Tracey Harris, Plaintiff-Appellant, v. Shawn Cunix, Defendant-Appellee.
No. 21AP-13 (C.P.C. No. 20CV-2485)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 17, 2022
[Cite as Harris v. Cunix, 2022-Ohio-839.]
(REGULAR CALENDAR)
D E C I S I O N
Rendered on March 17, 2022
On brief: Law Offices of F. Benjamin Riek III, and F. Benjamin Riek III, for appellant. Argued: F. Benjamin Riek III.
On brief: Dinsmore & Shohl LLP, Jan E. Hensel and Jacqueline N. Rau, for appellee. Argued: Jan E. Hensel.
APPEAL from the Franklin County Court of Common
KLATT, J.
{¶ 1} Plaintiff-appellant, Tracey Harris, appeals from a judgment entered by the Franklin County Court of Pleas denying her motion to amend her complaint and granting motions filed by defendant-appellee, Shawn Cunix, to strike appellant‘s amended complaint and to dismiss appellant‘s complaint. For the following reasons, we reverse the trial court‘s judgment and remand the matter for further proceedings.
{¶ 2} In 2014, appellant was a poker table dealer at the Hollywood Casino (“casino“) in Columbus. In June 2014, appellee, while playing poker at appellant‘s table, stood next to appellant, put his hands down her pants, and told her he could see her underwear. In December 2014, appellee, again playing poker at appellant‘s table, crawled under the table and wrapped his arms around appellant‘s thighs for 30 to 45 seconds.
{¶ 3} On March 27, 2020, appellant filed a complaint against appellee alleging that his June and December 2014 conduct constituted aiding and abetting sex discrimination in violation of
{¶ 4} On August 13, 2020, appellant, without first seeking leave from the trial court, filed an amended complaint adding an
{¶ 5} In a decision and entry filed December 10, 2020, the trial court found appellant‘s proposed amendment adding a new claim under
{¶ 6} Appellant timely appeals, assigning a single error for our consideration:
Since Revised Code Section 2307.60 is a remedial statute and subject to a six-year statute of limitations in accordance with Revised Code Section 2305.70 [sic] did the Trial Court err in dismissing Appellant‘s complaint finding R.C. § 2307.60 to be a punitive statute and thus subject to a one[-]year limitations period?
{¶ 7} Preliminarily, we note that although appellant frames her assignment of error as challenging the dismissal of her complaint, the issue presented for review and the arguments set forth in her brief address only one issue—whether the trial court erred in denying her motion to amend her complaint as futile based upon its finding that
{¶ 8}
{¶ 9} An abuse of discretion occurs when a court‘s judgment is unreasonable, arbitrary, or unconscionable. State ex rel. McCann v. Delaware Cty. Bd. of Elections, 155 Ohio St.3d 14, 2018-Ohio-3342, ¶ 12; State v. Beavers, 10th Dist. No. 11AP-1064, 2012-Ohio-3654, ¶ 8. However, even under an abuse of discretion standard, no court is authorized, within its discretion, to commit an error of law. Badescu v. Badescu, 10th Dist. No. 18AP-947, 2020-Ohio-4312, ¶ 9 (further citations omitted.) Thus, a court abuses its discretion when its ruling is based on an error of law or a misapplication of law to the facts. Id. (Further citations omitted.) The applicable statute of limitations presents a question of law an appellate court reviews de novo. Timbuk Farms, Inc. v. Hortica Ins. & Emp. Benefits, 5th Dist. No. 2021 CA 00017, 2021-Ohio-4141, ¶ 50, citing Haskins v. 7112 Columbia, Inc., 7th Dist. No. 15 MA 0192, 2016-Ohio-5575, ¶ 15. See also Potter v. Cottrill, 4th Dist. No. 11CA685, 2012-Ohio-2417, ¶ 9.
