[Cite as Johnson v. Godsey , 2013-Ohio-3277.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

WILLIAM S. JOHNSON : Plaintiff-Appellant : C.A. CASE NO. 2012 CA 80

v. : T.C. NO. 11CVI656 ALICE J. GODSEY : (Civil appeal from Municipal Court) Defendant-Appellee :

:

. . . . . . . . . . O P I N I O N

Rendered on the 26th day of July , 2013.

. . . . . . . . . . WILLIAM S. JOHNSON, P. O. Box 62, Clifton, Ohio 45316 Plaintiff-Appellant THADDIUS A. TOWNSEND, Atty. Reg. No. 0089197, Assistant Clark County Prosecutor, 50 E. Columbia Street, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Defendant-Appellee

. . . . . . . . . . FROELICH, J. {¶ 1} William S. Johnson appeals from a judgment of the Clark County2 Municipal Court, which granted summary judgment to Alice J. Godsey on Johnson’s claims and denied Johnson’s request for expenses due to Gods ey’s filing of a counterclaim against him. For the following reasons, the trial court’s judgment will be affirmed. I. Factual and Procedural History {¶ 2} Johnson is the owner of residential rental property located at 5307 Waverly Drive in Clark County. The property receives water services through the Clark County Utilities Department. At all re levant times, Alice Godsey was the director of the Clark County Utilities Department. {¶ 3} On February 18, 2011, Johnson filed a sm all claims complaint against Godsey, claiming that Godsey was “extorting money” from Johnson for water service to the Waverly Drive property. Johnson also alleged that G odsey was “harassing and terrorizing” the new tenant at the property by seeking payment for services provided to a prior tenant and by threatening to shut off water se rvice to the new tenant. Johns on alleged that Godsey’s conduct was outside the scope of her empl oyment as the director of u tilities. Johnson’s complaint cited to case law, the Rules and Regulations of the Clark County Utilities Department, and the Application and Contract form of the Clark County Utilities Department. Johnson sought $1,079.51, plus penalties, living expenses, and costs. {¶ 4} Godsey was served with the comp laint on February 25, 2011, and a pretrial conference was held on March 15, 2011. Based on the discussions at that conference, the trial court transferred the case to the court’s regular docket and granted Godsey 30 days to file an

answer and counterclaim. Both parties were given 90 days to conduct discove ry and file dispositive motions.[Cite as Johnson v. Godsey , 2013-Ohio-3277.] {¶ 5} On April 14, 2011, Godsey, as director of utilities for Clark County, filed an answer denying all of the alle gations of wrongdoing in the complaint. She also brought a counterclaim against Johnson, alleging that $282.32 was due and owing for water service to 5307 Waverly Drive and that Johnson was responsible for paying for that arrearage. Johnson answered the counterclaim, stating in part th at the Clark County Utilitie s Department had not been joined in the lawsuit, that he (Johnson) ha d no contract with Godsey, and that Godsey could not seek damages against him. {¶ 6} On June 2011, Godsey moved for summary judgment, claiming that her actions were taken in furtherance of her position as director of utilities and that she was entitled to sovereign immunity. Two days later, Johnson filed an amende d complaint, which included additional allegations that Gods ey had improperly levied tax lie ns and charges for arrearages. {¶ 7} Godsey filed an amended summary j udgment motion, again claiming sovereign immunity. She supported the motion with an affidav it stating that her acti ons were taken in the scope of her employment and we re pursuant to regular departme nt procedures. She indicated that an arrearage on the property grew to $268.88 between October 20, 2010 and January 26, 2011. On November 1, 2010, water se rvice was discontinued due to an arrearage. Despite the unpaid balance, water service was restored on December 2, 2010, ba sed on an understanding that the owner (Johnson) would pay the arrearage. Godsey stated that the current tenant is up-to-date in his water payments. Johnson subsequently opposed Godsey’s motion for summary judgment and asked for “reasonable expenses,” arguing th at Godsey had not claimed sovereign immunity

in her answer. {¶ 8} Godsey moved to amend her answer, sta ting that her counsel had inadvertently4 failed to allege sovereig n immunity. (At the pretrial conferen ce, Godsey’s counsel had told the court that he believed Godsey was entitled to sovereign immunity.) The trial court granted Godsey’s motion. Before filing an amended answ er, Godsey filed a notice of dismissal of her

counterclaim. {¶ 9} Godsey filed an amended answer on August 12, 2011. She again denied Johnson’s allegations, raised five affirmative defenses (incl uding sovereign immunity), and asserted, as director of utilities, a new counterclaim for “all r easonable attorney fees in defending this action, as well as costs to Clark County, Ohio for wages spent in defense of this action.” Johnson filed an answer to the counterclaim, sta ting that Godsey had been sued personally and that she responded to his interrogatories stating that she personally had not lost any wages as a

