[Cite as Lawson v. Mahoning Cty. Mental Health Bd., 2010-Ohio-6389.]




                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


ELAINE LAWSON, ADMINISTRATRIX )
OF THE ESTATE OF              )
STEPHEN LAWSON,               )
                              )                          CASE NO.      10 MA 23
     PLAINTIFF-APPELLANT,     )
                              )
     - VS -                   )                          OPINION
                              )
MAHONING COUNTY MENTAL        )
HEALTH BOARD, et al.,         )
                              )
     DEFENDANTS-APPELLEES.    )


CHARACTER OF PROCEEDINGS:                            Civil Appeal from Common Pleas Court,
                                                     Case No. 08CV973.

JUDGMENT:                                            Affirmed.

APPEARANCES:
For Plaintiffs-Appellants:                           Attorney Ronald Yarwood
                                                     Attorney James Gentile
                                                     42 North Phelps Street
                                                     Youngstown, Ohio 44503

For DefendantsAppellees:                             Attorney Paul Gains
                                                     Prosecuting Attorney
                                                     Attorney Gina DeGenova Bricker
                                                     Assistant Prosecuting Attorney
                                                     21 West Boardman Street, 5th Floor
                                                     Youngstown, Ohio 44503

JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

                                                     Dated: December 22, 2010
VUKOVICH, P.J.

