[Cite as Kenney v. Cleveland, 2018-Ohio-1186.]



                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 105664




                                 MICHELLE KENNEY
                                                       PLAINTIFF-APPELLANT

                                                 vs.

                        CITY OF CLEVELAND, ET AL.
                                                       DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-15-849922

             BEFORE:          Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.

             RELEASED AND JOURNALIZED:                      March 29, 2018
FOR APPELLANT

Michelle Kenney, pro se
19409 Kewanee Avenue
Cleveland, Ohio 44119


ATTORNEYS FOR APPELLEES

Barbara A. Langhenry
Director of Law

Austin Tyler Opalich
City of Cleveland, Law Department
Assistant Director of Law

Tiffany C. Fischbach
Mark V. Webber
Law Department Assistants
601 Lakeside Ave., Room 106
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, J.:

       {¶1} Michelle Kenney (“Kenney”) appeals pro se from the trial court’s granting

summary judgment to the city of Cleveland (“the City”)1 in this breach of contract case

and assign the following errors for our review:

       I. The trial court granted the defendants[’] motion for summary judgment
       made pursuant to Civ.R. 56.

       II. The trial court[’s] determination that the plaintiff filed [this] action
       after the expiration of the statute of limitations for an oral breach of
       contract pursuant to O.R.C. 2305.07 was a mis[s]tatement of fact.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

judgment. The apposite facts follow.

       {¶3} In August 2008, Kenney, who worked for the City, transferred positions

from the Department of Economic Development to the Department of Public Utilities

(“DPU”). This transfer was a lateral move. However, Kenney alleges that “several

months” earlier, when Eric Myles, who works for the City’s Human Resources

Department, offered her the position via a telephone conversation, he also promised her a

$3,000 salary increase. Kenney noticed that the first paycheck she received after the

transfer, as well as every other paycheck she received through September 2013, when she

stopped working for the City, did not reflect her alleged salary increase. According to


       1
          Kenney also listed the Department of Public Utilities, Robert Davis, and Barry “Whithers”
[sic] as defendants; however, Kenney’s complaint alleges no claims against the Department of
Utilities, Davis, or “Whithers”[sic]. In its final appealable order, the court disposed of all claims
against all parties. For ease of this opinion, however, we refer only to the defendant “the City.”
Kenney, she inquired about the discrepancy many times and, although “[e]verybody said

they would do what they can to fix it,” she never received the $3,000 raise.

       {¶4} On August 18, 2015, Kenney, who was represented by counsel at the time,

filed a complaint against the City alleging breach of contract, promissory estoppel, and

equitable estoppel. 2    The court granted summary judgment in favor of the City on

Kenney’s breach of contract claim, finding that the action was filed after the expiration of

the statute of limitations. The court also granted summary judgment in favor of the City

on the remainder of Kenney’s claims, finding that they were barred by sovereign

immunity. It is from this order that Kenney appeals, pro se.

                                      Law and Analysis

       {¶5} We first note that pro se litigants are “held to the same standard as other

litigants and [are] not entitled to special treatment from the court.” Lenard v. Miller, 8th

Dist. Cuyahoga No. 99460, 2013-Ohio-4703, ¶ 19. In the case at hand, Kenney’s first

assigned error does not allege that the court committed an error at all; rather, it simply

states that the court granted summary judgment.            Additionally, in Kenney’s second

assigned error, she alleges that the trial court committed a “misstatement of fact,” rather

than an error. Nonetheless, in the interest of justice, we review Kenney’s appeal based

on whether the court erred by granting summary judgment to the City. See Northern

Frozen Good, Inc. v. Moton, 8th Dist. Cuyahoga No. 99938, 2014-Ohio-825, ¶ 9


       2
         Kenney also alleged a claim entitled “plus adjustment for working out of classification.”
We know of no such legal claim in Ohio. It appears that the essence of Kenney’s complaint is that
the City owes her money based on an oral contract, or, in the alternative, a theory of estoppel.
(although a pro se litigant’s appellate brief was “very difficult to decipher,” the court

reviewed the case on its merits, stating, “we will address what we discern to be his

assignments of error”).

