Burr v. Board of County Com'rs of Stark County

Decision Date11 April 1986
Docket NumberNo. 85-786,85-786
Citation23 Ohio St.3d 69,23 OBR 200,491 N.E.2d 1101
CourtOhio Supreme Court
Parties, 56 A.L.R.4th 357, 54 USLW 2611, 23 O.B.R. 200 BURR et al., Appellees, v. BOARD OF COUNTY COMMISSIONERS OF STARK COUNTY et al., Appellants.

Syllabus by the Court

1. Generally, Ohio's courts of common pleas have original jurisdiction over civil actions commenced against counties and their agencies. (Section 4, Article IV of the Ohio Constitution; R.C. 2305.01.)

2. In a civil action captioned "Wrongful Adoption" which alleges that adoptive parents were fraudulently misled to their detriment by an adoption agency's material misrepresentations of fact concerning an infant's background and condition, the parents must prove each element of the tort of fraud. The elements of fraud are:

(a) a representation or, where there is a duty to disclose, concealment of a fact,

(b) which is material to the transaction at hand,

(c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,

(d) with the intent of misleading another into relying upon it,

(e) justifiable reliance upon the representation or concealment, and

(f) a resulting injury proximately caused by the reliance. (Cohen v. Lamko, Inc. [1984], 10 Ohio St.3d 167, 462 N.E.2d 407, followed.)

3. A cause of action for the tort of fraud must be brought within four years of the time the cause accrued. The cause does not accrue until the fraud and wrongdoer are actually discovered. (R.C. 2305.09.)

4. The doctrine of sovereign immunity does not shield a political subdivision from responsibility for the fraudulent acts and misrepresentations of its employees and agents made in the performance of their activities.

Appellees, Russell H. and Betty J. Burr, filed a "wrongful adoption" civil action against the Board of County Commissioners of Stark County the Stark County Welfare Department, Logan Burd, its director, and Winifred M. Schaub, a former employee of the department's adoption division.

The basis of the complaint was that appellants committed certain fraudulent acts against the appellees during the course of the adoption of their son, Patrick. The complaint further alleged that but for appellees' reliance on appellants' material misrepresentations, they would not have adopted the child. Appellees' complaint further alleged that by reason of the wrongful adoption, appellees have incurred general and special damages.

The facts giving rise to this appeal are as follows. Appellees contacted the adoption division of the Stark County Welfare Department in 1964 expressing their desire to adopt a child. Betty Burr is partially disabled, having earlier lost a leg to polio, and the Burrs expressed an interest in adopting a male child up to six months old. Appellees were informed that such a placement could take a year to a year and one-half.

Nevertheless, a few days later an employee of appellants telephoned the Burrs and told them a seventeen-month-old boy was available for adoption. At appellants' suggestion, the Burrs met the county caseworker, Schaub, in order to be introduced to the child. During this meeting Schaub told the Burrs the infant was borne by an eighteen-year-old unwed mother, that the mother was living with her parents, that the mother was trying to take care of the child and trying to work during the day, that the grandparents were mean to the child, that the mother was going to Texas for better employment, and that she had surrendered the child to appellants for adoption. Russell Burr testified that Schaub represented to them that the child "* * * was a nice big, healthy, baby boy" who had been born at the Massillon City Hospital. The Burrs decided to proceed with the adoption. Soon thereafter, the child, Patrick, became a member of appellees' family.

The Burrs testified that during the ensuing years Patrick suffered from a myriad of physical and mental problems. Physical twitching, speech impediment, poor motor skills, and learning disabilities were among Patrick's more apparent problems. During primary school, the Burrs were advised that Patrick was not like other children. He was classified as E.M.R. (educable, mentally retarded) and attended special education classes. Despite the support and special care provided by the Burrs, Patrick's general condition did not improve and in some respects degenerated over the years to follow.

For example, by high school, Patrick was observed to also suffer from hallucinations. He was thereafter admitted to several hospitals for diagnosis and treatment. Eventually, Patrick was diagnosed as suffering from Huntington's Disease, a genetically inherited disease which destroys the central nervous system. Movement disorders, delusions and intellectual deterioration are all associated with the disease. The average life expectancy after onset if the disease begins during childhood is 8.5 years. During the course of Patrick's treatment, the Burrs obtained a court order opening the sealed records concerning his background prior to adoption.

