[Cite as Jacobson-Kirsch v. Kaforey, 2013-Ohio-5114.]


STATE OF OHIO                    )                           IN THE COURT OF APPEALS
                                 )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

JOANN JACOBSON-KIRSCH                                        C.A. No.   26708

        Appellant

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
ELLEN C. KAFOREY                                             COURT OF COMMON PLEAS
                                                             COUNTY OF SUMMIT, OHIO
        Appellee                                             CASE No.   CV-2011-03-1655

                                DECISION AND JOURNAL ENTRY

Dated: November 20, 2013



        CARR, Judge.

        {¶1}    Appellant, Joann Jacobson-Kirsch, appeals the judgment of the Summit County

Court of Common Pleas that dismissed her complaint. This Court affirms.

                                                        I.

        {¶2}    The Summit County Probate Court appointed Attorney Ellen C. Kaforey to serve

as conservator for Ms. Jacobson-Kirsch for the purpose of assisting Ms. Jacobson-Kirsch in

making medical decisions for herself and her daughter. In 2001, Ms. Jacobson-Kirsch’s daughter

was admitted to Akron Children’s Hospital for a surgical procedure. During her stay, Ms.

Kaforey limited Jacobson-Kirsch’s visitation after her behavior caused concern. Ms. Kaforey

filed a conservator’s report that referenced the incident and testified accordingly during

permanent custody proceedings with respect to Ms. Jacobson-Kirsch’s daughter in 2002. Ms.

Jacobson-Kirsch observed that testimony and reviewed the probate file in 2002, when she

discovered the written report.
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       {¶3}    In 2011, Ms. Jacobson-Kirsch sued Ms. Kaforey for numerous claims related to

the conservatorship and the ultimate termination of her parental rights. Ms. Kaforey moved to

dismiss, alleging that she was immune with respect to statements made during judicial

proceedings; that civil liability could not be imposed for alleged violations of criminal statutes;

and that most of Ms. Jacobson-Kirsch’s claims were time barred. The trial court granted the

motion to dismiss in its entirety, and Ms. Jacobson-Kirsch appealed. This Court affirmed with

respect to most of her claims, but reversed with respect to her claim for interference with

parental interests. Jacobson-Kirsch v. Kaforey, 9th Dist. Summit No. 26107, 2012-Ohio-3553.

In doing so, this Court disagreed with the trial court’s conclusion that Ms. Jacobson-Kirsch had

not pleaded sufficient facts to constitute a claim for interference with parental interests under

R.C. 2307.50(B). Id. at ¶ 16. Because the trial court did not address Ms. Kaforey’s statute of

limitations argument with respect to that claim, it was beyond the scope of this Court’s decision

on appeal.

       {¶4}    Upon remand, Ms. Kaforey renewed her motion to dismiss the remaining claim as

time barred, arguing again that a claim for interference with parental interests falls under the

four-year statute of limitations under R.C. 2305.09.    Ms. Jacobson-Kirsch moved for leave to

amend the complaint to add her daughter Jessica as a plaintiff. The trial court denied the motion

for leave to amend and granted Ms. Kaforey’s motion to dismiss.             Ms. Jacobson-Kirsch

appealed. Her four assignments of error are rearranged for purposes of disposition.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE COURT ERRED IN DISMISSING MS. JACOBSON’S R.C. § 2307.50
       CIVIL PROCEEDING ON THE BASIS THAT THE PROCEEDING WAS
       BARRED BY THE FOUR YEAR STATUTE OF LIMITATIONS SET FORTH
       FOR “ORDINARY PROCEEDING” TORT ACTIONS IN R.C. 2305.09(D)
                                                  3


       RATHER THAN A “SPECIAL PROCEEDING” STATUTORY CLAIM
       SUBJECT TO NONE OF THE LIMITATIONS PERIODS PROVIDED IN R.C.
       CHAPTER 2305.

       {¶5}    In her first assignment of error, Ms. Jacobson-Kirsch has argued that the trial

court erred in its conclusion that her claim for interference with parental interests is subject to the

four-year limitations period set forth in R.C. 2305.09. Specifically, she has argued that claims

arising under R.C. 2307.50 are not “civil actions” and, as such, are not subject to any statute of

limitations. We disagree.

