[Cite as Chunyo v. Gauntner, 2017-Ohio-5555.]


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

SANDOR CHUNYO                                        C.A. No.      28346

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
HEIDI L. GAUNTNER                                    COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CV-2016-04-1770

                               DECISION AND JOURNAL ENTRY

Dated: June 28, 2017



        SCHAFER, Judge.

        {¶1}    Defendant-Appellant, Heidi L. Gauntner, appeals the judgment of the Summit

County Court of Common Pleas denying her Civ.R. 12 (C) motion for judgment on the pleadings

in a civil lawsuit filed by Plaintiff-Appellee, Sandor Chunyo. We affirm.

                                                I.

        {¶2}    In 2016, Chunyo was a student attending Hudson High School, where Gauntner is

employed as a teacher. On March 8, 2016, Gauntner entered the classroom of another teacher to

discuss with students the opportunity to attend a trip abroad.       Chunyo alleges that upon

informing Gauntner that he would not participate in the trip for financial reasons, Gauntner, a

purported martial arts expert, approached him while he was seated, took hold of his jaw,

squeezed his face, and forced his head backwards. Chunyo also alleges that Gaunter made

threatening comments to him and informed him that she was not afraid of losing her job.
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Chunyo claims that Gauntner’s actions caused him to suffer lasting physical, mental, emotional,

and social damage.

       {¶3}    On April 6, 2016, Chunyo filed a complaint against Gauntner in the Summit

County Court of Common Pleas. Chunyo subsequently filed an amended complaint. Gauntner

filed an answer denying the allegations sets forth in Chunyo’s amended complaint. On June 29,

2016, Gauntner filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C) arguing

that, pursuant to R.C. 2744.03(A)(6), she is immune from liability due to her status as a political

subdivision employee. Chunyo filed a brief in opposition to Gauntner’s Civ.R. 12(C) motion.

On August 17, 2016, the trial court issued a journal entry denying Gauntner’s Civ.R. 12(C)

motion for judgment on the pleadings.

       {¶4}    Gauntner filed this interlocutory appeal and raises one assignment of error for this

Court’s review.

                                                II.

                                      Assignment of Error

       The trial court erred in denying Defendant Heidi L. Gauntner the benefits of
       statutory immunity under R.C. Chapter 2744.

       {¶5}    In her sole assignment of error, Gauntner argues that the trial court erred by

denying her Civ.R. 12(C) motion for judgment on the pleadings because, as an employee of a

political subdivision, she is immune from civil liability pursuant to R.C. Chapter 2744. We

disagree.

                                          A. Jurisdiction

       {¶6}    This Court initially questions its jurisdiction to consider the instant appeal. When

jurisdiction appears uncertain, a court of appeals must raise issues of jurisdiction sua sponte.

Kouns v. Pemberton, 84 Ohio App.3d 499, 501 (4th Dist.1992), citing In re Murray, 52 Ohio
                                                 3


St.3d 155, 159, fn. 2 (1990). “Generally, a judgment overruling a motion for judgment on the

pleadings is not a final appealable order.” Thompson v. Buckeye Joint Vocational School Dist.,

5th Dist. Tuscarawas No. 2015 AP 08 0047, 2016-Ohio-2804, ¶ 13, citing Paul C. Harger Trust

v. Morrow Cty. Regional Planning Comm., 5th Dist. Morrow No. 03-CA-19, 2004-Ohio-6643, ¶

24. However, “[a]ny order of the trial court that denies a political subdivision and its employees

the benefit of immunity is a final order.” Moss v. Lorain Cty. Bd. of Mental Retardation, 9th

Dist. Lorain No. 09CA009550, 2009-Ohio-6931, ¶ 7, citing R.C. 2744.02(C) and Hubbell v.

Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, ¶ 2. “An order denying a motion for judgment on

the pleadings filed by a political subdivision or its employees is a final, appealable order.” Id.,

citing Sullivan v. Anderson Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, ¶ 3-4, 13. Thus, because

it is undisputed that Gauntner is an employee of a political subdivision given her status as a

public school teacher, we conclude that the trial court’s denial of her Civ.R. 12(C) motion for

judgment on the pleadings is a final appealable order and that this Court has jurisdiction to

consider the merits of the present appeal.

                                       B. Standard of Review

         {¶7}   A motion for judgment on the pleadings is analogous to a delayed motion to

dismiss an action for failure to state a claim. Cashland Fin. Servs., Inc. v. Hoyt, 9th Dist. Lorain

No. 12CA010232, 2013-Ohio-3663, ¶ 7, citing Pinkerton v. Thompson, 174 Ohio App.3d 229,

2007-Ohio-6546, ¶ 18 (9th Dist.). Thus, this Court applies a de novo standard of review to a trial

court’s ruling on a motion for judgment on the pleadings, affording no deference to the trial

court.   Id., citing Moss at ¶ 8.    Our review is strictly confined to the parties’ pleadings,

“accepting all factual allegations in the plaintiff’s complaint as true, and making all reasonable

inferences in favor of the nonmoving party.” Moss at ¶ 8, quoting Dunfee v. Oberlin School
                                                 4


Dist., 9th Dist. Lorain No. 08CA009497, 2009-Ohio-3406, ¶ 6. “Judgment on the pleadings is

appropriate if it is clear that the nonmoving party can prove no set of facts that would entitle that

party to relief.” Id., quoting Dunfee at ¶ 6

                      C. Immunity from Political Subdivision Tort Liability

       {¶8}    R.C. 2744.03(A) sets forth certain defenses or immunities that may be asserted to

establish non-liability in a civil action brought against a political subdivision or an employee of a

political subdivision to recover damages for injury, death, or loss to person or property allegedly

caused by any act or omission in connection with a governmental or proprietary function. In the

present case, Gauntner, who is undisputedly an employee of a political subdivision, see R.C.

