We note that in its

motion for judgment on the pleadings, ESC asserted that all of Schmitt’s claims failed as a

matter of law. Because our review of a trial court’s determination regarding a motion for

judgment on the pleadings is de novo, State ex rel. Midwest Pride IV, Inc. v. Pontious, 75

Ohio St.3d 565, 569, 664 N.E.2d 931 (1996), we consider whether the trial court properly

denied ESC’s motion with respect to all of Schmitt’s claims.

       {¶9} Civ.R. 12(C) states that “[a]fter the pleadings are closed but within such time

as not to delay the trial, any party may move for judgment on the pleadings.”

Determination of a motion for judgment on the pleadings is restricted solely to the

allegations in the complaint and answer, as well as any material attached as exhibits to

those pleadings. Id.; State ex rel. Montgomery v. Purchase Plus Buyer’s Group, Inc.,

10th Dist. No. 01AP-1073, 2002-Ohio-2014. A court must construe as true all of the
material allegations in the complaint, with all reasonable inferences to be drawn therefrom,

in favor of the nonmoving party. Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d

574, 581, 752 N.E.2d 267 (2001). Dismissal of a complaint is appropriate where a court

finds beyond doubt that the plaintiff could prove no set of facts in support of his claim that

would entitle him to relief. Pontious at 570.

       {¶10} Despite Schmitt’s assertion otherwise, in this case and on these facts, ESC is

a political subdivision.   As stated in the syllabus to 2001 Ohio Atty.Gen.Ops. No.

2001-043, 2001 WL 1654716, “[s]chool district and educational service centers are

political subdivisons as defined in R.C. 2744.01(F).” Further, Ohio courts have viewed

educational service centers as political subdivisions of the state in the context of R.C.

Chapter 2744 immunity. See, e.g., Quinn v. Montgomery Cty. Educ. Serv. Ctr., 2d Dist.

No. Civ.A. 20596, 2005-Ohio-808; Tracy v. Tinnerman, 2d Dist. No. 2003-CA-21,

2003-Ohio-6675.

       {¶11} Determining whether a governmental entity is immune from tort liability

involves a three-step analysis. Elston v. Howland Local Schools, 113 Ohio St.3d 314,

2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First, R.C. 2744.02(A)(1) sets forth the general

blanket immunity applicable to political subdivisions.         It provides that a political

subdivision is generally not liable in a civil action for injury, death, or loss to person or

property incurred while performing governmental or proprietary functions. To overcome

this statutory immunity, a plaintiff must show that one of the five exceptions contained in

R.C. 2744.02(B) applies. These exceptions are (1) negligent operation of a motor vehicle;
(2) negligent conduct of employees while carrying out a proprietary function; (3) a

municipality’s failure to keep roads and sidewalks free from nuisance; (4) injury or loss

that occurs on or within buildings used for governmental functions and is caused by the

negligence of the municipality’s employees; and (5) any other situation in which liability is

expressly imposed by the Revised Code.

       {¶12} If a plaintiff demonstrates that one of the five enumerated exceptions to

governmental immunity applies, a political subdivision may then assert one of the defenses

set forth in R.C. 2744.03(A) to revive its immunity.

       {¶13} As applicable to this case, however, R.C. 2744.09(B) provides that R.C.

Chapter 2744 does not apply to “[c]ivil actions by an employee * * * against his political

subdivision relative to any matter that arises out of the employment relationship between

the employee and the political subdivision.” The Ohio Supreme Court recently analyzed

this exception to political-subdivision immunity from tort liability and held that it “applies

in a civil action for damages filed by an employee who alleges that his

political-subdivision employer committed an intentional tort against him and engaged in

negligent conduct.”     Sampson v. Cuyahoga Metro. Hous. Auth., Slip Opinion No.

2012-Ohio-570, ¶ 1.      The Court held that an employee’s action against his or her

political-subdivision employer “arises out of the employment relationship between the

employee and the political subdivision” within the meaning of R.C. 2744.09(B) if there is

a “causal connection or a causal relationship” between the claims raised by the employee

and the employment relationship. Id. at ¶ 17.
       {¶14} Here, because all of Schmitt’s claims stem from the termination of her

employment, it is apparent there is a causal connection between her claims and her

employment relationship with BCS and ESC. Thus, pursuant to R.C. 2744.09(B), ESC is

barred from asserting immunity.      Accordingly, the trial court properly denied ESC’s

motion as to Count 4, negligent and intentional infliction of emotional distress.

       {¶15} The court also properly denied ESC’s motion regarding Count 1, wrongful

termination in violation of public policy.      In its motion, ESC argued that Schmitt’s

wrongful termination claim failed because, as demonstrated by the evidence attached to its

motion, Schmitt was a contract rather than at-will employee.3 This court has repeatedly

held, however, that a determination on a Civ.R. 12(C) motion is limited “solely to the

allegations in the pleadings and any writing attached to those pleadings.” Ferchill v.

