[Cite as Fullum v. Columbiana Cty. Coroner, 2014-Ohio-5512.]
                         STATE OF OHIO, COLUMBIANA COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

BRIAN K. FULLUM,                                 )
                                                 )       CASE NO. 12 CO 51
        PLAINTIFF-APPELLANT,                     )
                                                 )
        - VS -                                   )             OPINION
                                                 )
COLUMBIANA COUNTY CORONER,                       )
et al.,                                          )
                                                 )
        DEFENDANTS-APPELLEES.                    )

CHARACTER OF PROCEEDINGS:                                Civil Appeal from Common Pleas Court
                                                         Case No. 11 CV 806

JUDGMENT:                                                Affirmed in Part, Reversed in Part
                                                         and Remanded.

APPEARANCES:
For Plaintiff-Appellant:                                 Attorney Brian D. Spitz
                                                         Attorney Fred M. Bean
                                                         The Spitz Law Firm, LLC
                                                         4620 Richmond Road
                                                         Suite 290
                                                         Warrensville Heights, OH 44128

For Defendants-Appellees:                                Attorney James Climer
                                                         Attorney Frank Scialdone
                                                         Attorney Neil Sarka
                                                         Mazanec, Raskin & Ryder Co., L.P.A.
                                                         100 Franklin's Row
                                                         34305 Solon Road
                                                         Cleveland, OH 44139


JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich

                                                         Dated: December 15, 2014
[Cite as Fullum v. Columbiana Cty. Coroner, 2014-Ohio-5512.]
DeGenaro, P.J.
        {¶1} Plaintiff-Appellant Brian K. Fullum appeals the November 29, 2012 decision
of the Columbiana Court of Common Pleas granting summary judgment in favor of
Appellees Columbiana County Coroner and Dr. William Graham, in an employment law
action. On appeal, Fullum argues that the trial court erred by determining Appellee
Columbiana County Coroner actually means Dr. Graham in his official capacity instead of
the Coroner's Office, a political subdivision, and that the trial court erred in determining
that Columbiana County Coroner is immune from suit. Fullum does not challenge the trial
court's ruling that Dr. Graham, as an individual employee is immune from suit. Fullum's
supplemental assignment of error alleges the trial court erred by failing to recuse itself
prior to granting summary judgment.             Appellees raise a cross-assignment of error
presenting alternative reasons why the trial court's judgment should be upheld.
        {¶2} Upon review, Fullum's assignments of error regarding immunity are
meritorious. Appellee Columbiana County Coroner is properly characterized as a political
subdivision, and under either R.C. 2744.09(B) and/or (C) the Columbiana County Coroner
is exempt from immunity with regard to Fullum's claims, because they all arise out of the
employment relationship.           However, we will not address Fullum's supplemental
assignment of error; not only was the issue waived, this court lacks jurisdiction to review a
recusal decision. Nor will we address the merits of Appellees cross-assignment of error
because these issues, although raised in summary judgment proceedings, they were not
addressed by the trial court.
        {¶3} Accordingly, the trial court's decision granting summary judgment is affirmed
in part, reversed in part and remanded for further proceedings, so that the trial court will
have the first opportunity to decide the substantive merits of Fullum's claims.
                                 Facts and Procedural History
        {¶4} From March 9, 2007 to May 4, 2012, Fullum held the position of Coroner's
Investigator with Appellee Columbiana County Coroner. Based upon issues arising out of
his employment, Fullum initiated the present suit against Appellees on November 16,
2011, in the Columbiana County Court of Common Pleas. In his Amended Complaint
filed on May 17, 2012, Fullum identified the parties as follows: "Columbiana County
                                                                                          -2-


