Doe v. Catholic Diocese of Cleveland ( 2004 )

JOURNAL ENTRY and OPINION {¶ 1} In this consolidated appeal, plaintiff-appellant Jane B. Doe ("Doe") appeals the trial court's transfer and reassignment of her case to two different judges, claiming that the orders transferring the case failed to state the reason for the transfers. She also appeals the trial court's subsequent decision to dismiss the case based on the statute of limitations. She further appeals two nunc pro tunc journal entries, wherein the administrative judge provided reasons for the reassignments and the denial of Doe's motion for relief from judgment. Finding no merit to the appeals, we affirm.

{¶ 2} In her complaint, Doe alleged that she was sexually abused by Father Wernet between 1962 and 1966. She moved out of state as a child and heard nothing more about Father Wernet until she watched "60 Minutes" in 2002, when she claims she discovered that Father Wernet had molested other children. Based on this information, she claims she learned that the Catholic Diocese of Cleveland ("the Diocese") and St. Joseph Church ("the Church") knew or should have known that Wernet was likely to abuse her. Thus, she argues that the statute of limitations on her claims against the Diocese and the Church did not start to run until she discovered this information in 2002. Accordingly, she seeks to hold the Diocese and the Church liable on a negligence theory.

{¶ 3} Doe filed her complaint on November 12, 2002, and the case was randomly assigned to Judge Nancy Fuerst. On January 28, 2003, Judge Fuerst conducted a case management conference, at which time counsel for the Diocese disclosed that he had had an attorney-client relationship with Judge Fuerst's husband and his firm Burke, Rosen Associates. Judge Fuerst indicated that she would, therefore, grant a motion for recusal. After Doe's counsel filed a motion for recusal, Judge Fuerst recused herself and the administrative judge reassigned the case to Judge Nancy McDonnell, "for good cause." Judge McDonnell, however, also recused herself, and the underlying case was reassigned to Judge Nancy Margaret Russo, again with an entry by the administrative judge stating the transfer was "for good cause."

{¶ 4} In the meantime, the Diocese filed a motion to dismiss, which Judge Russo granted and Doe appealed. However, on May 7, 2003, this court remanded the case (Case No. 82542) to the common pleas court to allow a ruling on Doe's Civ.R. 60(B)(5) motion, which she had filed with Administrative Judge Richard McMonagle.

{¶ 5} Doe's counsel informed Judge McMonagle that the case had been remanded and asserted that the case should be reassigned to a judge who was not a member of the Diocese. Judge McMonagle met with counsel for both parties, heard arguments, and indicated that (1) because he was not the assigned judge, he could not rule on Doe's Civ.R. 60(B) motion, (2) he could not reassign the case from the assigned judge to a non-Catholic judge, (3) the case had been randomly assigned to Judge Fuerst and then Judge McDonnell, and (4) he was going to enter nunc pro tunc journal entries providing specific reasons for the reassignments. The nunc pro tunc entries were journalized on May 15, 2003. On May 20, 2003, Judge Russo filed a journal entry striking Doe's Civ.R. 60(B) motion because it was not filed with the assigned judge.

{¶ 6} Doe then appealed Judge McMonagle's journal entries and Judge Russo's order (Case No. 83021). She also filed her second motion for remand to return Case No. 82542 to the trial court. This court again remanded the case, but the trial court found there were no active motions to review.

{¶ 7} This court consolidated the two appeals, in which Doe raises five assignments of error.

Nunc pro tunc Entries {¶ 8} In her first assignment of error in Case No. 83021, Doe argues the administrative judge erred when he issued nunc pro tunc journal entries providing explanations for the previously entered orders reassigning the case. Doe argues the trial court had no jurisdiction to issue the nunc pro tunc journal entries because Doe's appeal divested the trial court of all jurisdiction inconsistent with that of the appeals court to modify, reverse, affirm, or review its judgment. Doe also argues that the nunc pro tunc journal entries did not eliminate the improprieties of the two earlier journal entries because Civ.R. 60(A) authorizes only the correction of clerical mistakes and does not permit substantive changes in orders.

{¶ 9} In McGowan v. Giles (Mar. 16, 2000), Cuyahoga App. No. 76332, this court held:

{¶ 10} "The purpose of a nunc pro tunc entry ``is restricted to placingupon the record evidence of judicial action which has been actually taken'and ``it can be exercised only to supply omissions in the exercise offunctions that are clerical merely.' Jacks v. Adamson (1897),56 Ohio St. 397, 402, 47 N.Ed. 48; ``The function of nunc pro tunc is notto change, modify, or correct erroneous judgments, but merely to have therecord speak the truth.' Ruby v. Wolf (1931), 39 Ohio App. 144,177 N.E. 240 (Emphasis added.); Dentsply Internatl., Inc. v. Kostas(1985), 26 Ohio App.3d 116, 498 N.E.2d 1079. See, also, Pepera v. Pepera(March 26, 1987), Cuyahoga App. Nos. 51989, 52024, unreported (A courtmay not by way of a nunc pro tunc entry, enter of record that which itintended or might have made but which in fact was not made.)"

