[Cite as Trayer v. Estate of Klopfenstein, 2015-Ohio-5048.]




               IN THE COURT OF APPEALS OF OHIO
                   THIRD APPELLATE DISTRICT
                         ALLEN COUNTY
__________________________________________________________________

RANDY TRAYER,
                                                              CASE NO. 1-15-20
       PLAINTIFF-APPELLANT,

       v.

SUCCESSOR IN INTEREST
TO AND ESTATE OF RON                                          OPINION
KLOPFENSTEIN, ET AL.,

     DEFENDANTS-APPELLEES.
__________________________________________________________________

                   Appeal from Allen County Common Pleas Court
                            Trial Court No. 2014 CV 0621

                                      Judgment Reversed

                            Date of Decision: December 7, 2015



APPEARANCES:

        Michael T. Conway for Appellant

        Jared A. Wagner for Appellees, Successor in Interest to and Estate of
           Ron Klopfenstein, Jeremy Hollis, and the Village of Elida
Case No. 1-15-20


WILLAMOWSKI, J.

       {¶1} Plaintiff-appellant, Randy Trayer (“Trayer”), brings this appeal from

the judgment of the Common Pleas Court of Allen County, Ohio, dismissing his

complaint against defendants-appellees, Successor in Interest to and Estate of Ron

Klopfenstein (“Klopfenstein”), Jeremy Hollis (“Hollis”), and the Village of Elida

(collectively, “the Appellees”). For the reasons that follow, we reverse the trial

court’s judgment.

                             Procedural Background

       {¶2} On October 1, 2014, Trayer filed a complaint against the Appellees

and Mike Sebenoler (“Sebenoler”), a councilman for the Village of Elida. (R. at

1.) Count One alleged a tort of termination in violation of public policy against

the Village of Elida. Count two alleged a claim of interference with contract

against Klopfenstein, Hollis, and Sebenoler. (R. at 1.) The facts presented in the

complaint alleged that Klopfenstein, who was the mayor and chief law

enforcement officer of the Village of Elida, conspired with Hollis, chief of police

in the Village of Elida, and Sebenoler, a resident and councilman of the Village of

Elida, to terminate Trayer from his job as a patrol officer for the Village of Elida.

Trayer claimed that termination was in retaliation for his prior action of lawfully

ticketing Sebenoler, who was Klopfenstein’s friend. Because Klopfenstein had

passed away before the commencement of this action, the lawsuit proceeded




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against his estate. Trayer requested compensatory and punitive damages, as well

as attorney fees and costs.

       {¶3} Sebenoler filed an answer, denying the allegations in the complaint

and requesting dismissal. (R. at 6.) The Appellees filed a motion to dismiss

pursuant to Civ.R. 12(b)(6). (R. at 8.) Multiple grounds for dismissal were raised.

As relevant to this appeal, the Appellees argued that the mayor and chief of police

are immune from liability under R.C. 2744.03(A)(6) (providing immunity for

employees of political subdivisions for acts or omissions in connection with a

governmental or proprietary function), and the facts pled in the complaint were

insufficient to overcome that statutory immunity. As to the claim against the

Village of Elida, the Appellees asserted that Trayer set forth insufficient facts to

plead the elements of the tort of termination in violation of public policy for his

action of “enforcing the law.” (Id. at 15.) In particular, they argued that the

complaint failed to properly allege the “clear public policy” that was violated by

his termination because there exists no clear public policy in Ohio that prohibits a

municipality from terminating a police officer for enforcing the law. Indeed, they

alleged that such a policy would “violate the notion of separation of powers.” (Id.

at 21.) Trayer opposed the motion to dismiss.

       {¶4} After the parties filed additional memoranda in support of their

positions, the trial court granted the Appellees’ motion to dismiss. The trial court

determined that Klopfenstein and Hollis were entitled to statutory immunity. (R.

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at 19, at 5.) With respect to the claim against the Village of Elida, the trial court

agreed with the Appellees’ assertion that that “[t]he public policy of Ohio does not

prohibit a Village from terminating a police officer.” (Id. at 6.) It also agreed that

any restrictions on the mayor and police chief’s discretionary enforcement powers

“would result in a violation of the notion of separation of powers.” (Id. at 6.)

       {¶5} Trayer filed the instant appeal in which he alleges two assignments of

error, as quoted below.

