Ramudit v. Fifth Third Bank, 2005 Ohio 374 (OH 2/4/2005)

• Court: Ohio Supreme Court
• Writing for the Court: Doan
• Citation: Ramudit v. Fifth Third Bank, 2005 Ohio 374 (OH 2/4/2005), 2005 Ohio 374, Appeal No. C-030941. (Ohio Feb 04, 2005)
• Decision Date: 04 February 2005
• Docket Number: Appeal No. C-030941.
• Parties: Goomtie Ramudit, Plaintiff-Appellant, v. Fifth Third Bank, Defendant-Appellee, and Ohio Civil Rights Commission, Defendant.

Page 1

2005 Ohio 374

Goomtie Ramudit, Plaintiff-Appellant, v. Fifth Third Bank, Defendant-Appellee, and Ohio Civil Rights Commission, Defendant.

Appeal No. C-030941.

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: February 4, 2005.

Civil Appeal From Hamilton County Court of Common Pleas, Trial No. A-0101789.

Reversed and Cause Remanded.

Croskery & Associates Co., L.P.A., and Robert F. Croskery, for Plaintiff-Appellant,

Keating, Muething & Klekamp, PLL, David K. Montgomery and Mark J. Chumley, for Defendant-Appellee.

OPINION.

DOAN

,

Judge

.

{¶1} Plaintiff-appellant, Goomtie Ramudit, filed a charge of discrimination with the Ohio Civil Rights Commission in which she alleged that defendant-appellee, Fifth Third Bank, had disciplined her on the basis of her national origin. Subsequently, the commission issued a decision finding that it was "not probable" that Fifth Third had "engaged in practices unlawful under Section 4112, Ohio Revised Code" and dismissing the case.

{¶2} Ramudit then filed a two-count complaint against Fifth Third in the court of common pleas. Count one of the complaint alleged that Fifth Third had wrongfully discharged Ramudit from her employment in violation of public policy because she had refused to engage in illegal activities. Specifically, she contended that she was fired because she objected to making an illegal accounting entry in relation to a bond transaction. Count two of the complaint was an appeal from the decision of the civil rights commission pursuant to R.C. 4112.06.

{¶3} Fifth Third moved to dismiss count two of the complaint for lack of subject-matter jurisdiction because Ramudit had never served the complaint on the civil rights commission as required by R.C. 4112.06(B). In response, Ramudit filed a motion for leave to amend her complaint to change count two from an appeal of the decision of the civil rights commission to a cause of action for national-origin discrimination pursuant to R.C. 4112.99. She also asked the court to overrule as moot Fifth Third's motion to dismiss.

{¶4} The trial court granted Fifth Third's motion to dismiss count two as originally pleaded because of a lack of jurisdiction. The dismissal was without prejudice because Civ.R. 41(B)(4) provides that a dismissal for lack of jurisdiction "shall operate as a failure otherwise than on the merits." The court withheld its decision on Ramudit's motion for leave to amend her complaint until it received further memoranda from the parties on the issue of collateral estoppel and "the nature of the dismissal under Civil Rule 41."

{¶5} Fifth Third then filed a memorandum in which it alleged that the trial court should have dismissed count two of Ramudit's complaint with prejudice. It argued that because Ramudit's appeal of the commission's decision was not properly initiated within thirty days as required by R.C. 4112.06(B) and (H), her appeal was time-barred and could never be refiled. Fifth Third also argued that a dismissal with prejudice of that claim was res judicata and barred any other cause of action based upon the same transaction or occurrence. It contended that because Ramudit's cause of action for discrimination pursuant to R.C. 4112.99 was based on the same underlying allegations as the appeal under R.C. 4112.06, that cause of action was barred, and the trial court should therefore overrule her motion to amend her complaint.

{¶6} The trial court found Fifth Third's arguments to be persuasive and dismissed count two of the complaint with prejudice. It also denied Ramudit's motion to amend the complaint, ruling that the decision of the civil rights commission was final and conclusive before Ramudit filed her motion for leave to amend, and the issue was, therefore, res judicata.

{¶7} Ramudit filed a motion for reconsideration of the denial of her motion for leave to amend her complaint. In the alternative, she asked the court to amend its order by adding the language "there is no just cause for delay" to permit an appeal pursuant to Civ.R. 54. The court never ruled on this motion. Subsequently, the trial court granted Fifth Third's motion for summary judgment on count one of Ramudit's complaint, her cause of action for wrongful discharge. This appeal followed.

{¶8} Ramudit presents four assignments of error for review. Because her first two assignments of error are closely related, we consider them together. In her first assignment of error, she contends that the trial court erred in "dismissing with prejudice a cause of action for employment discrimination under 4112.99 O.R.C. under the theory that failure to serve the Ohio Civil Rights Commission on an appeal from an adverse decision was `res judicata' when in fact, 4112.99 is, by statute, an allowed alternative theory." In her second assignment of error, she states that the trial court erred in overruling her motion to reconsider its dismissal of her cause of action for employment discrimination. In reality, she is arguing that the trial court erred in overruling her motion for leave to amend her complaint. Though these assignments of error are inartfully phrased, we find them to have merit.