        ¶{1}      Plaintiff-appellant Elaine Lawson, Administratrix of the Estate of Stephen
Lawson (the estate) appeals the decision of the Mahoning County Common Pleas
Court granting defendant-appellee Mahoning County Mental Health Board’s (MCMHB)
Motion to Dismiss for failure to state a claim pursuant to Civ.R. 12(B)(6). Three issues
are raised in this appeal.
        ¶{2}      The first issue concerns the statutory claims under R.C. Chapter 5123
that were raised against MCMHB. The trial court found that R.C. Chapter 5123 did not
apply to MCMHB, and accordingly, dismissed the complaint. The estate contends that
that holding is incorrect. MCMHB counters asserting that the trial court’s decision was
correct because R.C. Chapter 5123 applies to the Department of Mental Retardation
and Developmental Disability, not to Mental Health Boards.             Thus, according to
MCMHB, it could not be sued for violating R.C. 5123.62 and R.C. 5123.64.
        ¶{3}      We do not need to reach a determination on whether R.C. Chapter 5123
applies to MCMHB because regardless of our determination the result is the same. If
it does apply, nothing in that Chapter strips MCMHB’s general grant of immunity, and
thus, dismissal was warranted. Likewise, if it does not apply, then MCMHB cannot be
sued for violations of that chapter and dismissal was appropriate.
        ¶{4}      The second issue concerns the common law claims asserted against
MCMHB. In the reply brief to the motion in opposition to the MCMHB’s motion to
dismiss, MCMHB raised for the first time that the common law claims were barred by
the doctrine of sovereign immunity in R.C. 2744.02. While the magistrate found that
such arguments were outside the scope of review because they were raised for the
first time in the reply, the trial court determined that the immunity argument could be
considered. The trial court then considered the argument and found MCMHB immune
from liability.
        ¶{5}      The estate contends that the trial court’s consideration of the immunity
argument was incorrect. It maintains that the common law claims were asserted in the
complaint, MCMHB was on notice of those claims and could have argued for their
dismissal in the motion to dismiss. It then asserts that arguments raised for the first
time in a reply brief cannot be considered.
       ¶{6}   MCMHB counters the above by arguing that the complaint did not appear
to raise strict common law negligence claims against it. It asserts that the estate
raised the issue of strict common law negligence for the first time in the Motion in
Opposition to the Motion to Dismiss. Thus, it contends that it was permitted to rebut
that claim. While the complaint clearly did raise common law claims against MCMHB,
we find that the trial court did not commit error when it considered the immunity
argument.
       ¶{7}   The estate’s final argument is that the trial court erred in issuing a ruling
on whether the doctrine of sovereign immunity applied to the common law claims
asserted against MCMHB. The estate contends that the trial court could not issue an
opinion on sovereign immunity because the magistrate never issued a decision on that
defense. It is the estate’s position that once the trial court determined that the issue of
immunity should have been addressed, that issue should have been sent to the
magistrate to determine whether immunity applied. According to the estate, only after
the magistrate rendered a decision on the applicability of immunity could the trial court
address the immunity issue.
       ¶{8}   MCMHB counters by arguing it was within the trial court’s scope to
address the applicability of sovereign immunity to the common law claims. It then
provides an analysis of why the trial court’s determination that MCMHB is immune
under R.C. Chapter 2744 is correct.
       ¶{9}   We disagree with the estate. The trial court was permitted to issue a
ruling on the applicability of the doctrine of sovereign immunity even though the
magistrate never decided the issue. The trial court is not required to return the matter
to the magistrate to decide an issue that the magistrate has not rendered a decision
on.   Furthermore, although the estate does not address whether the trial court’s
immunity finding was correct, as stated above, a review of the immunity statutes
indicates that MCMHB is immune from liability.
       ¶{10} Consequently, there is no merit with any of the estate’s arguments. The
trial court’s decision to grant of the motion to dismiss is hereby affirmed.
                              STATEMENT OF CASE
       ¶{11} On March 11, 2007, Stephen Lawson, the deceased, was residing in a
group home at 135 Illinois Avenue in Youngstown, Ohio. Also residing at that group
home was James DiCioccio. On that date, DiCioccio choked Stephen and Stephen
died as a result.
       ¶{12} Thereafter, Elaine Lawson filed a wrongful death action on behalf of
Stephen’s estate against MCMHB, as well as others not involved in this appeal. The
estate asserted in the complaint that the deceased was “disabled, mentally retarded
and an incapacitated adult.” It alleged that MCMHB owed a common law and statutory
duty to the deceased to provide for his health, safety and welfare and to protect him
from harm pursuant to R.C 5123.61. Furthermore, the estate asserted that MCMHB is