{¶ 10} Appellant contends the trial court abused its discretion in denying her motion to amend her complaint and in striking her amended complaint because the trial court based its decision on a legal error—that
{¶ 11}
{¶ 12} As noted above, the statutes of limitation at issue are
{¶ 13} Appellant contends that the trial court erred in relying on these cases, as they failed to apply “mandates” from the Supreme Court of Ohio for determining whether a statute is penal or remedial. (Appellant‘s Brief at 9.) Appellant cites Cosgrove v. Williamsburg of Cincinnati Mgt. Co., 70 Ohio St.3d 281 (1994), which considered the statute of limitations applicable to
{¶ 14} Appellant also relies on Rosette v. Countrywide Home Loans, Inc., 105 Ohio St.3d 296, 2005-Ohio-1736 in support of her claim that
General Assembly had used the terms “penalty” or “forfeiture” in other statutes and could have used them again if it so intended. Id. at ¶ 14. Appellant contends that construing
{¶ 15} Appellant also argues that under Cleveland Mobile Radio Sales, Inc. v. Verizon Wireless, 113 Ohio St.3d 394, 2007-Ohio-2203,
{¶ 16} In addition, appellant contends that a recent case from the Seventh District Court of Appeals compels the conclusion that
{¶ 17} On appeal, the parents argued that they were entitled to summary judgment on their
{¶ 18} The court of appeals concluded that
{¶ 19} The court also rejected the parents’ argument that because
{¶ 20} The court also found misguided the parents’ reliance on Cleveland Mobile to support its argument that
{¶ 21} The court also noted that in Cleveland Mobile, R.C. Chapter 49 provided both individual plaintiffs and the state the ability to recover damages against public utilities for violations, a fact indicating that
{¶ 22} Finally, the court addressed the parents’ argument that
{¶ 23} The Brothers court concluded that ”
{¶ 24} Appellee counters that since Cosgrove was decided, the Supreme Court of Ohio has analyzed whether a statute imposes a penalty for purposes of
{¶ 25} Although not cited by either party, this court notes a recent case from the Northern District of Ohio determining that a one-year limitations period governs claims brought under
{¶ 26} The court went on to note, however:
Plaintiff‘s arguments have considerable force, however, and on a blank slate might well carry the day. On its face, Section 2307.60(A)(1) creates a cause of action for the victim of a crime to “recover full damages,” suggesting the statute
is not penal. To be sure, some parts of the statute allow for recovery of amounts that are penal in nature, such as punitive damages or attorneys’ fees. But it is difficult to see why such language, subsidiary to the statute‘s authorization of a civil action to recover damages, would make it penal in nature as a whole. In this regard, Rosette may provide a rough analogy by virtue of its reliance on the statutory text and relying on the word “damages” in the statute. Even if Rosette does not remain good law or, as [defendant] argues, is limited to its facts and has no application here, the substantive force of Section 2307.60 suggests a different limitations period should apply. In Jacobson v. Kaforey, 149 Ohio St. 3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 12, the Ohio Supreme Court held that Section 2307.60 creates “a civil cause of action for damages.” That holding does not sound like characterizing the statute as penal in nature. Rather, the statute provides crime victims with a civil recovery when they experience an injury to person or property.
That statutory aim also suggests a longer limitations period. Actions for injuries to person or property generally, though not always, have longer limitations periods. Personal injury claims, for example, have a two-year limitations period.
Ohio Rev. Code § 2305.10(A) . And the general statute of limitations for felonies is six years.Id. § 2901.13(A)(1)(a) .Yet Ohio‘s lower courts continue to apply a one-year limitations period, even after the Ohio Supreme Court‘s ruling in Jacobson. See, e.g., Ettayem v. H.E.R., LLC, 5th Dist. Delaware No. 19 CAE 12 0070, 2020-Ohio-4647, ¶ 24, 26 (affirming and adopting judgment of Delaware County Court of Common Pleas). So have the federal courts. See, e.g., Marquardt v. Carlton, No. 1:18 CV 333, 2019 U.S. Dist. LEXIS 58402, 2019 WL 1491966, at *3 (N.D. Ohio Apr. 2, 2019). Contrary to Plaintiff‘s argument, not all State or federal decisions reach this conclusion through unreasoned application of decisions superseded by the Ohio Supreme Court‘s decision in Jacobson. See, e.g., id.; Duffy, 2012 U.S. Dist. LEXIS 137471, at *32-33, 2012 WL 2012 4442753, at *7 (analyzing various State and federal authorities to determine one-year limitations period applies). Based on the uniform authority in the State and federal courts that have considered the issue, the Court predicts the Ohio Supreme Court would determine that a one-year statute of limitations applies to claims under Section 2307.60.
