[Cite as Hill v. Schildmeyer,
2024-Ohio-3261.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ROMAN HILL, : APPEAL NO. C-230570
TRIAL NO. A-2203774
Plaintiff-Appellee, :
O P I N I O N.
vs. :
MARC SCHILDMEYER, :
Individually and in his official
capacity as City of Cincinnati :
Police Officer,
:
Defendant-Appellant,
:
and :
JOHN and JANE DOES, :
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 28, 2024
The Cochran Firm and Fanon A. Rucker, for Plaintiff-Appellee,
Emily Smart Woerner, City Solicitor, Scott M. Heenan and David Laing, Senior
Assistant City Solicitors, Lazarus & Lawson, LLC, and Kimberly A. Rutowski, for
Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} A motion for judgment on the pleadings tests the allegations’ legal
sufficiency, not their evidentiary support. When defendant-appellant Marc
Schildmeyer moved for judgment on the pleadings, he attached police dashcam and
bodycam videos to his reply brief in support of his assertion of immunity under R.C.
2744.03. Schildmeyer asked the trial court to take judicial notice of his exhibits
because they were public records. The trial court refused to consider the videos and
denied his motion. Schildmeyer argues on appeal that the trial court should have
considered the videos and granted his motion for judgment on the pleadings.
{¶2} We hold that the trial court appropriately exercised its discretion when
it struck Schildmeyer’s exhibits and declined to take judicial notice of the videos before
ruling on his motion for judgment on the pleadings. The videos were not part of the
pleadings, and the contents of the videos are an inappropriate matter for judicial
notice under Evid.R. 201.
{¶3} We further hold that plaintiff-appellee Roman Hill’s complaint
adequately pleaded malice as an exception to government-employee immunity under
R.C. 2447.03(A)(6)(b) and satisfied Ohio’s notice-pleading standard.
{¶4} We affirm the trial court’s decision.
I. Facts and Procedure
{¶5} Hill sued Schildmeyer and other unknown officers, alleging that the
officers violated his civil rights. Specifically, Hill sought compensatory and punitive
damages based on claims of malicious prosecution, false arrest, and intentional
infliction of emotional distress. Hill alleged that these torts were committed with
malice or gross negligence.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} The complaint alleges, and Schildmeyer does not dispute, that he was
one of several officers who participated in a traffic stop of Hill in January 2021 in
Cincinnati, Ohio. The stop began when an officer threw a stop stick in front of Hill’s
car. Officers detained Hill and the passengers in his car, while informing Hill that he
had committed a traffic violation. Hill began recording the encounter with his cell-
phone camera. Schildmeyer ordered Hill out of the vehicle. Officers arrested Hill and
searched his car. Hill was jailed and charged with a stop-sign violation and obstructing
official business, but those charges were later dismissed.
{¶7} Hill alleged that everyone in his car was an African-American man. He
tried to record his interaction with Schildmeyer out of fear. Schildmeyer seized his
phone to prevent Hill from recording the interaction. Schildmeyer falsely told Hill that
a canine unit was called to conduct a dog sniff of the car. And Schildmeyer cited the
dog sniff to justify ordering the occupants to exit from Hill’s car.
{¶8} According to Hill’s complaint, Schildmeyer arrested Hill after Hill
questioned why he was stopped by so many officers, why the officers were going to
search his car, and why Schildmeyer seized his phone. Hill alleged that his race
motivated Schildmeyer’s and the other officers’ actions that day. The officers’ search
of Hill’s car yielded no evidence of criminal activity. Following his release, Hill had to
travel from Georgia to Ohio for his court appearances, which impeded his ability to
fulfill his job requirements.
Schildmeyer moved for judgment on the pleadings
{¶9} Schildmeyer moved for judgment on the pleadings, arguing that Hill’s
claims were barred by the statute of limitations, Hill failed to state claims upon which
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OHIO FIRST DISTRICT COURT OF APPEALS
relief may be granted, and Schildmeyer was entitled to immunity as a government
employee under R.C. 2744.03(A)(6).
{¶10} In his response, Hill conceded that his false-arrest claim was untimely
under the statute of limitations but asserted that he sufficiently and timely pleaded his
claims for intentional infliction of emotional distress and malicious prosecution.
Relevant here, Hill argued that Schildmeyer was not entitled to immunity because his
complaint sufficiently alleged that Schildmeyer and other officers acted with malice
and were otherwise reckless when they threw the stop stick in response to a minor
traffic violation, seized Hill’s belongings, and initiated charges against him in a bad-
faith effort to prevent Hill from documenting the officers’ racially-motivated conduct.
