[Cite as Maddox v. E. Cleveland, 2012-Ohio-9.]




                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 96390


                           SARAH J. MADDOX, ET AL.

                                                       PLAINTIFFS-APPELLANTS

                                                 vs.

                  CITY OF EAST CLEVELAND, ET AL.
                                                       DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-658625

        BEFORE: Stewart, P.J., S. Gallagher, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                      January 5, 2012
ATTORNEY FOR APPELLANTS

Gregory J. Moore
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, OH 44114


ATTORNEYS FOR APPELLEES

Ronald K. Riley
Deborah Gooden Blade
City of East Cleveland Law Department
14340 Euclid Avenue
Cleveland, OH 44112




   MELODY J. STEWART, P.J.:

      {¶ 1} Plaintiff-appellant Sarah Maddox, individually, as the administratrix of the

estate of her deceased daughter, LaDora Anderson, and as the legal guardian of

Anderson’s surviving children, brought this negligence action against defendant-appellee

city of East Cleveland and the city of East Cleveland Police Department (“the city”),

alleging that the police department failed to protect Anderson and otherwise investigate

complaints she made about Jeffrey Sears, a man who shot and killed Anderson before

taking his own life. Maddox alleged that Anderson repeatedly reported to the police

threats that Sears made against Anderson, but that the police failed to prevent Anderson’s

subsequent murder. The city claimed in a motion for summary judgment that it was

immune from suit under the Political Subdivision Tort Liability Act. The court agreed
and granted summary judgment. Maddox appeals, arguing that the court should not have

granted summary judgment and that she was entitled to judgment as a sanction in light of

numerous discovery violations committed by the city.

                                             I

      {¶ 2} To the extent the material facts are in dispute, we set them forth most

favorably to Maddox, as required by Civ.R. 56(C).

      {¶ 3} Sears and Anderson had been in a relationship that apparently ended in

October 2003 with his arrest for domestic violence.           The charges stemmed from

threatening messages left on Anderson’s voicemail. Apparently frustrated by Anderson’s

refusal to allow him to see his children, Sears stated: “I am losing my patience. I’m tired

of this shit. Let me see my kids or I’m going to kill someone. *** I’ll kidnap them.”

In a second message, Sears stated: “I’ll kill everyone. You have until tomorrow or I’ll

kill someone. I’m coming for my kids.” Sears was later found guilty of misdemeanor

domestic violence and sentenced to 90 days in jail. He was released from jail on March

3, 2004.

      {¶ 4} On March 5, 2004, Anderson complained that her car had been shot at two

days earlier while parked at her house.          She told the police that she immediately

suspected Sears as the culprit — he had been calling her repeatedly since his release in

the futile hope of rekindling the relationship. There was no evidence, however, to show

that Anderson personally witnessed Sears shooting her car. Her police statement showed

that she had been standing in her kitchen when she heard the shots fired, so she did not
see the shooter in the act. Morever, a police report of the shooting quoted Anderson as

saying that she did not realize that her car had been shot until the following day because

she “was not that concerned due to hearing shots often in the area that she lives.”

Anderson’s police statement also related that Maddox learned from Sears that he was

carrying a gun following his release from jail and “he’s going to kill [Maddox].”

      {¶ 5} The police arrested Sears on March 9, 2004 and apparently charged him

with a violation of the probation ordered in the 2003 domestic violence conviction. The

East Cleveland Municipal Court conducted a hearing on the charge and determined the

“allegations not proven of probation violation.” The municipal court issued a no-contact

order and referred the matter to the probation department. Sears was released without

notice to Anderson. On March 14, 2004, Sears killed Anderson and committed suicide.

                                            II

      {¶ 6} We first address Maddox’s claim that the court erred by refusing to impose

sanctions on the city for its repeated violations of discovery orders. She maintains that

she needed to conduct depositions of “key witnesses” and obtain other evidence from the

city, but that the city continuously failed to comply with discovery requests, even though

the court had issued an order compelling the city to produce the requested discovery.

      {¶ 7} The court has broad discretion over the management of discovery and the

imposition of sanctions for a violation of a discovery order. State ex rel. Daggett v.

Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659, paragraph one of the syllabus. As

a reviewing court, we can only reverse orders made in the management of discovery for
an abuse of discretion. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254,

1996-Ohio-159, 662 N.E.2d 1, syllabus. Though the Rules of Civil Procedure give the

court significant leeway in dealing with discovery issues, the court should inquire into the

reason for the discovery violation before imposing a sanction. Lakewood v. Papadelis

(1987), 32 Ohio St.3d 1, 511 N.E.2d 1138, paragraph two of the syllabus. If the court

does choose to impose a sanction, it should impose the least severe sanction that is

consistent with the purposes of the discovery rules. Id.

