Wee Care Child Ctr., Inc. v. Ohio Dept. of Job & Family Servs.

[Cite as Wee Care Child Ctr., Inc. v. Ohio Dept. of Job & Family Servs., 2014-Ohio-2913.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Wee Care Child Center, Inc. et al., :

Plaintiffs-Appellants, :
No. 13AP-1004
v. : (Ct. of Cl. No. 2010-11901)

Ohio Department of Job : (REGULAR CALENDAR)
and Family Services et al.,
:
Defendants-Appellees.
:

D E C I S I O N

Rendered on June 30, 2014

Favor Legal Services, and H. Macy Favor, Jr., for appellants.

Michael DeWine, Attorney General, Velda K. Hofacker and
Eric A. Walker.

APPEAL from the Court of Claims of Ohio

O'GRADY, J.

{¶ 1} Plaintiffs-appellants Wee Care Child Center, Inc. ("Wee Care") and Tonya
Brown (collectively "appellants") appeal a judgment of the Court of Claims of Ohio
granting defendants-appellees the state of Ohio and Ohio Department of Job and Family
Services ("ODJFS") (collectively "appellees") summary judgment. For the following
reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Brown owned and operated Wee Care, a now-defunct day care center.
ODJFS issued Wee Care a license to operate from December 29, 2003 to December 29,
2005. Before this license expired, Wee Care timely applied for renewal, and ODJFS
No. 13AP-1004 2

employee Michelle Vent conducted a renewal inspection. She found Wee Care non-
compliant with multiple regulations, and ODJFS could not renew Wee Care's license until
these issues were resolved. According to Vent, Wee Care had a history of non-compliance
issues and complaints. However, consistent with ODJFS' general practice, she worked
with Wee Care in the hopes it would become fully compliant. Thus, ODJFS did not either
renew Wee Care's license or try to revoke it before it expired. ODJFS believed Wee Care
could continue to operate under R.C. 119.06 until ODJFS took such action.
{¶ 3} According to Vent, Wee Care never became fully compliant. On
February 27, 2006, she and Peggy Blevins, her supervisor, recommended revocation of
Wee Care's license. Several ODJFS employees had to approve the recommendation
before ODJFS sent a proposed adjudication order ("PAO") to Wee Care on June 19, 2006.
Before a hearing on the PAO, ODJFS discovered errors in the PAO and withdrew it
without prejudice. ODJFS took steps to prepare a new PAO, but did not issue one before
Wee Care closed in March 2007.
{¶ 4} In 2006 and 2007, ODJFS issued amended licenses to Wee Care, all of
which still had an expiration date of December 29, 2005. According to Vent, an amended
license is not a renewal but simply acknowledges a change relative to the license. In July
2006, at Brown's request, ODJFS changed Wee Care's administrator. ODJFS also
reduced Wee Care's capacity from 88 to 87 children. In August 2006, ODJFS further
reduced Wee Care's capacity to 74 children, and in January 2007, reduced it to 38
children. The August and January reductions were made at Wee Care's request.
{¶ 5} Wee Care had a contract with the Franklin County Department of Job and
Family Services ("FCDJFS") in which FCDJFS agreed to purchase and Wee Care agreed to
provide publicly funded child care services. Wee Care earned over 90 percent of its
revenue through this contract. FCDJFS did not renew this contract after it expired in
June 2006. Subsequently, parents receiving public assistance removed their children
from the center, and Wee Care's enrollment plunged from 98 percent to 1 percent of
capacity. Appellants also had difficulty maintaining business liability insurance and
obtaining a loan while Wee Care operated on an expired license.
{¶ 6} Appellants filed several lawsuits stemming from these events. See Wee Care
Child Ctr., Inc. v. Lumpkin, 680 F.3d 841, 844-46 (6th Cir.2012). In the present matter,
No. 13AP-1004 3

appellants alleged claims against appellees for tortious interference with contracts and
business relationships, civil conspiracy, fraud, misrepresentation, negligence, negligent
infliction of emotional distress ("NIED"), and breach of contract and express warranty.
Appellants also claimed eight current or former ODJFS employees, including Vent,
Blevins, and Harrison, were not entitled to civil immunity for their actions. In addition,
appellants sought certification of a class consisting of persons or entities "who possessed
as of December 1, 2005 through the present, a full [l]icense to operate as an Ohio day care
center who were subject to the same and/or similar unconstitutional, fraudulent, and
tortious conditions caused by the [a]gents [of the state and ODJFS] as alleged in this
Amended Complaint that resulted in a complete loss of property, income, and opportunity
costs." (R. 11, ¶ 16.)
{¶ 7} During the proceedings, appellants filed a motion to compel discovery
because appellees refused to provide information that would help them identify class
members and locate witnesses to testify operating a day care with an expired license "will
lead to financial disaster." (R. 35, 3.) Appellees claimed the requests sought irrelevant or
non-existent information and would be overly burdensome and expensive to comply with.
The Court of Claims denied the motion because the court had not certified a class (and the
burden and expense issues).
{¶ 8} Appellants filed a motion for summary judgment, in part seeking a
determination about the immunity of ODJFS employees. The central theme of the motion
was the employees conspired with FCDJFS in a plan appellants termed the "Zero-out
Procedure," which was designed to put Wee Care out of business without due process of
law. Appellants' contention rested in large part on the following deposition testimony of
Lemuel Harrison, a former ODJFS staff attorney:
Q. * * * Now, Mr. Harrison, [Wee Care's] license was changed
four times after its expiration date, and you couldn't at least
out of one of those four opportunities update the expiration
date so it complies with 119.06?

