[Cite as Young v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities, 2011-Ohio-2291.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 95955




                JAMES YOUNG, ADMINISTRATOR
                                                  PLAINTIFF-APPELLEE

                                                    vs.

 CUYAHOGA COUNTY BOARD OF MRDD, ET AL.
                                                  DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                          DISMISSED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-656218


        BEFORE:           E. Gallagher, J., Sweeney, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                                 May 12, 2011
ATTORNEY FOR APPELLANTS

Nick C. Tomino, Esq.
Tomino & Latchney, L.L.C., L.P.A.
803 East Washington Street, Suite 200
Medina, Ohio 44256


ATTORNEYS FOR APPELLEE

Stuart E. Scott, Esq.
Peter J. Brodhead, Esq.
Nicholas A. Dicello, Esq.
Melissa Z. Kelly, Esq.
Spangenberg, Shibley & Liber, L.L.P.
1001 Lakeside Avenue, East
Suite 1700
Cleveland, Ohio 44114

Mark S. Fishman, Esq.
526 Superior Avenue
The Leader Building, Suite 853
Cleveland, Ohio 44114




EILEEN A. GALLAGHER, J.:

     {¶ 1} The   Cuyahoga County Board of Mental Retardation and

Developmental Disabilities (hereinafter the Board), appeals from the decision

of the trial court denying its motion for judgment on the pleadings.     The

Board claims it was entitled to immunity under Ohio’s Political Subdivision

Tort Liability Act and that the trial court committed reversible error in not
recognizing such immunity.       For the following reasons, we dismiss the

appeal for lack of a final appealable order.

      {¶ 2} According to the complaint filed by James Young, this case arises

out of the March 17, 2008 death of Young’s daughter, Kimberly Young, who

died when Dennis Simpson, a bus driver employed by the Board, struck her

as she was walking southbound in the crosswalk of Chester Avenue in

Cleveland at the intersection of East 55th Street. Young’s complaint alleges

that mandatory post-crash drug testing revealed that Simpson had cocaine in

his system. Simpson later pleaded guilty to aggravated vehicular homicide

and driving under the influence of alcohol and drugs.

      {¶ 3} Young, as administrator of his daughter’s estate, alleged in his

brief that during Simpson’s employ with the Board, Simpson incurred two

traffic violations for driving under the influence, one in the late 1980’s or

early 1990’s and a second on June 20, 2003. Young further alleged that the

Board was aware of each of Simpson’s convictions prior to March 17, 2008.

      {¶ 4} Accordingly, on April 4, 2008, Young filed a wrongful death

action, alleging that the Board was vicariously liable for Kimberly’s death on

the basis of Simpson’s negligent driving. Young amended his complaint on

March 29, 2010, in which he added a claim against the Board for reckless

retention and/or supervision.
      {¶ 5} In response, the Board filed a Civ.R. 12(C) motion for judgment

on the pleadings, seeking dismissal of Young’s reckless retention and/or

supervision claim. In its motion, the Board argued that it was entitled to

immunity under Ohio’s Political Subdivision Tort Liability Act, R.C. 2744.01,

et seq.   On November 1, 2010, the trial court denied the Board’s motion

without elaboration.

      {¶ 6} The Board filed the instant appeal from that order, on the same

date, alleging the following assignment of error:

      {¶ 7} “The trial court committed reversible error when it denied

Defendant’s Motion for Judgment on the Pleadings based on immunity under

Revised Code Chapter 2744 as to Count Two of Plaintiff’s Second Amended

Complaint for Defendant’s negligent retention and/or supervision of its

employee.”

