[Cite as Mayo v. Bethesda Lutheran Communities,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100637

ANITA MAYO

PLAINTIFF-APPELLANT

vs.

BETHESDA LUTHERAN COMMUNITIES, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-790523

BEFORE: Stewart, J., Boyle, A.J., and Blackmon, J.

RELEASED AND JOURNALIZED: August 14, 2014 ATTORNEY FOR APPELLANT

Alan I. Goodman Alan I. Goodman Co., L.P.A. 55 Public Square, Suite 1300 Cleveland, OH 44113

ATTORNEY FOR APPELLEES

John F. Burke, III Burkes Law, L.L.C. 614 West Superior Avenue Rockefeller Building, Suite 1500 Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1. Plaintiff-appellant Anita Mayo filed this action against her former

employer Bethesda Lutheran Communities and its agent, Elizabeth Safady, following the

termination of Mayo’s employment. Prior to trial, Mayo filed a motion seeking to

amend her complaint and pursue her action against the defendants under a statute

different from the one noted in her complaint. The court denied the motion.

{¶2} On appeal, Mayo argues that the court wrongfully denied her motion to

amend her complaint or to grant a continuance so that the complaint could be amended.

Finding no merit to these arguments, we affirm the decision of the trial court.

{¶3} Bethesda Lutheran Communities runs residential services for individuals with

developmental disabilities. Anita Mayo, a former employee, claims that she was

wrongfully terminated after she reported suspected financial improprieties on the part of a

program manager at the organization. Mayo filed a complaint in August 20121 alleging

that she had a statutory duty under R.C. 3721.22 to report to the Cuyahoga County Board

of Developmental Disabilities suspicious activity causing harm to the residents at the

facility where she worked. In response to her report, Mayo claims her employer

In March 2011, Mayo and her husband had filed a complaint reflecting these events. In 1

February 2012, Mayo amended the complaint asserting new allegations. The defendants answered the complaint with affirmative defenses and moved for summary judgment. The trial court denied the motion in part. Before trial began on the remainder of the claims, Mayo dismissed her lawsuit without prejudice pursuant to Civ.R. 41(A). retaliated against her in violation of R.C. 3721.24 by demoting her, creating a hostile

work environment, and ultimately terminating her employment.

{¶4} Bethesda Lutheran answered the complaint asserting numerous affirmative

defenses. The court set the case for a June 2013 trial, but in May 2013 Mayo moved to

postpone the trial. The court rescheduled the case for an October 2013 trial. The day

before trial, Mayo filed a motion pursuant to Civ.R.15(B) to amend her complaint to

reference a different chapter of the revised code (R.C. 5123.61) covering abuse of

individuals with developmental disabilities. She did not attach to the motion a copy of

the proposed amended complaint.

{¶5} On the day of trial, Mayo addressed the court and asked if she could amend

her complaint and pursue her action against Bethesda Lutheran under R.C. 5123.61. She

argued that R.C. 5123.61 and 3721.22 are so similar that one could be substituted for the

other and that the operative facts most pertinent to the case were the same whether the

case was pleaded in accordance with either statute. She further noted that each

provision addresses wrongful termination of employees whose dismissal was in

retaliation for reporting abuses of their clients to governmental authorities. Aside from

stating that she made an error in which provision was applicable to her cause of action,

Mayo offered no explanation for the over one-year-long delay from the time she filed her

complaint to the day before trial to realize that she filed her cause of action under the

wrong statute. {¶6} Bethesda Lutheran objected to the motion to amend stating that it was

untimely and prejudicial. The trial court denied the motion finding that the two statutes

are not so similar in nature as to be interchangeable at the last minute, and that allowing

Mayo to amend her complaint right before trial was to commence would be highly

prejudicial to the defense. The court also noted that Mayo did not comply with Loc.R.

8(D) by failing to attach a copy of the amended complaint to her motion. Mayo stated to

the court that under the statute cited in the current complaint, she had no cause of action

and elected not to proceed to trial. Consequently, the court dismissed the case with

prejudice.

{¶7} On appeal, Mayo argues that the trial court wrongfully denied her

Civ.R.15(B) motion to amend her complaint. She also argues that the court failed to

grant her a continuance to amend the complaint.

{¶8} Civ.R.15(B) provides: “[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.” The rule provides further that an amendment can be made

at any time, even after judgment, and is to be liberally construed in an effort to decide

cases on their merits.

See also Monroe v. Youssef, 11th Dist. Trumbull No.