MS. HOFACKER CARR: Objection.

A. We believe that it did comply with 119.06. There is a
reason, Mr. Favor, why we updated for capacity.
No. 13AP-1004 4

If you look at each of these licenses -- I didn't memorize the
numbers on it. The only way we do that when the license has
expired is that we don't believe the center continues to be in
compliance.

We are in essence taking the only step we can short of a
hearing to reduce the population to have fewer children in
care under this particular custodian who has a license. My
suspicion is that each of these we reduced it.

The objection of revocation is to have the population be zero.
We can't do that because of due process rights.

But if we can establish through the rules that the population --
if we can justify to the Department that the population could
be reduced so there's less children in care of a particular
center, we would do that, we would not reissue a license,
because the objective is to take away the license.

So we would not issue a license for two years if our objective is
to go to hearing within a date and have the licensed revoked
within a month, that would not be something we would do.

Q. Why wouldn't you do that?

A. Renew the license for two years when we want it to be
revoked, because we believe the children would be in better
care, we would not want to extend it for two years.

Q. In order to revoke the license do you make the sole decision
to revoke a license, or does an administrative judge make the
decision to revoke a license?

A. I don't make the decision, the Department just makes a
recommendation, and it's the administrative judge that makes
a recommendation to the Department.

Q. So if you're making a recommendation to have a license
revoked there is a chance that the administrative judge is not
going to agree with you, correct?

A. Correct.

(Harrison Depo. 37-38.)
No. 13AP-1004 5

{¶ 9} According to appellants, ODJFS employees wanted to financially ruin them.
Because the employees could not prove allegations of Wee Care's non-compliance, they
delayed revocation proceedings that would have triggered the right to a due process
hearing. They told appellants Wee Care could operate with an expired license under R.C.
119.06(C) but knew third-parties required an unexpired license to transact with a day
care. Appellants stated ODJFS decreased Wee Care's capacity in an effort to zero-out the
population of children at the center, and while ODJFS issued a PAO, it only did so under
pressure from appellants' attorney and later withdrew the PAO because it could not prove
its case.
{¶ 10} The motion for summary judgment was set for non-oral hearing, as was
appellees' cross-motion for summary judgment. Then, appellants filed a motion the
magistrate took as a request that the court disregard the competing summary judgment
motions and proceed directly to an oral evidentiary hearing on immunity. The magistrate
denied the request, and the Court of Claims overruled appellants' objections to this ruling.
After the non-oral hearing, the Court of Claims denied appellants' motion for summary
judgment but granted appellees' cross-motion.
II. ASSIGNMENTS OF ERROR
{¶ 11} Appellants appeal and present three assignments of error for our review:
ASSIGNMENT OF ERROR I

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DENIED PLAINTIFFS THEIR MOTION TO COMPEL
DISCOVERY.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT DENIED
PLAINTIFFS AN OPPORTUNITY TO CONDUCT AN
IMMUNITY HEARING.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ABUSED ITS DISCRETION BY
GRANTING DEFENDANTS' CROSS-MOTION FOR
SUMMARY JUDGMENT THAT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
No. 13AP-1004 6

III. DISCUSSION
A. Motion to Compel Discovery
{¶ 12} In their first assignment of error, appellants contend the Court of Claims
abused its discretion when it denied their motion to compel discovery. "Parties may
obtain discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action." Civ.R. 26(B)(1). "Matters are only irrelevant at
the discovery stage when the information sought will not reasonably lead to the discovery
of admissible evidence." Union Sav. Bank v. Schaefer, 10th Dist. No. 13AP-222, 2013-
Ohio-5704, ¶ 46, citing Covington v. MetroHealth Sys., 150 Ohio App.3d 558, 2002-
Ohio-6629, ¶ 23 (10th Dist.). "The party resisting discovery bears the burden of
demonstrating to the trial court that the requested information would not meet this
standard." Id., citing Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195, ¶ 44
(10th Dist.).
{¶ 13} A party may move for an order compelling discovery. Civ.R. 37(A).
However, it is "well-settled that '[a] trial court enjoys broad discretion in the regulation of
discovery, and an appellate court will not reverse a trial court's decision to sustain or
overrule a motion to compel discovery absent an abuse of discretion.' " Watkins v.
Holderman, 10th Dist. No. 11AP-491, 2012-Ohio-1707, ¶ 14, quoting Stark v. Govt.
Accounting Solutions, Inc., 10th Dist. No. 08AP-987, 2009-Ohio-5201, ¶ 14, citing Coryell
v. Bank One Trust Co. N.A., 10th Dist. No. 07AP-766, 2008-Ohio-2698, ¶ 47. The phrase
"abuse of discretion" implies an unreasonable, arbitrary or unconscionable attitude on the
part of the court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 14} Here, appellants requested lists, organized by county, of day care centers
that: (1) operated with an expired license any time from 2005 to 2011; (2) were issued an
expired license from 2003 to 2011; or (3) submitted a license renewal application from
2003 to 2011 which appellees did not grant or deny. They sought copies of the expired
licenses and renewal applications and contact information for ODJFS employees assigned
to centers that had operated with expired licenses. Appellants requested lists, organized
by county, of every provisional and full day care center license issued from 2001 to 2011
and copies of licenses issued from 2003 to 2011. They asked appellees to produce by
No. 13AP-1004 7

