COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71539 MARYCATHERINE L. KRAUSE, M.D. : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION GERARD D. KLEIN, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 3, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 299175 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES GERARD D. KLEIN; ANN MOSES, R.N. AND Marycatherine L. Krause, THE NURSING STAFF OF THE M.D., Pro se EMERGENCY DEPT. OF MEMORIAL 5124 Mayfield Road HOSPITAL OF GENEVA: Lyndhurst, Ohio 44124 Francis X. Gardner, Esq. Reminger & Reminger Co., L.P.A. The 113 St. Clair Building Cleveland, Ohio 44114 FOR DEFENDANTS-APPELLEES COASTAL EMERGENCY SERVICES OF OHIO, INC. AND TERRY ATKINS: Gary D. Hermann, Esq. Margaret M. Pauken, Esq. Hermann, Cahn & Schneider 1301 East Ninth Street, #500 Cleveland, Ohio 44114 -2- FOR DEFENDANTS-APPELLEES JAMES HAUCK, M.D., GENEVA EMERGENCY GROUP AND VISHORE DESAI, M.D.: Gary L. Pasqualone, Esq. Curry and Pasqualone 302 South Broadway Geneva, Ohio 44041 -3- ROCCO, J.: Plaintiff-appellant Dr. Marycatherine L. Krause, acting pro se as she did in the trial court, appeals from the trial court orders which dismissed her various causes of action against defendants- appellees Dr. Gerard D. Klein, Dr. James Hauck, Geneva Emergency Group, Dr. Vishore Desai, and nurse Ann Moses. Appellant contends the trial court erred in the following particulars: 1) failing to determine that a copy of a physician work time-schedule for the month of November 1995 constituted a written contract of employment; 2) separating the parties against whom she had alleged breach of an oral contract of employment and then dismissing her claims against two of them; and 3) dismissing her libel claim. This court has reviewed the record and finds the trial court correctly considered the physician work time-schedule to be insufficient, properly dismissed appellant's claims for breach of oral contract against Dr. Hauck and Geneva Emergency Group and rightly dismissed appellant's libel claim. On November 29, 1995, appellant filed a complaint in the Cuyahoga County Court of Common Pleas naming the aforementioned 1 appellees and three others as defendants. In her first count, she alleged she had a written contract of employment with Dr. Klein, 1 Appellant misspelled Dr. Klein's name in the complaint as "Stein." Moreover, although defendants Terry Atkins and Coastal Emergency Services filed an appellate brief in this court, neither they nor the hospital nursing staff were named as appellees in appellant's notice of appeal, hence, they are not parties to this appeal. -4- chief executive officer of the Memorial Hospital of Geneva, Ohio ("MHG"), Dr. Hauck, Dr. Desai, Geneva Emergency Group ("GEG") and Coastal Emergency Services ("CES") to provide her professional services in the hospital's emergency room for the month of November 1995. She further alleged that a physician's work time-schedule attached as an exhibit to the complaint constituted the written contract of employment. In her second count, appellant set forth a narrative of events which she alleged "culminated" in an oral contract of employment between herself and Dr. Klein, GEG, Dr. Hauck and Dr. Desai. Appellant stated the contract was created on October 6, 1995. She was to provide physician emergency room services at the hospital, without using CES as her contracting agent, "in a split twelve hour Friday time block and a twenty-four Saturday time block sequence." Appellant stated her rate of pay in the following count of her complaint. However, she stated neither a commencement date for nor the duration of her services. She stated only that she was told CES' contract would expire in February 1996. Thus, although appellant alleged she was interested in "long-term employment," she did not allege any of the appellees promised this. Finally, appellant alleged that four days later, Dr. Desai "breached" the contract by reducing the number of hours she was expected to work each weekend due to "contractual constraints with CES." In count three, which she labeled "False Statement or Entry" appellant alleged that by the terms of her written and oral contracts with appellees, she was to provide services for "at least -5- three months" at a pay rate of $55.00 per hour for each hour of "coverage" of the emergency room but that she was required to give appellees copies of her credentials in order to secure a position there. She alleged she had concerns that appellees would permit the copies to be misused in some manner. Appellant labeled the fourth count "Antitrust, Restraint of Trade." She alleged her written contract was breached by Dr. Hauck in that she was "forcibly removed" from the work time-schedule and the hours she would have worked were then "distributed" to Dr. Hauck and CES. In the fifth count, appellant alleged "[i]f any of the individuals in the [hospital] Emergency Department presented themselves as registered technicians, licensed nurses or licensed physicians when, in fact, they are not," their