[Cite as Coterel v. Reed, 2016-Ohio-7411.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 DAVID W. COTEREL, JR., et al.                     :
                                                   :   Appellate Case No. 2015-CA-69
         Plaintiff-Appellees                       :
                                                   :   Trial Court Case No. 2013-CV-515
 v.                                                :
                                                   :   (Civil Appeal from
 JAMES PAUL REED                                   :    Common Pleas Court)
                                                   :
         Defendant-Appellant                       :
                                                   :

                                              ...........
                                             OPINION
                           Rendered on the 21st day of October, 2016.
                                              ...........

MICHAEL P. McNAMEE, Atty. Reg. No. 0043861, and GREGORY B. O’CONNOR, Atty.
Reg. No. 0077901, McNamee & McNamee, PLL, 2625 Commons Boulevard,
Beavercreek, Ohio 45431
     Attorneys for Plaintiff-Appellees

LAWRENCE E. BARBIERE, Atty. Reg. No. 0027106, and SCOTT A. SOLLMANN, Atty.
Reg. No. 0081467, Schroeder, Maundrell, Barbiere & Powers, 5300 Socialville-Foster
Road, Suite 200, Mason, Ohio 45040
and
ANDREW T. VOLLMAR, Atty. Reg. No. 0064033, Freund, Freeze & Arnold, Fifth Third
Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402-2017
      Attorneys for Defendant-Appellant

                                             .............

FAIN, J.

        {¶ 1} Defendant-appellant James Paul Reed appeals from an order of the trial
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court overruling a motion for summary judgment on the issue of statutory immunity for

actions taken as an employee of a political subdivision. Reed argues that Coterel has

failed to present genuine issues of fact to prevail on his claims for relief. Coterel argues

that genuine issues of fact preclude summary judgment.

       {¶ 2} We agree with the trial court that there are genuine issues of material fact

whether Reed acted with a malicious purpose, in bad faith, in a wanton or reckless

manner, or manifestly outside the scope of his employment. Therefore, the order of the

trial court overruling the motion for summary judgment is Affirmed.



                    I. The Relationship Between Coterel and Reed

       {¶ 3} Reed was elected to the Xenia Township Board of Trustees, and served as

a Trustee for a four year term, 2010-2014. Early in his term of office, Reed befriended

Coterel, a local business owner. Coterel is the owner of a motorcycle dealership,

Buckminn’s D&D Harley Davidson; a motor vehicle racetrack, Kil-Kare, Inc.; and a

salvage yard, Kil-Kare Auto Wrecking. Both the racetrack and the salvage yard are

primarily located in Xenia Township. Reed stated that during the time when he and

Coterel were on friendly terms, he did numerous favors for Coterel, saving Coterel a

substantial sum of money. Coterel stated that in exchange for those favors, Reed

expected money or other favors in return, in the form of campaign contributions, referral

fees, discounts on sales, and a job for Reed’s wife at the racetrack. One such expected

quid pro quo was described by Darana Edmondson, a Buckminn’s employee, in her

deposition and affidavit. Edmondson testified that when Reed came into the business and

became irate because Darana would not give Reed’s wife an employee discount on a
                                                                                          -3-


clearance priced item, Reed declared that if it wasn’t for him, Coterel would be in jail and

the business would be closed. Coterel believes that Reed was responsible for numerous

inspections and inquiries from other governmental officials, including the zoning

inspector, the fire inspector, the health department and the liquor control authorities.

Coterel stated that very few infractions were found, and all were immediately remedied.

       {¶ 4} The friendly relationship between Reed and Coterel ended in the spring of

2012, after Reed’s wife worked at the racetrack for about a month. In his affidavit, Coterel

avers that Reed called him to complain that Reed’s wife was being harassed on the job

and Reed insisted that Coterel protect her by hiring an off-duty deputy during her work

shift. Coterel avers that when he refused, Reed made comments suggesting that the

county sheriff was concerned about the situation at Kil-Kare, but Reed insisted that the

sheriff would not meet with Coterel to discuss it. Coterel testified in his deposition that

during this conversation with Reed, Coterel asked, “what’s it going to take to get you off

my back, fifteen, twenty thousand dollars?”, and Reed replied, “I think twenty-five would

do it.” Coterel Deposition, Dkt. #84, pg. 160, lines 17-22.

