Fitzgerald v. Cuyahoga ( 2012 )


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  • [Cite as Fitzgerald v. Cuyahoga, 
    2012-Ohio-2638
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 97772
    ARNETTA FITZGERALD
    PLAINTIFF-APPELLANT
    vs.
    COUNTY OF CUYAHOGA, ET AL.
    DEFENDANTS-APPELLEES
    JUDGMENT:
    AFFIRMED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-762300
    BEFORE: Kilbane, J., Blackmon, A.J., and Cooney, J.
    RELEASED AND JOURNALIZED:                          June 14, 2012
    ATTORNEY FOR APPELLANT
    Paul M. Kaufman
    801 Terminal Tower
    50 Public Square
    Cleveland, Ohio 44113-2203
    ATTORNEYS FOR APPELLEES
    William D. Mason
    Cuyahoga County Prosecutor
    Steven W. Ritz
    Assistant County Prosecutor
    3955 Euclid Avenue, Room 305E
    Cleveland, Ohio 44115
    MARY EILEEN KILBANE, J.:
    {¶1} This is an accelerated appeal brought pursuant to App.R. 11.1 and
    Loc.App.R. 11.1.
    {¶2} Plaintiff-appellant, Arnetta Fitzgerald (“Fitzgerald”), appeals the trial court’s
    order granting summary judgment in favor of defendants-appellees Cuyahoga County,
    Cuyahoga County Department of Children and Family Services (“CCDCFS”), Deborah
    Forkas, former director of CCDCFS, Alan Shubert, Jillian Blackwell, and Chararie
    Ragland (collectively referred to as “defendants”). Finding no merit to the appeal, we
    affirm.
    {¶3} The instant appeal arises out of the October 2009 death of Fitzgerald’s
    five-year-old grandson, Arshon Baker (“Baker”). Baker died as a result of being beaten
    by his mother, Angel Glass.
    {¶4} In October 2010, Fitzgerald, as administrator of her grandson’s estate, filed a
    complaint against CCDCFS for negligence and wrongful death.
    See Fitzgerald v. Cuyahoga Cty., Cuyahoga C.P. No. CV-10-738363 (prior case).
    Fitzgerald alleged that Baker was under the care and supervision of
    CCDCFS’s social workers, supervisors, and related staff. Fitzgerald alleged
    that CCDCFS failed to provide Baker with safe and acceptable social
    services care. Fitzgerald specifically alleged that as a result of CCDCFS’s
    negligent acts and/or omissions, Baker sustained injuries, which resulted in
    his death.
    Fitzgerald v. Cuyahoga Cty., 8th Dist. No. 96333, 
    2011-Ohio-3476
    , ¶ 4 (“Fitzgerald I”).
    {¶5} CCDCFS filed a motion to dismiss Fitzgerald’s complaint on the basis of
    governmental immunity.       In response to CCDCFS’s motion, Fitzgerald amended her
    complaint by adding a count for “bad faith, wanton misconduct and/or reckless behavior as
    stated in [R.C. 2744.03(A)(6)(b)].”       In response, CCDCFS argued that Fitzgerald’s
    amendment is futile because governmental immunity still applies, and the reckless and
    wanton conduct count failed to state a claim upon which relief could be granted.
    Fitzgerald then argued that the governmental immunity statute as applied to the case was
    unconstitutional. The trial court granted CCDCFS’s motion to dismiss the complaint, and
    Fitzgerald appealed to this court in Fitzgerald I.
    {¶6} On appeal, Fitzgerald argued that the trial court erred in granting CCDCFS’s
    motion to dismiss because R.C. 2744 is unconstitutional. In finding that Fitzgerald’s
    constitutional challenge is without merit, we noted that in O’Toole v. Denihan, 
    118 Ohio St.3d 374
    , 
    2008-Ohio-2574
    , 
    889 N.E.2d 505
    , ¶ 95, the Ohio Supreme Court refused to
    revisit the constitutionality of R.C. Chapter 2744 (where the court concluded that this issue
    is one that is settled). We concluded: “[g]iven that Fitzgerald is unable to prove any set
    of facts entitling her to relief, the trial court did not err in granting CCDCFS’s motion to
    dismiss the complaint.” Fitzgerald I at ¶ 10.
    {¶7} Then in August 2011, Fitzgerald refiled her complaint against defendants,
    again alleging that Baker was under the care and supervision of CCDCFS’s social
    workers, and supervisors.       She further alleged that under R.C. 2744.03(A)(6)(b),
    defendants were negligent because the service they provided Baker “constitutes omissions
    of the Defendants which were rendered in bad faith and/or wanton or a reckless manner.”
    In response, defendants filed a “motion for judgment on the pleadings and/or summary
    judgment” arguing res judicata, failure to state a claim, and governmental immunity under
    R.C. Chapter 2744. The trial court gave notice that it was treating the motion as a motion
    for summary judgment and gave Fitzgerald the opportunity to respond to defendants’
    motion.    Fitzgerald argued that the current complaint does not contain the same
    allegations as the first amended complaint in her prior case. The trial court granted
    defendants’ motion for summary judgment, stating that the order was final and there was
    no just reason for delay.
    {¶8} It is from this order that Fitzgerald appeals, raising the following single