responsible for the building at 135 Illinois Avenue and for preventing any potentially
dangerous persons to remain on the property. According to the estate, MCMHB knew
or should have known of the documented attacks and DiCioccio’s criminal history.
Lastly, the estate alleged that all defendants, including MCMHB, provided services to
the residents under R.C. 5123.62, that they were negligent in breaching the duty under
R.C. 5123.62 and thus, were the direct and proximate cause of death.         03/25/08
Amended Complaint.
       ¶{13} In response to the complaint, MCMHB filed a Motion to Dismiss, claiming
that R.C. 5123.62 and R.C. 5123.64 applied to the Department of Mental Retardation
and Development Disabilities (MRDD), not to MCMHB.         The estate replied to the
motion asserting that it should not be granted because MCMHB failed to address the
common law claims. It also disputed MCMHB’s argument that R.C. Chapter 5123 did
not apply to MCMHB. MCMHB responded asserting that the common law claims are
barred by immunity under R.C. Chapter 2744.
       ¶{14} Following a hearing the magistrate determined that the motion to dismiss
should be denied. 07/10/09 Decision. It stated that immunity was raised for the first
time in the response and thus, was outside the scope of its review and would not be
considered. It then found that MCMHB failed to establish that R.C. Chapter 5123 does
not apply to it. 07/10/09 Decision. MCMHB filed objections to that decision claiming
once again that R.C. Chapter 5123 applies to MRDD and not to it. It also stated that
the magistrate erred in refusing to consider immunity under R.C. 2744.02(B)(2) or R.C.
2744.02(B)(5). The estate filed a motion in opposition to objections. 10/06/09.
       ¶{15} After reviewing the objections and response to objections, the trial court
stated that R.C. Chapter 5123 does not apply to MCMHB and the magistrate should
have considered immunity. It then went on to state that none of the exceptions to
immunity applied to MCMHB. It then concluded that the “Motion to Dismiss should
have been granted” and sustained the objections. 10/20/09 J.E. The estate then filed
a motion to clarify that judgment because it did not contain Civ.R. 54(B) language and
it did not contain language that returned the matter to the magistrate for further
determination. 10/29/09 Motion.
       ¶{16} On January 19, 2010, the trial court clarified its decision. It restated all of
the findings it made in the October 20, 2009 judgment entry, concluded that “the
Motion to Dismiss should have been granted,” and sustained the objections. It then
added no just cause for delay language and that the order is a final appealable order.
01/19/10 J.E. The estate timely appeals from that decision.
                                STANDARD OF REVIEW
       ¶{17} In this appeal we are reviewing the trial court’s decision to grant
MCMHB’s Civ.R. 12(B)(6) Motion to Dismiss. When reviewing a judgment on a Civ.R.
12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted,
an appellate court's standard of review is de novo. Perrysburg Twp. v. Rossford, 103
Ohio St.3d 79, 2004-Ohio-4362, ¶5. A Civ.R. 12(B)(6) motion to dismiss for failure to
state a claim upon which relief can be granted is procedural and tests the sufficiency
of the complaint. State ex rel. v. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65
Ohio St.3d 545, 548. In order to dismiss a complaint for failure to state a claim upon
which relief can be granted, the court must find beyond doubt that appellant can prove
no set of facts warranting relief after it presumes all factual allegations in the complaint
are true, and construes all reasonable inferences in appellant's favor. State ex rel.
Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490. See, also, Percy Squire Co.,
L.L.C. v. City of Youngstown, 7th Dist No. 05MA33, 2005-Ohio-6442, ¶5 (reviewing the
decision of a trial court adopting the magistrate’s decision to dismiss the complaint).
With that standard in mind, we now turn to the assignments raised in this appeal.
                           FIRST ASSIGNMENT OF ERROR
       ¶{18} “THE TRIAL COURT ERRED IN REVERSING THE MAGISTRATE AND
HOLDING THAT ORC § 5123 DOES NOT IMPOSE LIABILITY ON THE MAHONING
COUNTY MENTAL HEALTH BOARD.”
       ¶{19} The issue the parties’ present under this assignment of error is whether
R.C. Chapter 5123 applies to the MCMHB. We, however, do not need to reach a
decision on that issue because assuming it does apply, MCMHB is immune from
liability under R.C. 2744.02.
       ¶{20} The general rule in R.C. 2744.02(A)(1) is that a political subdivision may
not be held liable in damages for injury or loss caused by an act or omission in
connection with a governmental or proprietary function. That rule applies to MCMHB.
See R.C. 2744.01(F); R.C. 340.01; R.C. 340.03(D). The general rule of immunity,
however, is subject to the five exceptions carved out in R.C. 2744.02(B). In these five
circumstances, a political subdivision will be responsible for its tortious conduct.
       ¶{21} In the complaint, the estate asserts that MCMHB violated R.C. 5123.62
and R.C. 5123.64 and as such is liable for Stephen’s death.              R.C. 5123.62 is
sometimes referred to as the Bill of Rights for Persons with Mental Retardation or a
Developmental Disability because it contains a non-inclusive list of rights persons with