       {¶ 5} In the fall of 2012, Coterel hired a contractor, Slip-Tech, Inc., to do some

construction at the racetrack. Michael Fouts, the President of Slip-Tech provided an

affidavit in which it is averred that Fouts was instructed by Reed to stop work immediately,

and that Kil-Kare would not be permitted to do any further construction without Reed’s

approval. Fouts worked with the zoning inspector and provided an engineer’s report to

verify compliance with local floodplain regulations, but the project was delayed several

months until a variance was approved. Marshall Foiles, the manager of Buckminn’s,

stated in an affidavit and at his deposition that Reed also had direct contact with two other
                                                                                         -4-


contractors by asking one for a campaign contribution, and the other for some type of

referral fee, because he expected them to “share the love.” When questioned at his

deposition, Reed did not remember these events or asserted they did not happen.



                              II. The Course of Proceedings

       {¶ 6} Coterel, in his individual capacity and as the principal of Buckminns and Kil-

Kare, Inc., brought this action against Reed in June, 2013, alleging five claims for relief:

Violations of the Corrupt Activities Act; Tortious Interference with Business Relations;

Breach of Public Trust and Official Duty; Violations of the Ohio Sunshine Law; and

Defamation. The claim alleging Breach of the Public Trust was voluntarily dismissed. The

claim for violations of the Sunshine law was dismissed by the trial court, and is not raised

as an issue in this appeal.

       {¶ 7} In this action, Coterel seeks to hold Reed personally liable for actions taken

while he served as an elected official for Xenia Township. Xenia Township is not named

as a party. Reed moved for summary judgment, seeking a dismissal of the claims based

on statutory immunity. The trial court overruled the motion for summary judgment,

concluding that genuine issues of fact exist regarding Reed’s alleged malicious conduct.

From the trial court order overruling his motion for summary judgment upon the ground

of governmental employee immunity, Reed appeals.



              III. The Scope of this Appeal and the Standard of Review

       {¶ 8} The trial court's order denying summary judgment on the merits of the claims

for relief is not a final appealable order, those claims not having been reduced to
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judgment. The trial court order overruling summary judgment on any issue other than

the immunity defense is not a final appealable order. Therefore, our decision is solely

addressed to the immunity defenses, and is not concerned with the merits of the pending

claims, or the other, non-immunity, defenses that remain pending in the trial court.

       {¶ 9} The Supreme Court of Ohio has declared that an order that denies the benefit

of an alleged immunity is a final appealable order under R.C. 2744.02(C). Hubbell v. City

of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 2; Summerville v. City

of Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 33. Generally, a

trial court's denial of a motion for summary judgment based on the existence of genuine

issues of fact is not a final appealable order. Vlcek v. Chodkowski, 2015-Ohio-1943, 34

N.E.3d 446, ¶ 33 (2d Dist.). We have held that, “an appeal from an order denying

immunity is limited to the review of alleged errors in the portion of the trial court's decision

which denied the political subdivision the benefit of immunity.” Id. at ¶ 35, citing Guenther

v. Springfield Twp. Trustees, 2012-Ohio-203, 970 N.E.2d 1058, ¶ 24 (2d Dist.).

       {¶ 10} The Fourth District Court of Appeals has addressed the reviewing court's

role in an appeal involving statutory immunity by stating:

              “Generally, the denial of summary judgment is not a final, appealable

       order.” (Citations omitted.) However, a trial court's order to deny summary

       judgment on the basis of statutory immunity constitutes a final order.

       (Citations omitted.) R.C. 2744.02(C) explicitly states that an order denying

       “a political subdivision or an employee of a political subdivision the benefit

       of an alleged immunity from liability as provided in this chapter or any other

       provision of the law is a final order.” However, appellate review under R.C.
                                                                                       -6-

      2744.02(C) is limited to the denial of immunity. See Nagel v. Horner, 162

      Ohio App.3d 221, 2005-Ohio-3574, 833 N.E.2d 300, ¶ 21 (stating that R.C.

