Worrell v. Athens Cty. Court of Common Pleas - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Worrell, Appellee, v. Court of Common Pleas of Athens County,
Appellant.
[Cite as Worrell v. Athens Cty. Court of Common Pleas
(1994), Ohio St.3d .]
Prohibition -- Writ not allowed prohibiting common pleas court
from exercising jurisdiction in complaint for damages
against professor at state university for allegedly
intentionally or negligently misrepresenting
nontraditional instruction program for master's and
doctorial degrees in mathematics, when.
(No. 93-2293 -- Submitted April 19, 1994 -- Decided June
22, 1994.)
Appeal from the Court of Appeals for Athens County, No.
1506.
On January 25, 1983, Bruce Walker filed a complaint in the
Court of Claims, naming Ohio University and the state of Ohio
as defendants. In his complaint, Walker alleged the
following.
Walker enrolled in Ohio University's mathematics
department as a graduate student in 1974. Prior to Walker's
enrollment and continuing until June or July 1981, various
employees and agents of the university represented that he
could earn a master's as well as a doctoral degree by pursuing
a nontraditional instruction program directed by then-Professor
John M. Worrell, Jr., M.D., appellee herein.
In reliance upon these representations, Walker entered the
nontraditional program, and completed all of the program
requirements by 1981. However, the university refused to give
him academic degree credit for work he completed under the
nontraditional program.
Walker's Court of Claims action set forth two claims for
relief against the university: (1) breach of contract, and (2)
negligence. The complaint did not request the Court of Claims
to determine whether Worrell had acted manifestly outside the
scope of his employment or with a malicious purpose, in bad
faith, or in a wanton or reckless manner.
On August 10, 1984, following a trial on the merits, the
Court of Claims ruled in favor of Ohio University. The Court

of Claims determined that Walker did not meet his burden of
proof of establishing breach of contract or negligence. In its
latter determination, the Court of Claims concluded that
regardless of whether Worrell had ever promised Walker that he
would not have to take comprehensive examinations, any reliance
by Walker was not justified because Worrell did not have the
authority to waive university degree requirements. The Court
of Claims did not expressly determine whether Worrell had acted
manifestly outside the scope of his employment or with a
malicious purpose, in bad faith, or in a wanton or reckless
manner.
On April 30, 1985, Walker filed a complaint for damages in
the Athens County Court of Common Pleas, appellant herein,
naming Worrell as defendant. Walker's complaint alleged that
Worrell had intentionally or negligently misrepresented the
nontraditional instruction program. Worrell moved to dismiss
on the grounds that all of the issues raised by the complaint
had been tried in the Court of Claims action and that R.C.
2743.02(A)(1) barred the action. After the common pleas court
overruled that motion, Worrell filed an amended motion to
dismiss pursuant to Civ.R. 12(B)(1) and (2), contending that
since the Court of Claims had made no finding that Worrell had
acted outside the scope of his employment or with malicious
purpose, in bad faith, or in a wanton or reckless manner, the
common pleas court lacked jurisdiction to consider Walker's
complaint. Worrell claimed that the newly enacted R.C.
2743.02(F) retroactively applied to divest the common pleas
court of jurisdiction.
After converting Worrell's amended motion to dismiss into
a motion for summary judgment, the common pleas court granted
it on December 2, 1988. The court determined that Walker's
prior Court of Claims action collaterally estopped him from
raising the same issues in the common pleas court. On appeal,
the Athens County Court of Appeals reversed the summary
judgment on collateral estoppel without addressing any issue
concerning the common pleas court's jurisdiction.
On January 31, 1991, Worrell filed another motion to
dismiss Walker's complaint, claiming that the common pleas
court lacked subject matter jurisdiction. The common pleas
court overruled this motion, stating that the prior court of
appeals judgment represented the law of the case. The common
pleas court stated that "the issue of retroactivity is, in
effect, moot, because the [appellate court] interprets the
Court [of Claims'] decision as a ruling that Worrell was acting
outside the scope of his employment."
On November 12, 1991, Worrell filed a complaint in the
court of appeals seeking a writ prohibiting the common pleas
court from proceeding on Walker's complaint unless the Court of
Claims expressly determined that Worrell acted manifestly
outside the scope of his employment or official
responsibilities, or with malicious purpose, in bad faith, or
in a wanton or reckless manner. On September 22, 1993, the
court of appeals, in a split decision, granted the writ.
The cause is now before this court upon an appeal as of
right.