Coroner is a political subdivision of Columbiana County with its principal office located in
the city of Lisbon, State of Ohio[;]" "Graham, Jr. is a resident of the city of East Liverpool,
Columbiana County, State of Ohio, and is the Coroner of Columbiana County."
       {¶5} Fullum asserted five causes of action against Appellees: wage and hour
violations, retaliation, hostile work environment, constructive discharge and intentional
infliction of emotional distress claims. Appellees filed a joint Answer and an Amended
Answer to the Amended Complaint, notably admitting in both pleadings that "Columbiana
County Coroner" is a political subdivision of Columbiana County with its principal office
located in the city of Lisbon, State of Ohio. Appellees denied the allegations giving rise to
Fullum's five causes of action and asserted multiple defenses, including immunity.
       {¶6} Appellees filed a motion for summary judgment, raising substantive
arguments to all of Fullum's causes of action, and, pertinent to this appeal, arguing that
Dr. Graham was immune from all liability on all claims as a matter of law pursuant to
Chapter 2744 of the Revised Code. The immunity argument centered on Dr. Graham
only. Although Appellees did not specifically state they were alleging immunity for Dr.
Graham in his individual capacity only, their argument focused on his immunity as an
employee of a political subdivision, asserting that R.C. 2744.03(A)(6) provides immunity
from liability to employees of political subdivisions and that "The Columbiana County
Coroner's Office is a political subdivision to which immunity under R.C. Ch. 2744 applies."
They asserted that Dr. Graham as the coroner is an employee of the Columbiana County
Coroner and is therefore entitled to immunity under R.C. 2744.03(A)(6) unless his actions
fell under one of the statutory exceptions. Importantly, Appellees never alleged that the
political subdivision itself, i.e., Appellee Columbiana County Coroner, was entitled to
immunity.
       {¶7} Fullum opposed the motion, asserting that there were genuine issues of
material fact regarding all of his substantive claims. Fullum did not address the immunity
argument. Appellees filed a reply brief in support of their motion, arguing that Fullum
failed to meet his burden to establish genuine issues of material fact as to all of his
claims, and re-asserted that "all claims should be dismissed as to Dr. Graham in his
                                                                                         -3-


individual capacity," because Dr. Graham is entitled to immunity under R.C.
2744.03(A)(6). (Emphasis added.) Appellees further argued that Fullum did not allege
that Dr. Graham acted maliciously in bad faith, or in a willful, wanton or reckless manner;
nor did he contest Dr. Graham's individual immunity. Again, Appellees never alleged that
the political subdivision itself, Appellee Columbiana County Coroner, was entitled to
immunity.
       {¶8} On November 29, 2012, the trial court issued an Opinion and Judgment
Entry granting summary judgment in favor of Appellees with prejudice. That judgment
concluded that the Columbiana County Coroner was not a political subdivision, but rather
that Dr. Graham was a person sued in his official capacity and therefore entitled to
immunity under R.C. 2744.01, et seq. The trial court further found that Dr. Graham in his
individual capacity is immune from suit. As the trial court dismissed the case with
prejudice based upon immunity, it did not address the substantive merits raised in
Appellees' motion.
                                Summary Judgment - Immunity
       {¶9} Because Fullum's four assignments of error relate to the trial court's
decision to grant summary judgment in favor of Appellees based upon immunity, for
clarity of analysis they will be discussed together or out of order, and assert, respectively:
       {¶10} "The Trial Court Committed Reversible Error In Granting The Motion For
Summary Judgment Despite Appellees' Failure To Meet Its Burden As The Moving Party
Under Civ.R. 56."
       {¶11} "The Trial Court Committed Reversible Error In Determining That
Columbiana County Coroner, Defined As Dr. Graham In His Official Capacity, Was
Entitled To Immunity."
       {¶12} "The Trial Court Committed Reversible Error By Granting The Motion For
Summary Judgment Based Upon Its Own Independent And Sua Sponte Analysis Of An
Issue Not Previously Raised By Any Party."
       {¶13} "The Trial Court Committed Reversible Error in Finding that Columbiana
County Coroner, As Pleaded by Fullum in his Amended Complaint, Was a Person Instead
                                                                                         -4-


