VICTOR GOZION, JR. v. CLEVELAND SCHOOL OF THE ARTS BOARD OF TRUSTEES
No. 113358
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
May 23, 2024
[Citе as Gozion v. Cleveland School of the Arts Bd. of Trustees, 2024-Ohio-1991.]
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRM23; Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-23-975056
Victor Gozion, Jr., pro se.
Patrick O. Peters and Tony H. Shang, for appellee.
MICHELLE J. SHEEHAN, P.J.:
{¶ 1} Plaintiff-appellant Victor Gozion, Jr., (“Gozion“) appeals from a judgment of the trial court granting the motion to dismiss filed by Cleveland School of the Arts Board of Trustees (“appellee“) pursuant to
Factual Allegations
{¶ 2} Appellee is the Board of Trustees for the Cleveland School of the Arts (“CSA“). The Board is also known as the Friends of the Cleveland School of the Arts, and it is a nonprofit organization in partnership with the Cleveland Metropolitan School District. Gozion was a former Artist in Residence for the CSA. He worked as an art, photograph, graphics, and filmmaker instructor at the CSA. For the 2013-2014 and 2014-2015 school years, Gozion was employed under a written contract with appellee. For the 2015-2016 school year, he worked without a written contract: he was not presented with a written contract until February 2016. Gozion alleged in the complaint that, although he was not given a written contract for the 2015-2016 school year at the beginning of the school year, he believed appellee would “follow through with the delivery of a written contract for the 2015-2016 school year, as promised” because for thе previous two school years, he was not provided with a written contract until well into the school year.
{¶ 3} When the written contract was finally presented to Gozion in February 2016, he discovered that he was offered a sum “less than promised.” Gozion alleged, without providing any specific facts, that after he noted the discrepancy, he was “promised by the Defendant the contract would be corrected to reflect the promised amount and be forthcoming.” He alleged that, after not receiving the promised contract, he resigned on March 2, 2016.
Filing of the Complaint and Amended Complaint
{¶ 4} Gozion, pro se, filed a complaint against appellee on February 10, 2023, almost seven yеars later, raising a declaratory judgment claim (Count One) and a breach-of-contract claim (Count Two). Both claims were based on the same underlying facts as set forth in the foregoing. Gozion alleged that the lawsuit arose out of appellee‘s “failure to make good on [the] promise of a written contract for the services of the Plaintiff as an Artist in Residence * * * for the 2015-2016 school year.” He alleged that appellee did not deliver a written contract until February 2016 and “[i]t was at this point that the Plaintiff discovered he was offered a sum less than promised * * * .”
{¶ 5} Appellee moved to dismiss the complaint, contending that Gozion‘s claim is barred by the statute of limitations for an oral contract. Appellee contended that, by Gozion‘s own allegation in the complaint, the instant lawsuit arose out of appellee‘s “failure to make good on a promise of a written contract” for his services,
{¶ 6} Gozion opposed the motion to dismiss, arguing that his breach-of-contract claim was filed within the statute of limitations for a written contract. He stated that “[w]hile a ‘physical’ contract is nоt in hand — one did exist.” On May 1, 2023, appellee filed its reply to Gozion‘s opposition. Appellee, pointing to Gozion‘s own acknowledgement that a physical contract “is not in hand,” contended again that the statute of limitations for an oral agreement governs Gozion‘s claim and his claim was filed untimely.
{¶ 7} In responsе, Gozion filed a motion for leave to file a first amended complaint. He alleged that he now had new evidence to raise a fraud cause of action, claiming that he became aware of a fraud when appellee stated in the May 1, 2023 court filing that Gozion admitted that a physical contract “is not in hand.” Gozion claimed, somehow, that this statement “implies that the Defendant knowingly made an offer, presented it on a promise and then withdrew it. Then claiming no contract exists [sic] caused the Plaintiff to question their intentions for the first time.”
{¶ 8} Thereafter, the trial court granted leave for Gozion to file an amended comрlaint. Gozion filed the amended complaint on May 23, 2023. The amended complaint contains almost identical factual allegations as the original complaint but adds an additional cause of action for fraud (Count Three). In paragraph 44 of the amended complaint, he claims, vaguely, that “[i]t is now evident that the Defendant
{¶ 9} In the amended complaint, Gozion alleges appellee‘s breach of contract occurred on March 15, 2016, the last day of his employment at CSA and his claim is not barred by the statute of limitations for a written contract. Regarding the fraud claim, Gozion alleges he did not become aware of the fraud until May 1, 2023, when appellee filed its “Reply in Support of Motion to Dismiss Plaintiff‘s complaint.” Gozion alleges that “[b]efore [May 1, 2023], it was beyond the Plaintiff‘s comprehension that a nonprofit would be capable of such behavior.”
{¶ 10} Appellee moved to dismiss the amended complaint pursuant to
Appeal
{¶ 11} On appeal, Gozion raises the following three assignments of error:
I. Trial court improperly dismissed the case based on a Civ.R. 12(B) Motion when there are actionable claims presented. Defendant received ineffective assistance of counsel ¶ 6-7 DeMell v. Clevelаnd Clinic Foundation, Cuyahoga App. No. 88505, 2007-2924, York Ohio State Hwy Patrol (1991), 60 Ohio St. 3d 143, 145, 573 N.E.2d 1063.