procurement from her of copies of her credentials constituted "fraud." Appellant, in her sixth count, alleged appellees' refusal to accede to her proposal that she work a time-block of thirty-six consecutive hours when another doctor was permitted to do so constituted "wage discrimination." In her seventh count, appellant alleged the hospital's emergency room nursing staff and nurse Ann Moses failed to comply with her orders on November 4, 11 and 18, 1995. She further alleged their actions "interfered" with her obligation to deliver physician services, that she "admonished" them, and that they "may have retaliated" to cause the other appellees to breach their -6- written and oral contracts with appellant. Appellant labeled this cause of action as "Libel." Thereafter, the trial court granted the defendants several extensions of time in which to file a responsive pleading to the complaint. On February 12 and 14, 1996, appellees filed separate motions to dismiss. On February 27, 1996, appellant filed a brief in opposition to the motions. On May 15, 1996, the trial court issued an opinion and order granting the motions to dismiss of several of the defendants in the action, including Dr. Klein, Dr. Hauck, GEG, and nurse Ann Moses. In its order, the trial court denied only Dr. Desai's motion to dismiss with respect to count two of the complaint. Therefore, appellant's action for breach of an oral contract of employment proceeded as to Dr. Desai. The record reflects appellant was uncooperative with Dr. Desai's subsequent attempts at discovery. In July 1996, appellant filed a motion for a continuance of the trial date until August 27, 1996. The trial court granted appellant's motion. On the date set for trial, appellant appeared. However, she was unprepared. When questioned on the matter by the trial court, appellant admitted she had not thoroughly read the materials the trial court had given to her concerning trial procedure. Thus, she was unaware of her responsibility to issue subpoenas to her witnesses in order to compel their attendance. Appellant requested another continuance. -7- The trial court granted appellant's request. However, on the record, the trial court also admonished appellant for her "cavalier" attitude toward the proceedings. As a consequence, appellant was ordered to pay a thousand dollar fine and also ordered to pay Dr. Desai's costs for appearing for trial. The trial court told appellant she had thirty days to pay these fees; at that point, she would receive a new trial date. The trial court notified appellant her case would be dismissed if she failed to comply. On October 7, 1996, the trial court issued a journal entry dismissing appellant's remaining claim pursuant to Civ.R. 41(B)(1) for failure to comply with the court order and failing to prosecute her case. Appellant has filed a timely appeal and presents five assignments of error for this court's review. Appellant's first two assignments of error are almost identical; therefore, they are addressed together as follows: I. THE TRIAL COURT ERRED BY ABUSE OF DISCRETION AS A MATTER OF LAW IN THE ELEMENTS REQUIRED FOR A WRITTEN CONTRACT APPLIED TO THE CAUSE OF ACTION STATED FOR BREACH OF CONTRACT IN WRITING. II. THE TRIAL COURT ERRED BY ABUSE OF DISCRETION AS A MATTER OF LAW BY DISMISSAL OF THE CLAIM STATED FOR BREACH OF CONTRACT IN WRITING ON THE GROUNDS OF ORCP CIVIL RULES (SIC) 12(B)(6) AND 10(D), DESPITE ATTACHMENT OF THE WRITTEN INSTRUMENT TO THE COMPLAINT. -8- Appellant argues the trial court improperly dismissed her claim for breach of a written contract of employment. She asserts the copy of the emergency room physician work time-schedule is "traditionally used in the 'emergency medicine industry' as a bilateral binding agreement" between physicians and their 2 employers. Appellant cites portions of R.C. 1301.11 to support this assertion. This court notes, however, appellant failed to raise her assertion in the trial court; hence, she has waived it for purposes of appeal. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207. In any event, appellant's argument remains unpersuasive since the copy of the physicians work time-schedule has none of the necessary elements of a written contract. In its legal sense, the word "contract" includes every description of agreement or obligation, whether verbal or written, whereby one party becomes bound to another to pay a sum of money or to perform or omit to do a certain 2 The portions of R.C. 1301.11 cited by appellant follow: 1301.11 Course of dealing and usage of trade (A) A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct. (B) A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts. If it is established that such a usage is embodied in a written trade code or similar writing, the interpretation of the writing is for the court. (C) A course of dealing between parties and any usage of trade in the vocation or trade in which they are engaged or of which they are or should be aware give particular meaning to and supplement or qualify terms of an