{¶11} Schildmeyer’s reply brief, in support of his arguments that Hill failed to
state viable claims and for his assertion of immunity, included an affidavit of a
Cincinnati Police Department sergeant. Attached to the affidavit was a USB drive
containing an incident report and bodycam and dashcam recordings of the traffic stop.
Hill moved to strike Schildmeyer’s reply and the affidavit because the affidavit and
attached evidence were matters outside of the pleadings.
{¶12} After a hearing on the motion, the trial court (1) granted Hill’s motion
to strike, (2) granted Schildmeyer’s motion for judgment on the pleadings on Hill’s
false-arrest and intentional-infliction-of-emotional-distress claims, and (3) denied
judgment in Schildmeyer’s favor on Hill’s malicious-prosecution claim and request for
punitive damages. It found that the complaint sufficiently pleaded that Schildmeyer
acted without probable cause when he arrested and charged Hill and that the
complaint sufficiently pleaded recklessness to survive a motion to dismiss based on
qualified immunity.
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OHIO FIRST DISTRICT COURT OF APPEALS
II. Law and Analysis
{¶13} Schildmeyer filed an interlocutory appeal of the trial court’s entry
denying his assertion of statutory immunity. Schildmeyer begins by challenging the
trial court’s decision to strike his affidavit and evidence. Next, he contends that the
facts alleged in Hill’s complaint do not defeat his claim of immunity under R.C.
2744.03(A)(6).
{¶14} A decision denying a motion for judgment on the pleadings usually is
not a final, appealable order. See Doe v. Licate, 2019-Ohio-412, ¶ 27 (11th Dist.). But
we have jurisdiction under R.C. 2744.02(C) to review the trial court’s denial of a
government employee’s immunity claim. Morelia Group-De, LLC v. Weidman, 2023-
Ohio-386, ¶ 14 (1st Dist.). Our review “is limited to the review of alleged errors that
involve the denial of the benefit of an alleged immunity from liability.”
Doe at ¶ 28-29.
{¶15} Immunity is a question of law that this court reviews de novo. Morelia
at ¶ 14. Likewise, we review the trial court’s ruling on a motion for judgment on the
pleadings de novo. See Steele v. City of Cincinnati, 2019-Ohio-4853, ¶ 14 (1st Dist.).
{¶16} Civ.R. 12(C) allows a party to seek judgment on the pleadings after the
time to file pleadings has expired if the motion does not delay the trial. A trial court
should grant a motion for judgment on the pleadings only if the trial court “finds,
beyond doubt, that the plaintiff can prove no set of facts that would entitle the plaintiff
to relief.” Morelia at ¶ 15; see State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio
St.3d 565, 570 (1996). In considering a Civ.R. 12(C) motion, courts must accept the
complaint’s material allegations as true and construe all reasonable inferences in the
nonmoving party’s favor. Morelia at ¶ 15.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} A motion for judgment on the pleadings must be denied if “there is a set
of facts, consistent with the plaintiff’s complaint, which would allow the plaintiff to
recover.” Harris Farms, LLC v. Madison Twp. Trustees, 2018-Ohio-4123, ¶ 13 (4th
Dist.); see
Steele at ¶ 15.
A. The trial court appropriately struck Schildmeyer’s exhibits
{¶18} First, Schildmeyer argues that the trial court should have considered his
affidavit and evidence—the videos of the traffic stop—when it analyzed his motion and
his claim of government-employee immunity. He argues that the bodycam and
dashcam footage are public records and are appropriately considered at the judgment-
on-the-pleadings stage. We disagree. The trial court’s decision to strike Schildmeyer’s
exhibits is consistent with Ohio law, and Schildmeyer’s evidence was improperly
attached to his reply brief in support of his Civ.R. 12(C) motion.
{¶19} We review for an abuse of discretion the trial court’s decision granting
Hill’s motion to strike. Beattie v. McCoy, 2018-Ohio-2535, ¶ 25 (1st Dist.). Thus,
Schildmeyer must show that the trial court’s decision was “so arbitrary, unreasonable
or unconscionable as to connote an abuse of discretion.” Treasurer v. Guinn, 2023-
Ohio-4812, ¶ 23 (1st Dist.).
