COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70526 MARYCATHERINE L. KRAUSE, M.D. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CASE WESTERN RESERVE UNIVERSITY, : ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 19, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 299569 JUDGMENT AFFIRMED DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee Case Western Reserve MARYCATHERINE L. KRAUSE, M.D., University: PRO SE 5124 Mayfield Road JOEL A. MAKEE, ESQ. Cleveland, Ohio 44124 THOMAS J. LEE, ESQ. HALLE FINE TERRION, ESQ. Kelley, McCann & Livingstone BP America Bldg., 35th Floor 200 Public Square Cleveland, Ohio 44114-2302 [continued on next page] For Defendant-Appellees ARTHUR M. KAUFMAN, ESQ. Mt. Sinai Medical Center, ANDREW S. POLLIS, ESQ. Richard Aach, M.D., Bruce Hahn, Loeser & Parks E. Berger, M.D. and 3300 BP America Building Phillip I. Lerner, M.D.: 200 Public Square Cleveland, Ohio 44114-2301 - 3 - JAMES M. PORTER, P.J., Plaintiff-appellant Marycatherine L. Krause, M.D., pro se, appeals from a Civ.R. 12(B)(6) dismissal of her claims against defendants-appellees Case Western Reserve University (CWRU), and Mt. Sinai Medical Center where plaintiff was an intern following her graduation from CWRU School of Medicine in 1989. Plaintiff contends the trial court erred in treating the pro se claims as torts barred by statutes of limitations and not giving effect to her claims for breach of contract. We find no error and affirm for the reasons hereinafter stated. Dr. Krause graduated from CWRU's School of Medicine in May 1989. Following graduation, she was employed by Mt. Sinai as an intern in a Residency Training Program from July 1, 1989 to June 30, 1990. Following her tenure at Mt. Sinai, she began her residency at MetroHealth Medical Center for the period from July 1, 1990 through June 30, 1993, which is the subject of a companion suit against CWRU, MetroHealth and its staff physicians which was also dismissed below and is now pending as Cuyahoga App. No. 70712 in this Court. Dr. Krause's pro se complaint alleged that CWRU and Mt. Sinai "breached their affirmative duties to provide uniform postgraduate medical education and career development opportunities," to "prevent harm by third persons affiliated with or employed by these institutions," and to "protect" Krause during her postgraduate medical education and contracted employment at Mt. Sinai. - 4 - Dr. Krause's alleged specific incidents against Mt. Sinai and three of its staff physicians for training failures in the residency program and harm to her professional career by reason of: failure to schedule a "morning report" teaching session for Dr. Krause; intentional infliction of emotional distress as a consequence of hearing negative comments during a "mandatory review conference"; defamatory statements in a written performance evaluation; defamatory statements and invasion of privacy in the form of correspondence between Dr. Berger at Mt. Sinai and University Hospitals, where Dr. Krause was seeking to transfer to another residency program; and fraud and invasion of privacy in interfering with Dr. Krause's license application with the State Medical Board of Ohio. From the face of these allegations and exhibits to the complaint, each of these incidents (except one) occurred prior to June 30, 1990, the date Dr. Krause's employment with Mt. Sinai ended. The license misunderstanding with the State Medical Board dragged on until November 1, 1991, when Dr. Krause's Ohio medical license was ultimately issued. On December 5, 1995, plaintiff filed the complaint against CWRU, Mt. Sinai and the three individual physicians, all of whom are employees or former employees of Mt. Sinai. Plaintiff's "harms" listed in the caption of her complaint included: Intimidation, Libel, Defamation, Intentional Infliction of Emotional Distress, Fraud, Breach of Duty, Breach of Affirmative - 5 - Action to Prevent Harm and Breach of Control of Third Persons, referenced to the five incidents hereinbefore mentioned. Plaintiff sought $100 million in damages and equitable relief. On February 6, 1996, Mt. Sinai and the three defendant doctors filed a motion to dismiss contending that the tort claims were barred by the applicable statute of limitations. On February 27, 1996, Dr. Krause filed an opposition which actually served as an amended complaint by adding claims for breach of an alleged written contract of employment between Dr. Krause and Mt. Sinai. On March 4, 1996, CWRU filed its motion to dismiss for failure to state a claim. In response, on March 11, 1996, Dr. Krause filed a reply and motion to amend complaint. In her proposed second amended complaint, Dr. Krause incorporated the original complaint by reference and alleged 27 additional paragraphs, which claimed breach of contract, "extortionate extension of credit" and "retaliation" by CWRU. Leave was never granted by the trial court to file the proposed second amended complaint pursuant to Civ.R. 15(A) and Krause did not appeal that issue. The trial court dismissed the claims against all of the defendants on April 1, 1996 based on the tort statutes of limitations. On April 17, 1996, Dr. Krause filed a motion for a new trial which was denied on July 2, 1996. Dr. Krause filed a timely notice of appeal and the appeal is before the Court on the merits. - 6 - Plaintiff's three assignments of error state as follows: I. ERROR IN SUSTAINING DEFENDANT-APPELLEE'S MOTION FOR DISMISSAL ON THE GROUNDS OF FAILURE TO ATTACH THE CONTRACT TO THE COMPLAINT, WHEN CONTRACT WAS ATTACHED TO JUDGE SAFERIN'S COPY OF PLEADING FILED MARCH 11, 1996, REFERENCE TO CONTRACT ON ALL OTHER COPIES OF THE PLEADING FILED ON MARCH 11, 1996 AS ITEM 11 OF LIST OF PLAINTIFF'S EXHIBITS, REFERENCES TO CONTRACT THROUGHOUT COMPLAINT AND PLEADINGS FILED BY PLAINTIFF. II. ERROR IN ATTRIBUTING CLAIMS SOLELY TO TORT RATHER THAN TO CONTRACT, FROM WHICH THE CLAIMS WITHIN THE COMPLAINT ARISE. III. ERROR IN SUSTAINING DEFENDANT-APPELLEE'S MOTION TO DISMISS ON THE GROUNDS THAT CLAIMS WERE TIME-BARRED BY STATUTES OF LIMITATIONS FOR TORTS, AND FAILURE TO ATTRIBUTE THE CAUSE OF ACTION TO BREACH OF CONTRACT, PROVIDED FOR IN ORC 1301.09, 1301.11, AND SUBJECT TO THE FIFTEEN YEAR STATUTE OF LIMITATIONS STATED IN ORC 2305.06. We will address the assignments of error together because they challenge the merits of the dismissals and whether the statute of limitations for torts control over the statute of limitations for breach of contract. It is a well-settled rule that a complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 245. The deference to be shown the allegations of the complaint were recently set forth as follows in Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666, 667: - 7 - A complaint should not be dismissed for failure to state a claim merely because the allegations do not support the legal theory on which the plaintiff relies. Instead, a trial court must examine the complaint to determine if the allegations provide for relief on any possible theory. See Patriarca v. Federal Bur. of Investigation (D.R.I.1986), 639 F.Supp 1193. A court must construe all material allegations in the complaint and all inferences that may be reasonably drawn therefrom in favor of the nonmoving party. Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 1114. Thus, a court must presume all factual allegations in the complaint are true for purposes of the motion. Bridges v. Natl. Eng. & Contracting Co. (1990), 49 Ohio St.3d 108, 551 N.E.2d 163. Further, as the Ohio Supreme Court in Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, 526 held: A party is not required to plead the legal theory of recovery or the consequences which naturally flow by operation of law from the legal relationships of the parties. "The rules make clear that a pleader is not bound by any particular theory of a claim but that the facts of the claim as developed by the proof establish the right to relief." McCormac, Ohio Civ. Rules Practice (2 Ed. 1992) 102, Section 5.01. A. CLAIMS AGAINST CWRU Although Dr. Krause was no longer a CWRU medical student when the alleged incidents giving rise to her complaint occurred, she makes the following allegations specifically against CWRU: Plaintiff alleges that Case Western Reserve University and its School of Medicine and the Mt. Sinai Medical Center breached their affirmative duties to provide uniform postgraduate medical education and career development opportunities and to prevent harm by third persons with or employed by these institutions. - 8 - * * * Plaintiff alleges that Case Western Reserve University and its School of Medicine and Mt. Sinai Medical Center breached their affirmative duties to protect the Plaintiff during the course of her postgraduate medical education and contracted employment at Mt. Sinai Medical Center, 1989-1990 and that both also breached their duties to prevent harm to the Plaintiff in the course of her professional training and career development from third persons affiliated with or employed by these institutions. Construing Dr. Krause's clams against CWRU under the liberal standards we must apply in favor of the complaint, she nevertheless fails to state a claim against CWRU entitling her to relief. The incidents plaintiff references occurred subsequent to her graduation from CWRU's Medical School, while she was employed at Mt. Sinai. She had no post-graduate contract or relationship with CWRU. The purported basis for CWRU's liability for these events is the claim that CWRU had some kind of unspecified special responsibility to protect its graduates, subsequent to receipt of their medical school diplomas. As a matter of law, there is no responsibility on the part of a medical school to protect its alumnae and the complaint alleges no facts which, if proven to be true, could result in liability against CWRU. In the proposed second amended complaint, Dr. Krause claimed that Drs. Aach, Lerner and Berger and Mt. Sinai are "affiliated" with CWRU and that CWRU should be liable on the basis of respondeat superior. However, Dr. Krause