mental retardation or developmental disabilities are entitled to. Estate of Ridley v.
Hamilton Cty. Bd. of Mental Retardation & Development, 102 Ohio St.3d 230, 2004-
Ohio-2629; Havely v. Franklin Cty., 10th Dist. No. 07AP-1077, 2008-Ohio-4889. R.C.
5123.64 is the statute that is used to enforce a violation of R.C. 5123.62.
       ¶{22} Given the estate’s claims that MCMHB is civilly liable because it violated
R.C. 5123.62 and R.C. 5123.64, the only possible exception to immunity under R.C.
2744.02(B) is subsection (5). This section states:
       ¶{23} “(5) In addition to the circumstances described in divisions (B)(1) to (4) of
this section, a political subdivision is liable for injury, death, or loss to person or
property when civil liability is expressly imposed upon the political subdivision
by a section of the Revised Code, including, but not limited to, sections 2743.02 and
5591.37 of the Revised Code.       Civil liability shall not be construed to exist under
another section of the Revised Code merely because that section imposes a
responsibility or mandatory duty upon a political subdivision, because that section
provides for a criminal penalty, because of a general authorization in that section that
a political subdivision may sue and be sued, or because that section uses the term
‘shall’ in a provision pertaining to a political subdivision.” (Emphasis added).
       ¶{24} In its final judgment, the trial court made the following statement:
       ¶{25} “The Court has reviewed §2744.02(A) which provides a blanket immunity
to political subdivisions for injuries that occur in the performance of a governmental or
proprietary function. Furthermore, the Court has reviewed the five exceptions to this
immunity listed in §2744.02(B). The Court finds that none of the exceptions apply to
this matter.”
       ¶{26} Likewise, as to MCMHB’s codefendant, City of Youngstown, the trial
court specifically found:
       ¶{27} “As a result, ORC §5123.62-64 does not expressly grant liability as
required by ORC §2744.02(B)(5) and as such does not apply.” 01/26/10 J.E.
       ¶{28} The trial court’s conclusion that R.C. 5123.62 and R.C. 5123.64 do not
strip the general grant of immunity is correct.
       ¶{29} R.C. 5123.64, the enforcement statute, states in pertinent part:
       ¶{30} “(B) Any person with mental retardation or a developmental disability
who believes that the person's rights as enumerated in section 5123.62 of the Revised
Code have been violated may:
       ¶{31} “* * *
       ¶{32} “(3) Take any other appropriate action to ensure compliance with
sections 5123.60 to 5123.64 of the Revised Code, including the filing of a legal action
to enforce rights or to recover damages for violation of rights.” R.C. 5123.64 (effective
version for cause of action).
       ¶{33} A sister district has found that that statute does not expressly impose
liability and, as such, R.C. 2744.02(B)(5) does not strip liability. Havely, 10th Dist. No.
07AP-1077, 2008-Ohio-4889, ¶54-55 (injured party was suing the Department of
Mental Retardation and Developmental Disability (MRDD)).1 In reaching that decision,
the Tenth Appellate District reviewed the Ohio Supreme Court’s decision in Cramer v.
Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, where the supreme court found
that R.C. 2744.02(B)(5) applies to strip the political subdivision of immunity because
the Ohio Nursing Home Patients’ Bill of Rights expressly imposed liability. Havely,
supra, ¶54. The Tenth Appellate District then compared the Nursing Home Patients’
Bill of Rights statute, R.C. 3721.71(I) and R.C. 5123.64. Id. at ¶55. R.C. 3721.17(I)
specifically states:
       ¶{34} “(I)(1)(a) Any resident whose rights under sections 3721.10 to 3721.17 of
the Revised Code are violated has a cause of action against any person or home
committing the violation.”
       ¶{35} Consequently, since that statute specifically authorizes a civil action
against the individual tortfeasor and the “home,” and R.C. 5123.64 contains no specific
authorization for the bringing of a suit against political subdivisions that operate
facilities for the mentally retarded, the Tenth Appellate District concluded that R.C.
2744.02(B)(5) prohibits construing liability to exist solely because a statute imposes a
responsibility or mandatory duty upon a political subdivision. Id.
       ¶{36} In coming to that determination, the Tenth Appellate District also
commented that the Ohio Supreme Court “has observed that no section of the Ohio
Revised Code expressly imposes liability upon a public agency for the failure to
perform the duties enumerated in R.C. 5123.62. Estate of Ridley v. Hamilton Cty. Bd.
of Mental Retardation and Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629.” Id.
       ¶{37} In Estate of Ridley, the estate conceded that no section of the Revised
Code expressly imposed liability for failure to perform the duties in R.C. 5123.62.
Instead it argued that the Enforcement Clause of the Fourteenth Amendment would
satisfy R.C. 2744.02(B)(5). 102 Ohio St.3d 230, 2004-Ohio-2629, ¶24. The Court
concluded that “none of these code sections-R.C. 5123.62, * * * -through the
Enforcement Clause of the Fourteenth Amendment expressly imposes liability within
the meaning of former R.C. 2744.02(B)(5).” Id. at ¶26.