{¶ 11} Id., quoting Myers v. Shaker Heights (June 7, 1990), Cuyahoga App. Nos. 57005 and 58056.

{¶ 12} Civ.R. 60(A) provides:

{¶ 13} "(A) Clerical Mistakes. Clerical mistakes in judgments, ordersor other parts of the record and errors therein arising from oversight oromission may be corrected by the court at any time on its own initiativeor on the motion of any party and after such notice, if any, as the courtorders. During the pendency of an appeal, such mistakes may be socorrected before the appeal is docketed in the appellate court, andthereafter while the appeal is pending may be so corrected with leave ofthe appellate court."

{¶ 14} The proper application of Civ.R. 60(A), along with a definition of "clerical mistake," can be found in the case of Dentsply v.Internatl. Inc. v. Kostas (1985), 26 Ohio App.3d 116, wherein this court stated:

{¶ 15} "It is axiomatic that a court has the power to correct aclerical error pursuant to Civ.R. 60(A). However, this rule is applied toinadvertent clerical errors only, * * * and cannot be used to changesomething which was deliberately done. * * * [T]he nunc pro tunc entrymade does not reflect a modification of an erroneous judgment but rathersupplies omissions of a clerical nature which serve to have the recordspeak the truth." (Citations omitted).

{¶ 16} As used in Civ.R. 60(A), a "clerical mistake" is a type of mistake or omission mechanical in nature which is apparent on the record and which does not involve a legal decision or judgment by an attorney. In other words, a correction may add additional information to clarify a prior order but should not change the substance of the original journal entry.

{¶ 17} Further, App.R. 9(E) states, in pertinent part:

{¶ 18} "If any difference arises as to whether the record trulydiscloses what occurred in the trial court, the difference shall be * * *settled by that court and the record made to conform to the truth. Ifanything material to either party is omitted from the record by error oraccident or is misstated therein, the parties by stipulation, or thetrial court, either before or after the record is transmitted to thecourt of appeals, * * * may direct that the omission or misstatementstatement be corrected * * *."

{¶ 19} Thus, even while a case is pending on appeal, the trial court retains jurisdiction to enter nunc pro tunc orders so that the record will conform to what occurred in the trial court. State v. Hankerson (Aug. 5, 1981), Hamilton App. No. C-800542.

{¶ 20} In the instant case, the nunc pro tunc entries do not change the substance of the previous orders which reassigned the case from one judge to another due to recusal. The nunc pro tunc entries simply add additional information concerning what happened in the trial court that necessitated the reassignments. Doe does not dispute that the entries accurately reflect what happened. She sought the first recusal and provided the reason for the first reassignment. Therefore, the trial court had jurisdiction to enter the nunc pro tunc entries and we find the entries were proper. Accordingly, Doe's first assignment of error in Case No. 83021 is overruled.

{¶ 21} In her first assignment of error in Case No. 82542, Doe argues that the administrative judge erred in reassigning the case without stating a justifiable reason for the transfers. Our disposition of the previous assignment of error renders this argument moot. Because the nunc pro tunc entries stated the reason for the transfer, we overrule this assignment of error.

Motion to Dismiss {¶ 22} In her second and third assignments of error in Case No. 82542, Doe argues that the court erred in granting the motion to dismiss.

{¶ 23} In order for a court to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief may be granted, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. O'Brien v.University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245. Additionally, in construing a complaint upon a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988),40 Ohio St.3d 190, 192.

{¶ 24} "``A Civ.R.12(B)(6) motion to dismiss based upon a statute oflimitations should be granted only where the complaint conclusively showson its face that the action is so barred.' Helman v. EPL Prolong, Inc.,139 Ohio App.3d 231, 241, 2000-Ohio-2593, 743 N.E.2d 484, quoting Velottav. Petronzio, Inc. (1982), 69 Ohio St.2d 376, 379, 433 N.E.2d 147."Kennedy v. Heckard, Cuyahoga No. 80234, 2002-Ohio-6085.

{¶ 25} The Diocese and the Church argued in their motion to dismiss that Doe's claims were barred by the two-year statute of limitations set forth in R.C. 2305.10. However, Doe asserts that her claim is not time-barred because the statute of limitations was tolled until she learned she had a negligence claim against them after watching an episode of "60 Minutes." Thus, she maintains the statute of limitations was tolled until she acquired actual knowledge that she had a claim against the Church and the Diocese. Claims of negligence for failing to protect a child victim from "sexual behavior" are subject to R.C. 2305.10, i.e., a two-year statute of limitations. Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, 537. However, pursuant to R.C. 2305.16, this statute is not triggered until the child victim reaches the age of eighteen.

{¶ 26} In First United, supra at 538, the Ohio Supreme Court held that as long as a plaintiff "knows the identity of the perpetrator and is fully aware of the fact that a battery has occurred," the statute of limitations for a sexual abuse case begins to run when the plaintiff reaches age 18. Because the plaintiff in First United knew the identity of the perpetrator and was aware that a battery occurred, the court held that his claims against the church and the school that employed the abuser were barred because the plaintiff failed to bring his action within two years after he reached the age of majority. Id. at 539-540.