county or make available copies of files on day care centers in operation from 2003 to
2011.
{¶ 15} On appeal, appellants claim this discovery could have led to witnesses who
could "testify as to the implementation and effects" of the Zero-out Procedure.
(Appellants' Brief, 22.) However, at the trial level, appellants only argued the requested
information would help them identify members of their proposed class and find witnesses
to testify about the financial impact of operating a day care with an expired license.
Additionally, contrary to appellants' contention, the Court of Claims did not deny the
motion to compel based on cost concerns alone. The court reasoned that appellants did
not need discovery to identify members of a class the court never certified. Though not
explicitly stated by the court, the discovery requests were not reasonably calculated to
lead to admissible evidence regarding appellants' individual causes of action either.
Although issues of undue burden and expense would have been more appropriately raised
in a Civ.R. 26(C) motion for a protective order, it was not unreasonable, arbitrary or
unconscionable for the Court of Claims to consider those factors, along with the
irrelevance of the requested discovery, in denying the motion to compel. Therefore, we
overrule the first assignment of error.
B. R.C. 9.86 Immunity Hearing
{¶ 16} Under their second assignment of error, appellants contend the Court of
Claims erred when it refused to conduct an oral evidentiary hearing on the issue of
whether the eight ODJFS employees were entitled to immunity under R.C. 9.86.
{¶ 17} All of the parties, starting with appellants, asked the court to resolve the
immunity issue on summary judgment under Civ.R. 56. Although Civ.R. 56 references a
"hearing" with regard to such a motion, nothing in the rule contemplates an evidentiary
hearing. Castrataro v. Urban, 10th Dist. No. 03AP-128, 2003-Ohio-4705, ¶ 16. To the
contrary, evidence must be submitted before the hearing date. See id; Spagnola v.
Spagnola, 7th Dist. No. 07 MA 178, 2008-Ohio-3087, ¶ 43; see, e.g., Blair v. Harmon, 1st
Dist. No. C-960093 (Nov. 13, 1996) ("The concept that the basic purpose of a motion for
summary judgment is to determine whether there is any need for an evidentiary hearing
beyond the scope of that contemplated by Civ.R. 56 has become ingrained in Ohio law.
The motion enables a court to assess the proffered proof to see whether there is a genuine
No. 13AP-1004 8

need for trial and, thereby, to serve the interest of justice by avoiding needless trials where
no triable issue exists."). (Citations omitted.) C.C.R. 4(D) states Civ.R. 56 motions "are
hereby set for a non-oral hearing date on the 28th day following the filing of the motion
[and] shall be deemed submitted * * * for non-oral hearing on that date."1
{¶ 18} Nonetheless, appellants contend the Court of Claims had to conduct an oral
evidentiary hearing on immunity under C.C.R. 4.1, which provides:
Any party may file a motion requesting that the Court of
Claims make a determination, as required by R.C. 2743.02(F),
as to whether the officer or employee is entitled to personal
immunity under R.C. 9.86 and whether the courts of common
pleas have jurisdiction over the civil action. If no motion for
this determination is made, the Court of Claims may sua
sponte set the matter down for the R.C. 2743.02(F) hearing.

Pursuant to R.C. 2743.02(F), eff. November 3, 2005, the
officer or employee may participate in the immunity
determination hearing before the court of claims to determine
whether the officer or employee is entitled to personal
immunity under R.C. 9.86. Notice of the immunity
determination hearing shall be provided to the officer or
employee in the manner ordered by the court.2

{¶ 19} This rule discusses a "R.C. 2743.02(F) hearing" and an "immunity
determination hearing," but does not require an oral evidentiary hearing. As appellees
point out, we have previously found no error in a trial court's refusal to conduct an
evidentiary hearing prior to making a R.C. 9.86 and 2743.02(F) immunity determination
where no factual conflict warranted one. Lippert v. Med. College of Ohio, 10th Dist. No.
92AP-741 (Dec. 1, 1992). As we discuss below, the Court of Claims did not err when it
found no genuine issue of material fact existed, and the eight employees were entitled to
immunity as a matter of law. An evidentiary hearing was not warranted.

1The court may, in its discretion, allow oral argument on a motion for summary judgment. Castrataro at
¶ 16; see C.C.R. 4(C).