      2744.02(C) limits appellate review to denial of immunity and does not

      authorize court to review merits of the action); Makowski v. Kohler, Summit

      App. No. 25219, 2011-Ohio-2382, ¶ 7 (stating that an R.C. 2744.02(C)

      appeal “is limited to the review of alleged errors in the portion of the trial

      court's decision which denied the political subdivision the benefit of

      immunity”); see, also, Essman [v. Portsmouth, 4th Dist. Scioto No.

      08CA3244, 2009-Ohio-3367]; CAC Bldg. Properties v. City of Cleveland,

      Cuyahoga App. No. 91991, 2009-Ohio-1786, ¶ 9, fn. 1; Carter v. Complete

      Gen. Constr. Co., Franklin App. No. 08AP-309, 2008-Ohio-6308, ¶ 8. Thus,

      a party may not raise other alleged errors concerning the denial of summary

      judgment.

Long v. Hanging Rock, 4th Dist. Lawrence No. 09CA30, 2011-Ohio-5137, ¶ 10.

      {¶ 11} The issue of governmental immunity is a question of law. Conley v. Shearer,

64 Ohio St.3d 284, 595 N.E.2d 862 (1992). When presented with a question of law, we

apply a de novo standard of review. Hayward v. Summa Health Sys./Akron City Hosp.,

139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 23. Appellate courts also employ

a de novo standard of review for reviewing summary judgment motions. Gilson v. Am.

Inst. of Alternative Medicine, 10th Dist. Franklin No. 15AP-548, 2016-Ohio-1324, ¶ 48. In

a de novo review, the trial court's decision is not given deference by the reviewing

appellate court; the same standard that the trial court should have used is applied, and

we examine the evidence to determine whether as a matter of law no genuine issues of
                                                                                       -7-

material1 fact exist for trial. Riverside v. State, 2d Dist. Montgomery No. 26840, 2016-

Ohio-2881, ¶ 21, citing Dupler v. Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 413

N.E.2d 1187 (1980).

        {¶ 12} In a summary judgment review, the court may not weigh the proof or

choose among reasonable inferences, and the court is limited to examining the evidence

in the light most favorable to the non-moving party. Dupler at 121. In the case before us,

our review is confined to the issue of statutory immunity for a governmental employee,

and we must make all permissible inferences and resolve all questions of credibility in

Coterel’s favor to determine whether genuine issues of material fact exist, so that a

reasonable jury could find that Reed acted with a malicious purpose, in bad faith, in a

wanton or reckless manner, or manifestly outside the scope of his employment.



    IV. The Trial Court Did Not Err by Overruling the Motion for Summary Judgment

        {¶ 13} Reed raised one assignment of error, as follows:

               THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

        BY FAILING TO GRANT SUMMARY JUDGMENT IN FAVOR OF

        APPELLANT, JAMES PAUL REED AS TO ALL CLAIMS ON THE BASIS

        OF STATUTORY IMMUNITY UNDER O.R.C. CHAPTER 2744

        {¶ 14} Reed asserts that summary judgment should have been rendered in his

favor, because he is entitled to governmental immunity as a matter of law.      The Ohio

immunity statute creates a presumption of immunity for official government acts, carried


1 Because we may only review the governmental-immunity issue, a genuine issue of
material fact in this context means an issue of fact material to the issue of governmental
immunity.
                                                                                          -8-

out by political subdivisions and their employees. Cook v. Cincinnati, 103 Ohio App.3d

80, 90, 658 N.E.2d 814 (1st Dist.1995). The Ohio immunity statute provides three

exceptions to the general rule favoring governmental immunity. The exceptions at issue

are based on R.C. 2744.03(A)(6) (a) and (b), which eliminate a public employee's

immunity defense if: (a) “the employee’s acts or omissions were manifestly outside the

scope of the employee’s employment or official responsibilities”; or (b) “the employee's

acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless

manner.” The trial court did not find that Reed acted manifestly outside the scope of his

employment, with a malicious purpose, in bad faith, or in a wanton or reckless manner,

but concluded that these are genuine issues of material fact for a jury to determine, so

that Reed is not entitled to judgment as a matter of law.