Of An Office."
       {¶14} An appellate court reviews a trial court's summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v.
Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶5. A motion for
summary judgment is properly granted if the court, viewing the evidence in a light most
favorable to the party against whom the motion is made, determines that: (1) there are no
genuine issues as to any material facts; (2) the movant is entitled to judgment as a matter
of law; and (3) the evidence is such that reasonable minds can come to but one
conclusion and that conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v.
Smith, 110 Ohio St.3d 24, 2006–Ohio–3455, 850 N.E.2d 47, ¶10. "[T]he moving party
bears the initial responsibility of informing the trial court of the basis for the motion, and
identifying those portions of the record which demonstrate the absence of a genuine
issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75
Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). The nonmoving party has the reciprocal
burden of specificity and cannot rest on the mere allegations or denials in the pleadings.
Id. at 293.
       {¶15} The first, second and part of the fourth assignments of error challenge the
trial court's decision that "Columbiana County Coroner" was not the Columbiana County
Coroner's Office, a political subdivision, but rather Dr. Graham in his official capacity. The
trial court's only rationale for making this determination is its conclusion that: "the
Amended Complaint does not name the Coroner's Office, but only the Coroner, who is an
elected official." (Emphasis sic.)
       {¶16} Fullum argues that this is error for several reasons, the first being that the
Amended Complaint clearly defines "Columbiana County Coroner" as the political
subdivision and Appellees admit this fact in both their Answer and Amended Answer.
       {¶17} The Ohio Supreme Court has held that "an admission in a pleading
dispenses with proof of the fact admitted and is equivalent to the proof of the fact."
Gerrick v. Gorsuch, 172 Ohio St. 417, 178 N.E.2d 40 (1961). "A judicial admission
presented 'by pleading and setting forth the fact * * * is binding as between parties to the
                                                                                          -5-


suit, and in the same suit in which such admission is made.' " Dombelek v. Ohio Bur. of
Workers' Comp., 154 Ohio App.3d 338, 345, 2003-Ohio-5151, 797 N.E.2d 144, 149, ¶22
(7th Dist.), quoting Peckham Iron Co. v. Harper, 41 Ohio St. 100, 106, (1884). For
example, in Ferguson v. Neighborhood Housing Services, Inc., 780 F.2d 549, 550 (6th
Cir.1986), the Sixth Circuit Court of Appeals held that the defendant created a binding
judicial admission when it admitted in its answer that it was an "employer" within the
meaning of the Fair Labor Standards Act.
       {¶18} Here, the Amended Complaint identifies the parties as "Columbiana County
Coroner is a political subdivision of Columbiana County with its principal office located in
the city of Lisbon, State of Ohio[;]" "Graham, Jr. is a resident of the city of East Liverpool,
Columbiana County, State of Ohio, and is the Coroner of Columbiana County." Appellees
admitted these factual allegations. Accordingly, Appellees' admission that Columbiana
County Coroner is a political subdivision is binding upon them, and it was erroneous for
the trial court to conclude otherwise.
       {¶19} Fullum additionally argues that because Appellees failed to argue in
summary judgment proceedings that "Columbiana County Coroner" meant Dr. Graham in
his official capacity or that either Dr. Graham as the elected official, or the Columbiana
County Coroner's Office, the political subdivision, were entitled to immunity, Appellees
failed to meet their burden as the moving party, and error for the trial court to determine
sua sponte that "Columbiana County Coroner" meant Dr. Graham in his official capacity.
       {¶20} Fullum is correct that the moving party bears the burden of establishing the
appropriateness of summary judgment and that, where the moving party fails to carry its
initial burden under Civ.R. 56 regarding the specific issues or claims subject to summary
judgment, the trial court should deny the motion for summary judgment. See Vahila v.
Hall, 77 Ohio St.3d 421, 430, 674 N.E.2d 1164, (1997). Fullum is also correct that
Appellees actually agreed with Fullum that Columbiana County Coroner was an office, not
Dr. Graham in his official capacity. Indeed, at no time during the litigation, including in the
motion for summary judgment, did Appellees ever raise the argument that Columbiana
County Coroner was immune from liability under any theory of law, including R.C.
                                                                                       -6-