result of this action and was not personally responsible for her attorney fees. Johnson claimed

that the counterclaim was frivolous and not made in good faith. {¶ 10} On October 3, 2011, Johnson moved to dismi ss Godsey’s counterclaim. He also asked for “reasonable expenses incurred as a result of the De fendant’s frivolous Counterclaim and cross-claim pursuant to Rule 56 G.” Johnson argued that the “claims were without merit

and made in bad faith in an attempt to intimidate a pro se Plaintiff.” In his supporting memorandum, Johnson stated that he had spent at least five hours defending and answering the counterclaim, and he sought $525 in expenses. {¶ 11} Godsey voluntarily dismissed her amended countercla im on November 4, 2011. Five days later, Johnson filed a “motion for judgment on the pleadings to grant plaintiff expenses for frivolous counter claim/crossclaim,” pursuant to Civ.R. 56(G). Johnson again sought $525 in expenses. Godsey opposed the motion.5 {¶ 12} Later in November 2011, Johnson filed a supplemental memorandum addressing Godsey’s claim that she was entitled to sovereign immunity. He asserted that he had alleged several instances where Godsey had acted contrary to law, outside the sc ope of her employment,

and in bad faith and in a wanton manner. Johnson provide d a detailed timeline of his communications with Godsey and the Clark C ounty Utilities Depar tment regarding unpaid water bills at the Waverly Drive property. Johns on supported his memorandum with an affidavit affirming that his statements in the supplemental memorandum were true and that his exhibits were accurate copies of documents provided by Godsey during discovery. {¶ 13} In February 2012, a magistrate ruled on both Johnson’s request for reasonable expenses and Godsey’s motion for summary j udgment. The magistrate denied Johnson’s request for reasonable expenses, no ting first that Civ.R. 56(G) has no application to an allegedly frivolous pleading. The ma gistrate further found: Even if Plaintiff had properly moved fo r sanctions under Civil Rule 11 or R.C. 2323.51 there has been no showing of an y improper conduct on the part of Defendant sufficient to support any award of expenses. Whereas Ms. Godsey, in her individual capacity, has no standing to bring a counterclaim for unpaid utility services, it was not unreasonable for Defe ndant’s counsel to initially assume, given the subject matter of Plaintiff’s allegations, that Ms. Godsey was being sued in a representative capacity as Director of the Clark County Utilities Depa rtment.

The counterclaim was later voluntarily withdrawn; there has been no showing of any bad faith or improper purpose in its assertion, nor has it been shown that Plaintiff suffered any significant loss or injury as a result. Accordingly,6 Plaintiff’s Motion is denied. {¶ 14} The magistrate granted Godsey’s motion for summary judgment based on sovereign immunity under R.C. 2744.03(A)(6). The magistrate noted that Johnson had not cited to any section of the Revised Code that imposed liability on Godsey. It further concluded that Godsey’s actions “were unquestionably within th e scope of [her] official responsibilities to pursue payment for those services.” The magist rate stated that Godsey’s affidavit “belies Plaintiff’s apparent belief that Defendant is pursu ing some sort of malicious personal vendetta, or that the billing and collection activities engaged in under her supervision we re done in bad faith, or in a wanton or reckless manner.” The magistra te thus concluded that none of the exceptions to sovereign immunity under R.C. 2744.03(A)(6) a pplied, and Godsey was entitled to summary judgment. {¶ 15} Johnson objected to the magistrate’s decision. On October 29, 2012, the trial court rejected Johnson’s objections and entered judgment in favor of Godsey. The trial court’s judgment entry was almost identi cal to the magistrate’s decision. {¶ 16} Johnson appeals from the trial court’s judgment, raising numerous assignments of error. He challenges both the denial of his motion for reasonable expenses and the trial court’s grant of summary judgment to Godsey. II. Motion for Expenses for Frivolous Filing {¶ 17} Johnson raises six assignments of error c oncerning the trial c ourt’s denial of his motion for expenses for Godsey’s allegedly fri volous counterclaims. Johnson claims that the trial court erred in finding (1) that the initial counterclaim was di smissed “upon clarification that Ms. Godsey was being sued personally as a private individual, and not in he r capacity as Director7 of the Clark County Utilities Depar tment”, (2) that it was not unr easonable for Godsey’s counsel to initially assume that Godsey was being sued in a representative capacity, (3) that there had been no showing of any improper conduct by Godsey to warrant an award of expenses, (4) that the voluntary withdrawal of the c ounterclaim mitigated the frivolous na ture of its original filing, (5) that there was no showing of “bad faith” or “improper purpose” in the filing of the counterclaim, and (6) that there was no showing of “any significant loss or injury” to Johnson due to the filing. To summarize, Johnson contends that the trial court’s f actual and legal reasons for denying his motion were not supported by the record. {¶ 18} Johnson’s motion for reasonable expe nses was brought under Civ.R. 56(G), which provides: Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reas onable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt. By its terms, Civ.R. 56(G) applies to summary judgment affidavits, not pleadings. Because Johnson failed to provide a proper basis for his motion, the trial court did not err in denying Johnson’s motion for reasonable expenses relate d to the filing of Godsey’s counterclaims. {¶ 19} Moreover, the trial cour t reasonably concluded that Johnson was not entitled to expenses under Civ.R.11 or R.C. 2323.51, even if Johnson had sought expenses under those provisions.8 {¶ 20} Civ.R. 11 requires every pleading, motion, or other document of a party represented by an attorney to be signed by at least one attorney of record in the attorney’s individual name and to state the attorney’s registration number, tele phone number, facsimile number, if any, and business e-mail address, if any. The signature of an attorney constitutes a certificate by that attorney that the attorney has read the document, that to the best of the attorney’s knowledge, information, and belief ther e is good ground to support it, and that it is not interposed for delay. Civ.R. 11. “For a willful vi olation of this rule, an attorney * * * may be subjected to appropriate action, including an award to the opposing party of expenses and reasonable attorney fees incurred in br inging any motion under this rule.” Id. {¶ 21} Under R.C. 2323.51(B), “at any time not more than thirty days after the entry of final judgment in a civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an award of court costs, r easonable attorney’s fees , and other reasonable expenses incurred in connection with the civil ac tion or appeal. The c ourt may asse ss and make an award to any party to the civil action or appeal who was adversely affected by frivolous