agreement. -9- act. National Glass & Lens Co. v. Parsons (App. 1928), 28 Ohio Law Rptr. 573, 574. Terex Corp. v. Grim Welding Co. (1989), 58 Ohio App.3d 80. (Emphasis added.) Moreover, Generally, a breach of contract action is pleaded by stating (1) the terms of the contract, (2) the performance by the plaintiff of his obligations, (3) the breach by the defendant, (4) damages, and (5) consideration. Harper v. Miller (1957), 109 Ohio App. 269, 11 O.O.2d 17, 164 N.E.2d 754; Haefner v. First Natl. Bank (1942), 70 Ohio App. 293, 25 O.O. 54, 44 N.E.2d 489. Cf. Silberman v. Natl. City Bank (1930), 36 Ohio App. 442, 173 N.E. 16. American Sales, Inc. v. Boffo (1991), 71 Ohio App.3d 168 at 175. (Emphasis added.) See, also, Nichols v. Chicago Title Ins. Co. (1995), 107 Ohio App.3d 684. A review of the document appellant attached to her complaint reveals the following: 1) a heading entitled: "ER PHYSICIAN SCHEDULE;" 2) a calendar of the month of November 1995; and 3) names inserted on the spaces for the days of the month. There is nothing to indicate the identity of a party designated as a defendant in this action. Thus, there is no one who agreed to be "bound" to do a particular thing for appellant. Schulpe v. Ohio Dept. of Adm. Serv. (1992), 78 Ohio App.3d 626 at 630. Furthermore, the document contains no terms. Without terms, contracts are not enforceable. See, e.g., Isquick v. Classic Auto Works, Inc. (1993), 89 Ohio App.3d 767; Arthur v. Parenteau (1995), 102 Ohio App.3d 302. In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ. -10- R. 12(B)(6)), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. *** O'Brien v. University Community Tenant's Union (1975), 42 Ohio St.2d 242. See, also, Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228. Appellant based her claim for breach of a written contract of employment upon the physician work time-schedule which she attached to her complaint pursuant to Civ.R. 10(D). In view of its inadequacies as evidence of a written agreement between herself and any of the named defendants in the action, the trial court properly dismissed this cause of action. Slife v. Kundtz Properties (1974), 40 Ohio App.2d 179; cf. American Sales, Inc. v. Boffo, supra. Accordingly, appellant's first two assignments of error are overruled. Appellant's third assignment of error states: III. THE TRIAL COURT ERRED BY ABUSE OF DISCRETION AS A MATTER OF LAW BY DISMISSING THE CAUSE OF ACTION FOR BREACH OF CONTRACT NOT IN WRITING AGAINST THE PRINCIPAL PRIOR TO THE HEARING OF THE COMPLAINT AGAINST THE AGENT, IN EFFECT APPLYING ORCP 42(B) BY ITS OWN MOTION, THUS PRECLUDING THE SIMULTANEOUS PROSECUTION OF AGENT AND PRINCIPAL. Citing Civ.R. 42(B), appellant argues her claim for breach of oral contact against Dr. Desai was prejudiced by the trial court's prior action in dismissing her claim against GEG since Dr. Desai was merely an agent of GEG. She further asserts that since the trial court's action essentially precluded her from successfully -11- prosecuting her claim, it abused its discretion in imposing sanctions upon her. Civ.R. 42(B) is inapplicable to appellant's argument. It permits a trial court, in its discretion, to order separate trials of claims once the case has proceeded to that stage. See, e.g., Petty v. First National Bank (1976), 50 Ohio App.2d 365. In this case, the trial court simply dismissed appellant's claim against GEG pursuant to Civ.R. 12(B)(6). A ruling on a Civ.R. 12(B)(6) motion does not constitute a "trial." Knecht v. Ohio Dept. of Rehab. & Corr. (1992), 78 Ohio App.3d 360. See, also, State ex rel. Keating v. Pressman (1974), 38 Ohio St.2d 161. As hereinbefore stated, the trial court's action in dismissing appellant's claim may be affirmed if, after viewing the material allegations of the complaint as true, it is clear appellant could prove no set of facts entitling her to relief. Greeley v. Miami Valley Maintenance Contrs., Inc.; supra; Slife v. Kuntz Properties, supra; Shockey v. Wilkinson (1994), 96 Ohio App.3d 91. In her second count, appellant alleged she had an oral contract of employment which was breached by appellees. A review of the allegations of appellant's complaint reveals the following: 1) On September 27, 1995, appellant was informed CES was the entity which provided the scheduled weekend physician coverage for MGH's emergency room each week; 2) at the October 6, 1995 meeting with Dr. Klein, who represented MGH, and Drs. Hauck, Desai and Hussaine, who represented GEG, appellant agreed to work a certain number of hours each weekend as an "independent contractor;" 3) appellant was -12- informed by Dr. Desai only that the CES contract would expire in February 1996; 4) appellant was presented with a MGH Medical Staff application; 5) four days later, prior to reporting for work, appellant was informed by Dr. Desai that due to "contractual constraints with CES," she would not be working as many hours as originally discussed; 6) on October 14, 1995, appellant received a CES application packet; 7) appellant provided her