[Cite as Douglass v. Provia Door, Inc., 2013-Ohio-2853.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



DALE DOUGLASS                                              JUDGES:
                                                           Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                                Hon. John W. Wise, J.
                                                           Hon. Craig R. Baldwin, J.
-vs-
                                                           Case No. 2012 AP 05 0034
PROVIA DOOR, INC.

        Defendant-Appellee                                 OPINION




CHARACTER OF PROCEEDING:                               Civil Appeal from the Court of Common
                                                       Pleas, Case No. 2011 CT 04 0456


JUDGMENT:                                              Reversed and Remanded



DATE OF JUDGMENT ENTRY:                                June 28, 2013



APPEARANCES:

For Plaintiff-Appellant                                For Defendant-Appellee

VIVIANNE WHALEN                                        EVELYN P. SCHONBERG
Suite 206 Belden Village Tower                         ROSS, BRITTAIN & SCHONBERG
4450 Belden Village Street, NW                         6480 Rockside Woods Blvd., Suite 350
Canton, Ohio 44718                                     Cleveland, Ohio 44131
Tuscarawas County, Case No. 2012 AP 05 0034                                                2

Wise, J.

       {¶1}     Appellant Dales Douglass appeals the decision of the Tuscarawas County

Court of Common Pleas granting Appellee Provia Door, Inc.’s Civ.R. 12(B)(6) motion to

dismiss.

                         STATEMENT OF THE FACTS AND CASE

       {¶2}     In 1997, Appellee Provia Door, Inc. hired Appellant Dale Douglass as a

truck driver.

       {¶3}     Appellant was diagnosed with cancer and underwent two surgeries

between September, 2005 and March, 2006. (T. at 48). Following both surgeries,

Appellant returned to work. (T. at 48-49).

       {¶4}     On September 3, 2009, Appellant was laid-off.

       {¶5}     On April 27, 2011, Appellant filed a pro se Complaint alleging claims under

the Americans with Disabilities Act (ADA), state disability discrimination claims under

R.C. §4112.02 and wrongful discharge.

       {¶6}     The case was set for a bench trial to commence on April 12, 2012.

       {¶7}     Prior to trial, Appellee filed a Motion in Limine seeking preliminary rulings

on the untimeliness of Appellant's ADA claim and Appellant’s failure to state a claim

upon which relief can be granted under R.C. §4112.02.

       {¶8}     On the morning of the bench trial, the trial judge conducted a preliminary

hearing pursuant to Civ. Rule 12(D) and pursuant to Appellee's pending Motion in

Limine. (T. at 20-22).

       {¶9}     During the hearing, Appellant admitted to receiving notice that his ADA

action must be filed on or before December 15, 2010. (T. at 29-30).
Tuscarawas County, Case No. 2012 AP 05 0034                                                   3


         {¶10} Appellant stated: "I filed a retaliation claim and age discrimination with the

EEOC. American Disability Act never came into a factor. As a matter of fact, this lawsuit

is based on wrongful termination lawsuit. I wasn't involving American Disability." Id. at

33-34.

         {¶11} The following colloquy between the trial court and Appellant then ensued:

         {¶12} “THE COURT: Now, in your Complaint, let me read again paragraph 3, it

says, "I, myself, the Plaintiff, Dale Douglass, states that I can prove this company

terminated my position in violation of the ADA and the Ohio Disability Discrimination

laws." That clearly tells me as a lawyer that you are claiming that the Defendant violated

those laws in terminating you. I hear you telling me something very different now, Mr.

Douglass. I hear you saying that your claim against the Defendant today is on a

wrongful termination or wrongful discharge, not a wrongful termination or discharge

based on the ADA or 4112.02 of the Ohio Anti Discrimination laws. Am I correct or not?

         {¶13} “MR. DOUGLASS: You are correct, Your Honor.” (T. at 34-35).

         {¶14} During the hearing, the trial court found that Plaintiff “failed to state a claim

upon which relief can be granted relating to the ADA federal statute and relating to the

Anti Discriminatory state in Ohio law, 4112.02.” (T. at 36). In addition, the trial court held

that Appellee's Civ.R. 12(B)(6) defenses contained in its Answer at paragraphs 9 and 11

were well-taken, and dismissed both the ADA claim and the R.C. §4112.02 claims with

prejudice. (T. at 36-37).

         {¶15} The trial court then went on to hear argument as to Appellant’s wrongful

discharge claim from Appellee’s counsel and Appellant himself.

         {¶16} After hearing such arguments, the trial court held:
Tuscarawas County, Case No. 2012 AP 05 0034                                             4


      {¶17} “…I’ve already ruled that to the extent that your Complaint filed on April

27, 2011, asserted or alleged claims against Provia Door, Incorporated under the

Americans with Disabilities Act and the Ohio counterpart, the Ohio Disability Anti

Discrimination Law at 4112.02 of the Ohio Revised Code, Section 4112.02 of the

Revised Code, [sic] to the extent your Complaint at paragraph 3 or elsewhere alleges

claims under those two statutes, the federal statute and the state statute, I am

dismissing those claims for the reasons I’ve already indicated that they are time barred.

That is, that you have failed to timely assert those claims in your Complaint that you had

an obligation under law to have filed them earlier and did not.

      {¶18} “ …

      {¶19} “So, your sole recourse under the law when you are an employee at will is

within the unemployment compensation administration framework. The law does not

allow you to receive any compensation from the employer in this lawsuit for wrongful

termination because you have not invoked your right to compensation for wrongful

termination under any statute. The ADA and the Ohio Anti Discriminatory statutes we

talked about. I made rulings on those. If I had not ruled that you couldn’t recover under

those two statutes we would have a trial today where I would then make decisions of

fact and law determining whether you had proved that your were wrongfully terminated

under either the ADA of the Anti Discrimination Laws of Ohio. I made a ruling on that

barring you from seeking compensation on those claims for the reasons I’ve already

indicated.

      {¶20} “…
Tuscarawas County, Case No. 2012 AP 05 0034                                                5


       {¶21} “Okay. I’m ruling as a matter of law, not on the merits of whether you

should’ve been terminated or not, but on the law that you cannot seek compensation on

a wrongful discharge, what we call a civil tort. Like negligence, if I was involved in a

traffic crash with you and I was negligent in the operation of my motor vehicle causing

the crash and causing you injuries, you could sue and recover for my civil tort

negligence. However, there is no civil tort of wrongful discharge but there is statutory

recovery possible that I have eliminated in this case, the ADA and Ohio Anti

Discrimination, statute 4112.02, leaving you with no civil tort or cause of action under

the wrongful discharge, Dale.” (T. at 62-68).

       {¶22} The trial court memorialized its decision in writing by Judgment Entry filed

April 13, 2012, wherein in its Findings, the trial court stated:

       {¶23} “FINDS that after considering the legal arguments … Plaintiff is barred

from asserting the following claims against the Defendant:

       {¶24} “Claim for Monetary Damages under Americans with Disabilities Act

(A.D.A.)

       {¶25} “Claim     for   Monetary     Damages      under      R.C.   4112.02   (Unlawful

Discriminatory Practices)

       {¶26} “Wrongful Discharge

       {¶27} “FINDS that as a matter of law, the Statutory Claims of Plaintiff under the

A.D.A. and R.C. 4112.02 are time barred.

       {¶28} “FINDS that Plaintiff’s Wrongful Discharge Claim must be dismissed

because Plaintiff has failed to state a claim that is compensable under Civil Tort

Theory.”
Tuscarawas County, Case No. 2012 AP 05 0034                                             6


       {¶29} Following a motion by Appellee, the trial court filed a "nunc pro tunc" entry

which stated it was “correcting a clerical error on page two of the 4/13/2012 Judgment

Entry” and changed the reason for the dismissal of Appellant's claims pursuant to R.C.

§4112.02. The April 18, 2012, Judgment Entry states the claims under R.C. §4112 were

dismissed for failure to state a claim upon which relief may be granted. No reason was

given for the dismissal of the ADA claim. (See April 18, 2012, Judgment Entry at 3).

       {¶30} Appellant now appeals, assigning the following errors for review:

                                ASSIGNMENTS OF ERROR

       {¶31} “I. THE TRIAL COURT ERRED BY SUE (SIC) SPONTE DISMISSING

APPELLANT'S DISABILITY CLAIMS WITH PREJUDICE WITHOUT A TRIAL ON THE

MERITS.

       {¶32} “II. THE TRIAL COURT ERRED BY ISSUING A NUNC PRO TUNC

ORDER WHICH MATERIALLY ALTERED ITS ORIGINAL JUDGMENT ENTRY.”

                                               I.

       {¶33} In his First Assignment of Error, Appellant argues the trial court erred in

dismissing Appellant’ claims with prejudice. We agree.

       {¶34} Appellee herein filed a Motion in Limine, pursuant to Evid.R. 611(A), with

the trial court. In said motion, Appellee argued that Appellant’s ADA action was time-

barred and that only R.C. §4112.02 action remained. Appellee further requested that a

witness subpoena be quashed.

       {¶35} While Appellee did argue in its Motion in Limine that Appellant’s ADA was

untimely and should be dismissed, Appellee did not file a Motion to Dismiss pursuant to

Civ.R. 12(B)(6), or any other rule, with the trial court.
Tuscarawas County, Case No. 2012 AP 05 0034                                            7


      {¶36} The trial court, however, stated during its hearing that it was dismissing

both Appellant’s ADA and R.C. §4112 disability claims for failure to state a claim upon

which relief can be granted.

      {¶37} Civ.R. 12(B) provides that:

      {¶38} “[w]hen a motion to dismiss for failure to state a claim upon which relief

can be granted presents matters outside the pleading and such matters are not

excluded by the court, the motion shall be treated as a motion for summary judgment

and disposed of as provided in Rule 56. Provided, however, that the court shall consider

only such matters outside the pleadings as are specifically enumerated in Rule 56. All

parties shall be given reasonable opportunity to present all materials made pertinent to

such a motion by Rule 56.”

      {¶39} This Court reviews a trial court order granting a motion to dismiss

pursuant to Civ.R. 12(B)(6) under a de novo standard of review. Perrysburg Twp. v.

Rossford, 103 Ohio St.3d 79, 2004–Ohio–4362, ¶ 5, citing Cincinnati v. Beretta U.S.A.

Corp., 95 Ohio St.3d 416, 2002–Ohio-2480, ¶ 4–5. In reviewing a motion to dismiss, this

Court must accept as true all factual allegations in the complaint and all reasonable

inferences must be drawn in favor of the nonmoving party. Rossford at ¶ 5; Mitchell v.

Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). “To prevail on a Civ.R. 12(B)(6)

motion to dismiss, it must appear on the face of the complaint that the plaintiff cannot

prove any set of facts that would entitle him to recover.” Raub v. Garwood, 9th Dist. No.

22210, 2005–Ohio–1279, ¶ 4, citing O'Brien v. Univ. Community Tenants Union, 42

Ohio St.2d 242, 245 (1975). “When a motion to dismiss for failure to state a claim upon

which relief can be granted presents matters outside the pleading and such matters are
Tuscarawas County, Case No. 2012 AP 05 0034                                            8


not excluded by the court, the motion shall be treated as a motion for summary

judgment and disposed of as provided in Rule 56.” Civ.R. 12(B). Under those

circumstances, the trial court shall give the parties a reasonable opportunity to present

all pertinent Civ.R. 56 evidence. Id.

       {¶40} If a court converts a case from a motion to dismiss for failure to state a

claim to a summary judgment, it must provide all parties notice of its intent to do so at

least 14 days prior to the hearing on the motion. Petrey v. Simon, 4 Ohio St.3d 154, 447

N.E.2d 1285 (1983), paragraphs one and two of the syllabus.

       {¶41} Appellant claims that the trial court considered matters outside of the

Complaint. Thus, Appellant insists, the court converted a Civ.R. 12(B)(6) motion to a

summary judgment and failed to provide the requisite notice to the parties.

       {¶42} Appellant is correct. A reading of the Complaint does not support a finding

that Appellant’s disability claims pursuant to R.C. 4112 are time barred as being filed

outside of the applicable statute of limitations or that such fails to state a claim upon

which relief can be granted.

       {¶43} Consideration by the court of anything outside the four corners of the

complaint is improper when considering a Civ.R. 12(B)(6) motion. Reliance on such

evidence or allegations constitutes conversion of the motion to a motion for summary

judgment and triggers the notice requirement. Moreover, it appears that some of the

information relied upon by the trial court consisted of unsworn statements.

       {¶44} Appellant’s First Assignment of Error is sustained.

                                           II.
Tuscarawas County, Case No. 2012 AP 05 0034                                               9


       {¶45} In his Second Assignment of Error, Appellant argues the trial court erred in

issuing a Nunc Pro Tunc entry which materially altered the original judgment entry.

       {¶46} The purpose of a nunc pro tunc order is to have the judgment of the court

reflect its true action so that the record speaks the truth. In re Estate of Cook (1969), 19

Ohio St.2d 121, 127. The function of a nunc pro tunc order is not to change, modify, or

correct erroneous judgments, but merely to have the record speak the truth. Id. A trial

court may exercise its nunc pro tunc authority in limited situations to correct clerical

errors. However, a trial court may not use a nunc pro tunc entry to enter of record that

which it intended to or might have done but which in fact it did not do. McKay v. McKay

(1985), 24 Ohio App.3d 74; Webb v. W. Res. Bond & Share Co. (1926), 115 Ohio St.

247. See also State ex rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97; Pepera v.

Pepera (Mar. 26, 1987), Cuyahoga App. Nos. 51989 and 52024.

       {¶47} Here, we find that the trial court used the nunc pro tunc order to

purportedly correct its prior judgment entry. However, this modification is more than a

simple correction of a clerical error; rather, it substantially altered what the court

previously had entered and was far beyond the scope of correcting a clerical mistake.

Accordingly, we find that the nunc pro tunc entry was improper.
Tuscarawas County, Case No. 2012 AP 05 0034                                      10


       {¶48} Appellant’s Second Assignment of Error is sustained.

       {¶49} For the foregoing reasons, the decision of the Court of Common Pleas of

Tuscarawas County, Ohio, is reversed and this matter is remanded for further

proceeding consistent with the law and this opinion.


By: Wise, J.

Baldwin, J., concurs.

Hoffman, P. J., concurs in part and dissents in part.




                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                             JUDGES
JWW/d 0604
Tuscarawas County, Case No. 2012 AP 05 0034                                                 11

    Hoffman, P.J., concurring in part and dissenting in part

          {¶50} I concur in the majority’s analysis and disposition of Appellant’s second

    assignment of error.

          {¶51} I respectfully dissent from the majority’s disposition of Appellant’s first

    assignment of error.

          {¶52} While Appellee may not have filed a motion to dismiss Appellant’s R.C.

    4112.02 claim, Appellee did assert, in its Answer, Appellant failed to state a claim upon

    which relief can be granted. I would construe Appellee’s motion in limine as sufficient

    application to warrant the trial court proceeding with a Civ. R.12(D) hearing.

          {¶53} I find consideration of exhibits during argument on Appellee’s motion in

    limine does not overcome Appellant’s concession made therein, his claim at trial was

    not based on the ADA or R.C. 4112.02, and renders any procedural error regarding

    consideration of them of no consequence. Having conceded his claim was not based

    on ADA or R.C. 4112.02, Appellant is judicially estopped from now asserting otherwise

    and is also barred under the invited error doctrine.

          {¶54} Because Appellant has not separately assigned as error the dismissal of

    his common law wrongful termination claim, I would overrule Appellant’s first

    assignment of error and affirm the trial court’s dismissal of Appellant’s complaint.1


                                                    ________________________________
                                                    HON. WILLIAM B. HOFFMAN




1
    Such determination would render Appellant’s second assignment of error moot.
Tuscarawas County, Case No. 2012 AP 05 0034                                      12


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




DALE DOUGLASS                               :
                                            :
       Plaintiff-Appellant                  :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
PROVIA DOOR, INC.                           :
                                            :
       Defendant-Appellee                   :         Case No. 2012 AP 05 0034




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

       Costs assessed to Appellee.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