conduct * * *.” Of relevance to this action, “frivolous conduct” means the conduct of a party to a civil action or of the party’s counsel that satisfies any of four criteria: (1) It obviously serves merely to harass or malic iously injure another party to the civil ac tion or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation. (2) It is not warranted under existin g law, cannot be supported by a good9 faith argument for an extensi on, modification, or reversal of existing law, or cannot be supporte d by a good faith argument for

the establishment of new law. (3) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable oppor tunity for further investigation or discovery. (4) The conduct consists of denials or f actual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack

of information or belief. R.C. 2323.51(A)(2)(a)(i)-(iv). {¶ 22} We find no indication in the record that Godsey’s original counterclaim constituted a willful violation of Civ.R. 11 or met any of the criteria set forth in R.C. 2323.51(A)(2)(a). Johnson claims that it was “cl early known by all pa rties by March 15, 2011 Pre-Trial Conference” that he had sued Godsey in an individual, not a representative, capacity and thus Godsey’s attorney should not have dr afted any counterclaim in Godsey’s capacity as director of utilities for Clark County. Howeve r, during the March 15, 2011 pretrial conference, Godsey’s counsel told the court that he intende d to file a counterclaim for the unpaid bill if Johnson did not pay the bill, and the trial court granted Godsey leave to file an answer and counterclaim. We cannot say th at Godsey acted unreasonably in filing such a counterclaim, as allowed by the trial court. A nd, given the nature of Johnson’s cl aims and the fact that Johnson10 repeatedly served interrogatories on “Defenda nt and Clark County De partment of Utilities,” 1 it was not initially clear that the Clark County U tilities Department was not intended by Johnson to be a party to the litigation. {¶ 23} Godsey’s counterclaim in her amended an swer sought reasonable attorney fees and costs to Clark County for defending the ac tion. Although Godsey did not cite to any authority for this claim in her amended answer , Godsey’s claim was not unsupportable, and we find no suggestion that it was filed for purposes of harassment or to increase the cost of litigation. {¶ 24} Johnson’s assignments of error concer ning the denial of his motion for reasonable expenses are overruled. III. Sovereign Immunity

1 Under Civ.R. 33, any party may serve interrogatories “u pon any other party.” Inte rrogatories shou ld not be directed to non-parties. {¶ 25} Johnson raises five assignments of error challenging the trial court’s granting of Godsey’s motion for summary judgment. He claims that both the magistrate and the trial court erred in finding (1) that Godsey’s conduct wa s not manifestly outsi de the scope of her employment, (2) that Godsey did not act in bad faith or in a wa nton manner, (3) that Johnson had to show that Godsey’s action were taken for a pers onal reason or with an ulterior motive, (4) that