Beach Cliff Bd. of Trustees, 162 Ohio App.3d 144, 2005-Ohio-3475, 832 N.E.2d 1238, ¶ 6

(8th Dist.), citing Thomas v. Byrd-Bennett, 8th Dist. No. 79930, 2001 WL 1557516 (Dec.

6, 2001). See also C & K Ind. Serv., Inc. v. McIntyre, Kahn & Kruse Co., L.P.A., 8th Dist.

No. 92233, 2009-Ohio-2373, ¶ 12 (trial court erred in granting Civ.R. 12(C) motion for

judgment on the pleadings where court’s ruling was based on evidence attached to the

motion.       “Such evidence cannot be considered on a motion for judgment on the

pleadings.”) Accordingly, the trial court could not consider the Administrative Resolution

regarding Schmitt’s contract with ESC when ruling on ESC’s motion.


         The public policy exception to the employment-at-will doctrine applies only to at-will
          3


employees. See Haynes v. Zoological Soc. of Cincinnati, 73 Ohio St.3d 254, 652 N.E.2d 948
(1995), syllabus.
      {¶16} Schmitt’s complaint alleged that she was hired in 2002 and continued her

employment with BCS and ESC until her termination, an allegation that could reasonably

be construed to mean that her employment was at-will. Neither BCS nor ESC’s answers

established that Schmitt was a contract employee. Although ESC answered that Schmitt

was hired in 2002 under a one-year contract, it made no reference anywhere else in its

answer to Schmitt’s employment status in subsequent years. In its answer, BCS admitted

that Schmitt was an employee of ESC but made no reference to whether Schmitt was a

contract or at-will employee.    Most importantly, neither BCS nor ESC attached any

documents establishing that Schmitt was a contract employee to their answers.

Accordingly, construing the allegations of the complaint as true and making all reasonable

inferences in favor of Schmitt, we find that the trial court properly denied ESC’s motion

for judgment on the pleadings as to Count 1.

      {¶17} Nevertheless, not all of Schmitt’s claims survive ESC’s motion for judgment

on the pleadings. In Count 2, Schmitt alleged that ESC breached an implied contract of

employment with her that imposed a duty of good faith and fair dealing. But in Ohio,

political subdivisions cannot be bound by contract unless the agreement is in writing and

formally ratified through proper channels. As a result, political subdivisions cannot be

made liable upon theories of implied or quasi contract. Franks v. Bolivar, N.D.Ohio No.

5:11CV701, 2011 WL 5838209 (Nov. 18, 2011), citing Wright v. Dayton, 158 Ohio

App.3d 152, 2004-Ohio-3770, 814 N.E.2d 514 (2d Dist.); see also Cleveland Hts. v.

Cleveland, 8th Dist. No. 79167, 2001 WL 1400015 (Nov. 8, 2001), citing Eastlake v.
Davis, 94 Ohio App. 71, 74, 114 N.E.2d 627 (7th Dist.1952); Wellston v. Morgan, 65 Ohio

St. 219, 228, 62 N.E. 127 (1901); Cuyahoga Cty. Hosp. v. Cleveland, 15 Ohio App.3d

70, 72, 472 N.E.2d 757 (8th Dist.1984).        Accordingly, Schmitt’s breach of implied

contract claim should have been dismissed.

       {¶18} The trial court should have also dismissed Schmitt’s promissory estoppel

claim in Count 3 of her complaint. In Hortman v. Miamisburg, 110 Ohio St.3d 194, 199,

2006-Ohio-4251, 852 N.E.2d 716, the Ohio Supreme Court unequivocally held that “the

doctrines of equitable estoppel and promissory estoppel are inapplicable against a political

subdivision when the political subdivision is engaged in a governmental function.” The

provision of public education is a governmental function. Doe v. Marlington Local

School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 11. In

addition, the act of hiring personnel to staff public schools has been held to be a

governmental function because “[t]his activity is so fundamental to the provision of a

system of public education that it cannot be considered apart from the governmental

function of ‘providing a system of public education.’” Bucy v. Carlisle, 1st Dist. No.

C-090252, 2010-Ohio-2262, ¶ 16; see also Senu-Oke v. Bd. of Edn. of Dayton City School

Dist., 2d Dist. No. 20967, 2005-Ohio-5239, ¶ 12. Accordingly, Schmitt’s promissory

estoppel claim is barred as a matter of law.

       {¶19} ESC’s assignment of error is overruled in part and sustained in part. The

trial court’s denial of ESC’s motion for judgment on the pleadings regarding Schmitt’s

wrongful termination and negligent and intentional infliction of emotional distress claims
is affirmed; the court’s denial of ESC’s motion with respect to Schmitt’s breach of implied

contract and promissory estoppel claims is reversed. The matter is remanded for further

proceedings consistent with this opinion.

      {¶20} Affirmed in part; reversed in part and remanded.

      It is ordered that the parties share equally the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