Lee Fisher, Attorney General; Mollica, Gall, Sloan &

Sillery Co., L.P.A., Gerald A. Mollica and Robert J. Gall, for
appellee.
Robe & Robe, Edward S. Robe and Scott M. Robe, for
appellant.

Per Curiam. "For a writ of prohibition to issue, a
relator must establish (1) that the court or officer against
whom the writ is sought is about to exercise judicial or
quasi-judicial power, (2) that the exercise of that power is
unauthorized by law, and (3) that denying the writ will result
in injury for which no other adequate remedy exists in the
ordinary course of law." State ex rel. Ruessman v. Flanagan
(1992), 65 Ohio St.3d 464, 465, 605 N.E.2d 31, 33. The parties
agree that the common pleas court was about to exercise
judicial power in considering the merits of Walker's
complaint. Accordingly, the dispositive issues are whether the
common pleas court's attempted exercise of jurisdiction is
improper and whether Worrell possesses an adequate remedy at
law.
In its third proposition of law, the common pleas court
asserts that Worrell has an adequate remedy at law by appeal to
raise his allegation that the court lacks subject matter
jurisdiction over Walker's complaint. The court of appeals
determined that appeal did not constitute an adequate legal
remedy.
In 1975, the General Assembly enacted the Court of Claims
Act, R.C. Chapter 2743, creating the Court of Claims and
specifying the manner in which actions could be brought in that
court against the state and its officers and employees. Conley
v. Shearer (1992), 64 Ohio St.3d 284, 286, 595 N.E.2d 862,
865. R.C. 2743.02(A)(1) provides:
"The state hereby waives its immunity from liability and
consents to be sued, and have its liability determined, in the
court of claims created in this chapter * * *.
"Except in the case of a civil action filed by the state,
filing a civil action in the court of claims results in a
complete waiver of any cause of action, based on the same act
or omission, which the filing party has against any officer or
employee, as defined in section 109.36 of the Revised Code.
The waiver shall be void if the court determines that the act
or omission was manifestly outside the scope of the officer's
or employee's office or employment or that the officer or
employee acted with malicious purpose, in bad faith, or in a
wanton or reckless manner."
Effective October 20, 1987, the General Assembly amended
the Court of Claims Act to add R.C. 2743.02(F), which, after
minor changes, provides:
"A civil action against an officer or employee, as defined
in section 109.36 of the Revised Code, that alleges that the
officer's or employee's conduct was manifestly outside the
scope of his employment or official responsibilities, or that
the officer or employee acted with malicious purpose, in bad
faith, or in a wanton or reckless manner shall first be filed
against the state in the court of claims, which has exclusive,
original jurisdiction to determine, initially, whether the
officer or employee is entitled to personal immunity under
section 9.86 of the Revised Code and whether the courts of

