[Cite as Hubbard v. Cleveland Metro. School Dist., 2013-Ohio-1028.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98304
LATICIA HUBBARD
PLAINTIFF-APPELLANT
vs.
CLEVELAND METROPOLITAN SCHOOL
DISTRICT, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-706435
BEFORE: Kilbane, J., Stewart, A.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: March 21, 2013
ATTORNEY FOR APPELLANT
Donald R. Murphy
12800 Shaker Boulevard
Cleveland, Ohio 44120
ATTORNEYS FOR APPELLEES
Ryan A. Sobel
Frederick R. Nance
Timothy J. Sheeran
Squire Sanders (US) L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304
MARY EILEEN KILBANE, J.:
{¶1} Plaintiff-appellant, Laticia Hubbard (“Hubbard”), appeals the trial court’s
judgment, rendered after a jury verdict, in favor of defendant-appellee, Cleveland
Metropolitan School District, Board of Education (“Board”). For the reasons set forth
below, we affirm.
{¶2} In October 2009, Hubbard filed a lawsuit against the Board and a number of
individual Board employees and consultants. In her original complaint, Hubbard
asserted the following three causes of action: (1) violation of administrator contract
rights under R.C. 3319.02; (2) age discrimination in violation of R.C. 4112.14; and (3)
skin-color discrimination in violation of R.C. 4112.02. Hubbard was employed by the
Board as the principal of the Early Childhood Development Center. Hubbard alleges that
she was demoted to assistant principal because of her skin color and age and was not
allowed to serve the remainder of her principal contract.
{¶3} In December 2009, Hubbard filed a first amended complaint. She
reasserted the violation of administrator contract rights, age discrimination, and skin-color
discrimination causes of action and added a fourth cause of action — sexual harassment
under R.C. 4112.99. She named former Board employee Marsha Brooks (“Brooks”) as
the alleged defendant-harasser. Specifically, she alleged in the fourth cause of action
that:
22. The allegations of paragraphs one (1) through twenty [sic] (21) are
re-alleged as if fully rewritten herein.
23. Plaintiff was sexually harassed by her direct supervisor Marsha Brooks,
and when Plaintiff refused Defendant Brooks[’s] advances and invitations
to go to bed with Brooks, Plaintiff became the target of abuse by other
administrators who were and continue to be friends of Marsha Brooks, and
the employer and its supervisory employees and agents knew or should have
known and taken immediate corrective action and did not[, which] caused
Plaintiff great emotional and psychological distress.
24. As a result of the several Defendants[’] actions and inactions, all
Defendants created a hostile work environment and emotional distress,
Plaintiff resigned her position prior to her working in the demoted and
lesser responsibility and lesser position of Assistant Principal. Defendants
are in violation of the sexual harassment statute under Section
4112.02(A)(1)(a), (b), and (c) of the Ohio Revised Code.
{¶4} In February 2010, the trial court dismissed Hubbard’s age discrimination
claim under R.C. 4112.14 because Hubbard was 35 years old at the time and the statute
does not provide a cause of action for individuals under the age of 40.
{¶5} Then in August 2010, Hubbard filed a second amended complaint. In this
complaint, Hubbard also presented four causes of action. She again reasserted the
violation of administrator contract rights, age discrimination, and skin-color
discrimination causes of action, but replaced the sexual harassment cause of action with a
slander cause of action, and dismissed Brooks as a defendant. Now, she alleged in the
fourth cause of action that:
22. The allegations of Paragraphs one (1) through seventeen [sic] (21) are
re-alleged as if fully rewritten herein.
23. Defendant Preston and all Defendants collectively slander Plaintiff’s
name personally a[nd] her professional reputation in violation of law.
24. Defendants did make false allegations against Plaintiff committing
criminal acts of illegal fundraising and theft to parents. See Exhibit A.1
25. Defendants did collude to make allegations against Plaintiff in an
effort to coerce her into a lesbian relationship.
26. Plaintiff, as further direct and proximate result of slander, has suffered
extreme emotional and psychological distress.
{¶6} The Board moved for summary judgment, arguing it is immune from
intentional torts under R.C. 2744.02. Hubbard opposed, and the trial court denied the
motion. The Board filed an interlocutory appeal to this court in Hubbard v. Cleveland
Metro. School Dist., 195 Ohio App.3d 708, 2011-Ohio-5398, 961 N.E.2d 722 (8th Dist.).
On appeal, we found that the Board was entitled to summary judgment on the slander
claim and remanded the matter for the trial court to enter summary judgment in the
Board’s favor. Id. at ¶ 19.
{¶7} After our remand, Hubbard amended her complaint a third time in
December 2010. Hubbard amended her complaint by:
1. [Amending] the name of the defendant to read as follows: “The
Cleveland Metropolitan School District, Board of Education.”
2. [Deleting] all of the defendants named in the original complaint and the
subsequent amended complaints with the exception of The Cleveland
Metropolitan School District Board of Education.
1Exhibit“A” refers to a written statement of a parent detailing the alleged
slanderous remarks against Hubbard.
3. [Deleting] par 14 as contained in the Second Cause of action pertaining
to Age Discrimination as a factor in the complaint and all subsequent
complaints.
{¶8} As a result of our remand and Hubbard’s third amendment to her complaint,
the violation of administrator contract rights and skin-color discrimination claims
remained as the sole causes of action for trial. Prior to trial, the Board filed a motion in
limine to exclude any evidence regarding sexual harassment allegations based on the
absence of such a claim in Hubbard’s pleadings. Hubbard did not oppose the motion.
Rather, she stated that she “has no intention of submitting testimony or exhibits pertaining
to sexual harassment as per the court’s order therefore oral argument is not necessary[.]”2
The trial court denied the Board’s motion as moot on March 22, 2012, stating that
Hubbard’s “response to said motion stipulates that there is no sexual harassment claim
pending.” On March 26, 2012, the parties filed a joint proposed statement of the case for
the jury, stating that Hubbard is “asserting two claims against the School Board: (1) that
the School Board allegedly discriminated against her based on her skin color, in violation
of R.C. 4112.02(A); and (2) that the School Board allegedly violated her contract rights
under R.C. 3319.02(C).”
{¶9} The matter proceeded to trial on March 29, 2012, on the violation of
administrator contract rights and color discrimination causes of action. At trial, Hubbard
2 Wenote that Hubbard failed to reference in the record where the court
ordered her not to pursue her sexual harassment claim as required by App.R. 12.
Furthermore, Hubbard failed to supplement the record under App.R. 9 with a
statement of the proceedings if no transcript was available.
never attempted to reassert her sexual harassment claim. Ultimately, the jury returned
verdicts in the Board’s favor on both claims. The trial court then entered judgment in the
Board’s favor.
{¶10} It is from this order that Hubbard appeals, raising the following single
assignment of error for review.
ASSIGNMENT OF ERROR
The trial court erred in not holding to its disposition of [Hubbard’s] sexual
harassment claim on summary judgment in violation of Section 3(B)(2),
Article IV of the Ohio Constitution.
{¶11} In Hubbard’s sole assignment of error, she argues that the trial court erred in
not allowing her to proceed at trial with her sexual harassment cause of action. She
claims that when she amended her complaint, the second time in August 2010, she
included a claim of defamation along with her sexual harassment claim in the fourth
cause of action. She argues that the second amended complaint reverted back to the first
amended complaint under Civ.R. 15(C). She contends that her sexual harassment claim
was set forth in paragraph 25 of the second amended complaint, which states that:
“[d]efendants did collude to make allegations against Plaintiff in an effort to coerce her
into a lesbian relationship.” On the other hand, the Board argues that Hubbard
abandoned her sexual harassment cause of action when she amended her complaint the
second time in August 2010. We agree.
{¶12} Civ.R. 15(C), which pertains to the relation back of amendments to
pleadings, states that:
Whenever the claim or defense asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates back to the date of the
original pleading. An amendment changing the party against whom a
claim is asserted relates back if the foregoing provision is satisfied and,
within the period provided by law for commencing the action against him,
the party to be brought in by amendment (1) has received such notice of the
institution of the action that he will not be prejudiced in maintaining his
defense on the merits, and (2) knew or should have known that, but for a
mistake concerning the identity of the proper party, the action would have
been brought against him.
{¶13} Civ.R. 15(C) does not address whether amendments to pleadings are
cumulative as Hubbard contends. The rule addresses the circumstances under which a
new claim asserted in an amended pleading may be treated as if it had been brought at the
time the action was first commenced. “[T]he purpose of the rule is to ameliorate the
effect of the statute of limitations in certain situations.” Hardin v. Divelbliss, 8th Dist.
