[Cite as Molnar v. Green, 2018-Ohio-1168.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

NICK MOLNAR                                           C.A. No.        28650

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CITY OF GREEN, et al.                                 COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellants                                    CASE No.   CV-2017-01-0427

                                DECISION AND JOURNAL ENTRY

Dated: March 30, 2018



        TEODOSIO, Judge.

        {¶1}    The City of Green, Gerard M. Neugebauer, and Diane A. Calta appeal the order of

the Summit County Court of Common Pleas denying their Civ.R.12(B)(6) motion to dismiss.

We reverse and remand.

                                                 I.

        {¶2}    This case arises out of negotiations between Mr. Nick Molnar and the City of

Green whereby the City is alleged to have agreed to rescind and destroy all copies of a letter

terminating his employment and accept his resignation. Subsequent to this agreement, a public

records request was made by WOIO Channel 19 (“WOIO”) and the City of Green eventually

produced the letter as a result of a public records litigation in the Ohio Court of Claims.

        {¶3}    Mr. Molnar initiated this case in January 2017, and filed an amended complaint in

February 2017 against the City of Green, Gerard M. Neugebauer (the mayor of Green), Diane A.

Calta (the law director of Green), and WOIO. The complaint stated claims for breach of
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contract, negligence, injunctive relief, libel, and a claim for punitive damages that alleged

grossly negligent, reckless, wanton, and willful conduct. The complaint further stated the claims

were being made against Mr. Neugebauer and Ms. Calta in both their individual and official

capacities. The claims against WOIO were voluntarily dismissed, and in March 2017, the

remaining defendants filed a Civ.R.12(B)(6) motion to dismiss for failure to state a claim,

arguing, in part, that they were immune from liability as a political subdivision and employees

thereof. On May 4, 2017, the trial court denied the motion to dismiss. The City of Green, Mr.

Neugebauer, and Ms. Calta now appeal, raising two assignments of error.

                                                II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED BY DENYING DEFENDANTS/APPELLANTS
       CITY OF GREEN, LAW DIRECTOR CALTA (OFFICIAL CAPACITY) AND
       MAYOR NEUGEBAUER (OFFICIAL CAPACITY) THE BENEFIT OF
       IMMUNITY UNDER REVISED CODE CHAPTER 2744.

                               ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED BY DENYING DEFENDANTS/APPELLANTS
       LAW DIRECTOR CALTA (PERSONAL CAPACITY) AND MAYOR
       NEUGEBAUER (PERSONAL CAPACITY) THE BENEFIT OF IMMUNITY
       UNDER REVISED CODE CHAPTER 2744.

       {¶4}    The City of Green, Mr. Neugebauer, and Ms. Calta argue the trial court erred by

denying dismissal on the basis of political subdivision immunity. As noted above, Mr. Molnar’s

amended complaint states multiple claims against the City of Green as well as Mr. Neugebauer

and Ms. Calta, both in their official capacities as mayor and law director, and in their individual

capacities. The trial court’s order denying the motion to dismiss reads as follows:

       This matter is before the court on the motion of the defendants to dismiss the
       plaintiff’s complaint and on the plaintiff’s response. Upon consideration of the
       arguments presented and in consideration of Civ.R.12(B)(6), the court finds that
       the motion to dismiss must be denied.
                                                 3



       {¶5}    “A motion to dismiss for failure to state a claim upon which relief can be granted

is procedural and tests the sufficiency of the complaint. In order for the trial court to dismiss a

complaint pursuant to Civ.R. 12(B)(6), the court must find beyond a doubt that the plaintiff can

prove no set of facts that would support his claim for relief.” McLeland v. Donofrio, 9th Dist.

Summit No. 22291, 2005-Ohio-1462, ¶ 4, citing State ex. rel. Hanson v. Guernsey Cty. Bd. of

Commrs., 65 Ohio St.3d 545, 548 (1992). A political subdivision may assert immunity by means

of a motion to dismiss filed pursuant to Civ.R. 12(B)(6), and this Court reviews the denial of

such a motion under the de novo standard.      Baab v. Medina City Schools Bd. of Edn., 9th Dist.

Medina No. 14CA0091-M, 2015-Ohio-5315, ¶ 5. We must be mindful that this Court’s function

is that of a reviewing court, even when our review is de novo.           Id.   “When there is no

determination before us to review, this Court cannot step into the role of the trial court and

determine a matter for the first time on appeal.” Id.

       {¶6}    The trial court’s denial of the motion to dismiss did not provide any articulation of

the analysis the court undertook as to the issue of political subdivision immunity.            This

deficiency is further complicated by the fact that this litigation involves multiple claims against

multiple defendants. As we stated in Baab, although we recognize that findings of fact and

conclusions of law are not required when a trial court rules on a Civ.R. 12(B)(6) motion, “in

cases such as this, which essentially require this Court to act in the place of the trial court to

determine the arguments on appeal, this Court may reverse the decision of the trial court and

remand so that the trial court can set forth an analysis that permits our review.” Id. at ¶ 6.

Without any explanation by the trial court as to the basis on which statutory immunity did not

apply to the parties, this court cannot adequately analyze the trial court’s order in a reviewing

capacity. See id. at ¶ 7.
                                                 4


       {¶7}      {¶3}   The City of Green, Mr. Neugebauer, and Ms. Calta’s assignments of error

are sustained.

                                                III.

       {¶8}      The City of Green, Mr. Neugebauer, and Ms. Calta’s assignments of error are

sustained. The May 4, 2017, order of the Summit County Court of Common Pleas is reversed

and remanded to the trial court for proceedings consistent with this opinion.

                                                                                  Judgment reversed
                                                                                and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT
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HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

FRANK H. SCIALDONE, Attorney at Law, for Appellants.

L. BRYAN CARR, Attorney at Law, for Appellee.