{¶20} The trial court struck the affidavit, incident report, and bodycam and
dashcam footage of Hill’s arrest attached to Schildmeyer’s reply because “what he is
asking the Court to do is not done in Ohio and conservatively used in federal court in
limited circumstances when Plaintiff references the video in the complaint or
Defendant attaches it to their motion.”
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OHIO FIRST DISTRICT COURT OF APPEALS
1. Review of Civ.R. 12(C) motions is limited to the pleadings
{¶21} Schildmeyer relies on our precedent and federal cases to argue that the
trial court erred when it failed to take judicial notice of his evidence, which are public
records. Specifically, he claims that the bodycam and dashcam footage are
unquestionably accurate and “demonstrate the visible fiction of Hill’s allegations.” The
crux of his argument is that the trial court must consider “objective evidence” when
considering a motion for judgment on the pleadings.
{¶22} But Schildmeyer’s argument fails. First, the purpose of a motion for
judgment on the pleadings is to “test[] the sufficiency of a complaint.” Gilman v.
Physna, LLC, 2021-Ohio-3575, ¶ 14 (1st Dist.). Considering evidence beyond the
complaint would necessarily go beyond simply testing whether a complaint’s
allegations are sufficient.
{¶23} Moreover, the Supreme Court of Ohio has long held, and has reaffirmed
as recently as last month, that “[i]t is axiomatic that a court’s determination of a Civ.R.
12(C) motion for judgment on the pleadings must be restricted solely to the allegations
in the pleadings.” State ex rel. McCarley v. Dept. of Rehab. & Corr., 2024-Ohio-2747,
¶ 13; see Hester v. Dwivedi,
89 Ohio St.3d 575, 577 (2000) (“[A]lthough significant
discovery had taken place prior to the time appellees filed their Civ.R. 12(C) motions,
the trial court could not properly consider any evidentiary material tending to disprove
the complaint’s allegations in deciding the motions.”).1 Any evidence filed after the
close of pleadings “is not a proper basis on which to grant judgment on the pleadings.”
McCarley at ¶ 14.
1 Though a “pleading” includes a Civ.R. 10(C) “written instrument” attached to a pleading, the term
“written instrument” means a contract, deed, negotiable instrument, or other document evidencing
parties’ rights and responsibilities. See State ex rel. Leneghan v. Husted,
2018-Ohio-3361, ¶ 17.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} Like the Supreme Court of Ohio, this court and other Ohio courts have
held that review of Civ.R. 12(C) motions for judgment on the pleadings must be
confined solely to the allegations contained in the pleadings. See Physna at ¶ 14 (“A
motion for judgment on the pleadings tests the sufficiency of a complaint and is
restricted solely to the allegations in the pleadings.”); see also Carr v. Educational
Theatre Assn., 2023-Ohio-1681, ¶ 5 (1st Dist.), quoting Daniely v. Accredited Home
Lenders,
2013-Ohio-4373, ¶ 6 (8th Dist.), citing Peterson v. Teodosio,
34 Ohio St.2d
161, 165-166 (1973) (“Unlike a motion for summary judgment where the parties are
permitted to submit certain evidentiary materials for the court’s review, the
determination of a motion for judgment on the pleadings is restricted solely to the
allegations in the pleadings and any writings attached to the complaint.”); David
M.A.N.S.O. Holding L.L.C. v. Marquette,
2024-Ohio-1188, ¶ 10 (2d Dist.) (“To enter
judgment on the pleadings, the court may not consider ‘[e]vidence in any form[.]’”);
Ferchill v. Beach Cliff Bd. of Trustees,
2005-Ohio-3475, ¶ 14 (8th Dist.) (“Evidence in
any form may not be considered in a motion for judgment on the pleadings.”);
Burnside v. Leimbach,
71 Ohio App.3d 399, 402 (10th Dist. 1991) (“The trial court may
only consider the statements contained in the pleadings, and may not consider any
evidentiary materials.”); Hughes v. George F. & Mary A. Robinson Mem. Portage Cty.
Hosp.,
16 Ohio App.3d 80, 82, (11th Dist. 1984) (“[W]here judgment on the pleadings
was sought, the court was bound to consider only the face of the complaint.”).
2. Judicial notice was not appropriate
{¶25} Schildmeyer argues the trial court should have taken judicial notice of
his exhibits. To be sure, we have stated that “[w]hen ruling on a motion for judgment
on the pleadings, the court may take judicial notice of appropriate matters.”
