Jacobson-Kirsch v. Kaforey
2012 Ohio 3553
Ohio Ct. App.2012Background
- Ms. Jacobson-Kirsch petitioned for conservatorship over medical decisions for herself and her daughter; Ellen Kaforey appointed conservator with broad powers.
- In 2001, Jacobson alleged hospital staff were restricted from contact with daughter during hospitalization.
- Jacobson’s parental rights were terminated in a juvenile court proceeding where Kaforey testified.
- In 2002 Jacobson discovered that the probate appointment allegedly granted powers beyond what the trial court had authorized.
- On March 25, 2011, Jacobson filed a multi-claim complaint against Kaforey and Magistrate Poulos; the trial court dismissed claims via Civ.R. 12(B)(6).
- The appellate court affirms in part, reverses in part, and remands for further proceedings consistent with its opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the claims time-barred despite tolling arguments | Jacobson argues fraudulent concealment tolled statutes | Kaforey/Poulos contend time-bar under four-year or two-year limits | Claims 1–7 barred; tolling not proven; 8 barred by time limits; first assignment overruled |
| Whether interference with parental interests against Kaforey survives dismissal | Taking not required; alleged wrongful conservatorship powers | Plausible taking required; no valid basis | Interference with parental interests claim sustained to extent based on possession without privilege; remanded for further proceedings |
| Whether loss of parent-child consortium was properly dismissed | Derivative claim for loss of filial consortium should lie | No physical injury alleged to child; not derivative viable | Loss of parent-child consortium properly dismissed; affirmed as to this claim |
| Whether Magistrate Poulos’ judicial immunity bars claims | Immunity does not apply; actions not judicial | Actions were judicial acts within jurisdiction | Judicial immunity bars claims against Poulos; first and fourth assignments overruled; others remanded |
Key Cases Cited
- Biomedical Innovations, Inc. v. McLaughlin, 103 Ohio App.3d 122 (10th Dist.1995) (civil damages not cognizable for criminal statute violations)
- Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231 (7th Dist.2000) (limits on 12(B)(6) dismissal and tolling considerations)
- Wochna v. Kimbler, 163 Ohio App.3d 349 (2005-Ohio-4802) (judicial immunity protects judge actions within jurisdiction)
- Kelly v. Whiting, 17 Ohio St.3d 91 (1985) (broad judicial immunity for acts in judicial capacity)
- Gallimore v. Children’s Hospital Medical Center, 67 Ohio St.3d 244 (1993) (derivative damages for loss of filial consortium require injury to child)
- Stump v. Sparkman, 435 U.S. 349 (1978) (standard for judicial acts and immunity)