author: PATRICIA ANN BLACKMON, J.:

text:
    Jyoti R. PATEL, et al., Plaintiffs-Appellants/Cross-Appellees v. KRUSHNA SS L.L.C., et al., Defendants-Appellees/ Cross-Appellants
    No. 104665
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 25, 2018
    Thomas A. Barni, Alec F. Davidson, Jared Klebanow, Benjamin D. Carnahan, Dinn, Hochman & Porter L.L.C., 5910 Landerbrook Drive, Suite 200, Cleveland, Ohio 44124, ATTORNEYS FOR APPELLANTS/CROSS-APPELLEES
    Patrick DiChiro, Law Office of Patrick DiChiro, 4141 Rockside Road, Suite 230, Seven Hills, Ohio 44131, ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS
    Daniel P. Lang, Leary, Schifko, Nobili and Lang, 5579 Pearl Road, Suite 203, Parma, Ohio 44129, For Estate of Usha Patel
    BEFORE: Blackmon, J., E.A. Gallagher, A.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   PATRICIA ANN BLACKMON, J.:

{¶ 1} These consolidated appeals arise from Krushna SS L.LC.'s ("Krushna L.L.C.") 2003 purchase of a hotel in Middleburg Heights, Ohio. Plaintiffs-appellants Ramesh Patel ("Ramesh") and his wife, Jyoti Patel ("Jyoti"), a former member of Krushna L.L.C., appeal from the judgment for defendants-appellees Krushna L.L.C., and Krushna's additional members, defendants-appellees Suryakant Patel ("Suryakant"), his wife Hansaben Patel ("Hansaben"), son Sajag Patel ("Sajag"), and brother Pravin Patel ("Pravin"), in plaintiffs' action for money damages related to the dissolution of the parties' joint business interests. Ramesh and Jyoti assign the following errors for our review:

I. The trial court erred by applying Ohio law where only English law applies.
II. The trial court erred because the trial court's final judgment is an impermissible collateral adjudication on issues already litigated to finality in a fair and impartial English tribunal.
III. The trial court erred in finding that plaintiffs-appellants failed to meet their burden of establishing that plaintiffs-appellants are due payment on the "UK. Note."
IV. The trial court erred by excluding plaintiffs-appellants' Exhibits 33, 34 and 35 which are original foreign public documents pursuant to Evid.R. 902(3).

{¶ 2} The defendants cross-appeal from three related judgments recognizing and enforcing money judgments issued to Ramesh and Jyoti in English courts. They assign the following errors for our review:

I. The trial court erred by confirming the foreign country money judgments where the three orders issued by the English court did not constitute foreign country money judgments as contemplated by R.C. 2329.90.
II. The trial court erred by confirming the foreign country orders where the foreign country orders are repugnant to Ohio public policy.

{¶ 3} Having reviewed the record presented in all four matters, and the relevant law, we affirm all four judgments.

{¶ 4} In 2003, Jyoti, Sajag, Suryakant, and Hansaben formed Krushna L.L.C., an Ohio limited liability company, in order to purchase a Days Inn in Middleburg Heights, Ohio. Each was a 25 percent member. Four years later, after various disputes, the parties entered into a Family Settlement Agreement that governed buying out Jyoti's interest and the repayment of various loans.

{¶ 5} Ramesh subsequently filed suit in the High Court of Justice, in London regarding ownership of 5 St. James Gardens, Alperton, Wembley in England ("5 St. James Gardens property") titled in Suryakant's name, and 37 Woodstock, Wembley in England ("37 Woodstock property") titled in Pravin's name. Ramesh asserts that the High Court issued orders declaring him to be the owner of both properties.

{¶ 6} Ramesh also filed three separate actions in the court of common pleas under the Uniform Foreign Judgments Recognition Act, R.C. 2329.90 et seq., to enforce three court orders issued in London requiring Suryakant and Pravin to pay £50,000, £5,000, and £1,428. On May 29, 2016, the trial court determined that all three orders were enforceable money judgments. The court granted Ramesh's motion to enforce these three judgments and convert the amounts to equivalent dollar amounts. The cross-appeal challenges these rulings.

{¶ 7} Additionally, in 2013, Jyoti and Ramesh sued Krushna L.L.C., its remaining members, as well as Pravin, and other family members in the court of common pleas. As is relevant herein, plaintiffs alleged that defendants: breached an agreement to repay plaintiffs' initial loans for purchasing and renovating the hotel; made false representations about the repayment of the loans; were unjustly enriched by obtaining proceeds from the mortgages of the two London properties, and failing to transfer title of those properties to plaintiffs; breached fiduciary duties; and fraudulently obtained Jyoti's 25 percent interest in Krushna L.L.C. then assigned it to Pravin. The matter proceeded to trial to the court in December 2014.

{¶ 8} The record and the evidence adduced at trial demonstrated that in 2003, Sajag, the son of Suryakant and Suryakant's wife Hansaben, approached Ramesh (who is Suryakant's brother) about the purchase of the hotel. Thereafter, defendants Suryakant, Hansaben, and Sajag, and plaintiff Jyoti formed Krushna L.L.C. as 25 percent shareholders. Each was to invest $187,500. Sajag borrowed $187,500 from plaintiff Ramesh in order to purchase his share in Krushna L.L.C., Ramesh also stated that he invested additional funds in Krushna L.L.C., for a total of $963,999.

{¶ 9} Ramesh further maintained that in order to obtain funds for the hotel, he had his brothers obtain mortgages against his 5 St. James Gardens property and the 37 Woodstock property. Ramesh asserted that Suryakant and Pravin, the persons listed in the titles to the properties, held them for him under "oral trusts," and bequeathed them to Ramesh's children.

{¶ 10} Ramesh also testified that when the parties later decided to terminate their joint business interests, they asked family members, including defendant Pravin, to mediate the dispute. Ramesh stated that his objectives were to obtain a buyout of Jyoti's 25 percent interest in Krushna L.L.C., repayment of the money he borrowed in London against the 5 St. James Gardens and 37 Woodstock properties, and repayment of additional money he borrowed in the United States for the purchase and renovation of the hotel. The parties entered into a Family Settlement Agreement in April 2007, obligating defendants to buyout Jyoti's interest for $350,000 ($150,000 for her initial investment, plus an additional $200,000). Additionally, the Family Settlement Agreement provides:

2) Details of the money loaned to Sajag and also the Ramada [prior to hotel becoming Days Inn] will be forwarded to the mediators within a week. [These loans] will be paid back at a fixed interest rate of 10 percent directly to Ramesh [by the end of 2007]. Until the loan is paid back a promissory note will be held by Pravin Patel. ["U.S. Note."]
3) Money brought over from London under the liability of Suryakant Patel will be paid back directly to the lender via P.W. Moody (lawyer from U.K.) and Daxa Patel * * *. ["U.K. Note."]

{¶ 11} Sajag also signed notes on behalf of Krushna L.L.C. agreeing to repay a "U.S. Note" in the amount of $523,380, and a "U.K. Note" in the amount of $521,016 (in United States currency) in order to fully repay the mortgages on the England parcels. Additionally, Ramesh maintained that defendants were required to deed the England parcels back to him.

{¶ 12} Ramesh admitted that defendants made a number of payments to him, including payments totaling $350,000 for Jyoti's share. He also admitted that defendants completely repaid the U.S. Note. However, Ramesh testified that defendants made no payments on the U.K. Note. Ramesh offered no documentation to support his claims that there had not been payment on the U.K. Note. He also admitted that the mortgages on the England properties are not in his name, so he is not liable on these debts. Ramesh acknowledged that Krushna L.L.C. lost money in 2004 and 2005, but he testified that after defendants refinanced Krushna L.L.C. in late 2007, they received $1,350,680.

{¶ 13} Ramesh also testified that defendants did not deed the England properties to him. In 2010, Ramesh filed suit in London High Court concerning the ownership of these properties. Suryakant and Pravin filed defenses and counterclaims but neither they nor their barristers or solicitors appeared for trial. Thereafter, Ramesh testified, the London High Court ruled that Suryakant and Pravin held their parcels "in trust" for him, and ordered them to deed the properties to Ramesh. The London Court also issued Ramesh monetary judgments in the amounts of £50,000, £5,000, and £1,428.

{¶ 14} Proceeding to defendants' evidence, Pravin testified that he and his father purchased the England parcels but later, while going through a divorce, he transferred the 5 St. James property to Suryakant. Additionally, Pravin testified that he obtained a mortgage on the property in 2004. Suryakant maintained that he is the owner who owned the 5 St. James Gardens property and that he purchased it using proceeds of the sale of another property. Suryakant also testified that he took a mortgage on this parcel in order to purchase shares and fund Krushna L.L.C. Defendants denied the existence of any "oral trust" for Ramesh. After Ramesh filed suit in London over the properties, he and Suryakant filed defenses and counterclaims. They did not have enough money to obtain representation for trial and the trial dates conflicted with common pleas proceedings, so the defense did not appear for trial. The London High Court subsequently issued judgments concluding that they held the properties "in trust" for Ramesh.

{¶ 15} Defendants' evidence further indicated that the members of Krushna L.L.C. obtained a loan in the amount of $1,760,000 to renovate and operate the hotel. Defendants acknowledged Ramesh's help in operating the hotel, and stated that he had full access to the corporate books and prepared Krushna L.L.C.'s tax returns. However, defendants later learned that Ramesh's C.P.A. license had been expired for many years. By 2006, the parties could no longer work together, so defendants decided to buy out Jyoti's 25 percent share and repay Ramesh his contributions.

{¶ 16} Defendants admitted that they agreed to pay $523,380 on the U.S. Note, and $521,016 in the U.K. Note, but they testified that both notes were fully repaid. Defendants maintained that Ramesh was not liable on the U.K. Note, and that this note was repaid using tenants' rent payments. Defendants presented evidence that plaintiffs made an initial contribution of $537,891 and received final compensation totaling $830,679. Defendants also testified that the Family Settlement Agreement does not require the transfer of any real estate.