2744.01. Instead, during summary judgment proceedings, Appellees' sole immunity-
based argument seemed to relate exclusively to Dr. Graham in his individual capacity,
referring to the fact that Fullum sued Dr. Graham as an individual separate and apart from
the other defendant in this action, Columbiana County Coroner and arguing that as an
employee of the political subdivision Dr. Graham was individually immune.
       {¶21} The trial court found that Fullum failed to contest immunity. However, in
actuality Appellees failed to argue in their motion for summary judgment that the
Columbiana County Coroner, as an office or political subdivision, was immune from suit.
Accordingly, Appellees failed to meet their burden as the moving party; therefore Fullum
had no obligation to contest immunity.
       {¶22} Turning to Fullum's complaints about the sua sponte nature of the trial
court's ruling that "Columbiana County Coroner" did not mean the office or political
subdivision, he relies upon Kent v. Huntington Natl. Bank, 145 Ohio App.3d 745, 764
N.E.2d 480 (10th Dist.2001). In Kent, the Tenth District Court of Appeals held that a trial
court committed reversible error when it sua sponte applied R.C. 5301.232(B) in granting
a motion for summary judgment where the parties made no arguments based upon that
statute. The Tenth District further held that based upon the evidence, the trial court erred
in granting judgment to the appellee pursuant to that statute:

       Although Huntington arguably may have been notified of KeyBank's
       mortgage through its receipt of payments from KeyBank, there is no
       evidence in the record indicating that KeyBank complied with the written
       notice requirements of R.C. 5301.232(D).        Because KeyBank did not
       comply with the mandatory requirements of R.C. 5301.232(D), the trial
       court erred when it determined that Huntington received proper notice. * * *
              Moreover, Huntington was prejudiced by the trial court's independent
       application of R.C. 5301.232, as it deprived both Huntington and KeyBank
       of an opportunity to submit evidence, as well as brief the issues, related to
       R.C. 5301.232.     Accordingly, Huntington's first assignment of error is
                                                                                            -7-


       sustained.

   Id. at 749.
       {¶23} Although Kent is not entirely on point to this case, based upon the pleadings
herein, most notably the admissions in Appellees' answer and amended answer, and
Appellees' failure to argue that Columbiana County Coroner was actually Dr. Graham in
his official capacity and not the office or political subdivision, the trial court erred by sua
sponte determining that Columbiana County Coroner means Dr. Graham in his official
capacity. In sum, the first, second and fourth assignments of error are meritorious.
       {¶24} In his third assignment of error and part of the fourth, Fullum argues that
regardless of whether Columbiana County Coroner is characterized as a political
subdivision or as Dr. Graham in his official capacity, there is no immunity.
       {¶25} R.C. 2744.01(F) defines political subdivision as, "a municipal corporation,
township, county, school district, or other bodied corporate and politic responsible for
governmental activities in a geographic area smaller than that of the state." In Lambert v.
Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, the Ohio Supreme Court
elaborated upon the definition of a political subdivision:

       * * *[M]any of the governmental functions listed in R.C. 2744.01(C) are
       performed by political subdivisions through departments, agencies, and
       offices.   When the departments, agencies, and offices perform their
       assigned governmental functions, each is an integral part and
       instrumentality of the political subdivision. * * * An office of a clerk of courts
       is such an office and an instrumentality of a county political subdivision. * * *

       By logical necessity, the immunity granted by statute to a political
       subdivision is also extended to the political subdivision's departments,
       agencies, and offices, which implement the duties of the political
       subdivision.
                                                                                           -8-


Lambert at ¶19-20.
       {¶26} Pursuant to Lambert, the Columbiana County Coroner's Office is a political
subdivision under Ohio law. Further, the Twelfth District specifically held that a county
coroner is a political subdivision. Winkle v. Zettler Funeral Homes, Inc., 182 Ohio App.3d
195, 203, 2009-Ohio-1724, 912 N.E.2d 151, ¶16-18 (12th Dist.2009). Therefore, we must
determine whether the trial court correctly dismissed Fullum's claims with prejudice based
upon statutory immunity.
       {¶27} R.C. 2744.02(A) provides a general grant of immunity in that political
subdivisions "are 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).     Courts must then determine whether one of five
exceptions set forth in R.C. 2744.02(B) strips the political subdivision of this immunity;
and if it does, immunity may be reinstated if a political subdivision can successfully assert
one of the defenses listed in R.C. 2744.03. These latter provisions are not at issue
because Fullum does not argue that any of the five R.C. 2744.02(B) exceptions apply.
       {¶28} Rather, Fullum argues that the Columbiana County Coroner is not immune
from his claims pursuant to the exceptions contained in R.C. 2744.09, which completely
remove certain types of civil actions from the purview of R.C. Chapter 2744.