       {¶ 15} The case before us involves three claims for relief based on Reed’s alleged

misconduct. We are not reviewing whether there is factual support for each of the

elements of the claims for relief. This appeal is limited in scope to a determination whether

there are genuine issues of fact material to the defense for statutory immunity. To

overcome the presumption of statutory immunity, the facts must support a conclusion that

the employee acted manifestly outside the scope of employment, with a malicious

purpose, in bad faith, or in a wanton or reckless manner. When the public employee

moves for summary judgment on the issue of statutory immunity, the employee, as the

movant, must show that there are no genuine issues of fact material to the determination

whether he acted manifestly outside the scope of employment, with a malicious purpose,

in bad faith, or in a wanton or reckless manner. Only if he meets that burden does the

burden then shift to the non-moving party to establish that genuine issues of material fact
                                                                                         -9-


do exist, requiring a jury determination whether the employee acted manifestly outside

the scope of employment, with a malicious purpose, in bad faith, or in a wanton or reckless

manner. “Consequently, in order to sustain a motion for summary judgment predicated

upon immunity bestowed by R.C. 2744.03(A)(6)(b), a court must conclude that the record

is devoid of evidence tending to show that the political subdivision employee acted

wantonly or recklessly.” Irving v. Austin, 138 Ohio App.3d 552, 556, 741 N.E.2d 931 (6th

Dist.2000).

      {¶ 16} For purposes of statutory immunity, the definitions of the elements of the

defense were recently reviewed by the Fifth District Court of Appeals as follows:

              “ ‘In the context of political subdivision immunity, malicious purpose

      has been defined as the willful and intentional design to do injury.’ ” Friga v.

      E. Cleveland, 8th Dist. Cuyahoga No. 88262, 2007-Ohio-1716, ¶ 15,

      quoting Piro v. Franklin Twp., 102 Ohio App.3d 130, 139, 656 N.E.2d 1035

      (9th Dist.1995), citing Jackson v. Butler Cty. Bd. of Cty. Commrs., 76 Ohio

      App.3d 448, 453, 602 N.E.2d 363 (12th Dist.1991). Bad faith “ ‘connotes a

      dishonest purpose, moral obliquity, conscious wrongdoing, breach of a

      known duty through some ulterior motive or ill will partaking of the nature of

      fraud.’ ” Jackson, quoting Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148,

      187 N.E.2d 45 (1962), paragraph two of the syllabus.

              In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983

      N.E.2d 266, the Ohio Supreme Court held “wanton,” “willful,” and “reckless”

      describe different and distinct degrees of care and are not interchangeable.

      Id. at paragraph one of syllabus. Although Appellants do not allege
                                                                                 -10-


Appellees acted willfully, we have, nonetheless, included that definition

herein.

       “Wanton misconduct is the failure to exercise any care toward those

to whom a duty of care is owed in circumstances in which there is a great

probability that harm will result.” Id. at ¶ 33. Wanton misconduct has been

likened to conduct that manifests a “disposition to perversity,” but the

Supreme Court abandoned “disposition to perversity” as an element of the

definition of wanton misconduct in Hawkins v. Ivy, 50 Ohio St.2d 114, 363

N.E.2d 367 (1977). Id. at ¶ 28. “ ‘[M]ere negligence is not converted into

wanton misconduct unless the evidence establishes a disposition to

perversity on the part of the tortfeasor.’ ” Fabrey v. McDonald Village Police

Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994) (Citation omitted). “[I]t

must be under such surrounding circumstances and existing conditions that

the party doing the act or failing to act must be conscious, from his

knowledge of such surrounding circumstances and existing conditions, that

his conduct will in all common probability result in injury.” Anderson, supra

at ¶ 25 citing Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200

N.E. 843 (1936), paragraph two of syllabus.