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OHIO FIRST DISTRICT COURT OF APPEALS
Buchenroth v. City of Cincinnati, 2019-Ohio-2560, ¶ 9 (1st Dist.). Judicial notice is
proper for adjudicative facts, or “matters which are ‘capable of accurate and ready
determination by resort to sources whose accuracy cannot be reasonably questioned,’
and so are ‘not subject to reasonable dispute.’”
Id., quoting Evid.R. 201(B). The staff
notes to Evid.R. 201 explain that “[t]he type of fact contemplated by 201(B)(2) includes
scientific, historical and statistical data which can be verified and is beyond reasonable
dispute.” City of Twinsburg v. Wesby,
2012-Ohio-569, ¶ 7 (9th Dist.).
{¶26} Schildmeyer relies on Buchenroth and Morelia to argue that the trial
court can properly take judicial notice of the officers’ recordings, which are public
records. But the judicially-noticed facts in Buchenroth and Morelia are worlds apart
from the content in the bodycam and dashcam footage attached to his reply brief.
{¶27} In Buchenroth, we relied on “photographs of the road, crosswalk, and
crosswalk signs” to hold that the city was immune from its allegedly negligent
inspection, maintenance, repair, design, construction, and erection of a crosswalk and
reversed the trial court’s denial of a motion for judgment on the pleadings. Buchenroth
at ¶ 10. And in Morelia, we took judicial notice of “the undisputed facts that a trustee
meeting occurred on October 3, 2019, and that the matter of Morelia’s Group’s offer
was discussed” to consider whether the trial court erred when it denied a township
trustee’s motion for judgment on the pleadings based on his claim of immunity.
Morelia, 2023-Ohio-386, at ¶ 21 (1st Dist.).
{¶28} But critically, the contents of the judicially-noticed photographs in
Buchenroth were undisputed since the nonmoving party “stipulated that exhibits 2A
and 2B accurately depicted the crosswalk signs and road markings and that the court
could take judicial notice of those exhibits.” Buchenroth, 2019-Ohio-2560, at ¶ 10 (1st
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OHIO FIRST DISTRICT COURT OF APPEALS
Dist.). And in Morelia, we declined an invitation to take judicial notice of statements
made by the parties contained within the trustees’ meeting minutes, explaining that
“we cannot . . . accept as fact the statements made by Weidman and the law director
merely because their utterance was captured in the meeting minutes.” Morelia at ¶ 21.
We reasoned that, while “‘a court may take judicial notice of matters of public record,
it may not take judicial notice of disputed facts stated in those public records.’”
Id.,
quoting McKenzie v. Davies,
2009-Ohio-1960, ¶ 24 (2d Dist.). Controverted facts,
including those contained in public records, are not “appropriate matters” that can be
judicially noticed.
Id. Indeed, we have held that judicial notice of the “‘public records
and newspaper article’ [a party] attached to its motion, and presumably all the content
therein” is “an inappropriate application of Evid.R. 201.” State ex rel. Banker’s Choice,
LLC v. City of Cincinnati,
2020-Ohio-6864, ¶ 11 (1st Dist.).
{¶29} Schildmeyer cites federal cases to argue that footage depicting “the
whole thing” that “utterly discredit[s]” the plaintiff’s allegations may be considered
when deciding a motion to dismiss. But those federal cases are not binding on this
court. We decline Schildmeyer’s invitation to justify taking judicial notice of improper
material with nonbinding law. The Supreme Court of Ohio and this court have already
determined that such materials are improper for a court’s consideration when ruling
on a Civ.R. 12(C) motion.
{¶30} Considering the bodycam and dashcam footage when deciding
Schildmeyer’s motion would distort the purpose of a motion for a judgment on the
pleadings, which is to “test[] the sufficiency of a complaint.” See Physna, 2021-Ohio-
3575, at ¶ 14 (1st Dist.). The trial court correctly struck Schildmeyer’s exhibits.
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OHIO FIRST DISTRICT COURT OF APPEALS
3. Schildmeyer improperly attached his exhibits to his reply
{¶31} An independent reason supports the trial court striking Schildmeyer’s
exhibits—they were offered for the first time in his reply brief. A reply is “‘limited to
matters in rebuttal.’” Ranallo v. First Energy Corp., 2006-Ohio-6105, ¶ 25 (11th
Dist.), quoting Lance Acceptance Corp. v. Claudio,
2003-Ohio-3503, ¶ 18 (9th Dist.).
