Douglass v. Provia Door, Inc.Douglass v. Provia Door, Inc.
For Plaintiff-Appellant
VIVIANNE WHALEN
Suite 206 Belden Village Tower
4450 Belden Village Street, NW
Canton, Ohio 44718
For Defendant-Appellee
EVELYN P. SCHONBERG
ROSS, BRITTAIN & SCHONBERG
6480 Rockside Woods Blvd., Suite 350
Cleveland, Ohio 44131
{¶1} Appellant Dales Douglass appeals the decision of the Tuscarawas County Court of Common Pleas granting Appellee Provia Door, Inc.‘s
STATEMENT OF THE FACTS AND CASE
{¶2} In 1997, Appellee Provia Door, Inc. hired Appellant Dale Douglass as a truck driver.
{¶3} Appellant was diagnosed with cancer and underwent two surgeries between September, 2005 and March, 2006. (T. at 48). Following both surgeries, Appellant returned to work. (T. at 48-49).
{¶4} On September 3, 2009, Appellant was laid-off.
{¶5} On April 27, 2011, Appellant filed a pro se Complaint alleging claims under the Americans with Disabilities Act (ADA), state disability discrimination claims under
{¶6} The case was set for a bench trial to commence on April 12, 2012.
{¶7} Prior to trial, Appellee filed a Motion in Limine seeking preliminary rulings on the untimeliness of Appellant‘s ADA claim and Appellant‘s failure to state a claim upon which relief can be granted under
{¶8} On the morning of the bench trial, the trial judge conducted a preliminary hearing pursuant to
{¶9} During the hearing, Appellant admitted to receiving notice that his ADA action must be filed on or before December 15, 2010. (T. at 29-30).
{¶11} The following colloquy between the trial court and Appellant then ensued:
{¶12} “THE COURT: Now, in your Complaint, let me read again paragraph 3, it says, “I, myself, the Plaintiff, Dale Douglass, states that I can prove this company terminated my position in violation of the ADA and the Ohio Disability Discrimination laws.” That clearly tells me as a lawyer that you are claiming that the Defendant violated those laws in terminating you. I hear you telling me something very different now, Mr. Douglass. I hear you saying that your claim against the Defendant today is on a wrongful termination or wrongful discharge, not a wrongful termination or discharge based on the ADA or 4112.02 of the Ohio Anti Discrimination laws. Am I correct or not?
{¶13} “MR. DOUGLASS: You are correct, Your Honor.” (T. at 34-35).
{¶14} During the hearing, the trial court found that Plaintiff “failed to state a claim upon which relief can be granted relating to the ADA federal statute and relating to the Anti Discriminatory state in Ohio law, 4112.02.” (T. at 36). In addition, the trial court held that Appellee‘s
{¶15} The trial court then went on to hear argument as to Appellant‘s wrongful discharge claim from Appellee‘s counsel and Appellant himself.
{¶16} After hearing such arguments, the trial court held:
{¶18} ” ...
{¶19} “So, your sole recourse under the law when you are an employee at will is within the unemployment compensation administration framework. The law does not allow you to receive any compensation from the employer in this lawsuit for wrongful termination because you have not invoked your right to compensation for wrongful termination under any statute. The ADA and the Ohio Anti Discriminatory statutes we talked about. I made rulings on those. If I had not ruled that you couldn‘t recover under those two statutes we would have a trial today where I would then make decisions of fact and law determining whether you had proved that your were wrongfully terminated under either the ADA of the Anti Discrimination Laws of Ohio. I made a ruling on that barring you from seeking compensation on those claims for the reasons I‘ve already indicated.
{¶20} “...
{¶22} The trial court memorialized its decision in writing by Judgment Entry filed April 13, 2012, wherein in its Findings, the trial court stated:
{¶23} “FINDS that after considering the legal arguments ... Plaintiff is barred from asserting the following claims against the Defendant:
{¶24} “Claim for Monetary Damages under Americans with Disabilities Act (A.D.A.)
{¶25} “Claim for Monetary Damages under
{¶26} “Wrongful Discharge
{¶27} “FINDS that as a matter of law, the Statutory Claims of Plaintiff under the A.D.A. and
{¶28} “FINDS that Plaintiff‘s Wrongful Discharge Claim must be dismissed because Plaintiff has failed to state a claim that is compensable under Civil Tort Theory.”