                               Assignments of Error

       I.     THE TRIAL COURT ERRED TO THE PREJUDICE OF
              THE PLAINTIFF-APPELLANT BY GRANTING THE
              DEFENDANT-APPELLEE VILLAGE OF ELIDA’S
              CIVIL RULE 12 (B)(6) MOTION ON THE
              PLAINTIFF’S CAUSE OF ACTION FOR WRONGFUL
              TERMINATION IN VIOLATION OF OHIO PUBLIC
              POLICY UNDER THE THEORY THAT A COURT OF
              LAW CANNOT REVIEW THE EMPLOYMENT
              TERMINATION DECISIONS OF THE DEFENDANT’S
              OFFICERS THE MAYOR AND CHIEF OF POLICE
              BECAUSE OF THE SEPARATION OF POWERS
              DOCTRINE. (R. 1629)

       II.    THE TRIAL COURT COMMITTED PLAIN ERROR
              BY DISMISSING THE CASE SUB JUDICE GIVEN
              DEFENDANT MIKE SEBENOLER DID NOT MOVE
              THE COURT TO DISMISS THE CASE AGAINST HIM.

                                      Analysis

       {¶6} We first note that on appeal Trayer abandons his claims against

Klopfenstein and Hollis, expressly challenging dismissal of the Village of Elida

only. (See wording of the First Assignment of Error and App’t Br. at 5-6.)

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Case No. 1-15-20


Although Trayer states in his brief that he is “reserving all rights, in Count Two of

the Complaint seeking a remedy for contract interference” (App’t Br. at 6), we do

not accept such a procedure for reserving rights due to the “long-standing

precedent that any issue that could have been raised on direct appeal and was not

is res judicata and not subject to review in subsequent proceedings.” State v.

Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16 (2006); see

Evanich v. Bridge, 170 Ohio App.3d 653, 2007-Ohio-1349, 868 N.E.2d 747, ¶ 26

(9th Dist.) (applying the principle in a civil case).

        {¶7} In the second assignment of error, Trayer challenges the trial court’s

dismissal of Sebenoler, even though the trial court’s order did not dismiss

Sebenoler as a party in the case. While in the introduction to its decision, the trial

court stated that it “grants Defendants’ Motion to Dismiss” (R. at 19), the rest of

the document makes it clear that not all defendants have been dismissed from the

action. The trial court specifically stated that it dismissed the complaint against

“Successors in interest to Estate of Ron Klopfenstein, Jeremy Hollis, and the

Village of Elida.”     (Id. at 6.)   Therefore, the second assignment of error is

overruled as based on an incorrect premise that Sebenoler was dismissed from the

case.

        {¶8} As a result, the only issue on appeal is the trial court’s dismissal of

count one of the complaint, which alleged a tort of termination in violation of




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public policy against the Village of Elida.      This issue is raised in the first

assignment of error, which we analyze in detail below.

             First Assignment of Error—Sufficiency of the Complaint

       {¶9} The focus of this assignment of error is the appropriateness of the trial

court’s granting of the motion to dismiss on the basis that Trayer failed to state a

claim of termination in violation of public policy. An appellate court reviews de

novo the trial court’s decision to grant or deny a Civ.R. 12(B)(6) motion to dismiss

for failure to state a claim upon which relief can be granted.. Perrysburg Twp. v.

Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. In reviewing

the trial court’s decision on a motion to dismiss, we must accept all factual

allegations in the complaint as if they were true. Id. Additionally, we must

construe any reasonable inferences in favor of the party opposing the motion to

dismiss. Arnett v. Precision Strip, Inc., 2012-Ohio-2693, 972 N.E.2d 168, ¶ 9 (3d

Dist.). We will affirm the trial court’s order granting the 12(B)(6) motion to

dismiss if it appears “beyond doubt that the plaintiff can prove no set of facts in

support of the claim that would entitle the plaintiff to relief.” LeRoy v. Allen,

Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶ 14.

       {¶10} The tort of termination in violation of public policy, alleged by

Trayer, is an exception to the employment-at-will doctrine, which states that

discharge of an at-will employee does not give rise to an action for damages.

Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950

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Case No. 1-15-20


N.E.2d 938, ¶ 7-8 (2011). This exception applies “when an at-will employee is

discharged or disciplined for reasons that contravene clear public policy expressed

by the legislature in its statutes.” Id. at ¶ 8. In order to maintain a cause of action

for wrongful discharge in violation of public policy, a plaintiff must prove the

following:

       (1) a clear public policy exists and is manifested in a state or federal
       constitution, in statute or administrative regulation, or in the
       common law (the clarity element), (2) dismissing employees under
       circumstances like those involved in the plaintiff’s dismissal would
       jeopardize the public policy (the jeopardy element), (3) the
       plaintiff’s dismissal was motivated by conduct related to the public
       policy (the causation element), and (4) the employer lacked an
       overriding legitimate business justification for the dismissal (the
       overriding-justification element).

Id. at ¶ 9, citing Collins v. Rizkana, 73 Ohio St.3d 65, 69-70, 1995-Ohio-135, 652

N.E.2d 653 (1995). While the first two elements (clarity and jeopardy) involve

questions of law, elements three and four (causation and overriding-justification)

involve questions of fact. Id.