Parties are “‘barred from raising new arguments and offering evidence for the first
time on reply.’” Mfrs. Equip. Co. v. StarStone LLC,
2016-Ohio-3276, ¶ 14 (2d Dist.),
quoting In re Fuel Adjustment Clauses for Columbus S. Power Co. & Ohio Power Co.,
2014-Ohio-3764, ¶ 37. Otherwise, parties may resort to judgment on the pleadings “‘by
ambush.’” Smith v. Ray Esser & Sons, Inc.,
2011-Ohio-1529, ¶ 15 (9th Dist.), quoting
Claudio at ¶ 18. So, when “a new argument is raised or new evidence is offered in
a reply, ‘the proper procedure is to strike the reply . . . or, alternatively, to allow the
opposing party to file a surreply.’”
StarStone LLC at ¶ 14, quoting Baker v. Coast to
Coast Manpower, L.L.C.,
2012-Ohio-2840, ¶ 35 (3d Dist.).
{¶32} In his reply, Schildmeyer relied on the videos to challenge the veracity
of Hill’s allegations, which constituted a new basis for granting his motion. He argued
that the footage proved he had probable cause to arrest Hill, disproved Hill’s claim
that the officers’ actions were racially motivated, and disproved Hill’s claim that
Schildmeyer lied about the dog sniff. Because the evidence and these arguments were
offered for the first time in reply, the trial court correctly struck the exhibits.
{¶33} The trial court was well within its discretion when it struck
Schildmeyer’s exhibits that were attached to his reply and refused to consider the
videos in ruling on his motion for judgment on the pleadings.
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OHIO FIRST DISTRICT COURT OF APPEALS
B. Hill alleged facts to establish an exception to Schildmeyer’s immunity
{¶34} Schildmeyer also argues that the trial court erred when it found that Hill
sufficiently pleaded an exception to the rule that government employees are immune
from tort liability. Schildmeyer argues that he is immune from liability for malicious
prosecution and for punitive damages because Hill’s conclusory use of the words
“gross negligence,” “malicious,” and “reckless” lack a factual basis and fail to establish
an exception to his immunity.
{¶35} Under R.C. 2744.03(A)(6), government employees are immune from
tort liability for actions that fall within the scope of their employment and official
responsibilities. But “[t]hat immunity is not absolute.” Maternal Grandmother,
ADMR v. Hamilton Cty. Dept. of Job & Family Servs., 2021-Ohio-4096, ¶ 7.
Government employees acting within the scope of their employment are not entitled
to immunity if “the employees’ acts or omissions in the course and scope of their
employment were wanton[,] reckless,” malicious, or done in bad faith.
Id., citing R.C.
2744.03(A)(6)(b).
{¶36} “Ohio is a notice-pleading state.” Maternal Grandmother at ¶ 10.
Plaintiffs like Hill must simply include “a short and plain statement of the claim
showing that the party is entitled to relief.” Civ.R. 8(A). This requires neither
particularity nor “‘precision . . . as long as fair notice of the nature of the action is
provided.’” Ri’Chard v. Bank of Am., 2020-Ohio-4688, ¶ 8 (1st Dist.), quoting Fancher
v. Fancher,
8 Ohio App.3d 79, (1st Dist. 1982). These principles apply when “a
government employee’s allegedly [malicious] behavior is at issue.” Maternal
Grandmother at ¶ 11.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶37} In Maternal Grandmother, the Ohio Supreme Court held that “when a
complaint invokes the exception to a government employee’s immunity under R.C.
2744.03(A)(6)(b), notice pleading suffices and the plaintiff may not be held to a
heightened pleading standard or expected to plead the factual circumstances
surrounding an allegation of wanton or reckless behavior with particularity.” Id. In
other words, a motion for judgment on the pleadings based on immunity must be
granted if “the pleadings, construed in a light most favorable to the plaintiff,
conclusively establish the affirmative defense” and the absence of an exception. City
of Cincinnati v. Rennick,
2022-Ohio-1110, ¶ 5 (1st Dist.).
{¶38} Hill sued Schildmeyer for malicious prosecution and sought punitive
damages. The elements of a malicious prosecution claim are “(1) malice in instituting
or continuing the prosecution, (2) lack of probable cause, and (3) termination of the
prosecution in favor of the accused.” Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142,
146 (1990). Likewise, “malice is the gateway to punitive damages in a tort case.” Chapel
v. Wheeler Growth Co.,
2023-Ohio-3988, ¶ 18 (1st Dist.). Specifically, a punitive-
damages award requires a finding that “defendant acted with ‘malice or aggravated or
egregious fraud.’” Id. at ¶ 12, quoting R.C. 2315.21(C)(1).
1. Hill sufficiently pleaded malice
{¶39} Malice exists where a government employee acts with “willful and
intentional design to do injury.” Alagha v. Cameron, 2009-Ohio-4886, ¶ 20 (1st Dist.).
Said differently, it is “the willful and intentional desire to harm another, usually
seriously, through conduct which is unlawful or unjustified.” (Emphasis in Morelia.)
Morelia,
2023-Ohio-386, at ¶ 29 (1st Dist.), quoting Martcheva v. Dayton Bd. of Edn.,
2021-Ohio-3524, ¶ 81 (2d Dist.), quoting Reno v. Centerville,
2004-Ohio-781, ¶ 25 (2d
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OHIO FIRST DISTRICT COURT OF APPEALS
Dist.), quoting Moffitt v. Litteral, 2002-Ohio-4973, ¶ 96 (2d Dist.). Relevant here,
willful conduct involves an actor intentionally deviating from either a clear duty or rule
of conduct or purposely committing wrongful acts, knowing that an injury will likely
result. Thomas v. Bauschlinger,
2015-Ohio-281, ¶ 28 (9th Dist.), quoting Anderson v.
Massillon,
2012-Ohio-5711, paragraph two of the syllabus. When a government
employee’s conduct is motivated by malice, it is unlawful and therefore “outside the
scope of their employment.”
Morelia at ¶ 27.
{¶40} Hill sufficiently pleaded malice. The allegations in Hill’s complaint,
which we accept as true and view in a light most favorable to Hill, explain that officers
stopped Hill, a black man driving a car with black male passengers, for a minor traffic
violation. Officers surrounded his car and threw a stop stick. Hill tried to record the
stop out of fear, but Schildmeyer seized the camera to prevent Hill from documenting
the interaction. Schildmeyer lied to Hill about summoning the canine unit and told
Hill he needed to exit from the car for a dog sniff. Schildmeyer arrested Hill after Hill
asked why he was being stopped, why his phone was taken, and why there were so
many officers. Hill alleged that racial animus motivated the officers, and Schildmeyer’s
conduct was done to “cover up for the unlawful stop and arrest.” These facts
sufficiently allege that Schildmeyer, unlawfully motivated by racial and retaliatory
animosity, charged Hill to cause injury. Hill has pleaded the malice exception to
Schildmeyer’s assertion of government-employee immunity.
2. Our jurisdiction is limited to questions of immunity
{¶41} Finally, Schildmeyer maintains that Hill’s malicious-prosecution claim
fails because the allegations show that Schildmeyer had probable cause to charge him
with obstructing official business under R.C. 2921.31(A).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶42} But at this point in the litigation, “we only have jurisdiction to address
the issue of immunity in this interlocutory appeal.” Hardesty v. Alcantara, 2015-
Ohio-4591, ¶ 47 (8th Dist.). Probable cause is outside the scope of our review because
“R.C. 2744.02(C) does not authorize the appellate court to otherwise review the merits
of a trial court’s decision to deny a motion for [judgment on the pleadings].” Gates v.
Leonbruno, 2016-Ohio-5627, ¶ 30 (8th Dist.); see Carroll v. Cuyahoga Community
College,
2023-Ohio-3628, ¶ 13 (8th Dist.) (“[A]lthough the appellants’ motion to
dismiss addressed other issues, we confine our analysis to determine whether the
court erred in denying appellants’ political subdivision immunity.”). Probable cause
and malice are not intertwined and whether Schildmeyer had probable cause is a
separate and distinct inquiry from whether he acted with malice. Therefore,
Schildmeyer’s malicious-prosecution argument is outside the scope of our review, and
we decline to consider it.
{¶43} In sum, the trial court properly struck Schildmeyer’s exhibits because
they were matters outside of the pleadings and improperly attached to his reply. The
trial court did not err when it denied Schildmeyer’s motion for judgment on the
pleadings because Hill’s allegations were sufficient to establish an exception to
Schildmeyer’s government-employee immunity.
III. Conclusion
{¶44} We overrule Schildmeyer’s single assignment of error and affirm the
trial court’s judgment.
Judgment affirmed.
ZAYAS and BERGERON, JJ., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
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