2744.01(B) and 2744.01(F), cites to R.C. 2744.03(A)(6), which states as follows:

       In a civil action brought against * * * an employee of a political subdivision to
       recover damages for injury, death, or loss to person or property allegedly caused
       by any act or omission in connection with a governmental or proprietary function,
       * * * the employee is immune from liability unless one of the following applies:


       (a) The employee’s acts or omissions were manifestly outside the scope of the
           employee’s employment or official responsibilities;


       (b) The employee’s acts or omissions were with malicious purpose, in bad faith,
           or in a wanton or reckless manner;


       (c) Civil liability is expressly imposed upon the employee by a section 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 an employee, because that section
           provides for a criminal penalty, because of a general authorization in that
           section that an employee may sue and be sued, or because the section uses the
           term “shall” in a provision pertaining to an employee.
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       {¶9}    “One acts with a malicious purpose if one willfully and intentionally acts with a

purpose to cause harm.” Moss at ¶ 19. “Willful misconduct 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 v. Massillon, 134 Ohio St.3d 380, 2012–Ohio–

5711, paragraph two of the syllabus. “The term ‘bad faith’ embraces more than bad judgment or

negligence; it is conduct that involves 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.” (Internal quotations and citations omitted.) Thomas v. Bauschlinger, 9th Dist.

Summit No. 26485, 2013-Ohio-1164, ¶ 22. “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 great

probability that harm will result.” Anderson at paragraph three of the syllabus. Meanwhile,

“[r]eckless 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 paragraph four of the syllabus. “The actor must be

conscious that his conduct will in all probability result in injury.” O’Toole v. Denihan, 118 Ohio

St.3d 374, 2008–Ohio–2574, paragraph three of the syllabus.         There must be a “perverse

disregard of a known risk.” Id.

                                    D. Analysis & Conclusion

       {¶10} In considering the issue presented in this matter, we recognize that, as the

plaintiff, Chunyo’s “obligation to provide the grounds for [his] entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Schaad v. Buckeye Valley Local School Dist. Bd. of Edn., 5th Dist. Delaware No.
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15 CAE 080063, 2016-Ohio-569, ¶ 28, citing Parsons v. Greater Cleveland Regional Transit.

Auth., 8th Dist. Cuyahoga No. 93523, 2010-Ohio-266, ¶ 11. However, because Ohio is a notice-

pleading state, “the plaintiff need not prove his or her case at the pleading stage.” Scott v.

Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-Ohio-677, ¶ 8 (10th Dist.). “Thus, a

plaintiff need not affirmatively dispose of the immunity question altogether at the pleading

stage.” Id. (concluding that requiring a plaintiff to demonstrate an exception to immunity at the

pleading stage would be tantamount to “requiring a plaintiff to overcome a motion for summary

judgment at the pleading stage”). “Instead, a plaintiff must merely allege a set of facts that, if

proven true, would plausibly allow for recovery.” Id. Moreover, we remain mindful that issues

regarding whether an actor’s conduct was malicious, wanton, reckless, or in bad faith are

generally for the trier of fact to decide. Schaad at ¶ 28, citing Gilbert v. Cleveland, 8th Dist.

Cuyahoga No. 99708, 2013-Ohio-5252, ¶ 15.

       {¶11} Here, the allegations within Chunyo’s amended complaint indicate that Gauntner,

a self-described martial arts expert, intentionally and without provocation grabbed Chunyo’s jaw,

squeezed his face, and pushed his head backwards. Chunyo alleges that Gauntner’s actions

caused him pain.     Chunyo further alleges that during this physical encounter, Gauntner

threatened him by stating that she had the ability to physically “get” him anytime she wanted.

       {¶12} Accepting these allegations and all reasonable inferences derived therefrom as

true, we cannot say that the trial court erred in denying Gauntner’s motion for judgment on the

pleadings. Chunyo’s amended complaint asserts that Gauntner was an employee of Hudson

High School on the date in question and asserts that that Gauntner’s aforementioned actions

“were manifestly outside the scope of her employment or official responsibilities with the

Hudson School District within the meaning of R.C. 2744.03(A)(6)(a).” Chunyo’s amended
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complaint further alleges that Gauntner acted “with a malicious purpose, in bad faith and/or in a

wanton or reckless manner within the meaning of R.C. 2744.03(A)(6)(b).”                Upon our

independent review of the pleadings, we determine that Chunyo’s amended complaint satisfies

the requirements of Civ.R. 8(A) and does not clearly illustrate that Chunyo can prove no set of

facts that would entitle him to relief. See Rogers v. Akron City School Sys., 9th Dist. Summit No.

23416, 2008-Ohio-2962, ¶ 18-19 (concluding that student’s complaint alleging various

intentional and unintentional torts against teacher was sufficiently pleaded to survive a motion

for judgment on the pleadings on the basis of sovereign immunity).

       {¶13} Accordingly, Gauntner’s assignment of error is overruled.

                                                III.

       {¶14} Having overruled Gauntner’s sole assignment of error, the judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       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
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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 Appellant.




                                                    JULIE A. SCHAFER
                                                    FOR THE COURT



HENSAL, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

MATTHEW JOHN MARKLING, PATRICK VROBEL, and SEAN KORAN, Attorneys at Law,
for Appellant.

DEAN S. HOOVER, Attorney at Law, for Appellee.