    assignment of error for review.
    ASSIGNMENT OF ERROR
    The trial court erred in granting [defendant’s] motion for summary
    judgment.
    {¶9} In the sole assignment of error, Fitzgerald argues that there are numerous
    issues of material fact and res judicata does not apply because when the trial court
    dismissed the first amended complaint in the prior case, it did not adjudicate the issue of
    “wanton and willful” misconduct. We disagree.
    {¶10} In the instant case, Fitzgerald amended the complaint in her prior case by
    adding a count for “bad faith, wanton misconduct and/or reckless behavior as stated in
    [R.C. 2744.03(A)(6)(b)].”     The trial court dismissed the amended complaint, with
    prejudice, finding that Fitzgerald failed to state a claim upon which relief can be granted
    under Civ.R. 12(B)(6). The trial court further stated that:
    This court does recognize an exception to immunity based on claims for bad
    faith, wanton misconduct and/or reckless behavior. However, as argued by
    the defendants this court must decide whether the mere allegation of wanton
    and/or reckless misconduct is sufficient to state a claim for liability. The
    Ohio Supreme Court and this district’s court of appeals have held that mere
    allegations of wanton misconduct without any factual allegations are not
    sufficient to survive a motion to dismiss and that while a court has an
    obligation to accept factual allegations as true that obligation does not
    extend to unsupported legal conclusions. [Hodge v. Cleveland, 8th Dist.
    No. 72283, 
    1998 WL 742171
     (Oct. 22, 1998)]; see also [Byrd v. Faber, 
    57 Ohio St.3d 56
    , 
    565 N.E.2d 584
     (1991)]. [Fitzgerald] failed to allege any
    facts in the complaint that might constitute wanton or reckless conduct and
    rather simply stated legal conclusions.
    {¶11} We recognize that under the doctrine of res judicata, “[a] valid, final
    judgment rendered upon the merits bars all subsequent actions based upon any claim
    arising out of the transaction or occurrence that was the subject matter of the previous
    action.” Grava v. Parkman Twp., 
    73 Ohio St.3d 379
    , 
    1995-Ohio-331
    , 
    653 N.E.2d 226
    , at
    the syllabus.
    {¶12} Res judicata requires the plaintiff to present every ground for relief in the
    first action, or be forever barred from asserting it. Hempstead v. Cleveland Bd. of Edn.,
    8th Dist. No. 90955, 
    2008-Ohio-5350
    , ¶ 7. In order for a claim to be barred on the
    grounds of res judicata, the following four elements must be met: “‘(1) a prior final, valid
    decision on the merits by a court of competent jurisdiction; (2) a second action involving
    the same parties, or their privies, as the first; (3) a second action raising claims that were or
    could have been litigated in the first action; and (4) a second action arising out of the
    transaction or occurrence that was the subject matter of the previous action.’” Portage
    Cty. Bd. of Commrs. v. Akron, 
    109 Ohio St.3d 106
    , 
    2006-Ohio-954
    , 
    846 N.E.2d 478
    , ¶84,
    quoting Hapgood v. Warren, 
    127 F.3d 490
     (6th Cir.1997).
    {¶13} Here, we find that all four elements have been met.             The trial court
    dismissed the first amended complaint in Fitzgerald’s prior case with prejudice. The Ohio
    Supreme Court has found that a dismissal with prejudice is a final judgment for purposes
    of res judicata. Tower City Properties v. Cuyahoga Cty. Bd. of Revision, 
    49 Ohio St.3d 67
    , 69, 
    551 N.E.2d 122
     (1990). Furthermore, Fitzgerald’s complaint in the instant case
    alleges the same causes of action against the same defendants arising from the same
    incident — the death of her grandson. Count IV of Fitzgerald’s first amended complaint
    alleges claims for “bad faith, wanton misconduct and/or reckless behavior as stated in
    [R.C. 2744.03(A)(6)(b)]” and in Count II of her current complaint, Fitzgerald alleges that
    under R.C. 2744.03(A)(6)(b), the “omissions of the Defendants * * * were rendered in bad
    faith and/or wanton or a reckless manner.” Fitzgerald could have raised the “bad faith,
    wanton misconduct and/or reckless behavior” argument in her prior appeal, but failed to
    do so. Thus, Fitzgerald’s argument is barred by res judicata.
    {¶14} The sole assignment of error is overruled.
    {¶15} Accordingly, judgment is affirmed.
    It is ordered that appellees recover from appellant costs herein taxed.
    It is ordered that a special mandate be sent to said court 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.
    MARY EILEEN KILBANE, JUDGE
    PATRICIA A. BLACKMON, A.J., and
    COLLEEN CONWAY COONEY, J., CONCUR
    

Document Info

Docket Number: 97772

Judges: Kilbane

Filed Date: 6/14/2012

Precedential Status: Precedential

Modified Date: 3/3/2016