2 R.C. 2743.02(F) states: "A civil action against an officer or employee, * * * that alleges that the officer's or
employee's conduct was manifestly outside the scope of the officer's or employee's 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 that 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."
No. 13AP-1004 9

{¶ 20} Appellants also take issue with statements of the magistrate and Court of
Claims to the effect that, if the immunity issue was not resolved on summary judgment, it
would be resolved at trial. Appellants contend an immunity hearing must occur before
trial. Here, the immunity issue was properly resolved on summary judgment; therefore, it
is unnecessary for us to address appellants' contention. It is moot. Thus, we overrule the
second assignment of error.
C. Summary Judgment
{¶ 21} In their third assigned error, appellants contend the Court of Claims erred
when it granted appellees' summary judgment motion. Appellate review of summary
judgment is de novo, which necessitates an independent review of the record without
deference to the trial court's decision. New Destiny Treatment Ctr., Inc. v. Wheeler, 129
Ohio St.3d 39, 2011-Ohio-2266, ¶ 24; Miller v. J.B. Hunt Transport, Inc., 10th Dist. No.
13AP-162, 2013-Ohio-3892, ¶ 20. Under Civ.R. 56(C), summary judgment "shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,
timely filed in the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law." Summary judgment "is
appropriate only under the following circumstances: (1) no genuine issue of material fact
remains to be litigated, (2) the moving party is entitled to judgment as a matter of law,
and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable
minds can come to but one conclusion, that conclusion being adverse to the nonmoving
party." Brown v. Ohio Dept. of Rehab & Corr., 10th Dist. No. 12AP-891, 2013-Ohio-4207,
¶ 20, citing Stevens v. Ohio Dept. of Mental Health, 10th Dist. No. 12AP-1015, 2013-Ohio-
3014, ¶ 11, citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
{¶ 22} Under Civ.R. 56(C), "the moving party bears the initial burden of informing
the trial court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact." Anderson v. Preferred Title
& Guaranty Agency, Inc., 10th Dist. No. 13AP-385, 2014-Ohio-518, ¶ 14, citing Dresher v.
Burt, 75 Ohio St.3d 280, 293 (1996). "The moving party, however, cannot discharge its
initial burden under this rule with a conclusory assertion that the nonmoving party has no
evidence to prove its case; the moving party must specifically point to evidence of a type
No. 13AP-1004 10

listed in Civ.R. 56(C), affirmatively demonstrating that the nonmoving party has no
evidence to support the nonmoving party's claims." Id., citing Dresher at 293, and Vahila
v. Hall, 77 Ohio St.3d 421 (1997). "Once the moving party discharges its initial burden,
summary judgment is appropriate if the nonmoving party does not respond, by affidavit
or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue
exists for trial." Id., citing Dresher at 293; Vahila at 430.
1. Application of R.C. 119.06(C)
{¶ 23} Initially, we address the contention ODJFS employees lied about Wee Care's
ability to operate with an expired license under R.C. 119.06(C). Wee Care did operate with
an expired license for over one year. Thus, in their effort to prove misconduct by
appellees and its employees, appellants ask us to find Wee Care operated illegally.
{¶ 24} R.C. 119.06(C) provides in relevant part: "When periodic registration of
licenses or renewal of licenses is required by law, a licensee who has filed an application
for registration or renewal within the time and in the manner provided by statute or rule
of the agency shall not be required to discontinue a licensed business or profession merely
because of the failure of the agency to act on the licensee's application."
{¶ 25} R.C. 5104.03 formerly provided that once a day care center with a
provisional license passed a required investigation and inspection, ODJFS' director had to
issue the center a license effective for two years. Former R.C. 5104.03(C). When Wee
Care's two-year license was in effect, centers had to file for renewal at least 60 days before
their license expired. See Former R.C. 5104.03(A). If the center passed another
investigation and inspection, ODJFS' director had to renew its license for two more years.
Former R.C. 5104.03(D). A center had to go through the renewal process each time its
license expired. Former R.C. 5104.03 provided for periodic renewal of licenses.3 Also, it is
undisputed Wee Care timely filed its renewal application and ODJFS is an agency within
the meaning of R.C. 119.06(C). See R.C. 119.01(A). Thus, Wee Care could legally operate
with an expired license under R.C. 119.06(C) while it waited for ODJFS to act on the

3 Effective September 29, 2011, Ohio eliminated the renewal process for child care center licenses. Once a
center successfully moves past the provisional license phase, the center receives a license that does not
expire but can be revoked. See 2011 Am.Sub.H.B. No. 153; R.C. 5104.03 and 5104.04.
No. 13AP-1004 11