never received leave to file the - 9 - proposed second amended complaint and has not appealed such issue, so that the proposed second amended complaint will not properly be considered part of the record for this appeal. In any event, Dr. Krause has alleged mere conclusions of respondeat superior liability and has failed to allege any facts which would support such a theory under the law of Hanson v. Kynast (1986), 24 Ohio St.3d 171 or under the Civ.R. 12(B)(6) standard set forth in Thompson v. Central Ohio Cellular, Inc. (1994), 93 Ohio App.3d 530, 538. Respondeat superior liability arises in the context of tortious conduct only and, therefore, the applicable statute of limitations with respect to all of these purported claims had lapsed as discussed below. Burd v. Faber (1991), 57 Ohio St.3d 56, 58; Cooper v. Grace Baptist Church (1992), 81 Ohio App.3d 728, 737; Holland v. Riverside Methodist Hosp. (1990), 70 Ohio App.3d 112, 116. Even if the doctrine of respondeat superior applies, it does not impose any liability on CWRU unless Mt. Sinai or their doctors are also liable. Moncol v. Bd. of Education (1978), 55 Ohio St.2d 72, syllabus; Cooper v. Grace Baptist Church, supra at 737; Liberty Mut. Ins. Co. v. Paris (Dec. 22, 1994), Cuyahoga App. No. 66719, unreported at 14. Dr. Krause's complaint is devoid of any facts supporting any actionable theory of liability against CWRU. As such, the trial court correctly concluded that Dr. Krause had failed to state an actionable claim against CWRU. - 10 - B. CLAIMS AGAINST MT. SINAI AND ITS DOCTORS The trial court dismissed the complaint against Mt. Sinai and its doctors because it found that the alleged "incidents" sounded, if at all, in tort and were therefore governed by various statutes of limitations of four years or less. Dr. Krause's appeal argues that her causes of action arise not from tort but from her employment contract with Mt. Sinai. She therefore claims that the fifteen-year statute of limitations (R.C. 2305.06) should apply, not the shorter tort statute of limitations. Dr. Krause's Assignment of Error I contends that the trial court erred in dismissing her complaint for failure to attach a copy of her contract of employment with Mt. Sinai. We find no merit to this argument. Civ.R. 10(D) requires that, in a contract action, a copy of the contract "be attached to the pleading. If not so attached, the reason for the omission must be stated in the pleading." Plaintiff argues that she did attach a contract to her complaint. The document plaintiff alleges is a contract, however, is in fact not a contract. It appears the document was taken from the 1988-89 American Medical Association's Directory of Graduate Medical Education Programs which states the general requirements of medical educational programs. The Ohio Supreme Court in Episcopal Retirement Homes, Inc. v. Ohio Department of Industrial Relations (1991), 61 Ohio St.3d 366, 369 set forth the requirements for a contract: - 11 - The Restatement of the Law 2d, Contracts (1981), 5, Section 1, defines a "contract" as "[a] promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty." In order to declare the existence of a contract, both parties to the contract must consent to its terms; there must be a meeting of the minds of both parties; and the contract must be definite and certain. [cites omitted]. None of these requirements are met by the Directory Guidelines. Dr. Krause correctly argues that even if she failed to attach a contract to her complaint, it is not necessarily fatal to a contract claim. See Point Rental Co. v. Posani (1976), 52 Ohio App.2d 183, 185-186; Aveni v. Howells (May 30, 1996), Cuyahoga App. No. 69809, unreported at 2-3. Dr. Krause's argument however mistakes the reasons for the dismissal. Although the trial court referred to Civ.R. 10(D) in its opinion and order, it did not dismiss the complaint on that basis. Rather, the trial court specifically found that the "complaint does not state any claim for breach of contract, nor was a contract [sic] was attached to the complaint as required by Civ.R. 10(D)." Dr. Krause apparently concedes on appeal that her causes of action are time-barred if construed as tort claims. She does not claim any error in the trial court's application of the statutes of limitations under tort law. Instead, Dr. Krause asks this Court to construe all of her claims as contract claims, subject to the - 12 - fifteen-year statute of limitations (R.C. 2305.06). This argument fails as a matter of law. The elements of a claim for breach of contract "include the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff." Doner v. Snapp (1994), 98 Ohio App.3d 597, 600. However, none of the eight "harms" listed in Dr. Krause's complaint - Intimidation, Libel, Defamation, Intentional Infliction of Emotional Distress, Fraud, Breach of Duty, Breach of Affirmative Action to Prevent Harm and Breach of Control of Third Persons - sounds in contract. Nor do the five alleged "incidents" include the requisite elements of a contract