{¶30} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶31} “I. THE TRIAL COURT ERRED BY SUE (SIC) SPONTE DISMISSING APPELLANT‘S DISABILITY CLAIMS WITH PREJUDICE WITHOUT A TRIAL ON THE MERITS.
{¶32} “II. THE TRIAL COURT ERRED BY ISSUING A NUNC PRO TUNC ORDER WHICH MATERIALLY ALTERED ITS ORIGINAL JUDGMENT ENTRY.”
I.
{¶33} In his First Assignment of Error, Appellant argues the trial court erred in dismissing Appellant’ claims with prejudice. We agree.
{¶34} Appellee herein filed a Motion in Limine, pursuant to
{¶35} While Appellee did argue in its Motion in Limine that Appellant‘s ADA was untimely and should be dismissed, Appellee did not file a Motion to Dismiss pursuant to
{¶37}
{¶38} “[w]hen a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided, however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.”
{¶39} This Court reviews a trial court order granting a motion to dismiss pursuant to
{¶40} If a court converts a case from a motion to dismiss for failure to state a claim to a summary judgment, it must provide all parties notice of its intent to do so at least 14 days prior to the hearing on the motion. Petrey v. Simon, 4 Ohio St.3d 154, 447 N.E.2d 1285 (1983), paragraphs one and two of the syllabus.
{¶41} Appellant claims that the trial court considered matters outside of the Complaint. Thus, Appellant insists, the court converted a
{¶42} Appellant is correct. A reading of the Complaint does not support a finding that Appellant‘s disability claims pursuant to
{¶43} Consideration by the court of anything outside the four corners of the complaint is improper when considering a
{¶44} Appellant‘s First Assignment of Error is sustained.
II.
{¶46} The purpose of a nunc pro tunc order is to have the judgment of the court reflect its true action so that the record speaks the truth. In re Estate of Cook (1969), 19 Ohio St.2d 121, 127. The function of a nunc pro tunc order is not to change, modify, or correct erroneous judgments, but merely to have the record speak the truth. Id. A trial court may exercise its nunc pro tunc authority in limited situations to correct clerical errors. However, a trial court may not use a nunc pro tunc entry to enter of record that which it intended to or might have done but which in fact it did not do. McKay v. McKay (1985), 24 Ohio App.3d 74; Webb v. W. Res. Bond & Share Co. (1926), 115 Ohio St. 247. See also State ex rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97; Pepera v. Pepera (Mar. 26, 1987), Cuyahoga App. Nos. 51989 and 52024.
{¶47} Here, we find that the trial court used the nunc pro tunc order to purportedly correct its prior judgment entry. However, this modification is more than a simple correction of a clerical error; rather, it substantially altered what the court previously had entered and was far beyond the scope of correcting a clerical mistake. Accordingly, we find that the nunc pro tunc entry was improper.
{¶49} For the foregoing reasons, the decision of the Court of Common Pleas of Tuscarawas County, Ohio, is reversed and this matter is remanded for further proceeding consistent with the law and this opinion.
By: Wise, J.
Baldwin, J., concurs.
Hoffman, P. J., concurs in part and dissents in part.
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JUDGES
JWW/d 0604
{¶50} I concur in the majority‘s analysis and disposition of Appellant‘s second assignment of error.
{¶51} I respectfully dissent from the majority‘s disposition of Appellant‘s first assignment of error.
{¶52} While Appellee may not have filed a motion to dismiss Appellant‘s
{¶53} I find consideration of exhibits during argument on Appellee‘s motion in limine does not overcome Appellant‘s concession made therein, his claim at trial was not based on the ADA or
{¶54} Because Appellant has not separately assigned as error the dismissal of his common law wrongful termination claim, I would overrule Appellant‘s first assignment of error and affirm the trial court‘s dismissal of Appellant‘s complaint.1
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HON. WILLIAM B. HOFFMAN
DALE DOUGLASS Plaintiff-Appellant -vs- PROVIA DOOR, INC. Defendant-Appellee
JUDGMENT ENTRY
Case No. 2012 AP 05 0034
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is reversed and remanded for further proceedings consistent with this opinion.
Costs assessed to Appellee.
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JUDGES