renewal application. Whether third-parties would still contract with Wee Care is a
separate matter.
{¶ 26} In their reply brief, appellants contend R.C. 119.06(C) conflicts with R.C.
5104.02(A) and former R.C. 5104.03(C). Appellants have not properly raised this
argument on appeal, having asserted it for the first time in their reply brief. Fisher v.
State, 10th Dist. No. 13AP-38, 2014-Ohio-2280, ¶ 33. Moreover, there is no conflict. R.C.
5104.02(A) states: "No person * * * shall operate, establish, manage, conduct, or maintain
a child day-care center * * * without a license issued under section 5104.03 of the Revised
Code." Former R.C. 5104.03(C) stated the requirement that ODJFS' director "issue a
license to be effective for two years from the date of issuance of the provisional license" if
certain requirements were met. Former R.C. 5104.03(C). R.C. 119.06(C) complimented
these statutes and permitted day care centers like Wee Care to operate during any gaps
between a license's expiration and renewal or revocation.
2. Civil Immunity for ODJFS Employees4
{¶ 27} Appellants contend the Court of Claims erred when it found eight ODJFS
employees were entitled to civil immunity under R.C. 9.86, which provides in part:
[N]o officer or employee shall be liable in any civil action that
arises under the law of this state for damage or injury caused
in the performance of his duties, unless the officer's or
employee's actions were manifestly outside the scope of his
employment or official responsibilities, or unless the officer or
employee acted with malicious purpose, in bad faith, or in a
wanton or reckless manner.

{¶ 28} In assessing immunity under R.C. 9.86, this court has observed:

In the context of immunity, an employee's wrongful act, even
if it is unnecessary, unjustified, excessive, or improper, does
not automatically take such act manifestly outside the scope of
employment. Elliott v. Ohio Dept. of Rehab. & Corr. (1994),
92 Ohio App.3d 772, 775 * * *, citing Thomas v. Ohio Dept. of
Rehab. & Corr. (1988), 48 Ohio App.3d 86, 89 * * *; and
Peppers v. Ohio Dept. of Rehab. & Corr. (1988), 50 Ohio
App.3d 87, 90 * * *; Brooks [v. The Ohio State Univ., 111 Ohio
App.3d 342,] 350 * * *. It is only where the acts of state

4Appellees claim appellants have not assigned as error the Court of Claims' decision regarding immunity;
however, this issue is encompassed by the assigned error on summary judgment.
No. 13AP-1004 12

employees are motivated by actual malice or other such
reasons giving rise to punitive damages that their conduct
may be outside the scope of their state employment. James H.
v. Dept. of Mental Health and Mental Retardation (1980), 1
Ohio App.3d 60, 61 * * *. The act must be so divergent that it
severs the employer-employee relationship. Elliott, at 775
* * *, citing Thomas, at 89 * * *, and Peppers, at 90 * * *.

Malicious purpose encompasses exercising "malice," which
can be defined as the willful and intentional design to do
injury, or the intention or desire to harm another, usually
seriously, through conduct that is unlawful or unjustified.
Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio
App.3d 448, 453-54 * * *, citing Teramano v. Teramano
(1966), 6 Ohio St.2d 117, 118 * * *; and Bush v. Kelley's Inc.
(1969), 18 Ohio St.2d 89 * * *.

"Bad faith" has been defined as the opposite of good faith,
generally implying or involving actual or constructive fraud or
a design to mislead or deceive another. Lowry [v. Ohio State
Hwy. Patrol, 10th Dist. No. 96API07-835] (Feb. 27, 1997),
quoting Black's Law Dictionary (5 Ed.1979) 127. Bad faith is
not prompted by an honest mistake as to one's rights or
duties, but by some interested or sinister motive. Id.

Finally, "reckless conduct" refers to an act done with
knowledge or reason to know of facts that would lead a
reasonable person to believe that the conduct creates an
unnecessary risk of physical harm and that such risk is greater
than that necessary to make the conduct negligent.
Hackathorn v. Preisse (1995), 104 Ohio App.3d 768, 771 * * *,
citing Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104-05
* * *, citing 2 Restatement of the Law 2d, Torts (1965) 587,
Section 500. The term "reckless" is often used
interchangeably with the word "wanton" and has also been
held to be a perverse disregard of a known risk. Jackson,
citing Thompson, at 104 * * *, and Poe v. Hamilton (1990), 56
Ohio App.3d 137, 138 * * *. As to all of the above terms, their
definitions connote a mental state of greater culpability than
simple carelessness or negligence. See Jackson, supra, at 454
* * *.

Wrinn v. Ohio State Hwy. Patrol, 10th Dist. No. 11AP-1006, 2013-Ohio-1141, ¶ 12,
quoting Caruso v. State, 136 Ohio App.3d 616, 620-22 (10th Dist.2000).
No. 13AP-1004 13

{¶ 29} We have also considered definitions of willful, wanton, and reckless conduct
the Supreme Court of Ohio gave in a similar context. Id. at ¶ 13. In the case of political
subdivision employee immunity, the Supreme Court held those terms described different
and distinct degrees of care and were not interchangeable. Id., citing Anderson v.
Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, paragraph one of the syllabus. The
Supreme Court defined those terms as follows:
Willful misconduct implies an intentional deviation from a
clear duty or from a definite rule of conduct, a deliberate
purpose not to discharge some duty necessary to safety, or
purposefully doing wrongful acts with knowledge or
appreciation of the likelihood of resulting injury. (Tighe v.
Diamond, 149 Ohio St. 520 (1948), approved and followed.)

Wanton misconduct is the failure to exercise any care toward
those to whom a duty of care is owed in circumstances in
which there is great probability that harm will result.
(Hawkins v. Ivy, 50 Ohio St.2d 114 (1977), approved and
followed.)