                                   Summary Judgment

       {¶6} Appellate review of granting summary judgment is de novo. Pursuant to

Civ.R. 56(C), the party seeking summary judgment must prove that (1) there is no

genuine issue of material fact; (2) they are entitled to judgment as a matter of law; and (3)

reasonable minds can come to but one conclusion and that conclusion is adverse to the

nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

                               Statute of Limitations
                  Breach of Oral Contract and Promissory Estoppel

       {¶7} Pursuant to Civ.R. 10(D), “[w]hen any claim * * * is founded on [a] written

instrument, a copy of the * * * written instrument must be attached to the pleading.” In

the instant case, there are no written instruments attached to Kenney’s complaint.

Additionally, Kenney admitted in her deposition that there are no written documents in

which the proper authority from the City “signs off” on her alleged raise.           Rather,

Kenney argues that “everybody approved” of Myles offering her the $3,000 raise over the

phone. Therefore, although Kenney’s complaint never expressly states it, we surmise

that her claims are based on an alleged breach of oral contract.

       {¶8} The statute of limitations for a breach of oral contract claim is six years.

R.C. 2305.07. “The cause of action arises when the plaintiff discovers the omission to

perform as agreed in the oral contract.”      Aluminum Line Prods. Co. v. Brad Smith
Roofing Co., 109 Ohio App.3d 246, 258, 671 N.E.2d 1343 (8th Dist.1996). Additionally,

a cause of action for promissory estoppel is also subject to the six-year statute of

limitations found in R.C. 2305.07. See Cleveland Hts. v. Cleveland, 8th Dist. Cuyahoga

No. 79167, 2001 Ohio App. LEXIS 5010 (Nov. 8, 2001).

       {¶9} In the case at hand, it is undisputed that Kenney discovered the alleged

breach when she received her first paycheck from the DPU. That exact date is not

established in the record, although the evidence shows that Kenney started her new job in

August 2008 and received her first paycheck shortly thereafter. Kenney filed her claim

in August 2015, which is approximately seven years after the causes of action accrued

and one year after the statute of limitations expired. Accordingly, we find that Kenney’s

claims are barred by the statute of limitations.

                               Immunity for Estoppel Claims

       {¶10} Determining whether a political subdivision has immunity generally

involves an analysis under Chapter 2744 of the Ohio Revised Code. However, under

R.C. 2744.09, immunity under this chapter is not applicable to “[c]ivil actions by an

employee of a political subdivision against the political subdivision * * * relative to any

matter that arises out of the employment relationship between the employee and the

political subdivision [including] wages, hours, conditions, or other terms of his

employment * * *.” R.C. 2744.09(A) and (B). Furthermore, Chapter 2744 immunity

does not apply to “actions that seek to recover damages from a political subdivision * * *

for contractual liability * * *.”
       {¶11} Kenney’s claims, whether they sound in contract or quasi-contract, clearly

arise out of the employment relationship between her and the City.          Therefore, we

conclude that the City is not entitled to immunity under R.C. Chapter 2744 et seq.

       {¶12} The City alternately argues that it is immune from liability for promissory

and equitable estoppel claims. We note that the Ohio Supreme Court has held that “the

doctrines of equitable estoppel and promissory estoppel are inapplicable against a

political subdivision when the political subdivision is engaged in a governmental

function.” Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, 852 N.E.2d

716, ¶ 25. See also Campolieti v. Cleveland, 184 Ohio App.3d 419, 2009-Ohio-5224,

921 N.E.2d 286, ¶ 36 (8th Dist.2009) (“Employment decisions made in the exercise of a

government function fall within this protection”).

       {¶13} The “operation of a utility,” however, is not a governmental function; rather,

R.C. 2744.01(G)(2)(c) expressly lists this as a proprietary function. Therefore, we find

that Hortman is not applicable to the case at hand.

       {¶14} Although we do not find that political subdivision immunity bars Kenney’s

claims against the City, the outcome of this case is controlled by Kenney’s failure to file

her complaint before the six-year statute of limitations expired. See, e.g., Argabrite v.

Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 32 (“although on a

different ground, we affirm the court of appeals’ judgment affirming the trial court’s

entry of summary judgment * * *”).
       {¶15} Accordingly, there are no issues of material fact concerning Kelley’s claims,

including one breach of contract claim, one promissory estoppel claim, two equitable

estoppel claims, and one claim entitled “plus adjustment for working out of

classification,” and the City, as well as all other defendants, are entitled to judgment as a

matter of law.    The court did not err by granting summary judgment on Kenney’s

complaint, and her two assigned errors are overruled.

       {¶16} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas

Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


PATRICIA ANN BLACKMON, JUDGE

EILEEN T. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR
