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

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 95955 

JAMES YOUNG, ADMINISTRATOR 

PLAINTIFF-APPELLEE 

vs. 

CUYAHOGA COUNTY BOARD OF MRDD, ET AL.

DEFENDANTS-APPELLANTS 

JUDGMENT: 

DISMISSED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-656218 

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

RELEASED AND JOURNALIZED: May 12, 2011
ATTORNEY FOR APPELLANTS

Nick C. Tomino, Esq. 

Tomino & Latchney, L.L.C., L.P.A. 

803 East Washington Street, Suite 200 

Medina, Ohio 44256 

ATTORNEYS FOR APPELLEE

Stuart E. Scott, Esq. 

Peter J. Brodhead, Esq. 

Nicholas A. Dicello, Esq. 

Melissa Z. Kelly, Esq. 

Spangenberg, Shibley & Liber, L.L.P. 

1001 Lakeside Avenue, East 

Suite 1700 

Cleveland, Ohio 44114 

Mark S. Fishman, Esq. 

526 Superior Avenue 

The Leader Building, Suite 853 

Cleveland, Ohio 44114 

EILEEN A. GALLAGHER, J.: 

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

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

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

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

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

appeal for lack of a final appealable order. 

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

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

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

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

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

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

his system. Simpson later pleaded guilty to aggravated vehicular homicide 

and driving under the influence of alcohol and drugs. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

without elaboration. 

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

date, alleging the following assignment of error: 

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

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

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

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

employee.” 

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

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

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

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

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

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

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

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

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

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

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

provides as follows: 

{¶ 10} “An order that denies a political subdivision or an employee of a 

political subdivision the benefit of an alleged immunity from liability as 

provided in this chapter or any other provision of the law is a final order.” 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the issue of immunity because it contains nothing more than Ohio 

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

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

of the motion to dismiss merely determined that the complaint asserted 

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

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

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

to the trial court.” Id. at ¶12. 

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

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

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

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

 1

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

Supreme Court held that the denial of a governmental entity’s motion for summary 

judgment on the issue of sovereign immunity due to the existence of genuine issues 
Stewart, Cuyahoga App. No. 93405, 2010-Ohio-164; Grassia v. Cleveland, 

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

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

Appeal dismissed. 

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

proceedings consistent with this opinion.

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

The Court finds there were reasonable grounds for this appeal. 

A certified copy of this entry shall constitute the mandate 

pursuant to Rule 27 of the Rules of Appellate Procedure. 

EILEEN A. GALLAGHER, JUDGE 

JAMES J. SWEENEY, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR 

 

of material fact is a final appealable order under R.C. 2744.02(C). Id. at ¶27. The 

Court noted, however, that its opinion in State Auto. Mut. Ins. Co. was 

distinguishable from Hubbell. Specifically, the court noted the different procedural 

postures of the cases: State Auto. Mut. Ins. Co. was not decided under R.C. 

2744.02(C), but “[r]ather, relying on traditional concepts, [the Court] held that there 

was no final, appealable order in the current posture of the case and sent the case 

back to the trial court.” Id. at ¶19. In contrast, in Hubbell, “the record contain[ed] 

evidence upon which the trial court denied the motion for summary judgment, so as 

to deny Xenia, ‘the benefit of an alleged immunity from liablity.’” Id. at ¶20, quoting 

R.C. 2744.02(C).