       {¶6}    Under R.C. 2305.03(A), a “civil action” that accrues in the State of Ohio must

commence within the limitations periods set forth in R.C. 2305.04 through R.C. 2305.22 unless

another limitations period is provided by statute. Early cases applying statutes of limitation now

codified in R.C. Chapter 2305 recognized a distinction between “civil actions,” which are subject

to the statutes, and “special proceedings,” which are not. See, e.g., State ex rel. Bd. of Edu. Of

Pickaway Twp. Rural Sch. Dist. v. Steeley, 21 Ohio App. 396 (4th Dist.1926). These cases

recognized that the statutes of limitation as adopted did not apply to proceedings excluded from

the denomination of “civil actions” when the distinction between actions at law and actions in

equity was abolished. Id. at 400. See also Chinn v. Trustees, 32 Ohio St. 236 (1877), paragraph

one of the syllabus (holding that actions in mandamus were not subject to the statute of

limitations because they were not “comprehended within the civil action of the code.”).

       {¶7}    Those “special proceedings” are actions specially created by statute that were not

denoted as actions at law or suits in equity before 1853. Wilhelm-Kissinger v. Kissinger, 129

Ohio St.3d 90, 2011-Ohio-2317, ¶ 6, quoting R.C. 2505.02(A)(2). The distinction between

ordinary actions and special proceedings is based on the character of the underlying action.

Walters v. Enrichment Center of Wishing Well, Inc., 78 Ohio St.3d 118, 120 (1997). The
                                                 4


distinction is not based on the particular claims that are pled. See, e.g., University Commons

Assoc. Ltd. v. Commercial One Asset Management, Inc., 8th Dist. Cuyahoga No. 85202, 2005-

Ohio-4568, ¶ 22 fn.8 (“Tort claims in Ohio were recognized at common law and they are not,

therefore, part of a special proceeding.”). An ordinary civil action for damages is not a “special

proceeding” merely because it asserts individual claims that are creatures of statute. Stevens v.

Ackman, 91 Ohio St.3d 182, 187-188 (2001) (concluding that a suit for wrongful death arising

under R.C. Chapter 2125 was “an ordinary civil action seeking damages” and not a special

proceeding.)

       {¶8}    R.C. 2307.50(B) permits “a civil action * * * to recover damages for interference

with the parental or guardianship interest.” The nature of this claim is an ordinary civil action

for damages and, as such, it is not brought in a special proceeding. Because R.C. 2307.50 does

not set forth a limitations period specific to these claims, we look to R.C. 2305.04 through R.C.

2305.22 to determine the appropriate statute of limitations. R.C. 2305.09(D) applies in this

instance:

       [A]n action for any of the following causes shall be brought within four years
       after the cause thereof accrued: * * * For an injury to the rights of the plaintiff not
       arising on contract nor enumerated in sections 1304.35, 2305.10 to 2305.12, and
       2305.14 of the Revised Code.

See also Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 179 (1989) (“R.C. 2305.09 provides a

general limitations period of four years for tort actions not specifically covered by other sections

of the Ohio Revised Code. General tort claims, including those for negligence, are governed by

R.C. 2305.09(D).”).

       {¶9}    At the latest, Ms. Jacobson-Kirsch’s claim accrued in 2002. She filed her civil

case in 2011, nine years later, and the trial court did not err by granting Ms. Kaforey’s motion to

dismiss on that basis. Ms. Jacobson-Kirsch’s first assignment of error is overruled.
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                                ASSIGNMENT OF ERROR III

       THE COURT ERRED IN ACCEPTING MS. KAFOREY’S ARGUMENT THAT
       THE FOUR YEAR LIMITATIONS PERIOD OF R.C. § 2305.09(D) WAS
       APPLICABLE TO INTERFERENCE WITH PARENTAL INTEREST CLAIM
       EVEN THOUGH THAT ARGUMENT WAS UNSUPPORTED WITH
       APPOSITE CITATION TO OHIO PRECEDENT.

                                ASSIGNMENT OF ERROR IV

       THE COURT ERRED IN FAILING TO READ OR DULY CONSIDER THE
       MOTIONS AND SUPPORTED ARGUMENT SUBMITTED BY MS.
       [JACOBSON-KIRSCH] INCLUDING MS. JACOBSON’S PENDING MOTION
       TO STAY WHEN THE COURT DISMISSED THE CASE 14 DAYS BEFORE
       OVERRULING     MS.    [JACOBSON-KIRSCH]’S   MOTION    FOR
       CLARIFICATION AND STAY.

       {¶10} In her third and fourth assignments of error, Ms. Jacobson-Kirsch argues that the

trial court erred by agreeing with the arguments in Ms. Kaforey’s motion to dismiss and,

conversely, by rejecting her arguments in opposition. This Court has concluded that the trial

court did not err in granting the motion to dismiss, however, so Ms. Jacobson-Kirsch’s third and

fourth assignments of error are overruled on that basis.

                                ASSIGNMENT OF ERROR II

       THE COURT ERRED IN DENYING MS. [JACOBSON-KIRSCH]’S MOTION
       TO JOIN HER DAUGHTER AS AN INDISPENSABLE PARTY AND PARTY
       NEEDED FOR A JUST ADJUDICATION PURSUANT TO CIV.R. 17 AND
       CIV.R. 19, THUS DENYING R.C. § 2305.16 TOLLING DUE TO MINORITY
       THAT COULD TOLL ANY OTHERWISE APPLICABLE STATUTES OF
       LIMITATION.

       {¶11} Ms. Jacobson-Kirsch’s second assignment of error argues that the trial court erred

by denying her motion for leave to amend her complaint to join her daughter as a plaintiff. We

disagree.

       {¶12} This Court reviews the denial of a motion for leave to amend a pleading for an

abuse of discretion. Wilmington Steel Products, Inc. v. Cleveland Elec. Illuminating Co., 60

Ohio St.3d 120, 122 (1991). The version of Civ.R. 15(A) that was in effect in 2012 provided
                                                 6


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 may 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.”   Because Civ.R. 15(A) expresses a preference for liberality with respect to

amendments, “a motion for leave to amend should be granted absent a finding of bad faith,

undue delay or undue prejudice to the opposing party.” Hoover v. Sumlin, 12 Ohio St.3d 1, 6

(1984). When a plaintiff requests leave to amend the complaint after a motion to dismiss has

been filed under the version of Civ.R. 15(A) at issue in this case, the request “raises the spectre

of prejudice.” State ex rel. N. Ohio Chapter of Associated Builders & Contrs., Inc. v. Barberton

City Schools Bd. of Edn., 188 Ohio App.3d 395, 2010-Ohio-1826, ¶ 28 (9th Dist.), quoting

Brown v. FirstEnergy Corp., 159 Ohio App.3d 696, 2005-Ohio-712, ¶ 6 (9th Dist.).

       {¶13} After this Court affirmed the trial court’s dismissal of most of Ms. Jacobson-

Kirsch’s claims, Ms. Kaforey moved for leave to renew her previously filed motion to dismiss

the remaining claim on statute of limitations grounds. The trial court granted that motion, and it

was not until that point that Ms. Jacobson-Kirsch moved for leave to amend the complaint. In

denying leave to amend, the trial court explained the context for its decision:

       On May 26, 2011, Jacobson sought Leave to Amend her Complaint, but failed to
       attach a proposed amended complaint. On that same date, the Court held a status
       hearing and granted her permission to attach the amended complaint, but she
       failed to do so. On August 8, 2011, the Court entered an order dismissing
       Plaintiff’s claims against Kaforey pursuant to Civ.R. 12(B)(6). Subsequently, on
       September 6, 2011, Plaintiff filed an appeal.

       ***

       Plaintiff’s leave to amend her complaint seeks to add additional claims on behalf
       of her daughter based on the exact same facts and circumstances that existed at
       the time the original Complaint was filed. Plaintiff seeks to amend her Complaint
       almost 1 1/2 years after it was originally filed, subsequent to the Court dismissing
       all of her claims, and after the Ninth District affirmed that dismissal as to all but
                                                7


       one of Plaintiff’s claims. The Court finds that Plaintiff’s Motion for Leave to
       Amend her Complaint is untimely. Further, the Court finds that granting Plaintiff
       leave would require Kaforey to re-litigate claims previously adjudicated. This,
       the Court finds, would be prejudicial and burdensome to Kaforey.

This Court has consistently held, under similar facts, that a trial court does not abuse its

discretion when it denies leave to amend a complaint after a motion to dismiss has been filed.

See, e.g., Brown, 159 Ohio App.3d at 700, 2005-Ohio-712, at ¶ 6 (concluding leave to amend

was properly denied two years after the complaint was originally filed and shortly after the

defendant moved the trial court to reconsider its motion to dismiss).         To do so in these

circumstances would permit a plaintiff to “sit by * * * and bolster up their pleadings in answer to

a motion[.]” Id., quoting Johnson v. Norman Malone & Assoc., Inc., 9th Dist. Summit No.

14142, 1989 WL 154763, * 10 (Dec. 20, 1989). In this case, we reach the same conclusion. An

amendment to the complaint after Ms. Kaforey renewed her motion to dismiss the only claim

remaining upon remand would have unduly prejudiced Ms. Kaforey, and the trial court did not

abuse its discretion by denying that motion.

       {¶14} Ms. Jacobson-Kirsch’s second assignment of error is overruled.

                                               III.

       {¶15} Ms. Jacobson-Kirsch’s assignments of error are overruled. The judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

JOANN JACOBSON-KIRSCH, pro se, Appellant.

STEVEN G. JANIK, AUDREY K. BENTZ, and NICHOLAS P. RESETAR, Attorneys at Law,
for Appellee.