Reckless conduct is characterized by the conscious disregard
of or indifference to a known or obvious risk of harm to
another that is unreasonable under the circumstances and is
substantially greater than negligent conduct. (2 Restatement
of the Law 2d, Torts, Section 500 (1965), adopted.)

Anderson at paragraphs two, three, and four of the syllabus.
{¶ 30} Appellants claim two former ODJFS directors are not immune because they
failed to establish procedures to prevent the Zero-out Procedure. Appellants claim the two
former directors and six other ODJFS employees are not immune because they used the
Zero-out Procedure against appellants.5 Notably, appellants' argument largely fails to
discuss the conduct of the employees individually and contains many general allegations
about all of the employees, mostly without citation to the record. Regardless, appellants
failed to prove the Zero-out Procedure exists and misinterpret several pieces of evidence.

5 Appellants use the terms "Agents" and "Directors" throughout their briefs without defining them. It

appears "Directors" refers to the two former ODJFS directors. However, it is unclear whether "Agents" refers
to the other six ODJFS employees at issue in the immunity proceedings or encompasses those employees
plus the two former directors. We will presume "Agents" applies to all eight employees.
No. 13AP-1004 14

{¶ 31} Appellants construe Harrison's above-quoted testimony as an admission
about the Zero-out Procedure and complain the Court of Claims ignored this and other
evidence. The court's failure to explicitly address evidence does not mean it was ignored.
Also, Harrison never testified to the procedure appellants describe. He explained the goal
of revocation is to have zero children in a center but recognized ODJFS could not
unilaterally revoke a license because of due process issues. ODJFS could, if warranted by
"the rules," reduce the center's capacity. Harrison never said ODJFS delayed revocation
proceedings to put centers, like Wee Care, out of business without due process. Nor did
he say ODJFS reduced Wee Care's capacity to harm it. In an affidavit, he averred no
"Zero-out Procedure" existed, and he did not know what led to the capacity changes in
this case. Uncontroverted evidence shows Wee Care requested most of the capacity
changes, and there is no evidence the changes hurt business. To the contrary, it appears
Wee Care sought the reductions in response to its loss of business after FCDJFS did not
renew its contract with Wee Care.
{¶ 32} Appellants maintain the ODJFS employees knew FCDJFS would not do
business with Wee Care if it had an expired license. However, Deborah Hatfield,
supervisor of contract services at FCDJFS, averred FCDJFS contracted with day care
centers operating on an expired license before. According to Hatfield, ODJFS made it
clear Wee Care could operate even though its license expired. FCDJFS' decision to not
renegotiate Wee Care's contract was based not just on the expired license but Wee Care's
history of compliance issues and complaints. Appellants claim an e-mail from Daniel
Lantz of ODJFS shows the employees and FCDJFS implemented the Zero-out Procedure
together. The e-mail states nothing to that effect. Instead, the e-mail indicates FCDJFS
desired more information from ODJFS about centers in license "limbo" to make decisions
about whether to renew contracts with those centers. Lantz averred he never heard of the
Zero-out Procedure.
{¶ 33} Appellants complain the employees know other third-parties would not
transact with a day care center with an expired license. They claim Brown even told
Harrison, Blevins, and Vent about the financial troubles having an expired license
created, and they did not renew Wee Care's license or institute revocation proceedings
more quickly. Even if ODJFS employees knew that appellants might or were in fact
No. 13AP-1004 15

suffering financial difficulties because of their the status, that does not prove the
employees delayed proceedings to harm Wee Care. The evidence indicates the delay was
due to the number of steps in the administrative process. Harrison averred the time it
took to issue the PAO in this case was typical of the time it took ODJFS to issue a PAO to
other centers "that did not comply with the applicable regulations." (Harrison Affidavit, ¶
13.)
{¶ 34} Without citation to the record, appellants claim the employees "feared that
if they used the procedures contained in O.R.C. § 119 to revoke a day-care center's license
and/or deny a Renewal Application, it would not accomplish their goal of destroying
Plaintiffs' Center." (Appellants' Brief, 43.) Appellants claim the employees delayed in
issuing the PAO until pressured by counsel and withdrew the PAO because, according to
Harrison, ODJFS could not prove its case. Harrison never testified to that effect, and
evidence ODJFS intended to modify the PAO does not prove that. Additionally, ODJFS'
delay in issuing a new PAO does not prove Wee Care was in compliance all along.
{¶ 35} Appellants contend, as part of the Zero-out Procedure, the employees put
inaccurate information on ODJFS' website, i.e., the website indicated Wee Care's license
expired and did not mention R.C. 119.06(C). Appellants also complain they never got a
license indicating Wee Care had the right to operate under R.C. 119.06(C). However,
appellants cite no legal authority indicating the employees had a duty to post information
about R.C. 119.06(C) online or on a license. Appellants also point to no evidence the
employees controlled the information on the website or had a sinister motive in not
putting information about R.C. 119.06(C) online or on a physical license.
{¶ 36} In sum, there is no evidence the Zero-out Procedure appellants describe
exists or was utilized against them. There is no evidence the ODJFS employees' actions
were manifestly outside the scope of their employment or that they acted with malicious
purpose, in bad faith, or in a wanton or reckless manner as those terms are defined above.
The Court of Claims properly found the employees immune as a matter of law.
3. Breach of Contract and Express Warranty
{¶ 37} " ' "A contract is generally defined as a promise, or a set of promises,
actionable upon breach. Essential elements of a contract include an offer, acceptance,
contractual capacity, consideration (the bargained for legal benefit and/or detriment), a
No. 13AP-1004 16