       “Willful conduct implies an intentional deviation from a clear duty or

from a definite rule of conduct, a deliberate purpose not to discharge some

duty necessary to safety, or purposefully doing wrongful acts with

knowledge or appreciation of the likelihood of resulting injury.” Anderson,

supra at ¶ 32. Willful misconduct involves “an intent, purpose, or design to
                                                                                       -11-

       injure.” Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 375,

       696 N.E.2d 201 (Citation omitted). Willful misconduct is something more

       than negligence and it imports a more positive mental condition prompting

       an act than wanton misconduct. Phillips v. Dayton Power & Light Co.,

       (1994), 93 Ohio App.3d 111, 119, 637 N.E.2d 963 (Citation omitted). “Willful

       misconduct” involves a more positive mental state prompting the injurious

       act than wanton misconduct, but the intention relates to the misconduct, not

       the result. Mashburn v. Dutcher, 5th Dist., 2012-Ohio-6283, 14 N.E.3d 383,

       ¶ 45.

               Both wanton and willful describes conduct that is greater than

       negligence and can be summarized as follows: willful conduct is the intent

       to harm someone and wanton misconduct is the failure to exercise any care

       whatsoever. Anderson, supra at ¶ 48.

               “Reckless conduct is characterized by the conscious disregard of or

       indifference to a known or obvious risk of harm to another that is

       unreasonable under the circumstances and is substantially greater than

       negligent conduct.” Id. at ¶ 34 (Citations omitted).

Rondy v. Richland Newhope Industries, Inc., 2016-Ohio-118, 57 N.E.3d 369, ¶¶ 42-47

(5th Dist.).

       {¶ 17} The Ninth District Court of Appeals recently addressed the term “manifestly

outside the scope of employment” as that term is used in the immunity statute as follows:

               R.C. Chapter 2744 does not define what conduct is “manifestly

       outside the scope of the employee's employment or official responsibilities.”
                                                                                             -12-


      R.C. 2744.03(A)(6)(a). However, Ohio courts have generally held that

      “ ‘conduct is within the scope of employment if it is initiated, in part, to further

      or promote the master's business.’ ” Curry v. Blanchester, 12th Dist. Clinton

      Nos. CA2009-08-010, CA2009-08-012, 2010-Ohio-3368, ¶ 30, quoting

      Jackson v. McDonald, 144 Ohio App.3d 301, 307, 760 N.E.2d 24 (5th

      Dist.2001). “For an act to fall within the scope of employment, it must be

      ‘calculated to facilitate or promote the business for which the [employee or

      agent] was employed.’ ” Johnson v. Godsey, 2d Dist. Clark No. 2012 CA

      80, 2013–Ohio–3277, ¶ 32, quoting Osborne v. Lyles, 63 Ohio St.3d 326,

      329, 587 N.E.2d 825 (1992). “In general, if an act is committed within the

      scope of employment, it will be authorized, either expressly or impliedly, by

      the employer.” Johnson at ¶ 32. “ ‘It is only where the acts of state

      employees are motivated by actual malice or other [situations] giving rise to

      punitive damages that their conduct may be outside the scope of their state

      employment.’ ” Curry at ¶ 30, quoting Jackson at 307, 760 N.E.2d 24. “The

      act must be so divergent that it severs the employer-employee relationship.”

      (Internal quotations and citations omitted.) Wee Care Child Ctr., Inc. v. Ohio

      Dept. of Job & Family Servs., 10th Dist. Franklin No. 13AP–1004, 2014–

      Ohio–2913, ¶ 28. “One acts with a malicious purpose if one willfully and

      intentionally acts with a purpose to cause harm.” Moss v. Lorain Cty. Bd. of

      Mental Retardation, 185 Ohio App.3d 395, 2009–Ohio–6931, 924 N.E.2d

      401, ¶ 19 (9th Dist.).