       {¶11} The instant case revolves around the first two elements of the tort at

issue. The Appellees claim that Trayer did not sufficiently plead elements of the

claim because the public policy alleged by Trayer does not exist in Ohio. We find

it necessary to first clarify what public policy was alleged by Trayer in his

complaint. Paragraph 16 of the complaint, states:

       Ohio public policy dictates [“]the police force of a municipal
       corporation shall preserve the peace, protect persons and property,
       and obey and enforce all ordinances of the legislative authority of

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Case No. 1-15-20


       the municipal Corporation, all criminal laws of the state in the
       United States, all court orders issued … Both the police and fire
       departments shall perform any other duties that are provided by
       ordinance” Ohio R.C. 737.11. * * * it is Ohio public policy that
       police officers enforce the laws of the state of Ohio as a condition of
       their employment.

(R. at 1, Compl. at ¶ 16.) Our review indicates that Trayer alleged the existence of

an Ohio public policy of enforcing the law by police officers.

       {¶12} The Appellees misidentify the policy at issue, suggesting that Trayer

alleged public policy that prohibits termination for enforcing the law. (App’t Br.

at 6; see also R. at 8, Mot. Dismiss at 15 (“Plaintiff alleges that Ohio public policy

prohibits a municipality from terminating a police officer for enforcing the law.”);

id. at 20 (arguing lack of body of law that creates “public policy prohibiting a

village from terminating an at-will officer for allegedly enforcing the law”).) As

can be gleaned from the language of the complaint quoted above, a prohibition

against termination was not alleged by Trayer to be a part of the public policy

(clarity) element.   Rather, Trayer’s clarity element alleged the existence of a

public policy of enforcing the law by police officers.

       {¶13} The Appellees’ reasoning combines the two elements of the tort of

termination in violation of public policy: the public policy (clarity) element, and

dismissal that would jeopardize this policy (jeopardy) element, suggesting that

Trayer alleged a public policy against dismissal of a police officer for enforcing

the law. But the standard established in Sutton identifies the existence of any clear



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public policy as the first element of the tort, not a policy against dismissal in a

manner alleged by plaintiff. See Sutton, 129 Ohio St.3d 153, 2011-Ohio-2723,

950 N.E.2d 938, at ¶ 9. It is only after a clear public policy is identified that the

analysis may proceed to determine the issue of dismissal that would jeopardize

that policy (the jeopardy element).      The trial court followed the Appellees’

reasoning and stated that “public policy in Ohio does not prohibit a Village from

terminating an officer.” (R. at 19, at 6.) Yet, as explained above, the standard at

issue does not require a public policy that prohibits termination, but a public

policy that could be put in jeopardy by the dismissal identified in prong two of the

test.

        {¶14} As a result of the wrongly-identified policy at issue, the trial court

failed to properly analyze the sufficiency of the allegations in Trayer’s complaint.

We therefore, reverse the dismissal and remand the case to the trial court so that it

can properly determine whether Trayer sufficiently alleged (1) that Ohio has a

clear public policy that requires police officers to enforce the law (the clarity

element); (2) that “dismissing employees under circumstances like those [alleged

by Trayer] would jeopardize the public policy” of enforcing the law; (3) that

Trayer’s dismissal was motivated by conduct related to enforcing the law (the

causation element), and (4) that the Village of Elida lacked an overriding

legitimate business justification for the dismissal (the overriding-justification

element). Sutton at ¶ 9. We emphasize that in Ohio, a complaint needs only set

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forth a “short and plain statement of the claim showing that the party is entitled to

relief.” Civ.R. 8(A). Ohio does not mandate that every fact be set forth in a

complaint, just facts sufficient to put the defendant on notice. Hughes v. Lenhart,

3d Dist. Shelby No. 17-14-25, 2015-Ohio-933, ¶ 5.

       {¶15} We further observe that separation of powers is not an element of the

tort of wrongful discharge in violation of public policy. Neither is the plaintiff in a

wrongful termination case required to establish constitutionality of the public

policy at issue through his or her complaint. All that is required at this stage of

the proceedings is a “short and plain statement” alleging the existence of a policy.

Civ.R. 8(A); see Sutton at ¶ 8 (clarifying that a court reviewing the tort of

wrongful discharge in violation of public policy does not establish public policy in

Ohio, but merely recognizes what public policies are “established by the General

Assembly”). Therefore, to survive a motion to dismiss, a plaintiff does not need to

allege facts that will sustain a separation of powers or any possible challenge to

the existing policy.

       {¶16} We sustain the first assignment of error.

                                     Conclusion

       {¶17} Having reviewed the arguments, the briefs, and the record in this

case, we find error prejudicial to Appellant in the particulars assigned and argued.

The judgment of the Common Pleas Court of Allen County, Ohio is therefore




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reversed and this case is remanded for further proceedings consistent with this

opinion.

                                                           Judgment Reversed

ROGERS, P.J. and SHAW, J., concur.

/hlo




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