From these records the Burrs first learned in 1982 that the representations made to them by the county case worker in 1964 were all false. These previously sealed records revealed that Patrick's mother was actually a thirty-one-year old mental patient at the Massillon State Hospital. Patrick had not been born at Massillon City Hospital, but rather was delivered at the state mental institution. The father's identity was unknown, but he was presumed to also have been a mental patient. Patrick's biological mother shared his low intellectual level and also had a speech impediment. She was diagnosed as having a "mild mental deficiency, idiopathic, with psychotic reactions" and was described as "bovine." 1 The "mean" grandparents, the trip to Texas, voluntary placement, and seemingly all other information regarding Patrick other than his age and sex were fabrications. In fact, prior to adoption, he had been placed in two foster homes.

The records also showed that Patrick suffered a fever at birth, and was known by appellants to be developing slowly. A series of psychological assessments was conducted by appellants prior to adoption, some of which assessments indicated that the boy was functioning at a lower intellectual level than his chronological age. The reports opined that future assessments of the child should be conducted for evidence of deviant social and emotional development. Although Patrick's biological mother had not been diagnosed as suffering from Huntington's Disease, expert testimony established that Patrick's family background and medical profile made him at risk for disease. None of Patrick's true history was shared with appellants at the time of placement.

In order to recoup Patrick's medical expenses (in excess of $80,000 for the Huntington's Disease treatment alone), together with other damages, the Burrs commenced this "wrongful adoption" action against appellants.

Essentially, appellees believed they were victims of fraud. A trial commenced during which evidence and testimony was presented which substantiated the misrepresentations and certain damages related thereto. It was further revealed that appellants' deceit was also present in the next of friend's report filed with the probate court which originally granted the adoption. The Burrs testified that they would have never considered the child for adoption if they had been told the truth. The jury returned a verdict in favor of appellees in the sum of $125,000. The court of appeals overruled the assignments of error and affirmed the trial court's judgment. The court found, inter alia, that the trial court's "judgment is in accordance with law and is fully supported by the evidence."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Kenneth J. Cardinal Sebring, and Wylan W. Witte, Alliance, for appellees.

Robert Horowitz, Pros. Atty., and Lemuel R. Green, Canton, for appellants.

CELEBREZZE, Chief Justice.

I

We initially determine whether the court of common pleas possessed subject matter jurisdiction over this action. Appellants contend that the Court of Claims has exclusive jurisdiction over damage claims by adoptive parents asserted against a board of county commissioners and the county welfare department.

Appellants also claim that the trial court erroneously excluded certain evidence which tended to establish state statutory oversight and funding of the county welfare department. 2

We disagree with both contentions. The Court of Claims has " * * * exclusive original jurisdiction of all civil actions against the state * * *." (Emphasis added.) R.C. 2743.03(A). As such, only the "state" may be the original defendant in an action filed in the Court of Claims. R.C. 2743.02(E). "Counties," such as appellant, are not the "state" but rather are "political subdivisions" and accordingly fall outside both the legislature's statutory waiver of "state" immunity and the Court of Claims' jurisdiction. R.C. 2743.01(A) and (B), 2743.02(E) and 2743.03(A). See Boggs v. State (1983), 8 Ohio St.3d 15, 455 N.E.2d 1286; Friedman v. Johnson (1985), 18 Ohio St.3d 85, 480 N.E.2d 82; Illes v. State (1983), 10 Ohio App.3d 111, 460 N.E.2d 707.

In this case, the proffered evidence was not erroneously excluded, nor was it relevant to any justiciable issue before the trial court. Although many social programs operate under state or federal oversight and financing, they still remain local governmental operations of the political subdivision. The local agencies and county commissioners are not agents of the state absent statutory language to that effect. Illes, supra. Such is not the case in this action.

Accordingly, we hold that Ohio's courts of common pleas have original jurisdiction over civil actions commenced against counties and their agencies pursuant to R.C. 2305.01 and ...

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