[Cite as Aziz v. Capital Sr. Living, Inc., 2021-Ohio-2515.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
YASMINE AZIZ, :
Plaintiff-Appellant, :
No. 109814
v. :
CAPITAL SENIOR
LIVING, INC., ET AL. :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: July 22, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-928286
Appearances:
The Spitz Law Firm, L.L.C., Brian D. Spitz, and Samuel B.
Robb, for appellant.
Benesch, Friedlander, Coplan & Aronoff, L.L.P., Joseph N.
Gross, and Jordan J. Call, for appellees.
EILEEN T. GALLAGHER, J.:
Plaintiff-appellant, Yasmine Aziz (“Aziz”), appeals from the trial court’s
decision granting a motion to dismiss in favor of defendants-appellees, Capital
Senior Living, Inc. (individually “CSL”) and Latyona Sarratt-Smith (individually
“Sarratt-Smith”) (together the “appellees”). Aziz raises the following assignments
of error for review:
1. The trial court committed reversible error by dismissing Count 1 of
Aziz’s amended complaint, erroneously holding that Aziz was required
to allege a sufficient act of abuse occurred in order to invoke the
protections of R.C. 3721.24.
2. The trial court committed reversible error by failing to allow Aziz to
alternatively pursue a claim for wrongful termination in violation of
public policy.
3. The trial court committed reversible error by dismissing Counts 3
and 4 of Aziz’s amended complaint, in holding that Aziz was required,
and failed, to meet a prima facie pleading standard.
4. The trial court committed reversible error by dismissing Count 5 of
Aziz’s amended complaint.
After careful review of the record and relevant case law, we dismiss the
instant appeal for lack of a final, appealable order.
I. Factual and Procedural History
CSL operates a long-term residential care facility known as “The
Waterford.” Aziz, who is “of Egyptian descent,” began her employment at The
Waterford on or about July 18, 2019. She served as a charge nurse and was
responsible for “managing staff to ensure residents [of The Waterford] are
adequately cared for.”
In the course and scope of her employment, Aziz instructed a
subordinate employee, Jane Doe, to clean a resident’s catheter on or about August
7, 2019. When Jane Doe refused to comply with Aziz’s request, Aziz submitted a
written complaint with her supervisor, Sarratt-Smith, requesting that Jane Doe be
disciplined for engaging in conduct that “constituted neglect of a resident.” Aziz also
“verbally complained to Sarratt-Smith that [Jane Doe’s] refusal of the care
jeopardized [the] resident’s health and safety.”
On or about August 8, 2019, Aziz instructed Jane Doe to respond to a
resident’s call button request for assistance that had not been answered for
approximately 20 minutes. Again, Jane Doe refused Aziz’s request and became
hostile, stating to Aziz, “Go back to where you fucking came from.” Aziz advised
Jane Doe that she could go home if she did not wish to work. Jane Doe responded,
“You are the one that needs to go home.” Aziz reported Jane Doe’s refusal of the
assistance order and her discriminatory comments to Sarratt-Smith in writing. Aziz
maintains that CSL and Sarratt-Smith did not investigate her written complaint or
otherwise discipline Jane Doe. Rather, Aziz’s employment was terminated on
August 9, 2019, following a meeting with Sarratt-Smith. Aziz claims that Sarratt-
Smith reprimanded her for making the written complaints against Jane Doe,
thereby, condoning the conduct and statements of Jane Doe.
On January 23, 2020, Aziz filed a civil complaint against the appellees,
setting forth claims for retaliation in violation of R.C. 3721.24 (Count 1), wrongful
termination in violation of public policy (Count 2), national origin discrimination in
violation of R.C. 4112.02, et seq. (Count 3), race discrimination in violation of R.C.
4112.02, et seq. (Count 4), and retaliation in violation of R.C. 4112.02(I) (Count 5).
On March 9, 2020, Aziz filed an amended complaint, setting forth
additional allegations of fact in support of the claims pursued in the original
complaint.
Subsequently, CSL filed a motion to dismiss the amended complaint
pursuant to Civ.R. 12(B)(6). In the motion, CSL argued that (1) Aziz failed to allege
any protected activity to support her claims of retaliation under R.C. 3721.24 and
4112.02(I), (2) the wrongful termination claim fails as a matter of law because the
Ohio Revised Code provides Aziz an adequate remedy, and (3) the discrimination
claims fail as a matter of law because Aziz failed to allege facts that could be
considered unlawful discrimination. Relevant to this appeal, Sarratt-Smith did not
join the motion to dismiss or otherwise file a responsive pleading.
Aziz opposed the motion to dismiss, arguing that she pleaded sufficient
facts to put CSL on notice of her claims in compliance with Civ.R. 8. Aziz rejected
CSL’s interpretation of the facts and maintained that the allegations set forth in the
amended complaint were sufficient to state a claim for which relief could be granted
under Civ.R. 12(B)(6).
On June 24, 2020, the trial court granted CSL’s motion to dismiss,
stating, in relevant part:
Plaintiff does not allege a sufficient act of abuse occurred to invoke the
protections in her first two claims (retaliation and wrongful
termination in violation of public policy). Plaintiff alleges a
subordinate’s refusal to act in a way in which Plaintiff personally found
could be abusive, but which is not abuse pursuant to the statute and
case law. Additionally, Plaintiff’s claim for wrongful termination in
violation of public policy fails because she has a sufficient statutory
remedy to address the same conduct.
Plaintiff’s claims for national origin discrimination and race and color
discrimination fail to meet a prima facie pleading, because she does not
allege that the position was filled by a person outside the protected class
or that it remained open after her termination.