{¶ 27} In the instant case, Doe alleged in her complaint that she knew the identity of the perpetrator, was aware that a battery occurred, and knew that she could have taken legal action against the perpetrator. According to the complaint, she reached the age of majority 28 years ago. However, she argues that because she alleged that she did not have actual knowledge that she had any legal claim against the Church and the Diocese until she watched "60 Minutes," the statute of limitations was tolled. We disagree.

{¶ 28} The Ohio Supreme Court has held that "the discovery rule applies in Ohio to toll the statute of limitations where a victim of childhood sexual abuse represses memories of that abuse until a later time." Ault v. Jasko (1994), 70 Ohio St.3d 114, 117. Thus, in the absence of repressed memory, the limitations period begins to run when a plaintiff reaches 18 years of age. Livingston v. Diocese of Cleveland (1998), 126 Ohio App.3d 299, 303, appeal not allowed (1998),82 Ohio St.3d 1412 (holding that discovery rule tolls statute of limitations in child sexual abuse cases only where plaintiff represses memories of abuse); Doe v. Rupp (Jan. 29, 1998), Cuyahoga App. Nos. 71938 72966 (holding that where plaintiff knew he had been abused, knew the identity of the perpetrator, and thus knew the possibility of Diocesan negligence in failing to protect him, statute of limitations is not tolled).

{¶ 29} In the instant case, because Doe does not allege that she repressed memories of the alleged abuse, the statute of limitations was not tolled but expired over 26 years ago. Therefore, the trial court properly dismissed the complaint as barred by the statute of limitations.

{¶ 30} Additionally, this court considered a similar case involving the same defendants and alleging the same type of abuse by the same individual during relatively the same time period. See Livingston, supra. This court determined that the action was time-barred because there was no evidence of repressed memory and thus the statute of limitations was not tolled. Much like the instant case, Doe makes no claim of repressed memory in her complaint and ignores that she had a duty to exercise reasonable diligence to determine whether she had a claim. Accordingly, we are obliged to follow Livingston and thus conclude that Doe's claims are time-barred.

{¶ 31} Doe places great reliance on Norgard v. Brush Wellman, Inc.,95 Ohio St.3d 165, 2002-Ohio-2007. In Norgard, the plaintiff developed a rash while at work, and years later, was diagnosed with chronic beryllium disease, a debilitating and sometimes fatal lung disease, caused by exposure to beryllium. Three years later, Norgard read an article about beryllium lawsuits against his employer and filed a lawsuit alleging that the employer withheld information about the causes of beryllium-related diseases, knew its air samples were inaccurate, and had faulty ventilation equipment.

{¶ 32} The Ohio Supreme Court held that the cause of action based upon the employer's intentional tort accrued when the employee discovered, or by the exercise of reasonable diligence should have discovered, the workplace injury and the wrongful conduct of the employer. Thus, the court found the statute of limitations had tolled because it found the employee did not know and had no reason to know that any wrongful conduct had occurred.

{¶ 33} Moreover, the Norgard court further explained that any discovery rule "must be specially tailored to the particular context to which it is to be applied." Norgard at 167. The Norgard court found that if the victim is aware that wrongful conduct has occurred, the limitations period is not tolled.

{¶ 34} Unlike the plaintiff in Norgard, Doe knew wrongful conduct had occurred because she admitted in her complaint that she knew she was abused and she knew the identity of the perpetrator. However, she failed to exercise reasonable diligence to discover whether the Church and the Diocese were also guilty of wrongful conduct.

{¶ 35} Accordingly, the second and third assignments of error in Case No. 82542 are overruled.

Civ.R. 60(B)(5) Motion {¶ 36} In her second assignment of error in Case No. 83021, Doe argues the trial court erred when it struck her Civ.R. 60(B) motion and denied it as moot. Judge Russo struck the Civ.R. 60(B) motion as "improperly filed" because it "was filed with the non-assigned judge." Doe explained that she filed the motion with the administrative judge's name in the caption because it was her position that the two reassignments were improper, and that the case was still pending before the administrative judge as a result of the subsequent recusal of Judge Fuerst.

{¶ 37} Clearly, Judge Russo had the authority to rule on the motion. Merely because the caption contains a different judge's name does not mean the motion is "not properly before the assigned judge." Thus, Judge Russo could have ruled on the motion and could have denied it.

{¶ 38} Nonetheless, because the motion to dismiss was properly granted, any error by Judge Russo in failing to rule on the Civ.R. 60(B) motion was harmless. This court's affirmance of the court's dismissal renders this assignment of error moot.

Judgment affirmed.

It is ordered that appellees recover of appellant the 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 Cuyahoga County Court of Common Pleas 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.

Sweeney, J.^* Concurs. Karpinski, J. Dissents (see separate Dissenting Opinion).

^* Sitting by assignment, Judge James D. Sweeney, Retired, of the Eighth District Court of Appeals.