              This chapter [political subdivision tort liability] does not apply to, and
       shall not be construed to apply to, the following:
       ***
              (B) Civil actions by an employee, or the collective bargaining
       representative of an employee, against his political subdivision relative to
       any matter that arises out of the employment relationship between the
       employee and the political subdivision;
              (C) Civil actions by an employee of a political subdivision against the
       political subdivision relative to wages, hours, conditions, or other terms of
                                                                                       -9-


       his employment[.]

R.C. 2744.09(B) and (C).
       {¶29} Under either R.C. 2744.09(B) and/or (C) the Columbiana County Coroner is
exempt from immunity because Fullum's claims arise out of the employment relationship:
wage and hours violations, retaliation, hostile work environment, constructive discharge.
And whether Fullum's intentional infliction of emotional distress claim—an intentional
tort—arises out of the employment relationship might seem unclear upon first blush, a
recent Ohio Supreme Court case has resolved this issue.
       {¶30} In the past, many courts, including the Seventh District, held that employer
intentional torts do not arise out of the employment relationship. See, e.g., Fabian v. City
of Steubenville, 7th Dist. No. 00 JE 33, 2001 WL 1199061 at *3–4 (Sept. 28, 2001).
Fabian and similar cases relied upon Blankenship v. Cincinnati Milacron Chems. Inc., 69
Ohio St.2d 608, 613, 433 N.E.2d 572 (1982). However, in Sampson v. Cuyahoga Metro.
Hous. Auth., 131 Ohio St.3d 418, 2012-Ohio-570, 966 N.E.2d 247, the Ohio Supreme
Court concluded that "Blankenship has no relevance to political-subdivision immunity."
Id. at ¶18.

       [W]hen an employee of a political subdivision brings a civil action against
       the political subdivision alleging an intentional tort, that civil action may
       qualify as a "matter that arises out of the employment relationship" within
       the meaning of R.C. 2744.09(B). Further, we hold that an employee's
       action against his or her political-subdivision employer arises out of the
       employment relationship between the employee and the political
       subdivision within the meaning of R.C. 2744.09(B) if there is a causal
       connection or a causal relationship between the claims raised by the
       employee and the employment relationship.

Sampson at ¶17.
       {¶31} Thus, under either R.C. 2744.09(B) and/or (C) Fullum's claims against the
                                                                                          - 10 -


Columbiana County Coroner are not barred by immunity. Accordingly, the trial court erred
in concluding that Columbiana County Coroner was immune from suit and in granting
summary judgment in Appellees' favor on this issue.
       {¶32} Even assuming arguendo that Columbiana County Coroner is more properly
characterized as Dr. Graham in his official capacity as the trial court found, he is also not
entitled to immunity. In Lambert, supra, 125 Ohio St.3d 231, the Supreme Court of Ohio
examined the issue of immunity under R.C. 2744.01, et seq. as applied to an officeholder
or official sued in his official capacity and concluded:

       [W]hen the allegations contained in a complaint are directed against an
       office of a political subdivision, the officeholder named as a defendant is
       sued in his or her official capacity, rather than in his or her individual or
       personal capacity. Moreover, the political-subdivision-immunity analysis set
       forth in R.C. 2744.02 applies to lawsuits in which the named defendant
       holds an elected office within a political subdivision, and that officeholder is
       sued in his or her official capacity.

(Citations and footnote omitted.) Id. at ¶22.
       {¶33} Pursuant to the Lambert decision, when an officeholder or official—such as
Dr. Graham—is sued in his official capacity, the lawsuit is not against Dr. Graham as an
employee of the political subdivision; rather, the suit is against the political subdivision or
office over which the officeholder presides. See also State ex rel. Estate of Miles v.
Piketon, 121 Ohio St.3d 231, 2009-Ohio-786, 903 N.E.2d 311, quoting Kelly v. New
Haven, 275 Conn. 580, 595, 881 A.2d 978 (2005). ("It is well settled law that an action
against a government official in his or her official capacity is not an action against the
official, but, instead, is one against the official's office and, thus, is treated as an action
against the entity itself.")
       {¶34} Importantly, Lambert rejected the R.C. 2744.03(A)(6) employee-immunity
analysis to situations where the public official is sued in his official capacity:
                                                                                          - 11 -


              We recognize that officeholders are employees of political
       subdivisions and that immunity for the actions of employees or officers
       sued in their individual capacities is addressed in another section of the
       Revised Code. See R.C. 2744.01(B) (the term "employee" "includes any
       elected or appointed official of a political subdivision"); R.C. 2744.03(A)(6)
       (detailing conditions when employees are personally immune from liability
       for actions taken).     Here, however, the allegations contained in the
       complaint are ostensively [sic] directed against the office and against the
       named officeholder in the officeholder's official capacity.        This is the
       equivalent of suing the political subdivision rather than the officeholder in an
       individual or personal capacity.

Id. at ¶21.
       {¶35} Thus, even assuming arguendo that the trial court correctly characterized
"Columbiana County Coroner" as Dr. Graham in his official capacity, for immunity
purposes, he will be treated the same as the political subdivision, the Coroner's Office.
As explained above, it is clear that the political subdivision is not entitled to immunity
because the exceptions in R.C. 2744.09(B) and/or (C) apply. Accordingly, Fullum's third
assignment of error is meritorious.
                                             Recusal
       {¶36} In his Supplemental Assignment of Error, Fullum asserts:
       {¶37} "The Trial Court Committed Reversible Error By Not Recusing Itself Prior To
Ruling On The Motion For Summary Judgment."
       {¶38} Fullum argues that because in two related cases before the Columbiana
County Court of Common Pleas the same trial court judge as herein recused himself, a
recusal should have happened in this case.
       {¶39} First, the bulk of Fullum's argument relies upon evidence that is de hors the
appellate record. A reviewing court cannot add matter to the record before it, which was
not a part of the trial court's proceedings, and then decide the appeal on the basis of the
                                                                                     - 12 -


new matter. State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978). Second, Fullum
never asked the trial court judge to recuse himself; therefore, he has waived this
argument and issue. Appellate courts will not review an argument raised for the first time
on appeal. Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, 912
N.E.2d 595, ¶34.         Third, "a court of appeals lacks jurisdiction to review [recusal]
decisions." State ex rel. Hough v. Saffold, 131 Ohio St.3d 54, 2012-Ohio-28, 960 N.E.2d
451, ¶2. The Supreme Court of Ohio has explained that " 'only the Chief Justice or [the
Chief Justice's] designee may hear disqualification matters[.]' " Id., quoting Beer v.
Griffith, 54 Ohio St.2d 440, 441, 377 N.E.2d 775 (1978). See also State v. Donald, 7th
Dist. No. 09 MA 172, 2011-Ohio-3400, ¶13, quoting State v. Drummond, 7th Dist. No. 05
MA 197, 2006–Ohio–7078, ¶104: (" 'R.C. 2701.03 provides the proper procedure for
seeking disqualification of a common pleas court judge. See, also, Section 5(C) of Article
IV of the Ohio Constitution. An appellate court is without authority to pass upon issues of
disqualification or to void a judgment on the basis that a judge should be disqualified for
bias or prejudice.' ")
       {¶40} Accordingly, Fullum's supplemental assignment of error is meritless.
                                 Cross-Assignment of Error
       {¶41} Appellees present alternative reasons why the trial court's judgment should
be upheld in the event we hold that the trial court erred on its immunity ruling, arguing
summary judgment was nonetheless proper because there are no genuine issues of
material fact in dispute with regard to any of Fullum's substantive claims, asserting as
follows:
       {¶42} "The Trial Court erred by failing to specifically determine that—as a matter
of law—Plaintiff/Appellant's claims for overtime, retaliation, hostile work environment,
constructive discharge and intentional infliction of emotional distress must be dismissed
for lack of substantive merit. [J. Entry of 11/28/12.]"
       {¶43} Although Fullum argues otherwise, no notice of cross appeal was required.
Appellees seek to defend the trial court's dismissal on other grounds, using arguments as
a shield not a sword. "A person who intends to defend a judgment or order appealed by
                                                                                         - 13 -