{¶ 17} Defendants' evidence also demonstrated that after Jyoti received payment for her share in Krushna L.L.C., she assigned her interest to Pravin. Ramesh structured the receipt of $200,000 of the funds to avoid tax liability, requiring defendants to issue checks for less than $11,800 to other family members, including a deceased individual, then negotiated these checks.

{¶ 18} Attorney Pericles Stergios testified that he represented Suryakant in 2007 after Suryakant learned that Ramesh was attempting to obtain the 5 St. James Gardens property. The title report that he reviewed in connection with this matter demonstrated that Suryakant owned the property.

{¶ 19} At the conclusion of the trial, the trial court issued final judgment for defendants on all claims. In relevant part, the court found as follows:

14. The evidence established that Plaintiffs complied with the Family Settlement Agreement. In fact, the evidence established that Plaintiff Jyoti Patel was to receive $200,000 for her 25 percent interest in [Krushna L.L.C.]. The evidence established that Plaintiff Ramesh directed that the payment of that money be made to family members in amounts less than $11,800, just under the Federal Gift Tax Exemption. These family members then cashed the checks and gave the monies to Plaintiffs. Plaintiffs did this to avoid paying taxes. The evidence also showed that several of the checks were made payable to a deceased person * * * and that said checks were negotiated by Plaintiff Ramesh Patel on behalf of the deceased person. * * *
16. Plaintiffs failed to establish that any of the items on the "Family Settlement Agreement" were not complied with. * * *
18. The evidence established and Plaintiffs agreed that Defendants paid back the U.S. loan in [its] entirety.
19. Plaintiffs failed to present any evidence relative to the U.K. loans from Mortgage Express. No loan paperwork or statements were presented * * *. In addition, there was no evidence presented that there was any balance owed on the U.K. loans, and if any balance, that Plaintiffs were damaged by such balance. Plaintiffs substantiated no damages from the U.K. loans.
20. The evidence established that Defendant Suryakant Patel borrowed money on a piece of real estate located at 5 St. James, in England. The money was borrowed from a financial institution * * * [t]he real estate was in [Suryakant's] name at the time of the loan and the loan was his liability only. Plaintiffs failed to establish any evidence that 1) the loan by Defendant Suryakant Patel from Mortgage Express was still owed; 2) the balance of the loan, if any; and 3) if any amount was still owed by Defendant Suryakant Patel, Plaintiffs failed to establish that they suffered any damages as a result of that loan being owed.
21. There was evidence that the loan of Defendant Suryakant Patel may have been paid off. There was evidence that he leased the property to tenants who were paying rent to Defendant Suryakant Patel through his sister in London, England, and that this rent may have paid off the loan.
22. There was no evidence of any oral or written agreement whereby any of the Defendants agreed to transfer any of their properties in England to Plaintiffs.
23. Plaintiffs Ramesh and Jyoti Patel established no damages.

{¶ 20} Ramesh and Jyoti's appeal challenges this judgment.

RAMESH AND JYOTI'S APPEAL

I. Trial Court's Application of Ohio Law

{¶ 21} In their first assigned error, plaintiffs argue that the trial court erroneously applied Ohio law concerning oral interests in real estate and this led the court to erroneously conclude that defendants are not owed money on the U. K. Note. In opposition, defendants argue that the court properly applied Ohio law to the instant claims.

{¶ 22} In evaluating this assignment of error, it is essential to begin by stating that plaintiffs at no point asked the Ohio court to determine ownership of 5 St. James Gardens or 37 Woodstock, and the trial court did not issue orders pertaining to the ownership of these properties. Rather, this Ohio litigation concerned the dissolution of a member's interests in an Ohio limited liability corporation for an Ohio business, asked an Ohio court to grant relief on various contract, quasi-contract, and fraud claims. The resolution of these claims necessarily involves application of Ohio law. See Patel v. Krisjal, L.L.C. , 10th Dist. Franklin No. 12AP-16, 2013-Ohio-1202, 2013 WL 1287344.

{¶ 23} In Patel , the plaintiffs were administrators of an English corporation that became insolvent. They alleged that the defendants improperly transferred £1,000,000 from their corporate account to purchase property in Ohio. The plaintiffs filed an action against defendants in the Franklin County Court of Common Pleas alleging causes of action for fraud, misappropriation, conversion, and unjust enrichment in connection, in part, with actions that occurred in Kenya and a judgment in the English courts. In determining the merits of the Ohio claims for relief, the trial court considered the evidence regarding the events taking place in England and Kenya, but applied Ohio law to the claims. Id. at ¶ 28-32.

{¶ 24} Likewise, in this matter, the resolution of plaintiffs' Ohio claims for fraud and unjust enrichment were premised upon the Family Settlement Agreement and notes pertaining to an Ohio limited liability company. Although plaintiffs alleged that the Family Settlement Agreement required the transfer of the England properties to them, this was not a claim for relief in the complaint, and was not a provision in the Family Settlement Agreement. Rather, plaintiffs' complaint alleged that defendants committed fraud and were unjustly enriched by obtaining proceeds from the mortgages of two London properties, and by failing to transfer title of these parcels to plaintiffs as part of the Family Settlement Agreement. In determining that defendants were entitled to judgment on all claims for relief, the trial court properly evaluated the evidence presented on those claims when it concluded that: the 5 St. James property was "in [Suryakant's] name at the time of the loan and the loan was [Suryakant's] liability only"; plaintiffs failed to establish any evidence regarding loan payments and balance; and "[t]here was no evidence of any oral or written agreement whereby any of the Defendant agreed to transfer any of their properties in England to Plaintiffs." These factual determinations were among the many findings that the court properly made in order to evaluate the merits of plaintiffs' Ohio claims for relief.

{¶ 25} That is, in Ohio, an unjust enrichment claim requires the plaintiff to prove: (1) a benefit conferred by plaintiff upon the defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment. L & H Leasing Co. v. Dutton, 82 Ohio App.3d 528, 534, 612 N.E.2d 787 (3d Dist.1992). In rejecting the unjust enrichment claim herein, the court concluded that "Plaintiffs failed to submit any evidence of the benefit that was conferred to Defendants and how Defendants were unjustly enriched by such benefit."

{¶ 26} To prove fraud, a party must demonstrate: (1) a representation or, where there is a duty to disclose, concealment of a fact; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance. Russ v. TRW, Inc. , 59 Ohio St.3d 42, 49, 570 N.E.2d 1076 (1991). In rejecting the fraud claim herein, the trial court concluded that any mortgages were the sole responsibility of Suryakant and "there was no evidence by Plaintiffs to prove otherwise."

{¶ 27} In accordance with the foregoing, the first assigned error is without merit.

II. Claim of Collateral Attack on English Court's Ruling

{¶ 28} Ramesh and Jyoti next assert that the trial court's rejection of Ramesh's claims to the England properties constitutes a collateral attack the 2013 decision of the London High Court finding that Pravin and Suryakant owned the properties "in trust" for Ramesh. Plaintiffs also argue that the 2013 London order must be given effect under principles of comity. In opposition, defendants argue that the London trial conflicted with trial dates in the instant matter and was a default judgment. They further argue that the London judgment is in conflict with Ohio's Statute of Frauds and Statute of Deeds, is not relevant to the 2007 Family Settlement Agreement, and is not a proper subject for judicial notice.

{¶ 29} Comity is "a principle in accordance with which the courts in one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation but out of deference and respect." Patel at ¶ 45, quoting Kaur v. Bharmota , 182 Ohio App.3d 696, 2009-Ohio-2344, 914 N.E.2d 1087, ¶ 7 (internal quotes omitted). An Ohio court's recognition of a foreign decree is a matter of courtesy rather than of right. Id. , citing State ex rel. Lee v. Trumbull Cty. Probate Court , 83 Ohio St.3d 369, 374, 700 N.E.2d 4 (1998) ; Gupta v. Gupta, 8th Dist. Cuyahoga No. 99005, 2013-Ohio-2203, 2013 WL 2382617, ¶ 24. An Ohio court is not bound to enforce a foreign judgment when it is repugnant to the laws of the United States and Ohio or violates Ohio public policy. Patel at ¶ 48, citing Kalia v. Kalia , 151 Ohio App.3d 145, 2002-Ohio-7160, 783 N.E.2d 623, ¶ 27-29 (11th Dist.). We review the trial court's decision to grant or deny comity under an abuse of discretion standard. Patel at ¶ 46.

{¶ 30} In this matter, the trial court did not adopt and incorporate into its findings of fact and conclusions of law the 2013 High Court order finding that Pravin and Suryakant owned the properties "in trust" for Ramesh. However, plaintiffs' Ohio complaint did not assert a claim to the England parcels. Rather, the instant matter involves plaintiffs' claims for breach of contract, unjust enrichment, and fraud in connection with the 2007 Family Settlement Agreement, U.S. Notes, and U.K. Notes. In rejecting the Ohio claims, the trial court concluded, inter alia, that there was no evidence of any oral or written agreement to transfer the properties to plaintiffs in connection with the 2007 agreements, but the court made no absolute declarations regarding the absolute ownership of the parcels. Conversely, the evidence regarding the London High Court's ruling indicates that the London claims were premised upon events occurring from 1988-1991 when those properties were purchased. Therefore, we cannot conclude that the trial court abused its discretion in failing to adopt the rulings of the London High Court.

{¶ 31} This assigned error is without merit.

III. Challenge to Judgment for Defendants on the U.K. Note

{¶ 32} Plaintiffs next argue that the trial court erred in concluding that they failed to meet their burden of proof regarding money due on the U.K. Note. Plaintiffs argue that the court erred in failing to recognize their ownership of the England properties and failed to give proper weight to the loan repayment schedule entitled "R. Patel." In opposition, defendants argue that the trial court's judgment was correct because plaintiffs admitted that the U.S. Note was repaid, the U.K. Note was for repayment of Suryakant's mortgage, and there was no evidence regarding payments made or balances due under this note. Defendants also argue that after Ramesh was impeached for structuring the buyout payments to evade payment of taxes, including his negotiation of a payments to a deceased individual, the trial court could properly conclude that Ramesh's claims were not credible.