       {¶ 8} This case was originally filed in March 2005.         The docket shows two

different orders indicating “discovery in progress.” Maddox voluntarily dismissed the

city without prejudice in March 2006. Maddox refiled the complaint against the city in

May 2008. The city sought summary judgment in October 2008. Somewhat curiously,

Maddox requested a 30-day extension of time in which to file a brief in opposition to the

motion for summary judgment and a 60-day extension of the discovery deadline. As the

deadline for responding to the motion for summary judgment loomed, Maddox sought

“clarification” of that deadline, explaining that she had actually intended to seek a 60-day

extension on the response time. The court construed this as a request for an additional

30-day extension of the response deadline and granted it. It set a new response deadline

of December 6, 2008 and also ordered that all remaining discovery was to be complete by

that same day. On December 8, 2008, Maddox sought an additional 60-day extension of

discovery.
      {¶ 9} On December 16, 2008, Maddox received leave to file an amended

complaint for the sole purpose of adding her as the administratrix of Anderson’s estate

(Maddox originally brought suit in her individual capacity). The city refiled its motion

for summary judgment and the court immediately granted it without giving Maddox a

chance to respond. Maddox appealed and we reversed summary judgment, finding that

the court should have given Maddox 30 days in which to respond to the refiled motion for

summary judgment. See Maddox v. E. Cleveland, 8th Dist. No. 92673, 2009-Ohio-6308.

      {¶ 10} On remand, the court established a new discovery deadline of March 31,

2010 and ordered dispositive motions to be filed by April 30, 2010. On March 31, 2010,

Maddox sought an extension of the discovery deadline solely for the purpose of taking

depositions of the city’s “representatives.” Maddox also sought sanctions from the city.

The court extended the discovery deadline to May 22, 2010 and denied sanctions. The

city filed its motion for summary judgment on May 17, 2010. Maddox again sought an

extension of the discovery deadline. The court granted another extension to July 30,

2010 and yet another extension, on Maddox’s motion, to October 1, 2010.

      {¶ 11} In September 2010, Maddox deposed certain city employees.               On

September 29, 2010, she asked for an extension of the discovery deadline. The court

denied the motion.    Despite being denied an extension of the discovery deadline,

Maddox continued to depose witnesses and on October 29, 2010, filed a brief in

opposition to the city’s motion for summary judgment. The court granted summary

judgment on January 10, 2011.
      {¶ 12} As the history shows, this case was on the court’s docket for several years

during which Maddox received many extensions of the discovery deadlines.          Even

though the case had been originally filed in 2005, Maddox did not specifically name the

seven persons whom she wished to depose until March 2010 (she had previously referred

only to city “representatives”), and she did not actually subpoena those seven witnesses

for deposition until September 2010. Two of those witnesses were retired police officers

whose current living addresses were no longer on file with the city. A third person was

an emergency medical technician who was no longer employed by the city.

      {¶ 13} Once notices of depositions were served, there were some issues setting the

depositions.   Two depositions had to be cancelled because the deponents were

unavailable after being sent on an emergency call and another cancelled because of a

family emergency that made the city’s attorney unavailable. But these short delays were

trifling when compared to the amount of time that elapsed from 2005 when Maddox first

filed her complaint and engaged in discovery. It is inconceivable that discovery could

not have been completed at some point during the years this case had been active.

Maddox’s current pleas that the city engaged in “gamesmanship” by refusing to provide

discovery are unavailing because she knew the names of all seven persons that she wished

to depose in 2005. Although we wish to promote mutual cooperation in completing

discovery without the court’s involvement, the court has no obligation to compel

discovery when a party has not yet subpoened witnesses for deposition. By waiting until

2010 to subpoena witnesses for depositions, Maddox lost all credibility in claiming that
the court abused its discretion by not finding that the city was solely responsible for

delays in discovery.

       {¶ 14} We thus find that the court did not abuse its discretion by refusing to extend

the discovery deadline. Maddox received an ample number of extensions in which to

complete discovery. We also see nothing in the record that would indicate that the city

proceeded in bad faith, so it follows that the court likewise did not err by refusing to

impose sanctions on the city.

                                            III

       {¶ 15} We next consider the substantive assignment of error, that the court erred by

granting the city summary judgment on grounds of political subdivision immunity.

       {¶ 16} Civ.R. 56(C) states that summary judgment may issue when there are no

genuine issues of material fact and reasonable minds could find that the moving party is

entitled to judgment as a matter of law. We address questions of sovereign immunity as

a matter of law, Conley v. Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133, 595 N.E.2d

862, so they are particularly apt for resolution by way of summary judgment pursuant to

Civ.R. 56.

       {¶ 17} R.C. Chapter 2744 establishes a three-tiered analysis for reviewing claims

of political-subdivision immunity. Colbert v. Cleveland, 99 Ohio St.3d 215,

2003-Ohio-3319, 790 N.E.2d 781, ¶7. For purposes of R.C. Chapter 2744, the functions

of political subdivisions are classified as either governmental functions or proprietary

functions. In the first tier of the analysis, we determine if the allegedly tortious act
stemmed from a governmental or proprietary function under R.C. 2744.02(A)(1) because

“a political subdivision is not liable in damages in a civil action for injury, death, or loss

to person or property allegedly caused by any act or omission of the political subdivision

or an employee of the political subdivision in connection with a governmental or

proprietary function.” Id. In the second tier, we consider whether any of the affirmative

defenses listed in R.C. 2744.03 exist to defeat immunity.          Id. at ¶8.    If there are

affirmative defenses available, the third tier requires us to determine whether any of the

defenses in R.C. 2744.03 provide the political subdivision a defense against liability. Id.

at ¶9.

         {¶ 18} The operation of a police department is a governmental function, see R.C.

2744.01(C)(2)(a), so the city is presumptively immune from suit.

         {¶ 19} In the second tier of the analysis, Maddox argues that R.C. 2744.02(B)(2)

and (5) apply. R.C. 2744.02(B)(2) provides a defense for “death, or loss to person or

property caused by the negligent performance of acts by their employees with respect to

proprietary functions of the political subdivisions.” As earlier noted, police protection

services are a governmental function and R.C. 2744.02(B)(2) applies only to proprietary

functions.

         {¶ 20} Citing to Bader v. Cleveland (Feb. 18, 1982), Cuyahoga App. No. 44118,

Maddox argues that the governmental function of police protection in this case morphed

into a proprietary function. In Bader, we held that the towing and impoundment of a

vehicle was a governmental function of the police department, but the subsequent holding
and storage of that vehicle at the police impound lot, after notice to the owners, could

become a proprietary function after police contact with the vehicle ended. Apart from

citing to Bader, Maddox offers no argument to show how the police involvement in this

case terminated in any respect that would convert the governmental function into a

proprietary function. At all events, Maddox claimed to have sought police protection in

a manner that was only consistent with the city’s governmental police function. There is

no evidence of any kind to show how a governmental function turned into a proprietary

one.

       {¶ 21} Maddox also argues that a common law exception to immunity applies by

virtue of the special relationship. In the earlier appeal of this action, we rejected a

similar argument made in support of her allegation that the county probation department

lacked immunity because of its special relationship to her: “Finally, insofar as plaintiffs

rely upon the ‘special duty rule’ to establish liability, ‘the special-relationship exception is

not codified in R.C. 2744.02(B), and it is therefore not an independent exception to a

political subdivision’s general immunity from liability.’” Maddox, at 34, quoting Rankin

v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392,

2008-Ohio-2567, 889 N.E.2d 521. That rationale applies with equal force in this appeal

to bar assertion of that special relationship exception to the police as well.

       {¶ 22} Lastly, Maddox argues that summary judgment was inappropriate because

the city failed to support its motion with any evidentiary materials. While the movant

has the initial burden of setting forth specific facts that demonstrate his or her entitlement
to summary judgment, Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662

N.E.2d 264, the facts set forth by the city were essentially an adoption of the allegations

of the complaint insofar as they related to the first and second tiers of the immunity

analysis. These facts plainly showed that the police were engaged in a governmental

function to which immunity applied, that there were no defenses to immunity so the city

was entitled to judgment as a matter of law.      To the extent that Maddox argued issues of

fact, those facts went to the third tier of the analysis to detail her opinion why the city’s

employees acted in a willful, wanton, and malicious way by failing to detain Sears in

order to protect Anderson. These arguments were rendered moot by Maddox’s failure to

establish the second tier of the analysis. We thus conclude as a matter of law that

Maddox failed to set forth facts that would overcome the city’s immunity from suit and

that the court did not err by granting summary judgment.

                                             IV

       {¶ 23} Finally, Maddox argues that the court erred by refusing her request to issue

findings of fact and conclusions of law. We summarily overrule this assignment of error

because Civ.R. 52 states that “[f]indings of fact and conclusions of law required by this

rule and by Rule 41(B)(2) are unnecessary upon all other motions including those

pursuant to Rule 12, Rule 55 and Rule 56.” See, also, Walker v. Karp (Mar. 19, 2002),

8th Dist. No. 80773; State ex rel. Hawley v. Corrigan, 8th Dist. No. 80055,

2001-Ohio-4155.

       Judgment affirmed.
      It is ordered that appellees recover of appellants their costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