{¶9} First, the record clearly shows that the trial court did not dismiss Ramudit's employment-discrimination claim under R.C. 4112.99, as she argues. It dismissed her appeal of the civil rights commission's decision pursuant to R.C. 4112.06 because she had failed to serve the civil rights commission as the statute required. That failure deprived the court of subject-matter jurisdiction to hear the appeal. See Donn, Inc. v. Ohio Civ. Rights Comm. (1991), 68 Ohio App.3d 561, 564-565, 589 N.E.2d 110; Cleveland v. Ohio Civ. Rights Comm. (1988), 43 Ohio App.3d 153, 154-158, 540 N.E.2d 278; Westinghouse Credit Corp. v. Ohio Civ. Rights Comm. (Apr. 11, 1984), 1st Dist. No. C-830481. Consequently, the trial court did not err in dismissing Ramudit's appeal under R.C. 4112.06.

{¶10} The question becomes, then, whether the court should have dismissed the appeal with prejudice. Civ.R. 41(B)(4) clearly states that a dismissal for lack of jurisdiction is a "failure otherwise than on the merits." A successful motion to dismiss for lack of jurisdiction will normally result in an order dismissing the action, but should not prejudice the plaintiff's action on the merits or the plaintiff's right either to seek leave to amend the complaint or to file another complaint. Jurko v. Jobs Europe Agency (1975), 43 Ohio App.2d 79, 87-88, 334 N.E.2d 478; Interior Services, Inc. v. Iverson, 1st Dist. No. C-020501, 2003-Ohio-1187, ¶25.

{¶11} But when the court determines that no further allegations or statements of fact consistent with the pleadings could cure the defect, it may, in its discretion, dismiss the cause of action with prejudice. Tri-State Computer Exchange, Inc. v. Burt, 1st Dist. No. C-020345, 2003-Ohio-3197, ¶26. Because Ramudit's appeal from the commission's decision was not properly initiated through filing and proper service within thirty days as required by R.C. 4112.06(H), the appeal was time-barred. See Ramsdell v. Ohio Civ. Rights Comm. (1990), 56 Ohio St.3d 24, 27-28, 563 N.E.2d 285. Therefore, the defect could not be cured, and the trial court did not err in dismissing Ramudit's appeal under R.C. 4112.06 with prejudice.

{¶12} Nevertheless, after the court dismissed Ramudit's appeal pursuant to R.C. 4112.06, it also denied her leave to amend her complaint to add a cause of action for national-original discrimination pursuant to R.C. 4112.99. That denial presents a completely separate issue from whether the court properly dismissed the appeal under R.C. 4112.06 with prejudice.

{¶13} Civ.R. 15(A) provides that "[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served * * *. Otherwise a party many amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires." The decision whether to grant leave to file an amended complaint lies within the trial court's discretion. Hoover v. Sumlin (1984), 12 Ohio St.3d 1, 6, 465 N.E.2d 377, modified on other grounds by Jim's Steakhouse, Inc. v. Cleveland, 81 Ohio St.3d 18, 1998-Ohio-440, 688 N.E.2d 506.

{¶14} Nevertheless, the language of Civ.R. 15(A) favors a liberal amendment policy. A court should grant a motion for leave to amend absent a finding of bad faith, undue delay, or undue prejudice to the opposing party. Id. The trial court abuses its discretion in denying a timely filed motion seeking leave to file an amended complaint "where it is possible that the plaintiff, by an amended complaint, may set forth a claim upon which relief can be granted and no reason otherwise justifying denial of the motion is disclosed." Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 297 N.E.2d 113, paragraph six of the syllabus; Boyd, v. Winton Hills Med. and Health Ctr., Inc. (1999), 133 Ohio App.3d 150, 160, 727 N.E.2d 137.

{¶15} The trial court denied Ramudit's motion for leave to amend her complaint under the theory that the decision of the civil rights commission was res judicata. That reasoning was erroneous.

{¶16} Ramudit relies upon Smith v. Friendship Village of Dublin, 92 Ohio St.3d 503, 2001-Ohio-1272, 751 N.E.2d 1010. In that case, the Ohio Supreme Court held that "in light of our obligation to liberally construe R.C. Chapter 4112, R.C. Chapter 4112's goal of providing `a variety of remedies,' and in the absence of an express legislative expression imposing an election requirement, we hold that the filing of an unlawful discriminatory practice charge with the Ohio Civil Rights Commission under R.C. 4112.05(B)(1) does not preclude a person alleging handicap discrimination from instituting an independent civil action under R.C. 4112.99." Id. at 507, 751 N.E.2d 1010.

{¶17} Ramudit argues that the same logic applies to statutes...