manifestation of mutual assent and legality of object and of consideration." ' " Coffman v.
Ohio State Adult Parole Auth., 10th Dist. No. 12AP-267, 2013-Ohio-109, ¶ 9, quoting
Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶ 16, quoting Perlmuter Printing
Co. v. Strome, Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976). An offer is a " ' "manifestation
of willingness to enter into a bargain, so made as to justify another person in
understanding that his assent to that bargain is invited and will conclude it." ' " Grothaus
v. Warner, 10th Dist. No. 08AP-115, 2008-Ohio-5563, ¶ 16, quoting Leaseway Distrib.
Ctrs., Inc. v. Dept. of Adm. Servs., 49 Ohio App.3d 99, 105 (10th Dist.1988), quoting
Restatement of the Law 2d, Contracts, Section 24, at 71 (1981). Generally speaking, a
warranty is an "express or implied promise that something in furtherance of [a] contract
is guaranteed by one of the contracting parties." Black's Law Dictionary 1581 (7th
Ed.1999).
{¶ 38} ODJFS sent a letter notifying Wee Care its license expired on December 29,
2005 and "[i]n order to assure timely licensure of your facility, license renewal application
form (ODHS 1210) and fee payment must be received * * * no later than 10/31/05."
(R. 48, Ex. B.) Appellants claim this letter constitutes an offer by ODJFS to timely process
Wee Care's renewal application if appellants timely submitted the application and fee—
which they did. Appellants also claim this letter constituted an express warranty, and
appellees breached the contract and warranty.
{¶ 39} As the Court of Claims indicated, the letter does not contain an offer; it
manifests no willingness to bargain, but, rather, is informational in nature and sets forth
statutory requirements to renew a day care license. Additionally, even if the concept of an
express warranty could apply in this context, the letter made no promises regarding
renewal. Thus, the Court of Claims properly granted appellees summary judgment on the
breach of contract and express warranty claims.
4. Fraud and Fraudulent Misrepresentation
{¶ 40} Appellants contend the Court of Claims erred when it granted appellees
summary judgment on the fraud and fraudulent misrepresentation claims. To establish a
fraud claim, a plaintiff must prove the following elements: "(1) a representation or, where
there is a duty to disclose, concealment of a fact, (2) the representation was material to the
No. 13AP-1004 17

transaction, (3) the representation was made falsely, with knowledge of its falsity, or with
such disregard and recklessness as to whether it is true or false that knowledge may be
inferred, (4) the representation was made with the intent of misleading another into
relying on it, (5) justifiable reliance on the representation or concealment, and (6) an
injury proximately caused by the reliance." Wiles v. Miller, 10th Dist. No. 12AP-989,
2013-Ohio-3625, ¶ 33, citing Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475 (1998).
The elements for fraudulent misrepresentation claims are the same as those for a fraud
claim. See Natl./RS, Inc. v. Huff, 10th Dist. No. 10AP-306, 2010-Ohio-6530, ¶ 22.
{¶ 41} Appellants contend ODJFS employees represented to them that Wee Care
could operate with an expired license, and this representation was false because the
employees knew third-parties would want to see a current license to do business with Wee
Care. The employees lied in order to implement the Zero-out Procedure, and by the time
appellants realized no one would contract with them, Wee Care lost most of its business
because FCDJFS did not renew its contract with the center.
{¶ 42} However, Wee Care could operate under R.C. 119.06(C). A representation to
this effect was not false simply because third-parties chose not to transact with Wee Care.
To the extent appellants suggest ODJFS falsely represented all third-parties would still do
business with Wee Care, we fail to see how appellants could justifiably rely on such a
representation. ODJFS could not know the mindset of every third-party with whom
appellants hoped to transact. Moreover, appellants fail to explain how they relied on such
a representation to their detriment. There is no contention the government took adverse
action against appellants for operating "illegally." At the trial level, appellants claimed
they relied on representations by not pursuing relief in mandamus or otherwise seeking to
expedite the licensure proceedings. Even if appellants made this argument on appeal,
they have not shown the actions they refrained from taking could have succeeded.
{¶ 43} Appellants also contend Harrison lied to former congresswoman Debra
Pryce's office during a "federal investigation" into Wee Care's licensure issues.
(Appellants' Reply Brief, 26.) Specifically, he told Pryce's office Wee Care's license
remained operational and failed to mention the Zero-out Procedure. It is unclear why
appellants believe they have standing to raise these issues. Also, Wee Care could legally
operate, and Harrison could not disclose a non-existent procedure. Thus, the Court of
No. 13AP-1004 18

Claims properly granted appellees' summary judgment on the fraud and fraudulent
misrepresentation claims.
5. Tortious Interference with Contract and Business
Relationships