Thomas v. Bauschlinger, 9th Dist. Summit No. 27240, 2015-Ohio-281, ¶ 25.
                                                                                         -13-


       {¶ 18} We will review, for each of the three claims for relief, whether Reed, the

movant, met his burden of demonstrating that there are no genuine issues of fact material

to the determination whether he acted with a malicious purpose, in bad faith, in a wanton

or reckless manner, or manifestly outside the scope of his employment. In the claim for

relief alleging that Reed engaged in a pattern of corrupt activities, Reed argues that

Coterel cannot prove that any of his actions caused damages or met the definition of

extortion. Both of these arguments address the merits of the claim, not the immunity

defense. In his claim for relief based on violations of the Ohio Corrupt Activities Act,

Coterel is alleging that Reed committed the criminal act of extortion. Extortion is defined,

in R.C. 2905.11, as threatening to commit a felony, threatening to commit violence,

menacing, uttering or threatening calumny, or threatening to expose any matter tending

to damage a person’s personal or business repute for the purpose of obtaining something

valuable or inducing another to do an unlawful act. Engaging in extortion is not within the

proper scope of any public employee’s job. Albeit on different grounds, the trial court’s

conclusion is correct that Reed is not immune from liability for conduct that constitutes a

crime under R.C. 2923.32. Whether there is a genuine issue of fact material to whether

Reed committed a violation of R.C. 2923.32 -- i.e., whether Reed is entitled to summary

judgment on the merits of this claim – is not within the scope of this appeal.

       {¶ 19} The remaining two claims for relief are alleged as torts, to which the

immunity statute presumably applies. With respect to the claim based on the tort of

defamation, Reed argues that Coterel has failed to provide any evidence establishing

what defamatory statements were made, to whom such statements were made, or that

Coterel suffered any injury. These factual issues go to the merits of the claim, not to the
                                                                                         -14-


elements of the statutory immunity defense. To reach a conclusion that Reed is immune

from liability for the alleged defamation, the immunity statute requires the court to

determine that there are no genuine issues of fact material to a jury’s determination

whether Reed acted manifestly outside the scope of his employment, with a malicious

purpose, in bad faith, or in a wanton or reckless manner, as specified by R.C.

2744.03(A)(6)(a) and (b), when he made the alleged defamatory statements.

       {¶ 20} It has been recognized that the determination whether a governmental

employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner

“explicitly focuses on the employee's state of mind.” Chesher v. Neyer, 477 F.3d 784, 797

(6th Cir.2007) (applying Ohio’s immunity statute). “It is rarely possible to prove actual

malice other than by conduct and surrounding circumstances, and actual malice can be

inferred from conduct and surrounding circumstances.”         San v. Scherer, 10th Dist.

Franklin No. 97APE03-317, 1998 WL 53934 (Feb. 5, 1998), citing Villella v. Waikem

Motors, Inc., 45 Ohio St.3d 36, 543 N.E.2d 464 (1989). The Supreme Court of Ohio has

long recognized “that it is rarely possible to prove actual malice otherwise than by conduct

and surrounding circumstances. One who has committed an act would scarcely admit

that he was malicious about it, and so, necessarily, malice can be inferred from conduct.”

Davis v. Tunison, 168 Ohio St. 471, 475, 155 N.E.2d 904 (1959). A person’s subjective

state of mind is generally considered a jury issue, because it calls for making inferences

after weighing the credibility of a witness’s entire testimony and cannot be discerned by

focusing on a few lines taken out of context from a deposition or a single answer to a

discovery request. In a summary judgment proceeding, the trial court, unlike a jury, may

not weigh the evidence or choose among reasonable inferences. Dupler v. Mansfield
                                                                                            -15-

Journal Co., Inc., 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980). The Supreme Court of

Ohio has recognized that the issue of wanton misconduct is normally a jury question.

Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994).

       {¶ 21} The requisite state of mind needed to overcome the presumption for

governmental immunity can be established by facts that meet a standard for a lesser

degree of care than the standard for the intent element of an intentional tort.         The

presumption for immunity is overcome by evidence that the employee’s state of mind was

one of three “different and distinct degrees of care [that] are not interchangeable.”

Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 31. Both

malicious and willful misconduct require proof of an intentional or deliberate purpose to

act in a manner that is likely to cause injury, whereas wanton or reckless behavior can be

proven by a conscious disregard of, or indifference to, the risk of harm. Id. at ¶ 32-33.

       {¶ 22} We agree with the trial court that sufficient evidence has been presented

on the defamation claim from which a reasonable jury might conclude that Reed acted

manifestly outside the scope of his employment, with a malicious purpose, in bad faith,

or in a wanton or reckless manner. The record is not devoid of any evidence from which

a reasonable jury could find that Reed’s purpose was intentionally retaliatory or vengeful

with the knowledge or appreciation of the likelihood that his conduct would cause some

injury to Coterel’s reputation or be adverse to his business, or that Reed acted with a

conscious disregard for the risk of harm. Viewing the evidence in the light most favorable

to Coterel, and without weighing issues of credibility, the record contains evidence that

Reed made several statements to others that were false, that he should have known were

false, and that he should have known would cause injury, singly or in combination, to
                                                                                         -16-


Coterel’s reputation or be adverse to his business, or that Reed acted in conscious

disregard for whether his statements would cause harm to Coterel. If a jury were to find,

from conflicting evidence, that the statements were not false, were not published, or were

not injurious, then the jury will not need to consider the elements of the immunity defense.

The record also leaves open a genuine issue of material fact whether Reed was

manifestly outside the scope of his employment when he allegedly initiated governmental

inspections or investigations, if his actions were not expressly or impliedly authorized by

the full Board of Trustees, or not within his statutory duties as a township trustee.

Therefore, at this juncture, we cannot eliminate the need for a jury to determine whether

the elements of an immunity defense were established by the requisite degree of proof,

because we cannot conclude that the record is devoid of any evidence from which a

reasonable jury might find that Reed acted with a malicious purpose, in bad faith, in a

wanton or reckless manner, or manifestly outside the scope of his employment.

       {¶ 23} With respect to the claim for relief alleging tortious interference with a

business relationship, Reed argues that Coterel cannot prove the element of the tort that

requires proof of a breach or termination of a relationship as a result of Reed’s

interference. This factual issue goes to the merits of the claim, not to the elements of the

statutory immunity defense. To determine whether Reed may be immune from liability for

his alleged tortious interference claim, the immunity statute requires the court to

determine whether there are genuine issues of fact material to a jury’s determination

whether Reed acted manifestly outside the scope of his employment, with a malicious

purpose, in bad faith, or in a wanton or reckless manner, as specified by R.C.

2744.03(A)(6)(a) and (b), when he allegedly interfered.
                                                                                        -17-


      {¶ 24} We agree with the trial court that sufficient evidence has been presented on

the tortious interference claim from which a reasonable jury might find that Reed acted

manifestly outside the scope of his employment, with malicious purpose, in bad faith, or

in a wanton or reckless manner. The record is not devoid of any evidence from which a

reasonable jury might find that Reed deliberately stopped the contractor from continuing

construction, for the purpose of causing injury to Coterel, with the knowledge or intent

that his action would likely cause some injury to Coterel. Viewing the evidence in the

light most favorable to Coterel, and without weighing issues of credibility, the record

contains evidence from which a reasonable jury might find that Reed acted manifestly

outside the scope of his employment when he ordered the contractor to stop work on a

project on Coterel’s property. Although the township trustees have statutory authority to

appoint members to a zoning commission, and to approve zoning plans or amendments

recommended by the commission, R.C. 519.04-519.12, an individual trustee is not

authorized to act as an enforcement officer to order work stoppage based on a potential

zoning violation. The record also contains evidence, when viewed in the light most

favorable to Coterel, from which a reasonable jury might find that Reed’s state of mind

when acting to stop the construction was for the purpose of causing injury to Coterel.

Again, these issues, involving genuine issues of material fact for determination by a jury,

cannot be decided as a matter of law, but must be presented to a jury to weigh the

evidence and reach conclusions based on reasonable inferences. Accordingly, Reed’s

sole assignment of error is overruled.
                                                                                 -18-


                                  V. Conclusion

      {¶ 25} Reed’s sole assignment of error having been overruled, the order of the

trial court overruling his motion for summary judgment upon the ground of statutory

immunity is Affirmed.

                                  .............



FROELICH and WELBAUM, JJ., concur.




Copies mailed to:

Michael P. McNamee
Gregory B. O’Connor
Lawrence E. Bariere
Scott A. Sollmann
Andrew T. Vollmar
Hon. Stephen Wolaver