common pleas have jurisdiction over the civil action.
"The filing of a claim against an officer or employee
under this division tolls the running of the applicable statute
of limitations until the court of claims determines whether the
officer or employee is entitled to personal immunity under
section 9.86 of the Revised Code." See 142 Ohio Laws, Part II,
3136.
Pursuant to R.C. 2743.02(F), the Court of Claims has
exclusive, original jurisdiction to determine whether a state
employee acted manifestly outside the scope of his employment
or with malicious purpose, in bad faith, or in a wanton or
reckless manner. Conley, supra, 64 Ohio St.3d at 287, 595
N.E.2d at 865. This court has held that R.C. 2743.02(F) is not
retroactive. Nease v. Med. College Hosp. (1992), 64 Ohio St.3d
396, 596 N.E.2d 432. Therefore, because Walker filed his
common pleas court action on April 30, 1985, i.e., prior to the
enactment of R.C. 2743.02(F), we must review the judgment of
the court of appeals without applying that provision.
In Cooperman v. Univ. Surgical Assoc., Inc. (1987), 32
Ohio St.3d 191, 513 N.E.2d 288, paragraph two of the syllabus,
this court held as follows:
"A court of common pleas does not lack jurisdiction over
an action against state officers or employees merely because
the Court of Claims has not first determined that the act or
omission, which is the subject of the action, was manifestly
outside the scope of the officer's or employee's office or
employment, or that the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless
manner, unless the aggrieved party has filed a suit in the
Court of Claims based on the same act or omission. (R.C.
2743.02[A][1], construed and applied.)"
Worrell claims that since Walker first filed suit in the
Court of Claims based on the same acts underlying his common
pleas court action, the common pleas court patently and
unambiguously lacks jurisdiction to consider Walker's complaint
until the Court of Claims determines that Worrell is not
entitled to immunity pursuant to R.C. 9.86. A broad reading of
the second paragraph of the Cooperman syllabus arguably
supports Worrell's argument. However, in Cooperman, supra, 32
Ohio St.3d at 197, 513 N.E.2d at 295, this court emphasized
that a common pleas court lacks jurisdiction over an action
against state officers or employees where the Court of Claims
had not first determined the R.C. 9.86 immunity issue, but only
"if the aggrieved party has also filed a concurrent suit in the
Court of Claims based upon the same act or omission."
(Emphasis added.) See, also, S.Ct.R.Rep.Op. 1(B), providing
that "[t]he syllabus of a Supreme Court opinion states the
controlling point or points of law decided in and necessarily
arising from the facts of the specific case before the Court
for adjudication." Although Walker had filed a suit against
the state in the Court of Claims, that case was no longer
pending, i.e., concurrent, at the time he filed his complaint
against Worrell in the common pleas court. See, e.g., Hawley
v. Bowling Green State Univ. (Sept. 2, 1988), Wood App. No.
WD-87-32, unreported, citing McIntosh v. Cincinnati (1985), 24
Ohio App.3d 116, 24 OBR 187, 493 N.E.2d 321, and Von Hoene v.
State (1985), 20 Ohio App.3d 363, 365, 20 OBR 467, 471, 486

N.E.2d 868, 872.
Thus, under the foregoing interpretation of Cooperman, the
common pleas court has subject matter jurisdiction over
Walker's complaint.
The common pleas court has general jurisdiction of the
subject matter of the complaint. See R.C. 2305.01. "'Absent a
patent and unambiguous lack of jurisdiction, a court having
general jurisdiction of the subject matter of an action has
authority to determine its own jurisdiction. A party
challenging the court's jurisdiction has an adequate remedy at
law via appeal from the court's holding that it has
jurisdiction.'" (Emphasis sic.) State ex rel. Bradford v.
Trumbull Cty. Court (1992), 64 Ohio St.3d 502, 504, 597 N.E.2d
116, 117-118, quoting State ex rel. Pearson v. Moore (1990), 48
Ohio St.3d 37, 38, 548 N.E.2d 945, 946.
The court of appeals determined that an appeal would not
afford Worrell an adequate legal remedy based upon State ex
rel. Sanquily v. Lucas Cty. Court of Common Pleas (1991), 60
Ohio St.3d 78, 573 N.E.2d 606. In Sanquily, we noted at 80,
573 N.E.2d 606, 609:
"*** Although R.C. 2305.01 gives common pleas courts
original jurisdiction in civil matters generally, R.C.
2743.02(F) patently and unambiguously takes it away from them
in a specific class of civil cases. For the common pleas court
to proceed would be to usurp the Court of Claims' jurisdiction;
in a case so plain, we will not consign relator to his
appellate remedy."
As noted previously, however, R.C. 2743.02(F) is not
applicable in this case. Further, R.C. 2743.02(F) was enacted
in response to the second paragraph of the Cooperman syllabus.
See Conley, supra, 64 Ohio St.3d at 286, 595 N.E.2d at 865.
The title to Sub.H.B. No. 267, which enacted R.C. 2743.02(F),
states that the amendment is aimed at "clarifying the Court of
Claims with respect to civil actions against state officers and
employees [and] clarifying that the Court of Claims has
exclusive, original jurisdiction over all types of civil
actions against the state and its officers and employees,
irrespective of the relief sought." (Emphasis added.) 142
Ohio Laws, Part II, 3134. This indicates that prior to the
enactment of R.C. 2743.02(F), the jurisdictional issue was not
patent and unambiguous.
In that the common pleas court possesses general
jurisdiction over Walker's complaint and R.C. 2743.02(A)(1)
does not patently and unambiguously divest the court of such
jurisdiction under the particular facts and circumstances of
this case, the court of appeals erred in granting Worrell a
writ of prohibition as he possesses an adequate legal remedy
via appeal.
Accordingly, the judgment of the court of appeals issuing
a writ of prohibition is reversed.
Judgment reversed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.