{¶ 44} "In order to recover a claim for tortious interference with a contractual
relationship, one must prove: (1) the existence of a contract; (2) the wrongdoer's
knowledge of the contract; (3) the wrongdoer's intentional procurement of the contract's
breach; (4) the lack of justification; and (5) resulting damages." Bansal v. Mt. Carmel
Health Sys., 10th Dist. No. 10AP-1207, 2011-Ohio-3827, ¶ 29, citing Kenty v.
Transamerica Premium Ins. Co., 72 Ohio St.3d 415 (1995). " 'The tort of interference with
a business relationship occurs when a person, without a privilege to do so, induces or
otherwise purposely causes a third person not to enter into or continue a business
relationship with another.' " Miller at ¶ 21, quoting Geo-Pro Servs., Inc. v. Solar Testing
Laboratories, Inc., 145 Ohio App.3d 514, 525 (10th Dist.2001).
{¶ 45} Appellants contend ODJFS' employees knew third-parties, like parents and
FCDJFS required that a day care center have an unexpired license before the third-parties
would do business with the day care. Armed with this knowledge, the employees "set out
to destroy" appellants' contracts and business relationships through the Zero-out
Procedure and succeeded. (Appellants' Brief, 30-31.) Appellants claim they had "a
contractual relationship with each parent or guardian who had their children enrolled at
[Wee Care]." (Appellants' Brief, 31.) ODJFS and FCDJFS conspired to procure the
breach of these contracts by stopping public funding for Wee Care's services, leading to a
"mass exodus" of children at Wee Care. (Appellants' Brief, 31.)
{¶ 46} Appellants failed to show appellees intentionally procured the breach of any
contract or induced or otherwise purposely caused a third-person not to enter into or
continue with a relationship with them. Third-parties may have chosen to not do
business with Wee Care because it had an unexpired license, but there is no evidence that
was appellees' goal. Appellants have not proven a Zero-out Procedure exists. The
evidence shows Wee Care's licensure issues occurred because ODJFS believed compliance
problems prohibited renewal and the number of steps in the administrative process—not
No. 13AP-1004 19

because appellees wanted to financially ruin appellants. The Court of Claims properly
granted appellees' summary judgment on the tortious interference claims.
6. Negligence and NIED
{¶ 47} "To establish actionable negligence, a plaintiff must show the existence of a
duty, the breach of that duty, and injury resulting proximately therefrom." Rowe v.
Pseekos, 10th Dist. No. 13AP-889, 2014-Ohio-2024, ¶ 6, citing Ruther v. Kaiser, 134 Ohio
St.3d 408, 2012-Ohio-5686, ¶ 16. The Court of Claims found appellants could not recover
for negligence because they only demonstrated economic loss. See Corporex Dev. &
Constr. Mgt., Inc. v. Shook, Inc., 106 Ohio St.3d 412, 2005-Ohio-5409, ¶ 6 ("The
economic-loss rule generally prevents recovery in tort of damages for purely economic
loss."). Also, they failed to prove appellees had a duty to act more quickly than they did on
the renewal application, and, even if appellees had and breached such a duty, appellants
identified no legal authority that permitted them to bring a lawsuit for the breach. The
Court of Claims also found appellants could not recover for NIED because they did not
allege or prove they were in physical peril.
{¶ 48} On appeal, appellants contend without citation to legal authority that
ODJFS "[c]learly" had and breached a duty to "act in good faith and process [appellants']
renewal application in a timely manner." (Appellants' Brief, 36.) This unsupported
contention does not address the Court of Claims' reasoning and is insufficient to meet
appellants' burden to affirmatively demonstrate error on appeal. See State v.
Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 34. Thus, we find no error in the
grant of summary judgment to appellees on the negligence and NIED claims.
7. Civil Conspiracy
{¶ 49} Civil conspiracy consists of " ' "a malicious combination of two or more
persons to injure another in person or property, in a way not competent for one alone,
resulting in actual damages." ' " Morrow v. Reminger & Reminger Co., L.P.A., 183 Ohio
App.3d 40, 2009-Ohio-2665, ¶ 40 (10th Dist.), quoting Kenty at 419, quoting LeFort v.
Century 21-Maitland Realty Co., 32 Ohio St.3d 121, 126 (1987). A civil conspiracy claim is
derivative as it cannot be maintained absent an underlying tort that is actionable without
the conspiracy. Id. The Court of Claims granted appellees summary judgment on the
conspiracy claim in part because appellants presented no evidence of an actionable
No. 13AP-1004 20

underlying tort. We agree with this conclusion, having already found no error in the grant
of summary judgment to appellees on the other tort claims. Thus, we overrule the third
assignment of error.
8. Due Process
{¶ 50} As a final matter, we note, as the Court of Claims did, that, to the extent
appellants argue their constitutional due process rights were violated, it is well-settled
that the Court of Claims lacks subject-matter jurisdiction over such claims. Bell v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 10AP-920, 2011-Ohio-6559, ¶ 22.
IV. CONCLUSION
{¶ 51} Having overruled appellants' three assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
Judgment affirmed.

BROWN and LUPER SCHUSTER, JJ., concur.