       1
        The version of R.C. 5123.64(B) used to decide Havely is identical to the version of R.C.
5123.64(B) that is at issue in this case.
       ¶{38} The Supreme Court decision in Estate of Ridley is not directly on point as
to whether R.C. 5123.64 expressly imposes liability on a political subdivision.
However, our sister district’s reasoning in Havely concerning the Supreme Court’s
decision in Cramer and the comparison of R.C 5123.64 to R.C. 3721.17(I) is helpful.
Thus, we find the Tenth Appellate District’s decision that R.C. 5123.64 does not
expressly impose liability well reasoned and persuasive, and accordingly adopt it as
our own. Therefore, we hold that R.C. 5123.64 does not strip MCMHB’s general grant
of immunity under R.C. 2744.02 and thus, MCMHB is immune from any liability
brought under R.C. Chapter 5123.
       ¶{39} Consequently, sovereign immunity applies and, as such, regardless of
whether R.C. 5123 applies to MCMHB the trial court’s decision to dismiss the
complaint was appropriate. This assignment of error has no merit.
                         SECOND ASSIGNMENT OF ERROR
       ¶{40} “THE TRIAL COURT INCORRECTLY REVERSED THE MAGISTRATE
AND    ALLOWED        REBUTTAL      ARGUMENT        OF   APPELLEE       CONCERNING
STATUTORY IMMUNITY WHEN THE SAME WAS IMPERMISSABLY [SIC] RAISED
FOR THE FIRST TIME IN A REPLY BRIEF.”
       ¶{41} As aforementioned, in MCMHB’s motion to dismiss for failure to state a
claim it concentrated solely on the statutory claims asserted against it under R.C.
Chapter 5123, and did not address the common law claims. In response to the motion
to dismiss, the estate asserted that the common law claims could not be dismissed
since MCMHB did not provide a basis for their dismissal. MCMHB replied arguing that
the complaint did not raise common law claims, but alternatively argued that if it did -
those claims were barred by R.C. 2744.02, sovereign immunity.           The magistrate
determined that the complaint raised common law claims and since the issue of
immunity was raised for the first time in the reply brief, it was outside the scope of
review. The trial court disagreed with the magistrate and found that since the common
law claims were addressed in the brief in opposition to the motion to dismiss, MCMHB
was entitled to respond to the argument. It then considered the immunity argument
and found that it applied.
       ¶{42} Our starting point in determining whether the trial court committed any
error is whether the complaint raised a common law cause of action. MCMHB focuses
on the Ninth Claim for Relief to support its position that the complaint did not assert a
common law cause of action. This portion of the complaint reads:
       ¶{43} “48. All Defendants herein are providers of services to persons with
mental retardation or developmental disabilities and are therefore obligated to provide
those rights enumerated in Sections 5123.62 of the Ohio Revised Code.
       ¶{44} “49. All Defendants were negligent, breaching their duties of care as set
forth in Ohio Revised Code Section 5123.64, thus directly and proximately causing the
death of Stephen A. Lawson.” 03/25/08 Amended Complaint.
       ¶{45} MCMHB is correct that these paragraphs do not raise a common law
negligence cause of action. However, paragraphs 27 and 30, which are part of the
Fifth Claim for Relief, specifically state:
       ¶{46} “Defendant M.H.B. owed duties to Stephen A. Lawson, which included
both common law and statutory duties to provide for his health, safety and welfare
and to protect him from harm pursuant to but not limited by O.R.C. 5123.61.
       ¶{47} “* * *
       ¶{48} “Defendant M.H.B. knew, had reason to know, or should have known of
documented attacks and criminal offenses by Defendant DiCioccio prior to March 7,
2007, and failed to remove him, for his own protection and the protection of others,
including Plaintiff’s Decedent, Stephen A. Lawson.” 03/25/08 Amended Complaint.
(Emphasis Added).
       ¶{49} Since these paragraphs clearly assert a common law duty and a breach
of that duty, MCMHB’s assertion that the complaint did not raise common law
negligence is incorrect. However, that does not necessarily mean that this assignment
of error has merit. We must determine whether MCMHB could argue for the first time
in the reply to the motion in opposition to the motion to dismiss that the common law
claims were barred by the doctrine of sovereign immunity.
       ¶{50} Typically reply briefs are restricted to matters in rebuttal, not new
arguments. The problem with allowing a new argument to be asserted in a reply in
support of the original motion is that it does not give the party opposing the motion the
opportunity to respond. Buren v. Karrington Health, Inc., 10th Dist. No. 00AP-1414,
2002-Ohio-206 (stating for purposes of a summary judgment motion, the motion to
strike the reply that raised a claim that was not raised in the summary judgment motion
should have been granted because it left the opposing party without the ability to
respond to the new argument).
         ¶{51} That said, nothing prevented the estate from moving to strike the
argument or requesting the opportunity to file a surreply. One appellate court has