II. The Trial Court improperly dismissed this case based on a Civ.R. 12(B) Motion where there is no qualified privilege. DeMell v. Cleveland Clinic Foundation, Cuyahoga App. No. 88505, 2007-2924.
III. The trial court improperly denied the plaintiff his right to file a first amended complaint once fraud wаs discovered would bar plaintiff‘s cause of action.
{¶ 12} Regarding these assignments of error, we first point out that appellee never raised a defense of qualified privilege and, therefore, we summarily overrule the second assignment of error. We also summarily overrule the claim of ineffective assistancе of counsel raised under the first assignment of error because a claim of ineffective assistance of counsel is generally inapplicable in civil litigation, Brunner Firm Co., L.P.A. v. Bussard, 10th Dist. Franklin No. 07AP-867, 2008-Ohio-4684, ¶ 31, and, furthermore, such a claim is not available where a party elects to represent himself. State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ 16. In the following, we review the first and third assignments of error jointly and discuss in turn the trial court‘s dismissal of the claims raised by Gozion in his amended complaint.
{¶ 13} We recognize, as an initial matter, that a pro se litigant may face certain difficulties when choosing to proceed pro se; however, while “a pro se litigant may be afforded reasonable latitude, there are limits to a court‘s leniency.” Saeed v.
Standard of Review
{¶ 14} In this case, the trial court granted appellee‘s
Breach-of-Contract Claim Barred by the Statute of Limitations
{¶ 15} While the statute of limitations is an affirmative defense and generally not properly raised in a
{¶ 17} Even assuming the existence of an oral contract, we find Gozion‘s claim is barred by the applicable statute of limitations for an oral contract. Before June 16, 2021, the statute of limitations for an oral contraсt was six years pursuant to former
{¶ 18} Gozion alleged in paragraph 13 of the amended complaint that, in this case, “the breach would have occurred March 15, 2016, the last day of [his] service.” Therefore, the statute of limitations for Gozion‘s claim for a breach of an oral contract is the earlier of four years from June 16, 2021 (i.e., June 16, 2025) or six
{¶ 19} Therefore, accepting all factual allegations in Gozion‘s amended complaint as true and viewing such allegations in the light most favorable to him, we conclude that Gozion can prove no set of facts entitling him to relief, because his breach-of-contract claim is barred by the applicable statute of limitations.
{¶ 20} Under Count One, Gozion raises a claim for declaratory judgment, alleging that he “submitted timely requests for said promised contract” but “[D]efendant continually failed to follow through on their promise.” “To determine the appropriate statute of limitations with respect to a declaratory judgment claim, courts look to the underlying nature or subject matter of the claim.” Naiman Family Partners, L.P. v. Saylor, 2020-Ohio-4987, 161 N.E.3d 83, ¶ 13 (8th Dist.), citing Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 465 N.E.2d 1298 (1984). Although styled as a cause of action for declaratory relief, the underlying claim in Count One is based on an alleged breach of an oral promise, and therefore, this cause of action is also subject to the four-year statute of limitations and was untimely raised.
Fraud Claim Was Not Pleaded With Sufficient Particularity Required by Civ.R. 9(B)
{¶ 21} In the amended complaint, Gozion adds a fraud claim, asserting that he discovered the fraud after he filed the lawsuit. Specifically, he alleges he
{¶ 22} Regardless of whether Gozion raised the fraud claim timely,
{¶ 23} A plaintiff must state thе circumstances constituting fraud with particularity pursuant to
{¶ 24} Here, as we noted earlier, there are no specific factual allegations contained in the amended complaint to support Gozion‘s fraud claim in Count Three of the amended complaint that he was offered a written contract “different from what was promised then withdrawing it, with the promise it would be corrected, then not making good on the promise.” Gozion does not identify who made the purported promises, when the promises were made, the amount promised, or specific circumstances surrounding the alleged fraudulent conduct. His pleading is
{¶ 25} Based on the foregoing analysis, we conclude the trial court properly granted appellee‘s motion to dismiss the instant action pursuant to
{¶ 26} Judgment affirmed.
It is ordered that appellеe recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas 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.
MICHELLE J. SHEEHAN, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and MICHAEL JOHN RYAN, J., CONCUR
Notes
Through the First Amended Complaint, with new evidence in hand, the Plaintiff seeks the addition of a Fraud Claim. The Plaintiff first became aware of this fraud when the Defendant, in their filing on May 1, 2023, “Reply in Support of Motion to Dismiss Plaintiffs Complaint.” In it the Defendant in ¶ 3 states, “Plaintiff admits that a ‘physical’ contact is not in hand.” This implies the Defendant knowingly made an offer, presented it on a promise and then withdrew it. Then claiming no contract exists caused the Plaintiff to question their intention for the first time. This is a typical “bait and switch” tactic used to swindle innocent people and was unimaginable to the plaintiff that a prior a nonprofit would be capable of such behavior.
- a representation of fact (or where there is a duty to disclose, concealment of a fact);
- that is material to the transaction at issue;
- made falsely, with knowledge of its falsity or with utter disregard and recklessness as to whether it is true or false;
- with the intent of misleading another into relying upon it;
- justifiable reliance upon the misrepresentation (or concealment); and
- resulting injury proximately caused by the reliance.