[Cite as Hope Academy Broadway Campus v. Integrated Consulting & Mgt., 2011-Ohio-6622.]


               Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                Nos. 96100 and 96101




      HOPE ACADEMY BROADWAY CAMPUS, ET AL.
                                                        APPELLANTS

                                                  vs.

                   INTEGRATED CONSULTING AND
                       MANAGEMENT, ET AL.
                                                        APPELLEES



                       JUDGMENT:
   AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                            Case Nos. CV-637589 and CV-637749

       BEFORE: Cooney, J., Kilbane, A.J., and Celebrezze, J.

       RELEASED AND JOURNALIZED: December 22, 2011
                                       2

ATTORNEYS FOR APPELLANTS

Michele L. Jakubs
Zashin & Rich Co., LPA
55 Public Square, 4th Floor
Cleveland, Ohio 44113

Joseph E. Rutigliano
260 Meadowhill Lane
Moreland Hills, Ohio 44022

April N. Hart, Esq.
April N. Hart Co., LPA
2529 Canterbury Road
Cleveland Heights, Ohio 44118


ATTORNEYS FOR APPELLEES

For Community Educational Partnerships, LLC, and Beth Perry

Sean P. Ruffin
401 Tuscarawas Street, W., Suite 200
Canton, Ohio 44702


For Integrated Consulting and Management, LLC

Joseph R. Klammer, Esq.
The Klammer Law Office, Ltd.
Lindsay II Professional Building
6990 Lindsay Drive, Suite 7
Mentor, Ohio 44060
                                             3

COLLEEN CONWAY COONEY, J.:

       {¶ 1} Appellants, 19 Hope Academy and Life Skills Boards (collectively referred

to as the “the Boards”),1 James E. Haynes, and James Stubbs, appeal the denial of their

motion for partial summary judgment on tort claims brought against them by appellees,

Integrated Consulting and Management, LLC (“ICM”), Community Educational

Partnerships, LLC (“CEP”), and Beth Perry. We find some merit to the appeal and,

therefore, affirm in part and reverse in part.

       {¶ 2} The facts, as set forth in affidavits and deposition transcripts, are as follows:

       {¶ 3} The 19 Hope Academy and Life Skills charter schools are publicly funded,

privately managed alternatives to traditional public schools.           They are nonprofit

corporations with boards of directors, who are responsible for school operations,

including compliance with Ohio law and Ohio Department of Education regulations.

Appellant James E. Haynes (“Haynes”) sat on the boards of all 19 charter schools at one

time. Appellant James Stubbs (“Stubbs”) sat on 15 of the 19 boards at one time.

       {¶ 4} In the spring of 2006, the Boards were concerned that their management

company, White Hat Management, was not providing adequate security services to the

       1
          Appellants include: boards of the Hope Academy Broadway Campus, Hope Academy
Brown Street Campus, Hope Academy Canton Campus, Hope Academy Cathedral Campus,
Hope Academy Chapelside Campus, Hope Academy East Campus, Hope Academy High School,
Hope Academy Lincoln Park Campus, Hope Academy Northcoast Campus, Hope Academy
University Campus, Hope Academy West Campus, Life Skills Center of Canton, Life Skills
Center of Cleveland, Life Skills Center of Lake Erie, Life Skills Center of Middletown, Life
Skills Center of Northeast Ohio, Life Skills Center of Springleaf, and Life Skills Center of
Summit County.
                                              4

schools, and boards of 11 schools contracted with ICM for the provision of security

services.2 Joe Fouche (“Fouche”) is the sole owner of ICM.

       {¶ 5} In October 2006, all 19 Boards entered into a “Board Management

Contract” with ICM for the provision of board management services. Pursuant to these

agreements, the Boards agreed to pay ICM $1,500 per month, per school, for its services

for a period of three years. Paragraph 17 of the parties’ contracts, titled “Disclosure,”

prohibited ICM from contracting with any other companies providing services to the

charter schools. Specifically, paragraph 17 provides:

       “ICM and its officers state that there is no financial interest with any Board
       member as it relates to this Agreement and that ICM does not contract with any
       other service provider or independent contractor hired by school.”

       {¶ 6} Shortly after contracting with ICM, the Boards executed consulting

agreements with CEP for the provision of various educational services, including school

assessments, programming for students, and human resources. Beth Perry and Angela

Perry jointly own CEP. At the time the Boards contracted with ICM and CEP, Fouche

and Angela Perry (“Perry”) were romantically involved and had children together.

       {¶ 7} In June 2007, the Boards had some financial and billing concerns and

attempted to renegotiate the business management services agreement with ICM.

Although Fouche expressed a willingness to renegotiate, the renegotiations were not



           The contracts between ICM and each of the boards were practically identical in content,
       2


with few insignificant differences.
                                           5

successful. In September 2007, the Boards of all 19 charter schools terminated all ICM

contracts and all CEP contracts. In a letter dated September 27, 2007, Haynes informed

Fouche that ICM’s contracts were terminated because board members had discovered that

ICM had a business relationship with CEP, in breach of paragraph 17 of the contract.

Haynes further stated that Fouche’s concealment of the relationship “suggests the

possibility of some fraudulent behavior on the part of the aforementioned businesses[.]”

      {¶ 8} On October 2, 2007, the 19 Hope Academy and Life Skills Boards filed a

complaint against ICM, Fouche, CEP, and Beth Perry, claiming fraud, conspiracy, and

negligent misrepresentation and seeking equitable relief. On the same day, ICM filed a

complaint against Haynes, Stubbs, April Hart-Todd (“Hart-Todd”), the Boards’ in-house

counsel, and the 19 Boards, claiming breach of contract and tortious interference with

contracts. In November, CEP filed a counterclaim against the Boards also claiming

breach of contract. The cases were consolidated.

      {¶ 9} Following a series of amended pleadings and the resolution of claims

between several of the parties, ICM maintains claims against the following: Hope

Academy Broadway Campus, Hope Academy Cathedral Campus, Hope Academy

Chapelside Campus, Hope Academy High School, Hope Academy Lincoln Park Campus,

Hope Academy Northcoast Campus, Life Skills Center of Cleveland, Life Skills Center of

Lake Erie, Life Skills Center of Northeast Ohio (collectively “Boards I”), Stubbs, Haynes,

and Hart-Todd.
                                           6

      {¶ 10} In its amended complaint, ICM alleges that Boards I breached their

contracts with ICM; that the Boards I, Stubbs, Haynes, and Hart-Todd             tortiously

interfered with ICM’s contracts with peace officers; and that Stubbs, Haynes, and

Hart-Todd tortiously interfered with ICM’s contracts with the Boards and peace officers.

Boards I maintains claims for fraud, conspiracy, negligent misrepresentation, breach of

contract, and breach of fiduciary duties against ICM.

      {¶ 11} CEP maintains claims against Hope Academy Broadway Campus, Hope

Academy Cathedral Campus, Hope Academy Chapelside Campus, Hope Academy High

School, Hope Academy Lincoln Park Campus, Hope Academy Northcoast Campus, Life

Skills Center of Cleveland, Life Skills Center of Lake Erie, Life Skills Center of

Middletown, Life Skills Center of Northeast Ohio, Life Skills Center of Springfield

(collectively “Boards II”).     In its amended complaint, CEP alleges that Boards II

breached the contract between CEP and the Boards. Boards II maintains claims for

fraud, conspiracy, negligent misrepresentation, breach of contract, and breach of fiduciary

duties against CEP and Perry.

      {¶ 12} In September 2009, Boards I, Stubbs, and Haynes filed a motion for partial

summary judgment arguing, inter alia, that they are immune from liability under R.C.

Chapter 2744 for the tortious interference claim. Boards II also filed a motion for partial

summary judgment arguing they are entitled to statutory immunity from punitive damages

pursuant to R.C. Chapter 2744. The trial court denied both motions in their entirety
                                              7

without opinion. Boards I, Boards II, Stubbs, and Haynes now appeal, raising two

assignments of error related to the claim of immunity.3

                                         Standard of Review

       {¶ 13} An appellate court reviews a trial court’s decision on a motion for summary

judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671

N.E.2d 241. Summary judgment is appropriate when, construing the evidence most

strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2)

the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can

come to but one conclusion, that conclusion being adverse to the nonmoving party.

Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201,

citing Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196,

paragraph three of the syllabus.

                                Tortious Interference With Contracts

       {¶ 14} In their first assignment of error, Boards I, Stubbs, and Haynes (collectively

referred to as “appellants”) argue the trial court erred in finding they are not entitled to

immunity for the claim of tortious interference with contracts. Appellants argue that, as

charter schools, they are engaged in a governmental function and, therefore, are entitled

to immunity under R.C. Chapter 2744.




       3
       Hart-Todd is not a party in this appeal.
                                          8

      {¶ 15} The Political Subdivision Tort Liability Act, codified in R.C. Chapter 2744,

sets forth a three-tiered analysis for determining whether a political subdivision is

immune from liability. Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946,

865 N.E.2d 9, ¶14. First, R.C. 2744.02(A)(1) sets forth the general rule that a political

subdivision is immune from tort liability for acts or omissions connected with

governmental or proprietary functions. Cramer at ¶14; Colbert v. Cleveland, 99 Ohio

St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶7. Second, R.C. 2744.02(B) lists five

exceptions to the general immunity granted to political subdivisions under R.C.

2744.02(A)(1). Cramer at ¶15; Ryll v. Columbus Fireworks Display Co., 95 Ohio St.3d

467, 2002-Ohio-2584, 769 N.E.2d 372, ¶25. Finally, R.C. 2744.03(A) sets forth several

defenses that a political subdivision may assert if R.C. 2744.02(B) imposes liability.

Cramer at ¶16; Colbert at ¶9. These defenses then reinstate immunity. Whether a political

subdivision is entitled to statutory immunity under Chapter 2744 presents a question of

law. Conley v. Shearer (1992), 64 Ohio St.3d 284, 292, 595 N.E.2d 862.

      {¶ 16} ICM contends the Boards are not immune from liability because the

provision of security and board management services, or the decision to select the

company to supply those services, are proprietary functions. In support of its argument,

ICM relies on Copeland v. Cincinnati, 159 Ohio App.3d 833, 2005-Ohio-1179, 825

N.E.2d 681. In Copeland, the court held that a city’s operation of a day camp was a

proprietary function as opposed to a governmental function because “[t]he operation of a
                                             9

day camp by a city is distinct from its operation of an indoor recreational facility.” Id. at

¶12. The court further explained that “[b]ecause the operation of a day camp is not

specifically listed as a governmental function in R.C. 2744.01(C), is one that promotes

public health, safety, or welfare, but is typically engaged in by nongovernmental

persons,” it is a proprietary function not entitled to immunity.

       {¶ 17} We find Copeland inapplicable to the facts of this case because

R.C. 2744.01(C), which defines “governmental functions,” expressly states that

“governmental functions” include both, “[t]he provision of a system of public education,”

as well as “[a] function that the general assembly mandates a political subdivision to

perform.” R.C. 2744.01(C)(2)(c),(x). Although the Boards operate privately managed

schools, community schools established under R.C. Chapter 3314 are political

subdivisions with the benefit of governmental immunity.              R.C. 2744.01(F) and

2744.02(A)(1). Haynes and Stubbs, as board members, are agents and employees of the

political subdivision.   Therefore, appellants are immune from liability under R.C.

2744.02(A), the first tier of the statutory immunity analysis.

       {¶ 18} However, the immunity afforded in R.C. 2744.02(A)(1) is not absolute.

“The second tier of the analysis requires a court to determine whether any of the five

exceptions to immunity listed in R .C. 2744.02(B) apply to expose the political

subdivision to liability.” Colbert at ¶8. These exceptions apply only to allegations of
                                           10

negligent acts or when civil liability is expressly imposed upon the political subdivision

by statute. R.C. 2744.02(B)(2).

       {¶ 19} ICM alleges tortious interference with a contract, which is an intentional

act, and therefore does not fall within any of the exceptions to immunity set forth in R.C.

2744.02(B). Indeed, the Ohio Supreme has held that political subdivisions are generally

immune from liability for intentional torts. Wilson v. Stark Cty. Dept. of Human Servs.

(1994), 70 Ohio St.3d 450, 639 N.E.2d 105. Although R.C. 2744.09 excepts political

subdivisions from immunity for certain kinds of civil actions, none of the exceptions are

applicable here. Thus, the Boards are immune from ICM’s intentional interference with

contract claims.

       For employees of political subdivisions, however, the analysis of immunity differs.
        Instead of the three-tiered analysis described in Colbert, R.C. 2744.03(A)(6)
       provides that an employee is immune from liability unless the employee’s actions
       or omissions are manifestly outside the scope of employment or the employee’s
       official responsibilities, the employee’s acts or omissions were malicious, in bad
       faith, or wanton or reckless, or liability is expressly imposed upon the employee by
       a section of the Ohio Revised Code. R.C. 2744.03(A)(6); Wilson at 452; Fabrey
       v. McDonald Village Police Dept. (1994), 70 Ohio St.3d 351, 639 N.E.2d 31.

       {¶ 20} ICM alleges that both Haynes and Stubbs were acting with malicious

purpose and in bad faith when they terminated ICM’s contracts. As such, ICM argues

that Haynes and Stubbs were acting outside the scope of their official responsibilities.

       {¶ 21} R.C. Chapter 2744 does not define the type of employee acts that fall

“manifestly outside the scope of employment or official responsibilities” under R.C.

2744.03(A)(6)(a). However, Ohio courts have generally drawn from agency-law
                                            11

principles to hold that “conduct is within the scope of employment if it is initiated, in part,

to further or promote the master’s business.” Jackson v. McDonald (2001), 144 Ohio

App.3d 301, 307, 760 N.E.2d 24; Chesher v. Neyer (C.A.6, 2007), 477 F.3d 784, 797. “In

the context of immunity, ‘[a]n employee’s wrongful act, even if it is unnecessary,

unjustified, excessive or improper, does not automatically take the act manifestly outside

the scope of employment.’” Jackson at 307. “It is only where the acts of state employees

are motivated by actual malice or other [situations] giving rise to punitive damages that

their conduct may be outside the scope of their state employment.” Id.

       {¶ 22} Within the context of R.C. 2744.03(A)(6), “malice” refers to a willful and

intentional design to do injury. Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76

Ohio App.3d 448, 453, 602 N.E.2d 363. An employee acts in “bad faith” where there is a

“dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty

through some ulterior motive.” Id. at 454, quoting Slater v. Motorists Mutual Ins. Co.

(1962), 174 Ohio St. 148, 187 N.E.2d 45, paragraph two of the syllabus.

       {¶ 23} There is evidence in the record tending to show that the Boards did not have

a justifiable reason for terminating ICM’s contracts. Although there is evidence that

ICM may have assisted CEP with its billing and one other project in violation of

paragraph 17 of the contracts, Robert Townsend (“Townsend”), then president of all 19

schools, testified that ICM performed in accordance with the contracts. He stated in an

affidavit that: “[t]here simply was no basis to cancel the contracts.”          Even Haynes
                                           12

admitted at his deposition that ICM never failed to perform any required services.

However, Haynes also admitted that in hindsight, ICM’s contract price of $1,500 per

school, per month for services was too high and “not a good deal” for the Boards.

       {¶ 24} Townsend also suggested that Haynes’s actions were motivated by

self-interest. In his affidavit, Townsend stated that in January 2007, Haynes indicated that

he wanted to terminate the ICM contract so that he and other Board members could “take

over the board management aspect of the contracts and be compensated to do so.” To

that end, Haynes introduced a resolution to the Boards to make Stubbs, Wilkens,

Townsend, and Haynes consultants to the Board and receive compensation.

       {¶ 25} Townsend further stated that he advised Haynes and the Boards’ counsel

that ICM had a three-year contract with a 30-day right to cure any problem before

canceling the contract. When Townsend later discussed the ICM contract with Haynes,

Haynes admitted that “he knew that not paying ICM, and canceling the contract was a

violation of the contractual terms,” but “he believed that ICM could not afford to fight the

Schools for breach of contract and that it would be destroyed by any litigation.”

According to Townsend, Haynes admitted that “he intended to solicit the contracts for

himself.”   Thus, there is evidence to support an allegation that Haynes wilfully

terminated ICM’s contract in bad faith and for his own personal benefit. Since there is

evidence that Stubbs acquiesced in the plan to terminate ICM’s contracts and assume the

business for his personal gain, there is a question of fact as to whether Stubbs acted in bad
                                            13

faith and outside the scope of his official capacity. Whether the employee acted with

malicious purpose or in bad faith is generally a question of fact for the jury. Theobald v.

Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, 857 N.E.2d 573, ¶14; Fabrey

at 356. Therefore, the trial court properly denied the motion for partial summary judgment

for Haynes and Stubbs.

      {¶ 26} The first assignment of error is sustained as to the Boards I and overruled as

to Haynes and Stubbs.

                                         Punitive Damages

      {¶ 27} In the second assignment of error, the Boards, Stubbs and Haynes argue

they are immune from punitive damages pursuant to R.C. 2744.05(A). R.C. 2744.05(A)

provides:

       “Notwithstanding any other provisions of the Revised Code or rules of a court to
       the contrary, in an action against a political subdivision to recover damages for
       injury, death, or loss to person or property caused by an act or omission in
       connection with a governmental or proprietary function:

       “(A) Punitive or exemplary damages shall not be awarded.”

      {¶ 28} Thus,    not   only   are    the   Boards   immune    from   liability   under

R.C. 2744.02(A), but R.C. 2744.05(A) plainly prohibits awarding punitive damages in a

tort action against a political subdivision. ICM’s claim for punitive damages against

Haynes and Stubbs, however, alleges that Haynes and Stubbs acted with malicious

purpose and in bad faith when they intentionally interfered with its contracts with the

Boards. As such, ICM alleges claims for punitive damages against Haynes and Stubbs in
                                            14

their individual capacity rather than in their official capacity as Board members. See

Jackson at 307. Immunity from punitive damages available to political subdivisions is

not available to government employees sued in their individual capacity and outside the

scope of their official capacity. R.C. 2744.03(A)(6).

       {¶ 29} Therefore, the second assignment of error is sustained as to the Boards II

and overruled as to Haynes and Stubbs.

       {¶ 30} Judgment is affirmed in part and reversed in part. The denial of partial

summary judgment on ICM’s claims against the Boards is reversed, and the denial of

partial summary judgment on ICM’s claims against Haynes and Stubbs is affirmed.

       It is ordered that appellants and appellees share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the 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.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
