[Cite as Greene v. Seal Twp. Bd. of Trustees, 194 Ohio App.3d 45, 2011-Ohio-1392.]


                                 IN THE COURT OF APPEALS OF OHIO
                                    FOURTH APPELLATE DISTRICT
                                           PIKE COUNTY

Greene,                                           :                        Case No. 10CA812

           Appellee,                              :

           v.                                     :                        DECISION AND
                                                                           JUDGMENT ENTRY
Seal Township Board of Trustees,                  :

     Appellant.                 :                RELEASED 03/18/11
______________________________________________________________________
                            APPEARANCES:

     Kenneth E. Harris, for appellant.1
______________________________________________________________________
     HARSHA, Presiding Judge.

           {¶1}     Brenda K. Greene purchased a cemetery plot in Mound Cemetery from

the Seal Township Board of Trustees and buried her husband in it. The township,

however, had previously sold this same plot to a different individual. The township

admitted its error and later came to a written compromise with Greene and others who

found themselves in similar situations.               Nevertheless, Greene sued the township,

asserting a cause of action for improper burial, which she alleged caused her to

purchase an incorrectly sized headstone and caused her emotional distress.                    The

township construed Greene’s complaint as asserting a cause of action in negligence,

filed for summary judgment, and argued that R.C. Chapter 2744 provided it with

immunity. The trial court denied the township’s motion for summary judgment and the

township filed this interlocutory appeal.

           {¶2}     We hold that the township is immune from liability because Greene’s tort

claim falls within the general grant of immunity for political subdivisions provided in R.C.
1
    Appellee did not file a brief.
Chapter 2744 and no exceptions to that immunity apply. We therefore reverse the

judgment of the trial court.

                                   I. Summary of Facts

       {¶3}   Seal Township erroneously sold a plot in Mound Cemetery to Greene,

who buried her husband in it. The township had, in fact, previously sold and deeded

this same plot to a different individual. The township’s error in selling the plot to Greene

affected a number of individuals with plots at Mound Cemetery. The township and the

affected parties later agreed to resolve the matter in a written agreement in the form of a

township resolution. As part of their compromise, Greene and others agreed to accept

free plots as compensation. Greene received a free plot next to her husband.

       {¶4}   In May 2009, Greene filed a complaint in the Pike County Court of

Common Pleas. The complaint consisted of a single averment: “Defendant improperly

buried Plaintiff’s husband which caused her to expend $7000.00 for a monument which

was not needed, and caused her emotional distress.”

       {¶5}   The township moved for summary judgment on two separate bases. First,

the township asserted that the October 2008 resolution resolved all issues between the

parties.   Thus, compromise or settlement barred Greene’s claim concerning the

monument. Second, the township argued that, as a political subdivision, it was immune

from tort liability under R.C. Chapter 2744.

       {¶6}   In June 2010, the Pike County Court of Common Pleas denied the

township’s motion for summary judgment without explanation. The township filed a

notice of appeal of the denial of the summary-judgment motion based on the trial court’s

implicit denial of political-subdivision immunity. See R.C. 2744.02(C) (granting a political
subdivision the right to an interlocutory appeal of the denial of a motion for summary

judgment based on governmental immunity under R.C. Chapter 2744).

                                II. Assignment of Error

      {¶7}   The township assigns one error for our review:

           The trial court erred in failing to find that Seal Township was
      immune from liability for the manner in which it operated its cemetery.

                           III. Political-Subdivision Immunity

      {¶8}   In its sole assignment of error, the township argues that it is entitled to

summary judgment on Greene’s improper-burial claim based on the grant of

governmental immunity set forth in R.C. 2744.02(A)(1).

                                A. Standard of Review

      {¶9}   In reviewing a summary judgment, the lower court and the appellate court

utilize the same standard, i.e., we review the judgment independently and without

deference to the trial court’s determination. Doe v. Shaffer (2000), 90 Ohio St.3d 388,

390, 738 N.E.2d 1243. Summary judgment is appropriate only when (1) there is no

genuine issue of material fact, (2) reasonable minds can come to but one conclusion

when viewing the evidence in favor of the nonmoving party, and that conclusion is

adverse to the nonmoving party, and (3) the moving party is entitled to judgment as a

matter of law. Id. See also Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d

881; Civ.R. 56(C).

      {¶10} The party moving for summary judgment has the initial burden of showing

that there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law. See Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. The

moving party must inform the trial court of the basis of the motion and must identify
those portions of the record that demonstrate the absence of a material fact. Id. at 293.

To meet its burden, the moving party must specifically refer to the “pleadings,

depositions, answers to interrogatories, * * * written stipulations of fact, if any,” that

affirmatively demonstrate that the nonmoving party has no evidence to support the

nonmoving party’s claims. Id.; Civ.R. 56(C). If the moving party satisfies its initial

burden, the nonmoving party then has the reciprocal burden outlined in Civ.R. 56(E) to

set forth specific facts showing that there is a genuine issue for trial. If the nonmovant

does not satisfy this evidentiary burden and the movant is entitled to judgment as a

matter of law, the court should enter a summary judgment accordingly. Kulch v.

Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 145, 677 N.E.2d 308 (criticized on

other grounds by Wiles v. Medina Auto Parts, 96 Ohio St.3d 240, 2002-Ohio-3994, 773

N.E.2d 526), citing Dresher at 295.

                    B. Assumption of Facts and Legal Posture of Case

       {¶11} Greene failed to file an appellee’s brief despite our grant of an extension

of time to do so. As a sanction, we denied her oral argument but again invited her to file

an untimely brief along with a motion demonstrating good cause for that failure. She

subsequently informed this court through counsel that she no longer intended to file an

appellee’s brief.

       {¶12} If an appellee fails to file an appellate brief, App.R. 18(C) authorizes us to

accept an appellant’s statement of facts and issues as correct and then reverse a trial

court’s judgment as long as the appellant’s brief reasonably appears to sustain such

action. See Sprouse v. Miller, Lawrence App. No. 06CA37, 2007-Ohio-4397, fn. 1. In

other words, an appellate court may reverse a judgment based solely on a
consideration of an appellant’s brief. See id., citing Helmeci v. Ohio Bur. of Motor

Vehicles (1991), 75 Ohio App.3d 172, 174, 598 N.E.2d 1294; Ford Motor Credit Co. v.

Potts (1986), 28 Ohio App.3d 93, 96, 502 N.E.2d 255; State v. Grimes (1984), 17 Ohio

App.3d 71, 71-72, 477 N.E.2d 1219.

         {¶13} The pleadings in this case and the summary-judgment record lack breadth

and content. The township’s statement of the case implies that Greene’s claim sounded

in tort, thus implicating political-subdivision tort immunity. The township also notes that

Greene’s memorandum contra to summary judgment “did not contest the law and

argument concerning the statutory immunities” claimed by the township. Under App.R.

18(C), the pleadings and the record in this case arguably support reversal under the

assumption that Greene’s vague improper-burial cause of action is in the nature of a tort

claim.

                  C. Seal Township is Immune from Greene’s Tort Claim

         {¶14} The Political Subdivision and Tort Liability Act, codified in R.C. Chapter

2744, entitles political subdivisions to immunity from civil claims under R.C.

2744.02(A)(1).     To determine whether Greene can assert a tort claim against the

township, we apply a three-tiered analysis under R.C. Chapter 2744.            Lambert v.

Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, at ¶ 8. First, we must

determine whether the general grant of immunity stated in R.C. 2744.01(A)(1) applies.

Id. It provides, “[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.” R.C. 2744.02(A)(1).         Second, we consider
whether any of the five exceptions to this general grant of immunity—listed in R.C.

2744.02(B)—apply. Lambert at ¶ 9. If any of these exceptions apply, we must next

consider whether any of the defenses to liability contained in R.C. 2744.03 permit the

township to reinstate immunity. Id.

      {¶15} Under the first tier of the analysis, it is clear that the township is a “political

subdivision” as defined in R.C. 2744.01(F).        Likewise, Greene did not dispute that

Mound Cemetery is a township cemetery as the township alluded to in its motion for

summary judgment. Therefore, we accept this fact as well. It is also clear that under

R.C. 2744.01(C)(2)(s), the township’s operation of a township cemetery is a

governmental function for purposes of R.C. 2744.01(A)(1). Consequently, any actions

or omissions of the township or its employees with regard to the operation of Mound

Cemetery fall within the general grant of immunity against tort claims provided in R.C.

2744.02(A)(1).

      {¶16} In the second tier of the analysis, we must determine whether any of the

five exceptions to immunity in R.C. 2744.01(B) apply; we conclude that none do. The

only exception that might appear to apply is contained in R.C. 2744.02(B)(3), which

provides that “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.”      However, as we stated, the

operation of a township cemetery is not a proprietary function.              Rather, it is a

governmental function. Cf. R.C. 2744.01(G)(2)(b) (defining the operation of a “public,”

as opposed to “township,” cemetery as a “proprietary function,” which would ostensibly

place it within the R.C. 2744.02(B)(3) exception).
      {¶17}   There are no genuine issues of material fact. No exception provided in

R.C. 2744.02(B) applies, and the township is entitled to immunity from Greene’s tort

claim under R.C. Chapter 2744 as a matter of law. Consequently, the trial court erred

by overruling the township’s motion for summary judgment. Accordingly, we reverse the

trial court’s judgment and remand with instructions to enter judgment in favor of the

township.



                                                                  Judgment reversed

                                                               and cause remanded.




      ABELE and MCFARLAND, JJ., concur.