Id. at *12-14.
{¶ 27} Upon careful consideration of the parties’ arguments and supporting case law, we conclude that
{¶ 28} As noted above, the trial court cited three cases in support of its finding that appellant‘s proposed amendment adding a new claim under
{¶ 29} Moreover, the analyses employed by the Supreme Court of Ohio and other courts construing different statutes provides guidance regarding the remedial-versus-penal nature of
{¶ 30} In both Cosgrove, 70 Ohio St.3d 281, and Cleveland Mobile, 113 Ohio St.3d 394, 2007-Ohio-2203, the Supreme Court of Ohio set forth factors to be considered in determining whether a statute is penal or remedial. The factors concern the primary purpose of the statute, i.e., whether the statute is to penalize or remedy and compensate, whether the statute redresses individual or public wrongs, whether recovery runs to the individual or to the public, and whether the statute was designed to augment enforcement of the law and to deter violations through penalties rather than simply compensate victims. Cosgrove at 288 (Resnick, J. concurring), and Cleveland Mobile at ¶ 16, 18.
{¶ 31} In Rosette, 105 Ohio St.3d 296, 2005-Ohio-1736, the Supreme Court of Ohio looked to the plain language of the statute at issue in concluding that the General Assembly‘s use of the term “damages” rather than “forfeiture” or “penalty” evidenced its intention to provide a remedy to the aggrieved party rather than to impose a penalty upon the wrongdoer.
{¶ 32} In Brothers, 7th Dist. No. 19 CO 0046, 2020-Ohio-4035, the court noted that the text of the statute at issue there focused on making the victim whole or remedying a wrong done to the victim rather than punishing the offender and did not contain the terms “penalty” or “forfeit.” The court further noted the absence of language in the statute augmenting enforcement of the law and deterring violations. The court also stated that a provision in a statute providing for the recovery of punitive damages does not definitively render it penal in nature if the overall purpose of the statute is to compensate the victim. The court emphasized this last point in its discussion of the statute at issue in the present case—
{¶ 33} Finally, although the Brack court ultimately followed the jurisprudence set forth in Ohio and federal cases specifically addressing
{¶ 35} Applying the rationale employed in Cosgrove, Cleveland Mobile, Rosette, Brothers, and Brack, we find that the trial court erred as a matter of law in concluding that
{¶ 36} Having concluded that
{¶ 37} Because the trial court‘s ruling regarding the applicable statute of limitations was legally erroneous, the portion of the judgment denying appellant‘s motion to amend the complaint and granting appellee‘s motion to strike the amended complaint must be reversed and the matter remanded to the trial court for further proceedings. However, we emphasize that the trial court‘s legal error in applying the wrong statute of limitations does not require the court to grant appellant‘s motion to amend her complaint. Rather, the trial court is free to consider other relevant factors such bad faith, undue delay, or prejudice in determining whether to grant or deny appellant‘s motion to amend her complaint and appellee‘s motion to strike appellant‘s amended complaint.
{¶ 38} For the foregoing reasons, appellant‘s single assignment of error is sustained, the portion of the judgment of the Franklin County Court of Common Pleas denying appellant‘s motion to amend the complaint and granting appellee‘s motion to strike the amended complaint is reversed, and the matter is remanded to that court for further proceedings in accordance with law and consistent with this decision.
Judgment reversed and cause remanded.
SADLER and JAMISON, JJ., concur.