No. 54855, 1989 Ohio App. LEXIS 709 (Mar. 2, 1989). Rather, it is well established
that an amended pleading constitutes an abandonment of a previous similar pleading. As
the Ohio Supreme Court stated in Wrinkle v. Trabert, 174 Ohio St. 233, 188 N.E.2d 587
(1963), paragraph three of the syllabus, “[t]he substitution of an amended petition for an
earlier one ordinarily constitutes an abandonment of the earlier pleading and a reliance
upon the amended one. (Paragraph one of the syllabus in Grimm v. Modest, 135 Ohio St.
275, approved and followed.)” “The earlier pleading becomes functus officio.”3 State
ex rel. Talaba v. Moreland, 132 Ohio St. 71, 75, 5 N.E.2d 159 (1936).
3Functus officio is defined as “having fulfilled the function * * * or
accomplished the purpose, and therefore of no further force or authority. Applied
to an * * * instrument, * * * which has fulfilled the purpose of its creation, and is
{¶14} Here, Hubbard’s original complaint did not contain a sexual harassment
cause of action, nor did it name Brooks as the alleged defendant-harasser. She alleged
causes of action for violation of administrator contract rights, age discrimination, and
skin-color discrimination. In December 2009, Hubbard filed a first amended complaint
that added sexual harassment as the fourth cause of action. Specifically, she alleged:
23. Plaintiff was sexually harassed by her direct supervisor Marsha
Brooks, and when Plaintiff refused Defendant Brooks[’s] advances and
invitations to go to bed with Brooks, Plaintiff became the target of abuse by
other administrators who were and continue to be friends of Marsha
Brooks, and the employer and its supervisory employees and agents knew
or should have known and taken immediate corrective action and did not
this caused Plaintiff great emotional and psychological distress.
24. As a result of the several Defendants actions and inactions, all
Defendants created a hostile work environment and emotional distress,
Plaintiff resigned her position prior to her working in the demoted and
lesser responsibility and lesser position of Assistant Principal. Defendants
are in violation of the sexual harassment statute under Section
4112.02(A)(1)(a)(b) and (c) of the Ohio Revised Code.
{¶15} Then in August 2010, Hubbard filed her second amended complaint. In
this complaint, she reasserted the violation of administrator contract rights, age
discrimination, and skin-color discrimination causes of action, but replaced the fourth
cause of action and dismissed Brooks as a defendant. Hubbard now asserted that:
23. Defendant Preston and all Defendants collectively slander Plaintiff’s
name personally a[nd] her professional reputation in violation of law.
24. Defendants did make false allegations against Plaintiff committing
criminal acts of illegal fundraising and theft to parents. See Exhibit A.
therefore of no further virtue or effect.” Black’s Law Dictionary 606 (5th Ed.1979).
25. Defendants did collude to make allegations against Plaintiff in an
effort to coerce her into a lesbian relationship.
26. Plaintiff, as further direct and proximate result of slander, has suffered
extreme emotional and psychological distress.
{¶16} When reading the second amended complaint in conjunction with the first
and third amended complaints, we find that Hubbard abandoned her sexual harassment
cause of action. Nowhere in the second amended complaint does Hubbard mention
Brooks, “sexual harassment,” or refer to what she previously characterized as violations
of the sexual harassment statute under R.C. 4112.02(A)(1)(a),(b), and (c). Rather, in
Hubbard’s third amendment to her complaint, she specifically dismissed all defendants,
except the Board. Furthermore, Hubbard never amended her complaint at trial to reassert
her sexual harassment cause of action under Civ.R. 15(B).4 Instead, she filed a joint
statement of the case and jury interrogatories that omitted any reference to a sexual
harassment cause of action. Thus, we find that Hubbard abandoned her sexual
harassment cause of action and any claim to relief based thereon.
{¶17} Therefore, the sole assignment of error is overruled.
{¶18} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
4Civ.R. 15(B) provides in pertinent part: “[w]hen issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party at any
time, even after judgment.”
The court finds there were reasonable grounds for this appeal.
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
MELODY J. STEWART, A.J., and
EILEEN T. GALLAGHER, J., CONCUR