{¶ 33} A reviewing court will not reverse a jury verdict that is supported by some competent credible evidence. Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. Id.

{¶ 34} In order to substantiate a breach of contract claim, a party must establish four elements: (1) a binding contract or agreement was formed; (2) the nonbreaching party performed its contractual obligations; (3) the other party failed to fulfill its contractual obligations without legal excuse; and (4) the nonbreaching party suffered damages as a result of the breach. Textron Fin. Corp. v. Nationwide Mut. Ins. Co. , 115 Ohio App.3d 137, 144, 684 N.E.2d 1261 (9th Dist.1996) ; Garofalo v. Chicago Title Ins. Co. , 104 Ohio App.3d 95, 108, 661 N.E.2d 218 (8th Dist.1995).

{¶ 35} In this matter, plaintiffs demonstrated that the parties entered into the 2007 Family Settlement Agreement, and that Sajag subsequently agreed to pay the U.S. Note and the U.K. Note. However, Ramesh conceded that the U.S. Note was completely repaid. Further, although Ramesh testified that "no payment" had been made on the U.K. Note, he conceded that this note was connected to a mortgage loan that was not in his name on property that was not in his name, and he failed to present documentation to support his claim for damages. Additionally, defendants presented evidence that the U.K. Note was repaid using tenant rent payments.

{¶ 36} In light of the foregoing, the judgment of the trial court in favor of defendants on this claim is supported by competent, credible evidence. The assigned error is without merit.

IV. Exclusion of Plaintiffs' Exhibits Nos. 33, 34 and 35

{¶ 37} Plaintiffs next argue that the trial court misapplied Evid.R. 902(3) in concluding that plaintiffs' exhibits Nos. 33, 34 and 35, the original London High Court orders, were inadmissible. In opposition, defendants argue that these orders were properly deemed inadmissible under Evid.R. 201 and 403.

{¶ 38} Trial court rulings concerning the admissibility of evidence will not be reversed on appeal absent a clear abuse of discretion resulting in material adverse prejudice. Renfro v. Black , 52 Ohio St.3d 27, 32, 556 N.E.2d 150 (1990) ; Shimola v. Cleveland , 89 Ohio App.3d 505, 511, 625 N.E.2d 626 (8th Dist.1992).

{¶ 39} After reviewing the record, we find no abuse of discretion or prejudice from the challenged evidentiary rulings. Herein, plaintiffs alleged that defendants committed fraud and were unjustly enriched by obtaining proceeds from the mortgages of two London properties, and by failing to transfer title of these parcels to plaintiffs as part of the 2007 Family Settlement Agreement. In determining that defendants were entitled to judgment on these claims for relief, the trial court concluded that: the 5 St. James property was "in [Suryakant's] name at the time of the loan and the loan was his liability only"; plaintiffs failed to establish any evidence regarding loan payments and balance; and "[t]here was no evidence of any oral or written agreement whereby any of the Defendant agreed to transfer any of their properties in England to Plaintiffs." Moreover, in rejecting the Ohio claims, the trial court made no absolute declarations regarding the absolute ownership of the parcels. Conversely, the evidence regarding the London High Court's ruling indicates that the London claims were premised upon events occurring from 1988-1991 when those properties were purchased. Therefore, we cannot conclude that the trial court abused its discretion in failing to adopt the rulings of the London High Court or that this evidence would have changed the outcome of the Ohio claims for relief.

{¶ 40} This assigned error is without merit.

DEFENDANTS' CROSS-APPEAL

I. The High Court Orders as Money Judgments within R.C. 2329.90

II. The High Court Orders and Ohio Public Policy

{¶ 41} In their cross-appeal, defendants argue that the trial court misapplied R.C. 2329.90, and disregarded Ohio public policy, in enforcing the £50,000, £5,000, and £1,428 London judgments. Defendants note that the judgments were issued after they failed to appear for trial on a declaratory judgment matter. They further note that the judgments provide for attorney fees to Ramesh, which are recoverable in England, but generally not recoverable in the United States in actions for declaratory judgment. In opposition, plaintiffs argue that the monetary orders are enforceable judgments under R.C. 2329.90.

{¶ 42} Under R.C. 2329.90,

(B) "Foreign country judgment" means any judgment of a foreign country that grants or denies the recovery of a sum of money, other than the following types of judgments:
(1) A judgment for taxes;
(2) A judgment imposing a fine or other monetary penalty[.]

{¶ 43} Under R.C. 2329.91(A) a "foreign country judgment that is final, conclusive, and enforceable where rendered shall be recognized[.]" R.C. 2329.91(B) states that "a foreign country judgment is conclusive between the parties to the extent that it grants or denies the recovery of a sum of money."

{¶ 44} However, a foreign judgment will not be found "conclusive" where (1) the judgment was rendered under a system that does not provide impartial tribunals or procedures that are compatible with the requirements of the due process of law; (2) the foreign court did not have personal jurisdiction over the defendant; or (3) the foreign court did not have jurisdiction over the subject matter. R.C. 2329.91(B).

{¶ 45} In Hazzledine v. Hazzledine , 2d Dist. Greene No. 95-CA-35, 1996 WL 156883 (Apr. 5, 1996), the court applied R.C. 2329.90 and found a wife's English court judgment for costs to a prevailing party in a family court matter to be enforceable. Although the husband complained that the award was an unenforceable support order, the court determined that it was a judgment granting the recovery of a sum of money, and therefore enforceable. The court stated:

In our view, the record clearly reflects that the judgment of the English court is an award of costs under the English rule that the prevailing party is normally awarded attorneys fees. Accordingly, while the underlying cause of action in which the judgment was awarded may have involved matrimonial or family matters, the judgment is not for support.

Id. at *1. The Hazzledine court noted that although an award of attorney fees in a domestic relations case might constitute support, in the absence of any evidence that the judgment was intended to support the prevailing party, it was not a judgment for support, but was instead based on the nature of the English rule awarding costs to the prevailing party. Id. at *2.

{¶ 46} Similarly, in this matter, the High Court orders in the amounts of £50,000, £5,000, and £1,428 are "foreign country judgments" that are "final" and "conclusive" as to these amounts. They appear to be based on the general nature of the English rule awarding costs under the English rule that the prevailing party is normally awarded attorney fees, rather than a specific feature of a declaratory judgment award. Further, there has been no assertion that the London judgments were rendered under a system that fails to provide for impartial tribunals or procedures compatible with the mandates of due process. To the contrary, federal courts have found the English judiciary to constitute a "system" providing fair tribunals compatible with due process. See Soc. of Lloyd's v. Turner , 303 F.3d 325, 331 (5th Cir.2002) ; Soc. of Lloyd's v. Ashenden , 233 F.3d 473, 476 (7th Cir.2000).

{¶ 47} Accordingly, the defendants' assigned errors in the cross-appeal are without merit.

{¶ 48} Judgments are affirmed.

EILEEN A. GALLAGHER, A.J., and ANITA LASTER MAYS, J., CONCUR


source: Caselaw Access Project

license: Public Domain

text:
    Renee MCCONNELL, et al., Plaintiffs-Appellees v. Donald C. DUDLEY, Jr., et al., Defendants-Appellants
    NO. 17 MA 0045
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: January 26, 2018
    Atty. Ryan J. Melewski, Atty. Mark A. Rafidi, Rafidi, Pallante & Melewski, LLC, 105 N. Broad Street, Canfield, Ohio 44406, For Plaintiffs-Appellees.
    Atty. Gregory A. Beck, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, North Canton, Ohio 44720, For Defendants-Appellants.
   JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro

OPINION

WAITE, J.

{¶ 1} Appellants Donald C. Dudley Jr., Coitsville Township Police Department, and Coitsville Township/Coitsville Board of Township Trustees appeal a February 16, 2017 decision of the Mahoning County Common Pleas Court denying their motion for summary judgment in this matter. Appellants collectively argue that they are entitled to immunity arising from an accident caused by a police pursuit. Appellants also contend that the Coitsville Police Department is not subject to being sued in this case. For the reasons provided, Appellants' arguments as to the Coitsville Township Police Department and Coitsville Township are without merit and the judgment of the trial court is affirmed as to those issues. However, Appellants' argument as to Officer Dudley's individual liability has merit and the judgment of the trial court is reversed on that issue.

Factual and Procedural History

{¶ 2} Around 8:00 a.m. on September 18, 2013, Officer Donald C. Dudley Jr. received a call from dispatch alerting him to a stolen El Camino car. Officer Dudley encountered the suspects believed to have stolen the vehicle and pulled next to the vehicle. Officer Dudley asked the suspects about the car and they told him that it belonged to them. (5/19/16 Dudley Depo., p. 112.) As Officer Dudley pulled behind the car, the suspects exited what appeared to be a trailer, unhooked the El Camino, and drove away. Officer Dudley lost sight of the vehicle but began pursuit.

{¶ 3} Officer Dudley pursued the suspects while driving at speeds of up to 76 mph through a residential area. Officer Dudley was admittedly unfamiliar with the area and, at one point, lost control of his car because he did not see a warning sign on the road stating "bump." (Id. at 174.) As Officer Dudley left Coitsville and entered Youngstown, the pursuit crossed jurisdictions. When he approached the intersection of Landsdowne and McGuffey, Officer Dudley radioed his location to dispatch. At this point, Officer Dudley saw a swerving vehicle ahead of him that he believed to contain the suspects. (Id. at p. 183.) As he radioed his location to dispatch, Officer Dudley's vision was focused on the street signs and he did not realize the traffic light was red. He also did not realize how close he was to the intersection.

{¶ 4} Officer Dudley stated that as he approached the intersection, he noticed that the view on the right side of the intersection was obstructed due to an abandoned house and a tree. (Id. at 192.) He admitted that he did not attempt to look to the right as he entered the intersection. He also could not see incoming traffic from the left side of the intersection. However, he assumed any incoming vehicle would stop, because he had activated his emergency lights and siren. (Id. at p. 193.) However, he testified that he did not turn on his enhanced siren, called a "woofer," as he entered the intersection.

{¶ 5} In the intersection, he collided with a car driven by Appellee Renee McConnell, who was on her way to work. The posted speed limit was 35 mph. An Ohio State Highway Patrol Report estimated Officer Dudley's speed at between 37 and 41 mph at the time of the collision. McConnell's estimated speed was between 37 and 40 mph. McConnell was severely injured in the collision.

{¶ 6} On September 15, 2015, McConnell filed a complaint against Officer Dudley (individually), the Coitsville Police Department, Coitsville Township, and Coitsville Board of Township Trustees, raising claims of Officer Dudley's negligence, negligent hiring and training of Officer Dudley, and loss of consortium. Appellees responded by asserting that they were each entitled to immunity.

{¶ 7} On September 29, 2016, Appellants filed a motion for summary judgment. Appellees responded to this motion, but did not file their own motion for summary judgment. On February 16, 2017, the trial court found that genuine issues of material fact existed as to whether Officer Dudley's actions constituted willful, wanton, and reckless misconduct and whether he was properly trained and supervised. This timely appeal followed.

Summary Judgment

{¶ 8} An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before summary judgment can be granted, the trial court must determine that: (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most favorably in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is "material" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. , 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).

{¶ 9} "[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." (Emphasis deleted.) Dresher v. Burt , 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party has a reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, when presented with a properly supported motion for summary judgment, the nonmoving party must produce some evidence to suggest that a reasonable factfinder could rule in that party's favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).

{¶ 10} The evidentiary materials to support a motion for summary judgment are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact that have been filed in the case. In resolving the motion, the court views the evidence in a light most favorable to the nonmoving party. Temple , 50 Ohio St.2d at 327, 364 N.E.2d 267.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY JUDGMENT IN FAVOR OF THE COITSVILLE TOWNSHIP POLICE DEPARTMENT WHEN THE POLICE DEPARTMENT IS NOT SUI JURIS AND CANNOT BE SUED.

{¶ 11} Appellants argue that a police department is not, itself, a legal entity capable of being sued. Because of this, Appellants argue that the trial court erroneously denied their motion to dismiss all claims against the Coitsville Township Police Department. In response, Appellees argue that Appellants failed to raise this issue in their motion for summary judgment, and so have waived this argument.

{¶ 12} Preliminarily, we note that Appellants frame their argument as though it involves a motion to dismiss. However, Appellants did not file a motion to dismiss. The first, and only, reference to the Coitsville Police Department's lack of capacity to be sued is found within a footnote to Appellants' motion for summary judgment.

{¶ 13} In general, a plaintiff must demonstrate that a named party has the legal capacity to sue and to be sued; in other words, that the party is sui juris . Richardson v. Grady , 8th Dist. Nos. 77381, 77403, 2000 WL 1847588, *2 (Dec. 18, 2000.). "A city police department is not sui juris ; the real party in interest is the city itself." Cooper v. Youngstown, 7th Dist. 15 MA 0029, 2016-Ohio-7184, 2016 WL 5874642, ¶ 26, citing Richardson, supra, at *2.

{¶ 14} However, contrary to Appellants' argument, the lack of capacity to be sued can be waived. In relevant part, Civ.R. 9(A) provides that "[w]hen a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment." See also State ex rel. School Choice Ohio, Inc. v. Cincinnati Pub. School Dist. , 147 Ohio St.3d 256, 2016-Ohio-5026, 63 N.E.3d 1183, ¶ 10, fn. 3 (" Civ.R. 9(A) requires parties to claim lack of capacity by 'specific negative averment,' or else the matter is waived"); State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8, 839 N.E.2d 911 (a party must raise the issue of consent to sue or be sued by specific negative averment); Campolieti v. Cleveland Dept. of Pub. Safety , 8th Dist. No. 99445, 2013-Ohio-5123, 2013 WL 6175207 (a party's claim that it lacks the legal capacity to be sued must be raised within the party's answer or is waived.)

{¶ 15} Appellants cite to two cases in support of their argument, Mollette v. Portsmouth City Council , 179 Ohio App.3d 455, 2008-Ohio-6342, 902 N.E.2d 515 (4th Dist.) and Patterson v. V & M Auto Body , 63 Ohio St.3d 573, 589 N.E.2d 1306 (1992). In Mollette, only an entity that was not sui juris was named in a suit. The issue before the Fourth District was whether the failure to file a complaint against a party with legal capacity to be sued properly commenced the lawsuit for purposes of the statute of limitations. Id. at ¶ 50. In answering that it did not, the Mollette Court acknowledged that its analysis would have been different if a party having the capacity to be sued had also been named in the complaint. There is no statute of limitations question in the instant matter, and both the police department and the appropriate entity, Coitsville Township, were sued. Thus, Mollette provides us no guidance.

{¶ 16} As to Patterson , the plaintiff was notified on several occasions that the wrong party had been named as a defendant within the complaint. Importantly, this defendant specifically averred that it lacked the legal capacity to be sued in two separate amended answers. In the instant case, Appellants never specifically averred that the Coitsville Township Police Department lacked the legal capacity to be sued. Appellants raised the issue of the department's legal capacity solely in a footnote to their motion for summary judgment.

{¶ 17} Accordingly, although the Coitsville Police Department is not sui juris , it appears that Appellants have waived this issue. Appellants are not prejudiced here, however, as Coitsville Township was properly named as a party in the complaint and the Township is clearly the correct legal entity to be sued in this case. See Fields v. Dailey , 68 Ohio App.3d 33, 587 N.E.2d 400 (10th Dist.1990) ; Campolieti , supra . As such, Appellants' first assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY JUDGMENT IN FAVOR OF COITSVILLE TOWNSHIP WHEN THE TOWNSHIP WAS ENTITLED TO IMMUNITY UNDER R.C. § 2744.02(A), AND THE OFFICER INVOLVED IN THE ACCIDENT WAS A MEMBER OF THE COITSVILLE TOWNSHIP POLICE DEPARTMENT, OPERATING A MOTOR VEHICLE WHILE RESPONDING TO AN EMERGENCY CALL, THE OPERATION OF WHICH DID NOT CONSTITUTE WILLFUL OR WANTON MISCONDUCT.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY JUDGMENT IN FAVOR OF COITSVILLE TOWNSHIP WHEN R.C. § 2744.02(B) DOES NOT CONTAIN AN INDEPENDENT EXCEPTION TO THE POLITICAL SUBDIVISION'S IMMUNITY UNDER R.C. § 2744.02(A)(1) FOR THE FAILURE TO HIRE, TRAIN, OR SUPERVISE ITS EMPLOYEES.

{¶ 18} Appellants argue that as entities comprising or representing a political subdivision of the State of Ohio, they are entitled to immunity pursuant to R.C. 2744.02. They claim that, as Officer Dudley was engaged in a governmental function at the time of the incident and was responding to an emergency call, there is no question of fact and they are entitled to judgment as a matter of law.

{¶ 19} In determining whether a political subdivision is entitled to immunity, a three-tiered analysis is employed. Bowman v. Canfield , 7th Dist. No. 13 MA 144, 2015-Ohio-1323, 2015 WL 1593079, ¶ 6, citing Ziegler v. Mahoning County Sheriff's Department , 137 Ohio App.3d 831, 835, 739 N.E.2d 1237 (7th Dist.2000) ; Abdalla v. Olexia , 7th Dist. No. 97-JE-43, 1999 WL 803592 (Oct. 6, 1999). The analysis begins with the presumption, "pursuant to R.C. 2744.02(A)(1), that a political subdivision is generally immune from liability for its acts and the acts and actions of its employees unless one of the exceptions enumerated within R.C. 2744.02(B) apply." Bowman at ¶ 6.

{¶ 20} The exceptions under the second tier include: (1) the negligent operation of a motor vehicle by an employee who is acting within the subdivision's scope of employment and authority; (2) an employee's negligent performance of acts with respect to the subdivision's proprietary functions; (3) the negligent failure to repair public roads and negligent failure to remove obstructions from public roads; (4) negligence of employees that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function; and, (5) when a section of the revised code expressly imposes civil liability on the subdivision. Id. at ¶ 7. If any of the five exceptions applies, the political subdivision is stripped of its immunity. Id.

{¶ 21} The third and final tier sets out seven defenses that revive a political subdivision's immunity in the event that one of the above exceptions applies. The defenses that restore immunity are: (1) when the political subdivision or an employee of the subdivision is engaged in the performance of a judicial, quasi-judicial, prosecutorial, legislative, or quasi-legislative function at the time of the alleged injury; (2) when the injury is caused by non-negligent conduct that was required or authorized by law, or by conduct that was necessary or essential to the exercise of the subdivision's powers; (3) when the action that caused the alleged injury was within the employee's discretion by virtue of the office or position held within the political subdivision; (4) when the person whose action caused the injury was serving any portion of a sentence stemming from a criminal conviction by performing community service work within the subdivision; (5) when the injury resulted "from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources." R.C. 2744.03(A)(5).

{¶ 22} Appellants correctly state that there is no dispute that they qualify for immunity under the first tier of the analysis. Moving, then, to the second tier of the analysis, the trial court was required to determine whether Appellants were subject to an exception to immunity under R.C. 2744.02(B)(1)(a), which states:

[A] political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority. The following are full defenses to that liability:
(a) A member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct;

{¶ 23} As the trial court determined that there was no question Officer Dudley was engaged in an emergency call, the crux of this case involves whether he operated his vehicle in a manner that constitutes willful and wanton misconduct. Willful and wanton misconduct has been defined as:

Wanton, willful and/or reckless conduct is conduct that is a degree greater than negligence.
Rankin v. Cuyahoga Cty. Dept. of Children and Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 37 ; Wagner v. Heavlin (2000), 136 Ohio App.3d 719, 730-731, 737 N.E.2d 989. Specifically, wanton misconduct is "the failure to exercise any care toward one to whom a duty of care is owed when the failure occurs under circumstances for which the probability of harm is great and when the probability of harm is known to the tortfeasor." Id. Willful conduct involves a more positive mental state than wanton misconduct and implies intent. Id. at 731 [737 N.E.2d 989]. That intention relates to the conduct, not the result. Id. It is an intentional deviation from a clear duty or purposely doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.

DeMartino v. Poland Local School Dist. , 7th Dist. No. 10 MA 19, 2011-Ohio-1466, 2011 WL 1118480, ¶ 48.

{¶ 24} Generally, issues regarding wantonness and willfulness are questions for the jury. Adams v. Ward , 7th Dist. No. 09 MA 25, 2010-Ohio-4851, 2010 WL 3861142, ¶ 27. The standard of proof for such conduct is high. Id. When reasonable minds cannot conclude that the conduct at issue meets that high standard, a court may determine that such conduct is not willful or wanton as a matter of law. Id.

{¶ 25} The trial court determined there was no question of fact that Officer Dudley's actions in his initial encounter with the suspects did not amount to willful and wanton misconduct. However, the court determined it was possible that a jury could find his subsequent actions, especially in entering the intersection, did amount to willful and wanton misconduct. The court emphasized that Officer Dudley lost sight of the suspects, traveled unfamiliar residential streets at speeds of up to 75 mph, entered an intersection at 35-40 mph without a clear view of oncoming traffic, did not know the traffic light was red against him, did not look both ways before entering the intersection, and was sending a radio transmission at the time he entered the intersection and so may have been unnecessarily distracted.

{¶ 26} Resolution of this issue depends on whether these facts may give rise to willful and wanton misconduct.

Police runs in response to emergencies inevitably entail some degree of risk both to the responding officer and affected traffic. * * * Because the law and current police and emergency practice clearly contemplate the necessity in some circumstances of such emergency runs, a responding officer does not create an "unreasonable" risk of harm by engaging in an emergency run merely because such a response creates a greater risk than would be incurred by traveling at normal speed and in compliance with opposing traffic signals. The question of unreasonable risks must be weighed in terms of what is acceptable in the context of an emergency run, not ordinary driving conditions.

Adams at ¶ 37.

{¶ 27} In Adams, we determined that the officer's actions in engaging in a high-speed chase did not amount to willful and wanton misconduct. Id. at ¶ 10. We emphasized that the officer was traveling, at most, 10 mph over the posted speed limit, had his lights and sirens activated, was familiar with the road, slowed through the intersection, and attempted to assure that he had clear passage.

{¶ 28} In contrast, a genuine issue of material fact did exist as to whether an officer acted in a willful and wanton manner during a high-speed chase in Wagner v. Heavlin, 136 Ohio App.3d 719, 737 N.E.2d 989 (7th Dist.2000). In Wagner, we emphasized that a safer route was available, there were conflicting reports as to the officer's speed, the officer was unfamiliar with the road, the incident occurred at night, the officer failed to maintain a safe distance, and the officer admittedly failed to consider the consequences of his actions. Id. at 733, 737 N.E.2d 989.

{¶ 29} Appellants rely heavily on a recent Ohio Supreme Court case, Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161. Argabrite is difficult to apply, as the facts related to the officers' conduct are quite limited. The Argabrite Court ultimately held in that pursuit case that none of the officers involved engaged in willful or wanton misconduct while pursuing the suspect. However, the Court did note that traffic was light and the weather conditions were sunny. The officers activated their lights and sirens and used radio communications to share their locations during pursuit. The Court emphasized that there was no evidence that any of the officers violated the relevant pursuit policy. Unlike the instant case, it does not appear that the crash occurred at an intersection. We also can determine that this pursuit would have been substantially more noticeable to the general populace, as it involved more than one cruiser with an active siren, and that the victim was injured due to a collision with the suspect, not the officers.

{¶ 30} The one constant that remains true in these types of cases are that they are heavily fact dependent. Our review of all of these cases and of the record, here, reveals that the facts of the instant case are more analogous to Wagner than Adams or Argabrite . Officer Dudley traveled up to 75 mph through unfamiliar residential streets, lost sight of his suspects, and was traveling between 35 and 40 mph when he blindly drove through a red light into the intersection. The posted speed limit was 35 mph. At impact, it was estimated that Officer Dudley was traveling between 37 and 41 mph and the victim was traveling between 37 and 40 mph. While Officer Dudley activated his sirens and lights, he could have activated a louder siren and did not. He did not have a clear view of traffic and failed to even look both ways before entering the intersection. He was admittedly unfamiliar with the roads, had left his jurisdiction, and did not have sight of the suspects' vehicle during much of the pursuit. He was actively engaged in a radio transmission while entering the intersection. Also, the offense at issue was merely a property crime. In looking at the totality of the circumstances, a genuine issue of material fact exists regarding whether Officer Dudley's actions constituted willful and wanton misconduct.

{¶ 31} The trial court also found that a genuine issue of material fact existed regarding Coitsville Township's liability for its conduct in hiring, training, and supervising its officers, including Officer Dudley. Again, the parties acknowledge Appellants are entitled to immunity under the first tier of the analysis. The issue is whether Appellants were stripped of their immunity pursuant to the second tier of the analysis. We have previously held that R.C. 2744.02(B)(1), which strips a political subdivision of immunity when an employee negligently operates a motor vehicle, includes entrustment and failure to train claims. See Wagner, supra .

{¶ 32} The issue of whether a political subdivision can be held liable for failure to train has been addressed by this Court in Wagner and Adams . In Wagner, we held that a genuine issue of material fact existed as to whether the Village of Carrollton negligently trained an officer involved in a vehicle crash and was liable for failing to have a pursuit policy. The officer in question testified that the Carrollton Police Department did not provide pursuit training and such training was limited to the limited training provided by the police academy. The officer also testified that the department did not have a pursuit policy.

{¶ 33} In Adams, the Youngstown Police Department did have a pursuit policy. The officer testified that he was aware of the policy and had received training on the policy. We emphasized that the plaintiff failed to show the officer's knowledge of the policy was incomplete or, if it was incomplete, how the accident could have been prevented. Based on these facts, the defendants were entitled to maintain immunity under R.C. 2744.02(B)(1), and all claims, including the entrustment and training claims, were barred.

{¶ 34} In the instant case, the Coitsville Police Department had a pursuit policy. However, Officers are not given a copy of that policy. There is no training given on the policy. Instead, a copy of the pursuit policy is kept inside the department and can be viewed by officers at their discretion. Officer Dudley testified that he had read the policy and signed a paper indicating as much on his first day as an officer in 2011. He stated that he has not viewed it since.

{¶ 35} Additionally, Officer Dudley testified that his only adult training relevant to driving was a thirty minute session at the Ohio Peace Officer Training Academy. He testified that driving in these classes did not exceed speeds of 30 to 40 mph and did not include training on pursuit chases. (5/19/16 Dudley Depo., p. 34.) He never received pursuit training during his training with the Coitsville Police Department. (Id. at pp. 56, 63.) He did not receive any other training on pursuit chases. (Id. at p. 62.)

{¶ 36} Chief Michael Morris testified that an officer is always supposed to be able to radio to dispatch and talk to a supervisor. (6/6/16 Morris Depo., p. 126.) However, Chief Morris acknowledged that a supervisor is not available during the midnight shift, which was the shift Officer Dudley was working the date of the incident. Chief Morris stated that because of this, a supervisor was not available to assist Officer Dudley in determining whether to stop his pursuit.

{¶ 37} Chief Morris also admitted that he was critical of Officer Dudley's actions, as "he could have [done] things differently." (Id. at p. 135.) Specifically, Chief Morris believed Officer Dudley should have provided more information to dispatch and should have requested that the dispatch contact Youngstown Police Department and requested assistance. (Id. at p. 138.) Chief Morris stated that he "[j]ust shook [his] head" when he watched the pursuit dash camera video. (Id. at p. 142.) Chef Morris opined that Officer's Dudley's actions were the result of inexperience. "He is a rookie. You know, he was never trained in coming across that situation so early in his career. I mean, you know, I shake my head at what he did, but what he-you know, things could have been different." (Id. at p. 144.)

{¶ 38} Based on these facts, a genuine issue of material fact exists as to whether Coitsville Township through its Coitsville Police Department was negligent in training and supervising Officer Dudley. Accordingly, Appellants' second and fourth assignments of error are without merit and are overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY JUDGMENT IN FAVOR OF OFFICER DUDLEY WHEN THE OFFICER'S ACTIONS WERE NOT IN A WANTON MANNER, AND THERE
WAS NO ALLEGATION OF MALICE, BAD FAITH, OR RECKLESSNESS.

{¶ 39} Pursuant to R.C. 2744.03(A)(6), employees of political subdivisions are personally immune from liability for acts or omissions connected with a government or propriety function. However, R.C. 2744.03(A)(6)(a)-(c) provide exceptions to this general rule. Relevant to the instant case, R.C 2744.03(A)(6)(b) provides an exception when "[t]he employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner."

{¶ 40} As a threshold matter, Appellants argue that Appellees failed to allege in their complaint that Officer Dudley acted recklessly. Appellees asserted four claims within their complaint: (1) the Coitsville Police Department and Township of Coitsville were vicariously liable for Officer Dudley's actions under a negligence theory; (2) the Coitsville Police Department and Township of Coitsville were vicariously liable for Officer Dudley's actions pursuant to R.C. 2744.02(B)(1)(a) ; (3) the Coitsville Police Department and Township of Coitsville were responsible for the negligent hiring and training of Officer Dudley; and (4) a general loss of consortium claim. While Officer Dudley is named in his individual capacity in the heading of the complaint, nowhere in the body of Appellees' complaint did they plead a claim under R.C. 2944.03(A)(6)(b) against Officer Dudley as an individual. In fact, none of the four claims pertain to Officer Dudley as an individual. As Appellees failed to raise a claim against Officer Dudley as an individual in the complaint, the trial court erred in finding that a genuine issue of fact existed as to whether he was liable as an individual under R.C. 2944.03(A)(6)(b). Accordingly, Appellant's third assignment of error has merit and is sustained.

Conclusion

{¶ 41} Appellants argue that they are all entitled to political subdivision immunity regarding an incident caused by a police pursuit. However, there is a genuine issue of material fact as to whether the Coitsville Township Police Department and Coitsville Township are vicariously liable for Officer Dudley's actions and whether he was negligently trained and supervised. The police department contends that it cannot be sued, but has waived the issue. Regardless, the department is not prejudiced, as the responsible township was also named as a defendant. Appellants also argue that the trial court erroneously found a genuine issue of material fact existed as to Officer Dudley as an individual. As Appellees failed to allege any claim against Officer Dudley as an individual within the complaint, Appellants are correct. Accordingly, Appellants' arguments as to their first, second and fourth assignments of error are without merit and the judgment of the trial court is affirmed. However, Appellants' argument as to their third assignment has merit and the trial court's judgment as to the claims against Officer Dudley in his individual capacity are reversed.

Donofrio, J., concurs.

DeGenaro, J., concurs.


author: FRANK D. CELEBREZZE, JR., J.:

text:
    CITY OF CLEVELAND, Plaintiff-Appellee v. Peter O'DONNELL, Defendant-Appellant
    No. 105597
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 1, 2018
    Mark Stanton, Cuyahoga County Public Defender, By: Michael V. Heffernan, John T. Martin, Assistant Public Defenders, Courthouse Square, Suite 200, 310 Lakeside Avenue, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    Barbara A. Langhenry, City of Cleveland, Director of Law, By: Patricia McGinty Aston, Assistant Director of Law, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEE
    BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Peter O'Donnell ("appellant"), brings this appeal challenging his conviction and the trial court's sentence for failure to comply with an order of the city of Cleveland's Building Department. Specifically, appellant argues that his no contest plea was invalid, the trial court failed to enter a finding of guilt after he entered the no contest plea nor made the required explanation of circumstances pursuant to R.C. 2937.07, and the trial court erred by resentencing him. After a thorough review of the record and law, this court vacates appellant's no contest plea and sentence, and remands the matter for further proceedings consistent with this opinion.

I. Factual and Procedural History

{¶ 2} Appellant is the owner of property located in Cleveland, Ohio. At some point, the city's building department issued a condemnation notice pertaining to the garage on appellant's property and ordered appellant to abate the hazard.

{¶ 3} In April 2016, the city of Cleveland filed a criminal complaint charging appellant with failure to comply with the building department's order, a first-degree misdemeanor in violation of Cleveland Codified Ordinance Section 3103.25(E).

{¶ 4} On August 31, 2016, appellant entered a plea of no contest. The trial court ordered screening to determine whether appellant was eligible for the Selective Intervention Program ("SIP"). However, appellant was found to be ineligible for this diversion program. On September 27, 2016, the trial court sentenced appellant to community control sanctions for a period of two years and imposed a $1,000 fine.

{¶ 5} In February 2017, the trial court, sua sponte, found that the sentencing journal entry was void because it (1) failed to specify the relevant ordinance number and describe the offense alleged in the complaint, (2) failed to specify the date of the offense, (3) failed to set forth the terms of appellant's community control sanctions, and (4) failed to advise appellant of the consequences of violating the terms of community control. The trial court's determination was based on this court's holdings in Cleveland v. U.S. Bank, N.A. , 2016-Ohio-7402, 72 N.E.3d 1123 (8th Dist.), and Cleveland v. Schornstein Holdings, L.L.C. , 2016-Ohio-7479, 73 N.E.3d 889 (8th Dist.).

{¶ 6} The trial court held a resentencing hearing on February 21, 2017, during which it sentenced appellant to 180 days in jail and a $109,000 fine. The trial court suspended the jail sentence and fine and imposed community control sanctions for a period of two years.

{¶ 7} On March 20, 2017, appellant filed the instant appeal challenging the trial court's judgment. He assigns three errors for review:

I. [Appellant] never entered a plea of no contest in this case.
II. There was an insufficient factual basis to sustain a guilty verdict.
III. The trial court erred when it re-sentenced [appellant].

II. Law and Analysis

{¶ 8} Appellant's first and second assignments of error both pertain to his no contest plea. The interrelated issues in these assignments of error will be addressed together.

A. No Contest Plea

{¶ 9} In his first assignment of error, appellant argues that his no contest plea was invalid because he never formally tendered the plea during the August 31, 2016 hearing. We agree.

{¶ 10} "A trial court's obligations in accepting a plea depend upon the level of offense to which the defendant is pleading." State v. Jones , 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 6. The plea procedure for a misdemeanor case under Crim.R. 11 is much less elaborate than the procedure for a felony case. Cleveland v. Jaber , 8th Dist. Cuyahoga Nos. 103194 and 103195, 2016-Ohio-1542, 2016 WL 1464220, ¶ 23. Misdemeanor cases can involve "serious offenses" or "petty offenses." A "serious offense" is defined as an offense for which the penalty includes confinement for more than six months; a "petty offense" is defined as a misdemeanor offense other than a serious offense. Id. , citing Crim.R. 2(C) and (D). Crim.R. 11(E) provides that for a "petty offense," the trial court "may refuse to accept a plea of guilty or no contest, and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty."

{¶ 11} In the instant matter, appellant was charged with a first-degree misdemeanor offense, subject to a maximum sentence of 180 days. R.C. 2929.24(A)(1). Accordingly, appellant's offense was a "petty offense," and Crim.R. 11 only obligated the trial court to inform appellant of the effect of his plea. Jones at paragraph one of the syllabus. "To satisfy the requirement of informing a defendant of the effect of a plea, a trial court must inform the defendant of the appropriate language under Crim.R. 11(B)." Id. at paragraph two of the syllabus.

{¶ 12} Crim.R. 11(B) sets forth the effect of guilty or no contest pleas. Crim.R. 11(B)(2) defines the effect of a no contest plea as follows: "[t]he plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint and such plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding." This court has previously held that a trial court's failure to make any mention of the Crim.R. 11(B)(2) language regarding the effect of a no contest plea to a petty misdemeanor offense is a complete failure to comply with Crim.R. 11(E), requiring the plea to be vacated. Parma v. Buckwald , 8th Dist. Cuyahoga Nos. 92354 and 92356, 2009-Ohio-4032, 2009 WL 2462626, ¶ 45-46 ; Brecksville v. Grabowski , 2017-Ohio-7885, 98 N.E.3d 919, ¶ 13.

{¶ 13} In the instant matter, appellant argues that his no contest plea was invalid because he never formally tendered the no contest plea on the record. In support of his argument, appellant directs this court to Cleveland v. Chappell , 8th Dist. Cuyahoga No. 104739, 2017-Ohio-4070, 2017 WL 2376804.

{¶ 14} In Chappell , the defendant-appellant argued that his plea was invalid because he "never formally stated on the record that he was pleading no contest." Id. at ¶ 10. This court recognized that " '[t]he tendering of a plea of no contest or of guilty has substantial consequences to a criminal defendant.' " Id. at ¶ 12, quoting State v. Singleton , 169 Ohio App.3d 585, 2006-Ohio-6314, 863 N.E.2d 1114 (2d Dist.). This court further explained that in order to formally tender a no contest plea, "a criminal defendant must either do so by signing a writing reflecting an express plea, or orally, either by saying, affirmatively, that he is pleading 'no contest,' or by responding affirmatively to the trial court's question, 'are you pleading no contest,' phrased in the present, unconditional tense." Chappell at ¶ id. , quoting Singleton at ¶ 71.

{¶ 15} In Chappell , this court concluded that the defendant did not formally tender a no contest plea based on the following exchange:

COURT: Gentlemen, have you reviewed this case, have you had an opportunity to pre-try this with the prosecutor?
DEFENSE COUNSEL: We have, your Honor.
COURT: And how would you like to proceed?
DEFENSE COUNSEL: We're going to withdraw the not guilty and plead no contest, your Honor.
COURT: All right. Now, Mr. Chappell, I'm sure your attorney has covered this with you, but I must personally address you and apprise you that when you withdraw your plea of not guilty and enter a plea of no contest, no contest is not an admission of guilty, but is an admission that the violation did exist.
When you enter such a plea, you give up your right to a jury trial, your right against self-incrimination, and your right for compulsory process, that's your right to bring in your own witnesses, and your right to force the City to prove beyond a reasonable doubt your guilt.
Do you understand those rights and knowingly and willingly give them up?
CHAPPELL: Yes.
COURT: All right. I'll accept your plea.

Chappell at ¶ 11.

{¶ 16} In the instant matter, the trial court engaged in the following colloquy with appellant during the change of plea hearing:

THE COURT: Okay. Mr. O'Donnell, did you want to plead no contest?
MR. O'DONNELL: Yes, I believe so.
THE COURT: Okay. So when you plead no contest that means you're going to give up your right to a jury trial; your right to say nothing because you don't have to say anything. The prosecutor has to prove his case against you.
You have the right to bring in your own witnesses and your right to force the City to prove their case beyond a reasonable doubt. Now keep in mind we're going to consider putting this back on the Selective Intervention Program. And we're going to do another screening at a later date for that.
Do you wish to plead no contest, understanding the rights that you give up in order to plead no contest?
MR. O'DONNELL: Yes, I do.

(Tr. 4-5.)

{¶ 17} After reviewing the record, we cannot say that appellant formally tendered a no contest plea. Appellant did not affirmatively state that he was pleading "no contest." Further, although appellant responded affirmatively to the trial court's question "[d]o you wish to plead no contest, understanding the rights that you give up in order to plead no contest[,]" this question is not phrased in the present, unconditional tense, nor is it clear whether appellant responded affirmatively because he wished to plead no contest, understood the rights he would be giving up by pleading no contest, or both. Accordingly, we find that appellant did not expressly tender a no contest plea.

{¶ 18} We further find that the trial court failed to fulfill its obligations under Crim.R. 11(E) before accepting appellant's plea of no contest to a petty offense. The trial court's sole obligation under Crim.R. 11 was to advise appellant of the effect of his no contest plea-that the no contest plea was not an admission of guilt, but rather an admission of what was alleged in the complaint. The record reflects that the trial court failed to provide this advisement to appellant. Nor were the allegations in the complaint identified or discussed during the change of plea hearing.

{¶ 19} Further, the record demonstrates that appellant did not understand the effects of the no contest plea and did not understand that he was admitting to the truth of the facts in the complaint. After appellant indicated that he wished to plead no contest, appellant asserted that the case arose "because of a fire that my garage burned down," and that "the fire was no fault of my own." (Tr. 6.) Appellant further stated, "[w]ell in a way [the fire] was a good thing because [the garage] is all gone." (Tr. 6.) Accordingly, based on the record before this court and the statements appellant made during the change of plea hearing, we cannot say that appellant knowingly, voluntarily, and intelligently entered the no contest plea.

{¶ 20} Based on the foregoing analysis, appellant's first assignment of error is sustained.

{¶ 21} In his second assignment of error, appellant argues, in part, that the trial court never accepted the no contest plea nor entered a finding of guilty after he pled no contest. We agree.

{¶ 22} The record in this case reflects that the trial court did not make a finding of guilt after appellant entered the no contest plea. See Grabowski , 98 N.E.3d 919, 2017-Ohio-7885, at ¶ 15 (after the defendant pled no contest, "the magistrate did not make a finding of guilt, but rather treated [defendant's] no contest plea as if it were a guilty plea and proceeded directly to sentencing."). The trial court treated appellant's no contest plea as if it were a guilty plea and proceeded to refer appellant for screening to determine whether he was eligible for the SIP program.

B. R.C. 2937.07

{¶ 23} Appellant further argues in his second assignment of error that the trial court failed to comply with R.C. 2937.07 because there was no explanation of circumstances during the hearing to support a guilty verdict. As such, appellant contends that his conviction must be vacated and that double jeopardy attaches, barring further prosecution or a remand for a new plea hearing. We disagree.

{¶ 24} R.C. 2937.07, governing no contest pleas in misdemeanor cases, provides, "[a] plea to a misdemeanor offense of 'no contest' or words of similar import shall constitute an admission of the truth of the facts alleged in the complaint and that the judge or magistrate may make a finding of guilty or not guilty from the explanation of the circumstances of the offense." In support of his argument that the trial court failed to comply with R.C. 2937.07, appellant directs this court to Berea v. Moorer , 2016-Ohio-3452, 55 N.E.3d 1186 (8th Dist.).

{¶ 25} In Moorer , the defendant-appellant pled no contest to a first-degree misdemeanor OVI. This court explained that pursuant to R.C. 2937.07,

when a trial court finds a defendant guilty after that defendant has entered a no contest plea, the record must provide an "explanation of circumstances" that includes a statement of the facts supporting all of the essential elements of the offense. Chagrin Falls v. Katelanos , 54 Ohio App.3d 157, 561 N.E.2d 992 (8th Dist.1988), paragraph four of the syllabus; Cuyahoga Falls v. Bowers , 9 Ohio St.3d 148, 150, 459 N.E.2d 532 (1984). An explanation of circumstances is required so that the trial court does not simply make the finding of guilty in a perfunctory fashion. Bowers at 150 [459 N.E.2d 532]. Moreover, "the mere fact that the court's record includes documents which could show the defendant's guilt will not suffice. If the prosecution relies on such documents, the record must show that the court considered them." Katelanos at 158 [561 N.E.2d 992], citing Bowers at 151 [459 N.E.2d 532].

(Emphasis added.) Moorer at ¶ 9. This court concluded that the trial court failed to comply with R.C. 2937.07 because the trial court found the defendant guilty without providing an explanation of the circumstances. Id. at ¶ 13. Regarding the remedy for the trial court's failure to comply with R.C. 2937.07, this court held,

a trial court's failure to comply with R.C. 2937.07 is more than mere trial error, but is instead a failure to establish facts sufficient to support a conviction. As such, double jeopardy attaches, thereby preventing the state from getting a second chance to meet its burden. For these reasons, we find that Moorer must be acquitted of the OVI offense.

Moorer at ¶ 22.

{¶ 26} After reviewing the record, we find this case to be distinguishable from Moorer . Although we agree that the record from the change of plea hearing reflects that there was no explanation of the circumstances of the failure to comply offense whatsoever, the trial court did not make a finding of guilty after appellant entered the no contest plea. Therefore, the trial court did not violate R.C. 2937.07, and double jeopardy does not attach.

{¶ 27} Appellant's second assignment of error is sustained in part and overruled in part.

III. Conclusion

{¶ 28} After thoroughly reviewing the record, we find that appellant did not expressly tender a no contest plea during the August 31, 2016 hearing; the trial court failed to comply with Crim.R. 11(E) ; and the trial court failed to enter a finding of guilt during the change of plea hearing. Accordingly, appellant's no contest plea and sentence are vacated, and the matter is remanded for further proceedings.

{¶ 29} Our disposition of appellant's first and second assignments of error renders appellant's third assignment of error moot.

{¶ 30} This cause is vacated and remanded to the lower court for further proceedings consistent with this opinion.

EILEEN T. GALLAGHER, P.J., and LARRY A. JONES, SR., J., CONCUR


author: Deters, Judge.

text:
    Nicholas James STANFIELD, and Sandra Lynn Hale, Plaintiffs-Appellants, v. READING BOARD OF EDUCATION, Defendant-Appellee, and City of Reading, Ohio, Defendant.
    NO. C-160895
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: February 2, 2018
    The Law Office of John D. Hill, LLC, and John D. Hill, Jr., East Greenbush, NY, for Plaintiffs-Appellants,
    Raymond H. Decker, Jr., Erlanger, KY, for Defendant-Appellee.
    OPINION.
   Deters, Judge.

{¶ 1} Plaintiffs-appellants Nicholas Stanfield and Sandra Hale appeal the decision of the trial court granting summary judgment to defendant-appellee Reading Board of Education (the "Board") on appellants' personal-injury complaint, arising from injuries Stanfield sustained during track-and-field practice. Because we determine that the trial court erred in granting political-subdivision immunity to the Board on the entirety of appellants' complaint, we reverse a portion of the trial court's judgment.

I. Factual Background and Procedural Posture

{¶ 2} In 2014, Stanfield, then a senior at Reading High School, participated in the school's track-and-field program in the discus event. Reading's track-and-field students practiced at Reading Veteran's Memorial Stadium (the "stadium facility"). The Board does not own the stadium facility-it is owned by the City of Reading. The stadium facility contained a discus area, consisting of a discus "cage" and a concrete pad. The cage area was marked by a series of poles. At the start of the first practice of the track-and-field season, Reading's discus coach, with the aid of students, retrieved netting from a shed on the facility and secured the netting to the poles with ties. The discus coach instructed the students to stay behind the netting while another student was throwing the discus. According to Stanfield, the netting gaped near the poles and had several holes. Several days later, on March 17, 2014, during discus practice, Stanfield suffered a severe head injury when a discus thrown by another student hit Stanfield in the head.

{¶ 3} Stanfield and his mother, Hale, filed a complaint for money damages against the City of Reading, the Board, and several John Doe defendants. The City of Reading filed a motion for summary judgment, arguing in part that it was immune from liability under Ohio's recreational-user statute. The Board also filed a motion for summary judgment, arguing that it was immune from liability under Ohio's Political Subdivision Tort Liability Act. In relevant part, the Board argued that it was entitled to the general grant of immunity under R.C. 2744.02(A)(1), and that the only exception to immunity that could arguably apply would be R.C. 2744.02(B)(4), the physical-defect exception. However, the Board argued that because it did not own the stadium facility, Stanfield's injury did not occur on school grounds and the Board could not be held liable under this exception.

{¶ 4} The trial court granted the summary-judgment motions of the City of Reading and the Board. Stanfield and Hale appeal the trial court's decision with respect to the Board only.

II. Political-Subdivision Immunity

{¶ 5} In a single assignment of error, appellants argue that the trial court erred in granting summary judgment to the Board. This court conducts a de novo review of a trial court's summary-judgment decision, applying the standards set forth in Civ.R. 56. See Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Moreover, issues regarding political-subdivision immunity under R.C. Chapter 2744 present questions of law, "properly determined prior to trial and preferably on a motion for summary judgment." Scott v. Kashmiry , 2015-Ohio-3902, 42 N.E.3d 339, ¶ 14 (10th Dist.).

{¶ 6} As an initial matter, we note that a political subdivision, such as a public-school board, acts through its employees. Elston v. Howland Local Schools , 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 18, 26. In determining whether a political subdivision is immune from a civil lawsuit for damages, a three-tiered analysis applies. R.K. v. Little Miami Golf Ctr. , 2013-Ohio-4939, 1 N.E.3d 833, ¶ 8 (1st Dist.). In the first tier, political subdivisions receive a general grant of immunity in a civil action for damages allegedly caused by any act or omission of a political subdivision or employee in connection with a governmental or proprietary function. See R.C. 2744.02(A)(1). The second tier provides certain exceptions to the general grant of immunity. See R.C. 2744.02(B). If one of the exceptions in R.C. 2744.02(B) applies, the third tier provides for reinstatement of immunity if the political subdivision can show that one of the defenses contained in R.C. 2744.03 applies. Elston at ¶ 12.

III. Physical-Defect Exception to Immunity

{¶ 7} Appellants do not dispute that the Board is a political subdivision and that the operation of a public school's athletic program is a governmental function. See R.C. 2744.01(F) and (C)(2)(c). Therefore, appellants agree that the Board is entitled to the general grant of immunity under R.C. 2744.02(A)(1). Appellants also agree that R.C. 2744.02(B)(4), the physical-defect exception, is the only exception to the general grant of immunity which would apply in this case. Therefore, we begin our legal analysis with the physical-defect exception.

{¶ 8} R.C. 2744.02(B)(4) provides in relevant part that "[p]olitical subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function * * *."

{¶ 9} In support of its motion for summary judgment, the Board argues that the physical-defect exception requires that an injury occur on the grounds of the Board's property. In support of this proposition, the Board cites two cases from the Tenth Appellate District, Bush v. Beggrow , 10th Dist. Franklin No. 03AP-1238, 2005-Ohio-2426, 2005 WL 1177935, and Slane v. Hilliard , 2016-Ohio-306, 59 N.E.3d 545 (10th Dist.). In Bush , a middle-school student was walking home from school on the berm of a public road when he was hit by a car. The student sued the Columbus City School Board, among others. The student alleged that the school board had been negligent in failing to provide crossing guards, traffic assistance by police officers, or other safety measures for students walking home. The Tenth District analyzed the student's claims under former R.C. 2744.02(B)(4), which omitted the physical-defect requirement, and provided liability for political subdivisions for injury "caused by the negligence of their employees and that occurs within or on the grounds of buildings that are used in connection with the performance of a governmental function * * *." The Tenth District determined that even if the school board had been negligent, the student had not been injured "on school premises," and therefore former R.C. 2744.02(B)(4) did not apply. Bush at ¶ 40.

{¶ 10} The facts of Slane are similar to those in Bush . In Slane , a student was crossing a public street at a crosswalk on her way to school when she was injured. The school-zone "flashers" for the crosswalk were not working or not activated, and the pedestrian "walk/don't walk" signals were also not working. The student filed a complaint against the city of Hilliard and the Hilliard City School District. As to the school district, the student argued that the district had been negligent in failing to illuminate school-zone signs and in failing to maintain the "walk/don't walk" signal for the before-school period. In affirming the trial court's decision in favor of the school district, the Tenth District determined that the student had sustained her injury "on a public roadway and not within the grounds of buildings the district uses in connection with the performance of its governmental function." Slane at ¶ 42.

{¶ 11} The Board argues that Bush and Slane held that a student's injury must take place on school grounds, and in this case, because the Board does not own the stadium facility, the city does, the physical-defect exception cannot apply to the Board. In Bush and Slane , the undisputed evidence showed that the injured students had been injured on public roadways-not on the "grounds of * * * buildings that are used in connection with the performance of a governmental function[,]" as required by the physical-defect exception. See R.C. 2744.02(B)(4). To the extent that Bush can be read to require that the injury occur on school-owned property, we disagree. Moreover, Slane actually relies on the plain language of R.C. 2744.02(B)(4), which does not require the political subdivision to own the property where the injury occurs. The statute does not speak to "ownership," but requires only that the injury or loss occur within or on the grounds of buildings "used in connection with the performance of a governmental function." Id. Therefore, the Board's argument is contrary to the plain language of the statute.

{¶ 12} In this case, the evidence in the record indicates that Stanfield was injured on the grounds of a building used in connection with the performance of a governmental function. The parties have agreed that the school's track-and-field program is a governmental function. Moreover, Stanfield testified that the stadium facility, where all football and track events were held for the high school, had contained a shed with a garage door where the discus netting had been kept. Therefore, the record indicates a building on the grounds. See R.K. , 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 24, quoting Mathews v. Waverly , 4th Dist. Pike No. 08CA787, 2010-Ohio-347, 2010 WL 364455, ¶ 32 ("In determining whether a building is used in connection with a governmental function, the building need not 'house the actual, physical operations, maintenance, etc., of a governmental body,' but instead the question is 'whether the building is logically, not literally, connected to the performance of a governmental function.' ").

{¶ 13} The Board warns that if it is held liable for the student's injury in this case, school districts will be subject to liability for defects wherever a school activity might take place, regardless of the school district's affiliation with the location. This is not so. R.C. 2744.02(B)(4) requires that the injury or loss occur (1) due to employee negligence, (2) within or on the grounds of a building used in connection with the performance of a governmental function, and (3) because of a physical defect within or on the grounds. See R.K. , 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 15. Therefore, school districts will not be held liable for an injury due to defects wherever a school activity might take place.

{¶ 14} The Board also summarily argues that appellants have been unable to show that the netting constitutes a "physical defect." In R.K. , we defined physical defect as "a perceivable imperfection that diminishes the worth or utility of the object at issue." R.K. , 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 16. According to Stanfield, the netting had holes and gaped near the poles. Appellants provided an affidavit from the discus coach at Moeller High School, in which the discus coach opined that the netting he observed at the stadium facility was "dilapidated" and "unsatisfactory." The Board does not point to any evidence that would support the notion that a gaping and holed netting, which is supposed to stop a two-pound discuss from careening towards onlookers, is not defective. Therefore, we hold that the physical-defect exception to immunity applies in this case.

IV. Defenses to Reinstate Immunity

{¶ 15} The Board contends that even if the physical-defect exception applies to impose liability upon the Board for its employees' negligence, immunity for the Board would be restored by R.C. 2744.03(A)(3) and (A)(5). R.C. 2744.03(A)(3) restores immunity for a political subdivision "if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee." R.C. 2744.03(A)(5) restores immunity for a political subdivision if the injury or loss "resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner." The Board argues that the track-and-field coaches had discretion with respect to instruction and supervision of the students, as well as the equipment used for practice.

{¶ 16} R.C. 2744.03(A)(3) and (A)(5) defenses are meant to protect the exercise of discretion and judgment, and not those decisions requiring little discretion or independent judgment. R.K. , 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 31, citing Hall v. Bd. of Edn., Fort Frye Local School Dist. , 111 Ohio App.3d 690, 676 N.E.2d 1241 (4th Dist.1996). A "routine maintenance decision requiring little judgment or discretion" does not fall within the purview of R.C. 2744.03(A)(3) and (A)(5). Perkins v. Norwood City Schools , 85 Ohio St.3d 191, 193, 707 N.E.2d 868 (1999) ("decision of whom to employ to repair a leaking drinking fountain is not the type of decision involving the exercise of judgment or discretion contemplated in R.C. 2744.03(A)(5)"). By contrast, "teachers and coaches, as employees of a political subdivision, have 'wide discretion under R.C. 2744.03(A)(5) to determine what level of supervision is necessary to ensure the safety of the children in' their care." Elston , 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, at ¶ 20, quoting Marcum v. Talawanda City Schools , 108 Ohio App.3d 412, 416, 670 N.E.2d 1067 (12th Dist.1996).

A. Inadequate-Supervision Claims

{¶ 17} Two claims in appellants' complaint allege that the Board failed to adequately supervise the track-and-field events. These inadequate-supervision claims fall within R.C. 2744.03(A)(5) regarding the exercise of judgment or discretion in determining use of school personnel. See Elston , 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, at ¶ 20.

However, even if claims fall within the exercise of discretion or judgment under R.C. 2744.03(A)(5), political-subdivision immunity can be lost once again if the exercise of judgment or discretion "was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner." See R.C. 2744.03(A)(5). Although appellants allege in their complaint that the Board acted recklessly with respect to supervising the students, nothing in the record indicates that the Board consciously disregarded or showed an indifference to an obvious risk of harm to the students, which amounted to unreasonable conduct under the circumstances. See Anderson v. Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph four of the syllabus. Stanfield testified that the discus coach had instructed the students regarding safety, and that the students had been told to stay behind the netting. Therefore, to the extent that appellants' claims assert that the Board failed to provide adequate supervision, the Board is immune under R.C. 2744.03(A)(5).

B. Defective-Netting Claims

{¶ 18} The remainder of appellants' claims allege that Stanfield's injuries resulted from defective netting. In R.K. , we considered whether the maintenance of tree limbs on a county-owned golf course involved judgment or discretion under R.C. 2744.03(A)(3) and (A)(5). We determined that allegations that a park district failed to maintain a tree limb was not a discretionary decision, and therefore neither R.C. 2744.03(A)(3) nor (A)(5) applied. R.K. , 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 35. Similarly, the decision by the Board's employees to use netting, instead of repairing or replacing the netting, does not result from the exercise of discretion and judgment. See id. at ¶ 32, citing McVey v. City of Cincinnati , 109 Ohio App.3d 159, 163, 671 N.E.2d 1288 (1st Dist.1995) (the operation of escalators at a stadium parking facility does not involve discretion and judgment); Hall , 111 Ohio App.3d at 700, 676 N.E.2d 1241 (the maintenance of an irrigation system on a high-school practice field does not involve the exercise of judgment or discretion); Leasure v. Adena Local School Dist. , 2012-Ohio-3071, 973 N.E.2d 810 (4th Dist.) (an employee's maintenance of bleachers in a school gymnasium does not involve an exercise of judgment). Therefore, we determine that neither R.C. 2744.03(A)(3) nor (A)(5) apply to appellants' claims alleging defective netting, and therefore immunity for the Board is not restored with respect to those claims.

V. R.C. 2744.03(A)(6) is Inapplicable

{¶ 19} Finally, the Board argues that appellants have not shown that an employee of the Board could be found liable under R.C. 2744.03(A)(6). We interpret the Board's argument to mean that the Board is entitled to immunity because an employee would be entitled to immunity under R.C. 2744.03(A)(6). R.C. 2744.03(A)(6) provides immunity to individual employees for negligent actions and omissions. See Massillon at ¶ 18. R.C. 2744.03(A)(6) applies to claims against an individual employee-not the political subdivision. See Fabrey v. McDonald Village Police Dept. , 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994) (" R.C. 2744.03(A)(6) by its very terms applies only to individual employees and not to political subdivisions."). Thus, R.C. 2744.03(A)(6) has no bearing on the Board's summary-judgment motion or this appeal.

VI. Conclusion

{¶ 20} In conclusion, although the Board is entitled to the general grant of immunity as a political subdivision under R.C. 2744.02(A)(1), we determine that the physical-defect exception under R.C. 2744.02(B)(4) applies to abrogate the Board's immunity. As to Counts 13 and 17 of appellants' complaint, which allege that the Board failed to provide adequate supervision of the students, we determine that immunity for the Board is reinstated under R.C. 2744.03(A)(5), and thus we hold that the trial court did not err in granting summary judgment to the Board as to Counts 13 and 17. With respect to the remainder of appellants' claims against the Board, which arise from allegations of defective netting, we hold that the trial court erred in granting summary judgment to the Board. Therefore, we sustain appellants' assignment of error in part, and we reverse the judgment of the trial court with respect to all claims against the Board, except Counts 13 and 17.

Judgment affirmed in part, reversed in part, and cause remanded.

Mock, P.J., and Cunningham, J., concur.