      {¶ 8} Before addressing the merits of appellants’ claims, we must first

address Young’s argument that this Court is without jurisdiction to hear the

instant appeal.    Young argues that the trial court’s journal entry of

November 1, 2010 does not vest this Court with jurisdiction because it does

not set forth the reasons for the trial court’s decision and is therefore not a

final appealable order, regardless of the Board’s reliance on R.C. 2744.02(C)

as the basis for jurisdiction. We agree with Young’s argument.
      {¶ 9} “It is well-established that an order must be final before it can be

reviewed by an appellate court. If an order is not final, then an appellate

court has no jurisdiction.” Gen. Acc. Ins. Co. v. Ins. Co. of Am. (1989), 44

Ohio St.3d 17, 540 N.E.2d 266.         Generally, orders denying a political

subdivision the benefit of immunity are final orders.          R.C. 2744.02(C),

provides as follows:

      {¶ 10} “An order that denies 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.”

      {¶ 11} The Ohio Supreme Court has held, however, that there is no final

appealable order when the trial court does not provide an explanation for its

decision to deny a motion to dismiss. State Auto. Mut. Ins. Co. v. Titanium

Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1199. In that

case, a third-party complaint was filed against Oakwood Village Fire

Department, and the department filed a motion to dismiss based on immunity

under R.C. Chapter 2744.        The trial court denied the motion without

elaboration, and the department appealed. On appeal, the court decided the

case on the merits. State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 159

Ohio App.3d 338, 2004-Ohio-6681, 823 N.E.2d 934.

      {¶ 12} Without deciding whether R.C. 2744.02(C) applied, the Supreme

Court held:
      {¶ 13} “Nevertheless   [i.e., regardless of whether R.C. 2744.02(C)

applies], there is no final, appealable order.     The trial court provided no

explanation for its decision to deny the motion to dismiss. The court made

no determination as to whether immunity applied, whether there was an

exception to immunity, or whether R.C. 2744.05(B)(1) precludes contribution

as the basis for its decision. The court did not dispose of the case.”

      {¶ 14} “At this juncture, the record is devoid of evidence to adjudicate

the issue of immunity because it contains nothing more than Ohio

Briquetting’s third-party complaint and Oakwood’s Civ.R. 12(B)(6) motion to

dismiss. No fact-finding or discovery has occurred. The trial court’s denial

of the motion to dismiss merely determined that the complaint asserted

sufficient facts to state a cause of action.” Id. at ¶10-11.

      {¶ 15} The Supreme Court further stated that “[t]he record below must

be developed in order to reach [the] issue of immunity, and remanded the case

to the trial court.” Id. at ¶12.

      {¶ 16} Because the court denied the Board’s motion in this case without

elaboration and there is, therefore, no record on the issue of immunity, based

on the authority of the Supreme Court’s decision in State Auto. Mut. Ins. Co.,

there is no final appealable order and we must dismiss.1 See, also, Wade v.


      In Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, the
      1

Supreme Court held that the denial of a governmental entity’s motion for summary
judgment on the issue of sovereign immunity due to the existence of genuine issues
Stewart, Cuyahoga App. No. 93405, 2010-Ohio-164; Grassia v. Cleveland,

Cuyahoga App. No. 91013, 2008-Ohio-3134; Vaughn v. Cleveland Muni.

School Dist., et al., Cuyahoga App. No. 86848, 2006-Ohio-2572.

       Appeal dismissed.

       Accordingly, the appeal is dismissed and the matter is remanded for further

proceedings consistent with this opinion.

       It is ordered that appellee recover of appellants its costs herein taxed.

       The Court finds there were reasonable grounds for this appeal.

              A certified copy of this entry shall constitute the mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR


of material fact is a final appealable order under R.C. 2744.02(C). Id. at ¶27. The
Court noted, however, that its opinion in State Auto. Mut. Ins. Co. was
distinguishable from Hubbell. Specifically, the court noted the different procedural
postures of the cases: State Auto. Mut. Ins. Co. was not decided under R.C.
2744.02(C), but “[r]ather, relying on traditional concepts, [the Court] held that there
was no final, appealable order in the current posture of the case and sent the case
back to the trial court.” Id. at ¶19. In contrast, in Hubbell, “the record contain[ed]
evidence upon which the trial court denied the motion for summary judgment, so as
to deny Xenia, ‘the benefit of an alleged immunity from liablity.’” Id. at ¶20, quoting
R.C. 2744.02(C).