Johnson cited no section of the Revised Code that imposed pe rsonal civil liability upon utilities directors, and (5) that Godsey ’s actions were taken within the scope of her employment. {¶ 26} Pursuant to Civ.R. 56(C), summary j udgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, af ter construing the evidence most strongly in favor of the11 nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc ., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstr ating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler , 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a

court is to consider in re ndering summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). Those materials in clude “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, filed in the action.” Id. at 293; Civ.R. 56(C). {¶ 27} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or deni als of the party’s pleadings. Dresher at 293; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving pa rty to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts th at show that there is a genuine issue of

material fact for trial. Id. Throughout, the evidence must be construed in favor of the nonmoving party. Id. {¶ 28} “R.C. Chapter 2744, the Political Subdivi sion Tort Liability Act, sets forth a comprehensive statutory scheme for the tort liability of political subdivisions and their employees.” Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow , – Ohio St.3d –, 2013-Ohio-2410, – N.E.2d –, ¶ 11. The statute “i s the General Assembly’s response to the judicial abrogation of common-law sovereig n immunity. Its manifest purpose is the preservation of the fiscal integr ity of political subdivisions.” Estate of Graves v. Circleville , 124 Ohio St.3d 339, 2010-Ohio-168, 922 N.E.2d 201, ¶ 12, citing Wilson v. Stark Cty. Dept. of12

Human Servs ., 70 Ohio St.3d 450, 453, 639 N.E.2d 105 (1994). {¶ 29} R.C. 2744.03(A)(6) grants employees of political subdivisions immunity from liability, unless any of three exceptions to that immunity apply. Anderson v. Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 21. Those exceptions are (1) the employee’s acts or omissions were manifestly out side the scope of the employee’s employment or official responsibilities; (2) th e employee’s acts or omissions we re with malicious purpose, in bad faith, or in a wanton or r eckless manner; and (3) civil liab ility is expressly imposed upon the employee by a section of the Revi sed Code. R.C. 2744.03(A)(6)(a)-(c). {¶ 30} Johnson asserts that Godsey’s actions we re manifestly outside the scope of her employment. In his verified supplemental memorandum, Johnson stated that Godsey was required to contract with the i ndividual tenants, that he had re peatedly attempted to cancel his contract with the utility department but Godsey would not allow it, that Godsey has never billed Johnson directly for the unpaid water bill, that G odsey failed to provide a copy of the utility department’s rules and re gulations, that Godsey has allowed wa ter service at the property without

a contract with the individual tenants, and that Godsey unlaw fully recommended and allowed tax liens on his property for water charges. {¶ 31} In her affidavit, Godsey stated th at, as of October 18, 2010, the account for 5307 Waverly Drive had a credit. However, fro m October 20, 2010 to January 26, 2011, the unpaid balance grew to $268.66, including usage and pe nalties. Water servi ce was discontinued on November 1, 2010 for final reading by the Clar k County Utilities Departme nt. Godsey stated that, despite the arrearage, water service was restored to the property on December 2, 2010 “based on the understanding that the owner woul d pay the arrearage.” Due to the continued13 unpaid balance, a disconnection notice was ma iled to 5307 Waverly Drive. Subsequently, arrangements were made to con tinue service for the current tena nt. As of the date of the affidavit, the tenant was current on his payments and the utilities department had no intention of discontinuing service to him. Godsey explained that the automated billing process only allows one bill to be sent, and duplicate billing is impr acticable. She stated that she has worked diligently and professionally to resolve the issue of the arrearage left by the previous tenant. {¶ 32} For an act to fall within the scope of employment, it must be “calculated to facilitate or promote the business for which the [employee or agent] was employed.” Osborne v. Lyles , 63 Ohio St.3d 326, 329, 587 N.E.2d 825 (1992). In general, if an act is committed within the scope of employment, it will be authorized, either expressly or impliedly, by the employer. Anousheh v. Planet Ford, Inc ., 2d Dist. Montgomery Nos. 21960 & 21967, 2007-Ohio-4543, 2007 WL 2482625, ¶ 45. Intentional and willful acts by an agent or employee “to vent his own spleen or malevolence against the injured person” are generally outside th e scope of employment.