Finally, Plaintiff’s fifth claim fails because the retaliation that Plaintiff
alleges cannot be attributed to her employer or supervisor. The
conduct of which Plaintiff complains were two remarks by her
subordinate. Plaintiff herself references at least two of her supervisors
in her complaint. The court cannot attribute these comments by
Plaintiff’s subordinate to the defendants.
Aziz now appeals from the trial court’s judgment.
II. Law and Analysis
Collectively Aziz’s assignments of error challenge the trial court
dismissal of Counts 1-5 of the amended complaint. However, this court must first
resolve the issue of whether this court has jurisdiction to resolve this appeal.
Pursuant to Ohio Constitution, Article IV, Section 3(B)(2), a reviewing
court is conferred jurisdiction to review final appealable orders from lower courts of
their districts. Final appealable orders are those that “‘dispos[e] of the whole case
or some separate and distinct branch thereof.’” Rae-Ann Suburban, Inc. v. Wolfe,
8th Dist. Cuyahoga No. 107536, 2019-Ohio-1451, ¶ 19, quoting Lantsberry v. Tilley
Lamp Co., 27 Ohio St.2d 303, 306, 272 N.E.2d 127 (1971). A trial court order is final
and appealable only if it meets the requirements of R.C. 2505.02 and, if applicable,
Civ.R. 54(B). Oakley v. Ohio State Univ. Wexner Med. Ctr., 10th Dist. Franklin No.
18AP-843, 2019-Ohio-3557, ¶ 10. R.C. 2505.02(B) defines a final order as:
An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which
both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of
the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.
Civ.R. 54(B) requires that “[w]hen more than one claim for relief is
presented in an action * * * or when multiple parties are involved, the court may
enter final judgment as to one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason for delay.” When the trial
court’s order adjudicates less than all of the claims or rights of all the parties, and it
does not meet the requirements of R.C. 2505.02 and Civ.R. 54(B), it is not a final,
appealable order. Noble v. Colwell, 44 Ohio St.3d 92, 540 N.E.2d 1381 (1989),
syllabus. “‘If an order is not final and appealable, then an appellate court has no
jurisdiction to review the matter and the appeal must be dismissed.’” Scheel v. Rock
Ohio Caesars Cleveland, L.L.C., 8th Dist. Cuyahoga No. 105037, 2017-Ohio-7174,
¶ 7, quoting Assn. of Cleveland Firefighters, # 93 v. Campbell, 8th Dist. Cuyahoga
No. 84148, 2005-Ohio-1841, ¶ 6.
In the present case, the trial court’s judgment was limited to granting
the motion to dismiss filed by CSL. It is undisputed, however, that the underlying
action involves multiple claims and multiple parties. It is equally uncontroverted
that Sarratt-Smith did not join in the motion to dismiss or otherwise appear in this
case. Thus, it is apparent that the trial court’s order granting the motion to dismiss
did not determine the action nor prevent a judgment because not all of the
defendants joined in the motions to dismiss. See Mitri v. Premier Mtge. Funding of
Ohio, Inc., 8th Dist. Cuyahoga No. 89941, 2008-Ohio-1821, ¶ 4, citing Mayor v.
Ford Motor Co., 8th Dist. Cuyahoga No. 81835, 2003-Ohio-2869, ¶ 3-7 (A trial
court’s “order granting the motions to dismiss did not determine the action nor
prevent a judgment because not all of the defendants joined in the motions to
dismiss” notwithstanding the fact that the trial court’s order “dismissed the case.”).
Moreover, the trial court’s entry does not contain language, pursuant to Civ.R.
54(B), that “there is no reason for delay” of the appeal. Because the trial court’s
order granting CSL’s motion to dismiss was not a final, appealable order, we lack
jurisdiction to review Aziz’s assigned errors.
In reaching this conclusion, we recognize that “the Rules of Civil
Procedure neither expressly permit nor forbid courts to sua sponte dismiss
complaints.” See State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn., 72
Ohio St.3d 106, 108, 647 N.E.2d 799 (1995). Generally, a court may dismiss a
complaint on its own motion pursuant to Civ.R. 12(B)(6), failure to state a claim
upon which relief may be granted, only after the parties are given notice of the
court’s intention to dismiss and an opportunity to respond. Id. However, some
courts have recognized an exception to the general rule, allowing sua sponte
dismissal without notice where the complaint is frivolous or the claimant obviously
cannot possibly prevail on the facts alleged in the complaint. X-S Merchandise, Inc.
v. Wynne Pro, L.L.C., 8th Dist. Cuyahoga No. 97641, 2012-Ohio-2315, ¶ 17, fn. 2,
citing Dunn v. Marthers, 9th Dist. Lorain No. 05CA008838, 2006-Ohio-4923. In
this case, however, there is no language in the trial court’s journal entry to suggest
the court intended to sua sponte dismiss the claims pursued against Sarratt-Smith.
The court’s analysis was limited to the arguments posed in CSL’s individually filed
motion to dismiss. Certainly, the trial court’s resolution of the claims pursued
against CSL are relevant to the allegations levied against Sarratt-Smith. However,
resolution of whether the trial court has issued a final, appealable order does not
warrant consideration of the merits of unresolved claims against parties who neither
filed an answer nor joined the motion to dismiss. This court may not read language
into the entry that is not there merely to avoid the procedural requirements and
implications of the Ohio Revised Code and the Rules of Civil Procedure.
Based on the foregoing, we find the order from which Aziz seeks to
appeal is not a final, appealable order. Therefore, we must dismiss this appeal for
lack of jurisdiction.
Appeal dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
MICHELLE J. SHEEHAN, J., CONCUR