2009-T-0012,

,  67, citing Hall v. Bunn,

,

(1984). Courts may deny motions to amend where there is a showing of bad

faith, undue delay, or undue prejudice to an opposing party. Mitchell v. Lemmie, 2d

Dist. Montgomery No. 21511,

. {¶9} Whether to grant or deny a Civ.R. 15(B) motion to amend pleadings is within

the discretion of the trial court. Everhart v. Everhart (In re Estate of Everhart), 12th

Dist. Fayette Nos. CA2013-07-019, CA2013-09-026,

. In order to find

an abuse of that discretion, an appellate court must determine that the trial court’s

decision was unreasonable, arbitrary, or unconscionable. Grimes v. Grimes, 4th Dist.

Washington No. 10CA23,

,  17.

{¶10} The trial court properly denied Mayo’s motion as Civ.R. 15(B) deals with

amendments to pleadings to allow them to conform to the evidence presented at trial. In

cases where there has been no trial, reviewing courts have found the use of Civ.R. 15(B)

inappropriate. See Merrill Lynch Mtge. Lending, Inc. v. 1867 W. Market, L.L.C., 9th

Dist. Summit No. 23443,

,  11; Suriano v. NAACP, 7th Dist. Jefferson

No. 05 JE 30,

,  83. Even if a motion pursuant to Civ.R. 15(B) was

appropriate under the circumstances, Mayo’s motion still fails to meet the requirements of

the rule as a trial court may deny a motion under Civ.R. 15(B) for undue delay. In this

case, Mayo failed to show good cause for the delay between the August 2012 filing of the

complaint and the October 2013 motion when she sought to amend the complaint. The

trial court properly determined that the motion was untimely.

{¶11} Civ.R.15(A) allows a party to amend its pleading once within 28 days after

serving it or with the opposing party’s written consent or by leave of the court, and “[t]he

court shall freely give leave when justice so requires.” Civ.R.15(A). In this case,

Mayo could not prevail under section (A) either. Mayo was clearly outside of 28 days from serving her complaint when she moved to amend it, and Bethesda Lutheran’s lack of

consent was manifest by its objection to the motion. Although the rule provides that

leave should be freely granted when justice requires, the court determined that justice

would not be served by allowing Mayo to amend her complaint the day before, or the day

of, trial. To the contrary, the court found that doing so would be unfair and prejudicial

to Bethesda Lutheran.

{¶12} Mayo’s argument that the provisions she cites to under Chapters 3721 and

5123 are so similar as to be interchangeable is incorrect. There are substantial

differences between the statutes. For instance, R.C. 3721.22 applies only to long-term

care facilities. R.C. 3721.21(A) defines long-term care facilities as nursing homes or a

facility, or part of a facility, that is certified as a skilled nursing facility. Additionally,

the duty to report abuses under this provision applies only to licensed health

professionals. See R.C. 3721.22(A). Retaliation for reporting abuses is prohibited

under R.C. 3721.24 and investigations of these allegations fall under the purview of the

director of health. See R.C. 3721.23.

{¶13} In contrast, R.C. 5123.61 imposes a duty to report suspected abuse or

neglect of a person with mental retardation or developmental disabilities on several

classes of people. This list of individuals having that duty includes individuals such as

school teachers, physicians and attorneys in certain instances, hospital administrators or

other healthcare employees, and members of the clergy. R.C. 5123.61(L) prohibits retaliation against an employee as a result of the employee’s having made a report under

this section.

{¶14} The group home for developmentally disabled individuals provided by

Bethesda Lutheran is not a long-term care facility as defined by R.C. 3721.21.

Additionally, Mayo concedes that she is not a licensed health professional. Therefore,

Mayo is correct that she had no cause of action under Chapter 3721, but the trial court

properly found that allowing her to amend her complaint on such short notice would not

have given Bethesda Lutheran fair opportunity to address the allegations under R.C.

5123.61. We therefore overrule Mayo’s first assignment of error.

{¶15} Lastly, relating to Mayo’s second assignment of error that the trial court

erred by failing to grant her a continuance, we find that Mayo never moved the court for a

continuance. The record reflects that Mayo’s only mention of a continuance is within

the context of her Civ.R.15(B) motion where she tells the court that under the rule, the

court may grant a continuance to allow the objecting party the opportunity to adjust its

arguments based on new evidence. The court responded by informing Mayo that either

she had to go forward with the trial on her current complaint or it would dismiss her case.

Mayo informed the court multiple times that, although she was not dismissing her case,

she was not prepared to go forward without the ability to amend her complaint.

However, she never requested or moved the court for a continuance, so we summarily

overrule this assigned error.

{¶16} Judgment affirmed. It is ordered that appellees recover of appellant their costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.

MELODY J. STEWART, JUDGE

MARY J. BOYLE, A.J., and PATRICIA ANN BLACKMON, J., CONCUR