Osborne , 63 Ohio St.3d at 329, 587 N.E.2d 825. Stated differently, “an employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his

business.” Groob v. KeyBank , 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 42, citing Byrd v. Faber , 57 Ohio St.3d 56, 59, 565 N.E.2d 584 (1991). {¶ 33} Construing the evidence in the light most favorable to Johnson, there is no genuine issue of material fact whether Godsey’s actions rega rding the water service to 5307 Waverly Drive were done within th e scope of her employment. It is undisputed that Godsey is the current director of the Clark County Utilitie s Department, which has primary responsibility for providing water for residential properties within its district and billing for those services.14 Although Johnson claims that he has been imprope rly billed for the water provided to his rental property and a tax lien was improperly levied against the propert y due to the unpaid water bill, all

of the actions about which Johnson complains were taken by Godsey in furtherance of obtaining payment for the water services to 5307 Waverly Drive by the Clark C ounty Utilities Department. There is no evidence that Godsey has acted “to vent her own spleen” or acted in an “independent self-serving” manner that in no wa y was intended to bene fit her employer, the Clark County Utilities Depa rtment. Based on the record, the exception to immunity under R.C. 2744.03(A)(6)(a) does not apply, as a matter of law. {¶ 34} Next, Johnson asserts that Godsey acted with a malicious purpose, in bad faith, and in a wanton or reckless manner, thus stri pping her of immunity under R.C. 2744.03(A)(6)(b). {¶ 35} Recklessness is a high standard. Rankin v. Cuyahoga Cty. Dept. of Children and Family Servs ., 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 37. Wanton

misconduct has been defined as the failure to exercise any care whatsoever. Fabrey v. McDonald Village Police Dept ., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994), citing Hawkins v. Ivy , 50 Ohio St.2d 114, 363 N.E.2d 367 (1977), syllabus. {¶ 36} Mere negligence in the performance of Godsey’s duties is insufficient to meet this high standard. See O’Toole v. Denihan , 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 74. As stated by the Ohio Supreme Cour t, “‘mere negligence is not converted into

wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.’ Such perversity must be under such conditions that the actor must be conscious that his [or her] conduct will in all probability result in injury.” Fabrey at 356, quoting Roszman v.

Sammett , 26 Ohio St.2d 94, 96-97, 269 N.E.2d 420 (1971). Even when viewing the evidence in15 Johnson’s favor, Godsey’s conduct does not meet this high standard, as a matter of law. {¶ 37} Finally, Johnson disputes the trial court’ s finding that he did not cite to any statutory provision expressly imposing civil liability on a director of utilities for its billing practices. In his objections to the magistrate ’s decision (and on appeal), Johnson argued that Godsey’s actions rose to the level of criminal violations, namely theft by deception, extortion, and coercion, and thus her actions were not en titled to immunity in a civil lawsuit under R.C. 2744.03(A)(6)(c). However, his supplemental memorandum opposing summary judgment did not address R.C. 2744.03(A)(6)(c). Rather, it included sections labeled “Undisputed Facts,” “2744.03(A)(6) a,” and “2744.03(A)(6) b.” The trial court did not err in finding that Johnson failed to challenge Godsey’s motion for summary judgment under R.C. 2744.03(A)(6)(c). {¶ 38} Regardless, even if R.C. 2744.03(A)(6 )(c) had been raise d, the trial court nevertheless did not err in gran ting summary judgment. “[W]hether the exception to immunity under R.C. 2744.03(A)(6)(c) applies is purely a que stion of law, for it always involves the interpretation or application of a statutory provision that is pur ported to remove the employee's immunity.” Stachura v. Toledo , 4th Dist. Lucas No. L-12-1068, 2013-Ohio-2365, ¶ 23. For purposes of R.C. 2744.03(A)(6)(c), “expressly” mean s “in direct or unmistakable terms: in an express manner: explicitly, definitely, directly.” See Butler v. Jordan , 92 Ohio St.3d 354, 357, 750 N.E.2d 554 (2001) (discussing R.C. 2744.02(B)(5)), quoting Webster’s Third New International Dictionary ( 1986) 803. Assuming that Godsey’s billing activities did not completely conform to the count y’s rules and regulations and contractual terms, we find no provision in the Revised Code that expressly imposed civil liability on Godsey. And, again construing the evidence in Johnson’s favor, excep t for his personal legal conclusions, there was16 no evidence that Godsey’s alleged actions rose to the level of criminal activity. {¶ 39} The trial court did not err in finding th at no genuine issues of material fact existed and that Godsey was entitled, as a matter of law, to the immunity set forth in R.C. 2744.03(A)(6). Johnson’s assignments of error rega rding the trial court’s grant of Godsey’s motion for summary judgment are overruled.

IV. Conclusion {¶ 40} The trial court’s judgment will be affirmed.

. . . . . . . . . . HALL, J. and WELBAUM, J., concur. Copies mailed to:

William S. Johnson Thaddius A. Townsend Hon. Eugene S. Nevius