an appellant on a ground other than that relied on by the trial court but who does not seek
to change the judgment or order is not required to file a notice of cross appeal or to raise
a cross-assignment of error." App.R. 3(C)(2).
       {¶44} Regardless, we will not review the merits of Appellees' arguments; although
raised in summary judgment, these arguments were never ruled upon by the trial court.
"[I]t is well-established that issues raised in summary judgment motions but not
considered by the trial court will not be ruled upon by the appellate court." Conny Farms,
Ltd. v. Ball Resources, Inc., 7th Dist. No. 09 CO 36, 2011-Ohio-5472, ¶15, citing Mills–
Jennings, Inc. v. Dept. of Liquor Control (1982), 70 Ohio St.2d 95, 99, 435 N.E.2d 407
(1982); Ochsmann v. Great American Ins. Co., 10th Dist. No. 02AP-1265, 2003-Ohio-
4679, ¶21. In Conny Farms, the trial court's ruling was based upon a legal issue: that a
judicial ascertainment clause in the lease precluded the plaintiffs from bringing suit. Id. at
¶27-28. The trial court did not review the merits of the plaintiff's underlying claims that the
leases had been breached or had expired, despite the fact that the merits were raised in
summary judgment proceedings. Id. On appeal, this court held the judicial ascertainment
clause was unenforceable and declined to review the substantive arguments raised by
the plaintiff because the trial court had not resolved those issues. Id.
       {¶45} Also instructive is this court's decision in Tree of Life Church v. Agnew, 7th
Dist. No. 12 BE 42, 2014-Ohio-878:

              While it is true that an appellate court reviews a trial court's summary
       judgment decision de novo, we will not consider issues raised in summary
       judgment proceedings that the trial court failed to rule on. Conny Farms,
       Ltd. v. Ball Resources, Inc., 7th Dist. No. 09 CO 36, 2011–Ohio–5472, ¶15.

       Because the trial court failed to rule on whether appellant made a prima
       facie case of defamation, whether a qualified privilege was properly raised
       and applied, and whether appellant was able to show actual malice, we are
       unable to properly review its grant of summary judgment or rule on the
       merits of appellant's assignment of error.
                                                                                     - 14 -



Tree of Life Church at ¶27-28.
       {¶46} Similarly, the merits of Fullum's wage and hour, retaliation, hostile work
environment, constructive discharge and intentional infliction of emotional distress claims
were raised in summary judgment proceedings, but not addressed by the trial court. The
trial court's ruling was based solely upon the immunity issue. Because the trial court must
have the first opportunity to review Fullum's underlying claims, we cannot consider the
merits of Appellees' cross-assignment of error.
                                       Conclusion
       {¶47} In sum, Fullum's assignments of error regarding immunity are meritorious,
however we lack jurisdiction to consider his supplemental assignment of error. Moreover,
we cannot reach the merits of Appellees cross-assignment of error.
       {¶48} Because Fullum has not appealed the trial court's decision that Dr. Graham
as an individual is immune from suit, that judgment is affirmed. However, the trial court
erred in determining that "Columbiana County Coroner" means Dr. Graham in his official
capacity and not Columbiana County Coroner, the office and political subdivision.
Applying the Ohio Revised Code immunity provisions, the Columbiana County Coroner is
not immune from suit. Accordingly, the trial court's decision granting summary judgment
is affirmed in part, reversed in part and remanded for further proceedings, where the trial
court will have the first opportunity to decide the substantive merits of Fullum's claims.
Donofrio, J., concurs.
Vukovich, J., concurs.