claim. Although Dr. Krause contends that she was wronged "in the course of [her] first year of postgraduate medical education which was also a year of contracted employment at Mt. Sinai Medical Center," her employment contract was not a stated basis for the allegations. Her complaint failed to allege that any contractual duty was breached, but attempted to state a claim for tortious conduct not contract violations. Viewing these incidents, it is clear that there was no contract claim stated: Failure to schedule a "morning report" teaching session for Dr. Krause. Plaintiff does not allege that Mt. Sinai had a contractual duty to deliver a "morning report." Instead, she merely claimed that she was denied "uniform postgraduate medical education and career development opportunities"; Intentional infliction of emotional distress as a consequence of hearing negative comments - 13 - during a "mandatory review conference." Dr. Krause does not allege that the written contract protected her from hearing negative feedback during performance evaluations by her superiors; Defamatory statements in a written performance evaluation. Dr. Krause did not allege that anything in her written contract required the evaluators to refrain from commenting negatively on her ability to interact with her peers; Defamatory statements and invasion of privacy in the form of correspondence between a physician at Mt. Sinai and an individual at another hospital (University Hospitals) where plaintiff was attempting to transfer to another residency program. Dr. Krause does not allege that any contract required Mt. Sinai to refrain from responding candidly to inquiries from other hospitals; and Dr. Krause postulates fraud and invasion of privacy in interfering with her license application with the State Medical Board of Ohio. This allegation would be a claim for tortious interference with a business relationship; Dr. Krause did not allege that it was the subject of any written contract between her and Mt. Sinai. In short, none of the five "incidents" set forth in plaintiff's complaint states a claim for breach of contract. "In determining which statute of limitations should be applied to a particular cause of action, this court has held that '*** courts must look to the actual nature or subject matter of the case rather than the form in which the action is pleaded. The grounds for bringing the action are the determinative factors; the form is immaterial." Lawyers Cooperative v. Muething (1992), 65 Ohio St.3d 273, 277-78. This Court has previously "refuse[d] to allow" a - 14 - party "to transform" tort claims "into a breach of contract action for the sake of extending the statute of limitations." Ward v. Lynch (Dec. 7, 1995), Cuyahoga App. No. 68554, unreported at 3; Philpott v. Ernst & Whinney (Nov. 25, 1992), Cuyahoga App. No. 61203, unreported at 6. Likewise, in Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, citing Andrianos v. Community Traction Co. (1951), 155 Ohio St. 47, paragraph two of the syllabus, the Ohio Supreme Court clarified that, when a cause of action seeks to recover for injury to a person, the fact that the action is brought under a contract does not alter the tortious nature of the claim, and it is therefore subject to the applicable statute of limitations under tort law. See, also, Ressallat v. Burglar & Fire Alarms, Inc. (1992), 79 Ohio App.3d 43, 49 ("whether a suit is brought in contract or tort, when the 'essence' of an action is wrongful harm to person ***, the [tort] statute of limitations is the appropriate one to apply"). The cases cited by Dr. Krause in support of a contract theory are distinguishable. In Meeker v. Shafranek (1960), 112 Ohio App. 320, the court held that buyers of real estate had a contract action against the seller because the seller did not have title to all of the real property she had promised to convey. Thus, the seller had failed to deliver what she promised in her contract to deliver - an obvious breach of contract. Dr. Krause, by contrast, has made no claim in this case that is premised on any promise Mt. Sinai made in its contract with her. - 15 - Farbach Chemical Co. v. Commercial Chemical Co. (1956), 101 Ohio App. 209 is also inapposite. There, the defendant had promised to extract pure alcohol from the plaintiff's brake fluid for the plaintiff's subsequent re-use. Instead of delivering pure alcohol, the defendant delivered alcohol which also contained hydrochloric acid. The court held that the defendant's failure to remove the hydrochloric acid was a breach of contract. Id. at 212. If, however, the defendant had added hydrochloric acid to the brake fluid, it would have affirmatively caused an injury to the plaintiff's property, and the claim would have been one for tort. See Id. Farbach actually supports Mt. Sinai's argument that a contract claim can arise only where the defendant fails to do precisely what the contract requires; any other wrong, if it gives rise to a cause of action at all, is necessarily a tort. This latter principal fits squarely within long-standing jurisprudence on the difference between tort and contract: Where the duty allegedly breached by the defendant is one that arises out of a contract, independent of any duty imposed by law, the cause of action is one of contract. * * * By contrast, where the duty allegedly breached by the defendant is one that is imposed by law, whether or not it arises out of a contract, the cause of action is not based on contract, but rather on tort. Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 810-11; see, also, Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, paragraph one of the syllabus. - 16 - Thus, the mere fact that Dr. Krause had an employment contract with Mt. Sinai during the 1989-90 academic year does not require that a court consider her claims as contract claims for statute of limitations purposes. Dr. Krause has alleged that Mt. Sinai breached several duties that, according to her, are imposed by law. They are therefore tort claims, and the fifteen-year statute of limitations for contract actions is not applicable. The "harms" Dr. Krause lists on her complaint arise from the various alleged "incidents." The trial court correctly held that these were barred by the applicable statute of limitations, as they are also based on tort. The first "harm" plaintiff lists is "intimidation." Ohio law does not recognize a tort of "intimidation." However, if such a tort existed, the applicable statute of limitations would be four years. R.C. 2305.09 states in pertinent part: "An action for any of the following causes shall be brought within four years after the cause thereof accrued: *** (D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections 2305.10 to 2305.12, 2305.14 and 1304.35 of the Revised Code." Since the tort of "intimidation" is not enumerated in any of the other code sections, R.C. 2305.09(D) applies, and the statute of limitations is therefore four years. Since all of Dr. Krause's "incidents" allegedly occurred prior to June 30, 1990, except for incident five, which she claims was completed by November 1, 1991, - 17 - these events took place over four years before the date her complaint was filed (December 5, 1995). The second and third "harms" listed on the first page of Dr. Krause's complaint are "libel" and "defamation." The time limitation for bringing claims based upon these torts is codified at R.C. 2305.11(A): "An action for libel [or] slander *** shall be commenced within one year after the cause of action accrued ***." The alleged "incidents" occurred prior to June 30, 1990 or (at the latest) November 1, 1991, therefore her defamation claims are barred. The statute of limitations for intentional infliction of emotional distress, the fourth "harm" listed, is the "catch-all" four-year period codified at R.C. 2305.09(D). See Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of America (1983), 6 Ohio St.3d 369, 379; Biro v. Hartman Funeral Home (1995), 107 Ohio App.3d 508, 513. Since all of Dr. Krause's alleged grievances occurred prior to June 30, 1990, or (at the latest) November 1, 1991, she failed to bring a timely claim for intentional infliction of emotional distress against Mt. Sinai or its physicians. The statute of limitations for a claim for fraud, the fifth "harm" listed, is governed by R.C. 2305.09, which states in pertinent part: "An action for any of the following causes shall be brought within four years after the cause thereof accrued: *** (C) For relief on the ground of fraud." Again, none of Dr. - 18 - Krause's claims were based on facts which occurred after November 1, 1991, so any claim for fraud against Mt. Sinai is therefore time-barred. Furthermore, a claim of fraud must be pled with specificity or it is properly dismissed. Universal Coach, Inc. v. New York City Transit Auth., Inc. (1993), 90 Ohio App.3d 284, 292. Dr. Krause's final three categories of "harms," breach of duty, breach of affirmative action to prevent harm and breach of control of third persons, are not legally cognizable causes of action. Even if they were, however, they too would be subject to the four-year statute of limitations of R.C. 2305.09(D), or the shorter two-year statute of limitations contained in R.C. 2305.10. See Lawyers Cooperative v. Muething, supra at syllabus ("a negligence claim asserting emotional distress, pain and suffering, humiliation, and loss of reputation is a claim for personal injuries and is governed by the statute of limitations set forth in R.C. 2305.10"). These claims therefore are also time-barred and must be dismissed. Plaintiff's Assignment of Error I, II and III are overruled. Judgment affirmed. - 19 - It is ordered that appellees recover of appellant its 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 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. KARPINSKI, J., and STRAUSBAUGH, J.*, CONCUR. JAMES M. PORTER PRESIDING JUDGE (*Judge Dean Strausbaugh, Retired, of the Tenth Appellate District, Sitting by Assignment.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .