COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74558 JOHN TAURING : : ACCELERATED DOCKET PLAINTIFF-APPELLANT : : JOURNAL ENTRY vs. : : AND CITY OF BRECKSVILLE, OHIO : : OPINION DEFENDANT-APPELLEE : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 5, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-340468. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellant: James D. Shelby, Esq. 55 Public Square, #1260 Cleveland, Ohio 44113-1992 For Defendant-appellee: Alan E. Johnson, Esq. Jennifer S. Jackson, Esq. Leo R. Ward, Esq. Ward & Associates Co., L.P.A. 1265 W. 6th St., #300 Cleveland, Ohio 44113 Paul A. Grau Law Director 5306 Transportation Blvd. Garfield Heights, Ohio 44125 -2- PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983) 11 Ohio App.3d 158. Plaintiff-appellant John Tauring appeals the trial court's granting of the motion to dismiss filed by the defendant-appellee City of Brecksville. The appellant was terminated from his employment as a fire fighter and in his complaint set forth causes of action sounding in estoppel and breach of a contract for employment. The trial court granted the Civ.R. 12(B)(6) motion to dismiss filed by the appellee finding the appellant could not assert either cause of action as a matter of law. The appellant asserts that paragraphs three and four of the complaint were sufficient to withstand the appellee's motion: 3. On or about 15 JUNE 87 through 24 AUG 92 Defendant BRECKSVILLE made continuous express and implied promises to Plaintiff that he would be employed with the City as a fire fighter for a reasonable amount of time subject to his proper observation of the orders and customs of the Brecksville Fire Department, not-with- standing any Brecksville ordinances or policies contrary relating to absenteeism and tardiness in public employment. 4. Plaintiff was made to understand that he would not be terminated from said employment except for just cause shown by the City and not for arbitrary reasons including violations of practiced BRECKSVILLE Fire Department customs and policies. Plaintiff relied upon all representations to his detriment by refusing to seek employment elsewhere and as evidenced by his expenditure of resources on education and training for said employment. -3- This court notes that in paragraph twelve the appellant alleges in the alternative that his contract of employment was breached without just cause. The appellant sets forth the following assignment of error: THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO DISMISS BECAUSE APPELLANT'S COMPLAINT CONTAINED A SHORT AND PLAIN STATEMENT OF THE CLAIM SHOWING THAT HE WAS ENTITLED TO RELIEF THAT CONFORMED WITH CIVIL RULE 8. The appellant argues that the allegations made in the complaint were sufficient to meet the criteria of Civ.R. 8 and that the trial court imposed a burden of specificity not required under the rules. The appellant distinguishes the cases relied upon by the court and the appellee by stating that those cases were disposed of either on summary judgment or by trial, and that until the factual issues in this case are presented, the trial court should be precluded from dismissing this case. In order for a court to grant a motion to dismiss for failure to state a claim upon which relief may be granted, it must appear beyond all doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1996), 76 Ohio St.3d 521, citing to O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242. All factual allegations must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party. State ex rel. Hanson v. Guernsey Cty. Bd. Of Commrs. (1992), 65 Ohio St.3d 545. This standard for granting a motion to dismiss is in accord with the notice pleading regimen -4- incorporated into the Ohio Rules of Civil Procedure. York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143. A dismissal under Civ.R. 12 (B)(6) is improper merely because the court doubts that the plaintiff will prevail. Cooney v. City of Independence (Nov. 23, 1994), Cuyahoga App. No. 66509, unreported. Civ.R. 8(A) requires only that a pleading contain a short and plain statement of the circumstances entitling the party to relief. Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, syllabus 6. Where a pleading ties a party's actions to the elements of the claim, but fails to state in detail the facts underlying the claim, that pleading has not failed to state a claim upon which relief can be granted. Clermont Environmental Reclamation Co. v. Hancock (1984), 16 Ohio App.3d 9, 12. As the trial court noted, it has long been the law of Ohio that persons dealing with municipal corporations are charged with notice of all statutory limitations on the power of such corporations and their agents, and must, at their peril, ascertain whether all necessary statutory formalities have been met. Kimbrell v. Village of Seven Mile (1984), 13 Ohio App.3d 443. Further, in a public employment situation with a municipality, where the employer making the representations of employment has an entire absence of power to act originally, there can be no room for an estoppel to arise afterwards. West v. Village of Bentleyville (1987), 42 Ohio App.3d 95. In the case sub judice, the appellant has alleged that the appellee made continuous express and implied promises regarding the -5- terms and conditions of his employment. Under the liberal rules of notice pleading, at this point in the litigation the appellant was not required to allege which person or persons made such representations to him. Rather the appellant was required only to make a short, plain statement of his claim showing that he is entitled to his right to relief. This the appellant has done. Therefore, this court is unable to state, as a matter of law, that the appellant will be able to prove no set of facts entitling him to relief. The appellant's assignment of error is well taken. Judgment reversed and remanded. -6- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellant recover of appellee his costs herein taxed. It is ordered that a special mandate issue out of this Court directing said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate procedure. ______________________________ TIMOTHY E. McMONAGLE, J. ______________________________ JAMES D. SWEENEY, J. ______________________________ TERRENCE O'DONNELL, P.J., DISSENTS, WITH DISSENTING OPINION ATTACHED. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74558 JOHN TAURING : : Plaintiffs-Appellant : : DISSENTING v. : : OPINION CITY OF BRECKSVILLE, OHIO : : Defendant-Appellee : : DATE: NOVEMBER 5, 1998 JUDGE TERRENCE O'DONNELL, DISSENTING: I respectfully dissent from the majority opinion in this case. In order to prevail on his claims, Tauring must allege both that the representations regarding his employment were made to him in writing and that they were made by the city council. Review of the complaint in this case indicates he has failed to meet his elementary burden. R.C. 705.11 provides in relevant part: The * * * city director of law shall * * * prepare all contracts, bonds, and other instruments in writing in which the municipal corporation is concerned, and shall indorse on each his approval of the form and correctness thereof. No contract with the municipal corporation shall take effect until the approval of the * * * city director of law is indorsed thereon. * * * The Brecksville City Charter, Section 3(a) provides in relevant part: * * * The Fire Department shall consist of a Fire Chief and such other officers, firemen and personnel as Council shall deem advisable, all of whom shall be appointed by Council upon recommendation of the Director of Public Safety. * * * Section 3(b) provides: The Director of Public Safety shall make and publish, with the approval of the Council, written rules for the government of the Police, Fire, and Building Departments and the conduct and discipline of members and personnel thereof. -2- No allegation has been made of any written representation to support a claim for relief on behalf of appellant. Thus, Tauring's allegations that he entered into a valid and enforceable contract under which he could be terminated only for just cause must fail as a matter of law. There being no allegations of a written employment contract, validated through the above enumerated procedural safeguards, Tauring has failed to state a claim upon which relief can be granted. Further, in Kimbrell v. Village of Seven Mile (1984), 13 Ohio App.3d 443, at 445: It has long been the law of Ohio that persons dealing with municipal corporations are charged with notice of all statutory limitations on the power of such corporations and their agents, and must, at their peril, ascertain whether all necessary statutory formalities have been met. Likewise, as this court stated in West v. Village of Bentleyville (1987), 42 Ohio App.3d 95, at 96: since any `representations' were made without the authority to act, there can be no promissory estoppel. Where there is an entire absence of power to act originally, there can be no room for an estoppel to arise afterwards. Appellant fails to allege in his complaint that the city council ever made any representations to him regarding his employment, thus there is no basis for a promissory estoppel claim. This is in accord with our decision in Cooney v. City of Independence(Nov. 23, 1994), Cuyahoga App. No. 66509, unreported, in which we held the trial court correctly granted a motion to dismiss in a case with similar facts and allegations. -3- Accordingly, upon my review, Tauring cannot prevail, and thus .