Harris v. Cunix

• Decision Date: 17 March 2022
• Docket Number: 21AP-13
• Citation: 187 N.E.3d 582
• Parties: Tracey HARRIS, Plaintiff-Appellant, v. Shawn CUNIX, Defendant-Appellee.
• Court: Ohio Court of Appeals

187 N.E.3d 582

Tracey HARRIS, Plaintiff-Appellant,

v.Shawn CUNIX, Defendant-Appellee.

No. 21AP-13

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on March 17, 2022

On brief: Law Offices of F. Benjamin Riek III, and F. Benjamin Riek III, Akron, for appellant. Argued: F. Benjamin Riek III.

On brief: Dinsmore & Shohl LLP, Jan E. Hensel and Jacqueline N. Rau, Columbus, for appellee. Argued: Jan E. Hensel.

DECISION

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 R.C. 4112.02(J). On June 8, 2020, appellee moved to dismiss the complaint pursuant to Civ.R. 12(B)(6).

{¶ 4} On August 13, 2020, appellant, without first seeking leave from the trial court, filed an amended complaint adding an R.C. 2307.60(A)(1) civil claim for damages arising from various criminal acts.¹ Specifically, appellant alleged that appellee's conduct in June and December 2014 constituted criminal assault, menacing by stalking, gross sexual imposition, and sexual imposition. On September 10, 2020, appellee filed a motion to strike appellant's amended complaint, arguing that the R.C. 2307.60(A)(1) claim was time-barred by the one-year statute of limitations set forth in R.C. 2305.11(A). On September 18, 2020, appellant filed a response, arguing that the six-year statute of limitations in R.C. 2305.07 governed her claim. On September 25, 2020, appellee filed a reply reiterating his claim that the one-year statute of limitations in R.C. 2305.11(A) barred appellant's claim. On October 13, 2020, appellant filed a motion to amend the complaint, along with an amended complaint identical to that filed on August 13, 2020.

{¶ 5} In a decision and entry filed December 10, 2020, the trial court found appellant's proposed amendment adding a new claim under R.C. 2307.60(A)(1) to be futile as "[p]ersuasive authority establishes that R.C. 2307.60 is a penalty statute subject to a one-year statute of limitations under R.C. 2305.11(A)." (Dec. 10, 2020 Decision & Entry at 2.) Accordingly, the court denied appellant's motion to amend the complaint and granted appellee's motion to strike the amended complaint. The trial court also granted appellee's Civ.R. 12(B)(6) motion to dismiss appellant's complaint and dismissed the case with prejudice.

{¶ 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 R.C. 2307.60(A)(1) is a penalty statute subject to the one-year statute of limitations in R.C. 2305.11(A). The trial court discussed the statute of limitations issue in the portion of its decision and entry addressing appellant's motion to amend her complaint and appellee's motion to strike appellant's amended complaint. Upon determining that appellant's R.C. 2307.60(A)(1) claim was barred by the one-year statute of limitations set forth in R.C. 2305.11(A), the court denied appellant's motion to amend her complaint to add that claim and granted appellee's motion to strike appellant's amended complaint. As a result, appellant's complaint alleged only a sex discrimination claim under R.C. 4112.02(J), which was the only claim subject to appellee's motion to dismiss. At oral argument before this court, appellant conceded that she was not challenging the dismissal of her complaint. Consequently, we will consider appellant's arguments as challenging the trial court's decision denying her motion to amend her complaint and granting appellee's motion to strike her amended complaint based upon persuasive authority establishing that R.C. 2307.60(A)(1) is a penalty statute subject to the one-year statute of limitations in R.C. 2305.11(A).

{¶ 8} Civ.R. 15(A) provides for amendment of pleadings by leave of court or by written consent of the opposing party after a responsive pleading has been made. Leatherwood v. Medco Health Solutions of Columbus , 10th Dist. No. 13AP-242, 2013-Ohio-4780, 2013 WL 5808410, ¶ 10. A motion to amend a complaint generally may be denied if there is a finding of bad faith, undue delay, or prejudice. Id. , citing Hoover v. Sumlin , 12 Ohio St.3d 1, 8, 465 N.E.2d 377 (1984). In addition, a motion to amend a complaint may be denied if the amendment would be futile. Natl. City Bank v. Citizens Natl. Bank , 2d Dist. No. 20323, 2004-Ohio-6060, 2004 WL 2588182, ¶ 26, citing Central Motors Corp. v. Pepper Pike , 9 Ohio App.3d 18, 20-21, 457 N.E.2d 1178 (8th Dist.1983). An appellate court reviews a decision to grant or deny a motion to amend a complaint for an abuse of discretion. Townsend v. Ohio Dept. of Transp. , 10th Dist. No. 11AP-672, 2012-Ohio-2945, 2012 WL 2467047, ¶ 34, citing Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co. , 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). In addition, a trial court's decision to grant or deny a motion to strike is also subject to an abuse of discretion standard of review. KeyBank Natl. Assn. v. Columbus Campus, LLC , 10th Dist., 2013-Ohio-1243, 988 N.E.2d 32, ¶ 68, citing Douglass v. Salem Community Hosp. , 153 Ohio App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107, ¶ 20 (7th Dist.) ; see also Padula v. Wagner , 9th Dist., 2015-Ohio-2374, 37 N.E.3d 799, ¶ 35 (trial court did not abuse its discretion in granting motion to strike amended complaint).

{¶ 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, 118 N.E.3d 224, ¶ 12 ; State v. Beavers , 10th Dist. No. 11AP-1064, 2012-Ohio-3654, 2012 WL 3291833, ¶ 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, 2020 WL 5250484, ¶ 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, 2021 WL 5446416, ¶ 50, citing Haskins v. 7112 Columbia, Inc. , 7th Dist., 2016-Ohio-5575, 69 N.E.3d 1150, ¶ 15. See also Potter v. Cottrill , 4th Dist. No. 11CA685, 2012-Ohio-2417, 2012 WL 1964921, ¶ 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 R.C. 2307.60(A)(1) is a penalty statute and that claims brought thereunder are subject to the one-year statute of limitations in R.C. 2305.11(A). Appellant maintains that R.C. 2307.60(A)(1) is a remedial statute; thus, claims brought pursuant to that statute are subject to the six-year statute of limitations in R.C. 2305.07(B). Thus, argues appellant, her R.C. 2307.60(A)(1) claim was timely filed and the trial court erred in finding otherwise.

{¶ 11} R.C. 2307.60(A)(1) provides that "[a]nyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney's fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code." The statute does not contain a limitations period of its own, nor has the Supreme Court of Ohio or this court specifically addressed the limitations issue.

{¶ 12} As noted above, the statutes of limitation at issue are R.C. 2305.11(A), which provides in relevant part that "an action upon a statute for a penalty or forfeiture shall be commenced within one year after the cause of action accrued," and R.C. 2305.07(B), which states that "[a]n action upon a liability created by statute other than a forfeiture or penalty shall be brought within six years after the cause of action accrued." In finding appellant's proposed amendment adding an R.C. 2307.60 claim to be futile, the trial court essentially concluded that R.C. 2307.60 is penal, rather than remedial, rendering appellant's claim subject to the one-year statute of limitations in R.C. 2305.11(A). In support, the trial court cited two cases from the ...