found in the context of summary judgment that if a reply raises new arguments and the
non-moving party fails to file a motion to strike, the non-moving party is precluded from
arguing on appeal that it was “ambushed” by the new argument. Internatl. Fid. Ins.
Co. v. TC Architects, Inc., 9th App. Dist. No. 23112, 2006-Ohio-4869, ¶11, citing
Collins v. Emro Marketing, Co. (May 11, 1999), 10th Dist. No. 98AP-1014 (stating that
Appellant's failure to file motion to strike Appellee's reply brief in trial court on grounds
that reply brief raised new arguments precluded appeal on the issue of “summary
judgment by ambush”).
         ¶{52} Here, there is no evidence that the estate moved to strike. There is no
written motion in the file. Furthermore, there is no transcript of the hearing on the
motion to dismiss that occurred before the magistrate. Thus, we do not know whether
the estate orally moved to strike the reply as it pertained to arguing common law
claims. It was the estate’s obligation to have a transcript of that hearing provided to
this court. App.R. 9. Without the transcript and no evidence that the estate moved to
strike the reply, we find that MCMHB waived the argument raised in this assignment of
error.
         ¶{53} This assignment of error lacks merit. However, even if it did have merit,
as the first and third assignments of error show, given the claims raised, MCMHB is
immune from statutory and common law liability and therefore, any error would be
harmless.
                           THIRD ASSIGNMENT OF ERROR
         ¶{54} “THE TRIAL COURT GRANTED APPELLEE A DISMISSAL THROUGH
AN OBJECTION HEARING ON AN ISSUE THAT WAS NOT RULED ON BY THE
MAGISTRATE AND THEREFORE WAS OUTSIDE OF THE SCOPE OF REVIEW
FOR THE TRIAL COURT.”
       ¶{55} Civ.R. 53(D)(4)(d) states that “If one or more objections to a magistrate’s
decision are timely filed, the court shall rule on those objections.” However, that does
not mean that the trial court’s review only extends to those objections. Other portions
of Civ.R. 53(D) clearly indicate that the trial court is permitted to review the entire
ruling and issue a ruling on the matters before it, even matters that the magistrate did
not decide. For instance, Civ.R. 53(D)(4)(b) provides:
       ¶{56} “Action on magistrate’s decision. Whether or not objections are timely
filed, a court may adopt or reject a magistrate’s decision in whole or in part, with or
without modification. A court may hear a previously-referred matter, take additional
evidence or return the matter to a magistrate.”
       ¶{57} This provision indicates that regardless of whether objections are filed,
the trial court has a wide range of options in addressing the magistrate’s decision.
Staff Notes to Civ.R. 53 (stating “Civ.R. 53(D)(4)(b) provides a court may properly
choose among a wide range of options in response to a magistrate’s decision, whether
or not timely objections are filed.”). Logically, Civ.R. 53(D)(4)(b) includes the situation
where the magistrate does not decide an issue because it determined the issue was
not properly raised and the trial court disagrees with that decision. In that situation, by
the language of this section, the trial court does not have to return the matter to the
magistrate (although it could); rather it can decide the matter itself.
       ¶{58} Consequently, we find the trial court had the authority to issue a ruling on
the application of immunity without first sending the matter to the magistrate to decide.
       ¶{59} Furthermore,     although    the   estate   makes     no     counter   argument
concerning MCMHB’s contention that all claims against it are barred by the doctrine of
sovereign immunity, we find that they are and thus, any possible error under this
assignment would amount to harmless error.             The only plausible exceptions to
immunity are R.C. 2744.02(B)(2) and (B)(5). As discussed above, subsection (B)(5)
does not strip the general grant of immunity.
       ¶{60} Subsection (B)(2) also does not strip the general grant of immunity. This
section provides:
       ¶{61} “(2) Except as otherwise provided in sections 3314.07 and 3746.24 of
the Revised Code, political subdivisions are liable for injury, 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.” R.C. 2744.02(B)(2).
       ¶{62} R.C. 2744.01 provides lists of specific functions that are considered
governmental and proprietary functions and contains general definitions for
governmental functions and proprietary functions.          R.C. 2744.01(C)(1) (general
definition of governmental function; R.C. 2744.01(C)(2) (list of governmental
functions); R.C. 2744.01(G)(1) (general definition of proprietary function); R.C.
2744.01(G)(2) (list of proprietary functions).       R.C. 2744.02(C)(1)(n) specifically
indicates that the operation of a health board is a governmental function. As MCMHB
states a review of claims against the MCMHB show that they are governmental
functions.   Thus, R.C. 2744.02(B)(2) does not strip MCMHB’s general grant of
immunity.
                                     CONCLUSION
       ¶{63} For the foregoing reasons, all assignments of error lack merit.          The
judgment of the trial court is hereby affirmed.

Waite, J., concurs.
DeGenaro, J., concurs.