professional services in the hospital's emergency room for three weekends beginning on November 1, 1995; 8) at that point, appellant was informed by Dr. Hauck it would not be necessary for her to return. It is impossible to determine from the foregoing exactly which entity or person "hired" appellant. However, since appellant was aware CES provided physician services for MGH and apparently filled out applications for employment with only CES and MGH, even construing appellant's allegations as true, clearly appellant failed to allege she made a binding contract for employment with GEG through its agents. Cf., Helle v. Landmark, Inc. (1984), 14 Ohio App.3d 1. Moreover, assume arguendo appellant's allegations were sufficient to indicate she had an oral employment contract as an independent contractor with GEG through its agents, there was no stated term of duration. Under these circumstances, the employment relationship is generally terminable at will by either party. See, e.g., Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100. Although appellant alleged CES had a contract with the hospital until February 1996, notably absent from the allegations -13- of her complaint is any indication GEG promised appellant employment at least until that time. Rather, appellant alleged only that she was interested in long-term employment. Without any representation from GEG as to the expected duration of her employment, appellant could not reasonably assume a limitation on GEG's ability to terminate the relationship existed. Wing v. Anchor Media Ltd., of Texas (1991), 59 Ohio St.3d 108; Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656; cf., Helle v. Landmark, Inc., supra; Poskocil v. The Cleveland Institute of Music (Apr. 24, 1997), Cuyahoga App. No. 71425, unreported. For the foregoing reasons, the trial court did not err in granting GEG's Civ.R. 12(B)(6) motion to dismiss appellant's cause of action for breach of an oral contract. Thus, the trial court cannot be held responsible for appellant's own subsequent inability to maintain an action against Dr. Desai. Indeed, the trial court gave appellant ample opportunity to pursue and substantiate her claim. Its decision to impose sanctions and require appellant's compliance therewith prior to setting any new date for trial, therefore, did not constitute an abuse of discretion. Jones v. Hartranft (1997), 78 Ohio St.3d 368; Pang v. Minch (1990), 53 Ohio St.3d 186; Pembauer v. Leis (1982), 1 Ohio St.3d 89; Rankin v. Willow Park Convalescent Home (1994), 99 Ohio App.3d 110; cf., Gooslin v. Fortado (1992), 80 Ohio App.3d 373; Cook v. Transamerica Ins. Serv. (1990), 70 Ohio App.3d 327. Accordingly, appellant's third assignment of error is also overruled. -14- Appellant's fourth and fifth assignments of error are related. Thus, they are addressed together as follows: IV. THE TRIAL COURT ERRED BY ABUSE OF DISCRETION AS A MATTER OF LAW IN ITS FAILURE TO RECOGNIZE THE SPECIFIC TYPE OF LIBEL STATED AS A CAUSE OF ACTION IN THE COMPLAINT. THE TRIAL COURT ERRED BY ABUSE OF DISCRETION AS A MATTER OF LAW BY ITS FAILURE TO RECOGNIZE THAT IN A CAUSE OF ACTION FOR LIBEL THE ONLY DEFENSE IS THE TRUTH OF THE STATEMENT MADE. In these assignments of error, appellant makes a novel argument. She contends the trial court erred in denying her motion for reconsideration with respect to its dismissal of her libel claim, which was against MGH's nursing staff and nurse Ann Moses in particular, because during the course of the proceedings below Dr. Klein made a reference to appellant in an affidavit. She seems to assert that simply because she is a physician, Dr. Klein's words were libel per se, and therefore she was entitled to judgment on her claim. A review of the trial court's opinion and order of May 15, 1996 reveals it was well aware appellant was a physician. Hence, appellant's position the trial court did not "recognize" her status as one lacks credibility. Moreover, a review of appellant's seventh count of her complaint reveals appellant failed to plead the necessary elements of a libel claim. Although appellant claimed she was injured, she neither set forth the substance of any "statements" made nor alleged the "statements" were false. Furthermore, she merely -15- assumed that if such statements were made, they were communicated to a third party, and assumed that the nurses were motivated by ill will. A & B-Abell Elevator Co., Inc. v. Columbus/Central Ohio Bldg. & Constr. Trades Council (1995), 73 Ohio St.3d 1; Rogers v. Buckle (1992), 83 Ohio App.3d 653; Cf. Hendrick v. Center for Comprehensive Alcoholism (1982), 7 Ohio App.3d 211. Under these circumstances, the trial court correctly dismissed appellant's libel claim. Moreover, appellant could not simply "bootstrap" the seventh count of her complaint into one against a new party; rather, she was required to file an amended complaint. Civ.R. 15(A) & (E); Mork v. Waltco Truck Equip. Co. (1990), 70 Ohio App.3d 458. Since count seven of appellant's complaint was patently deficient, the trial court had no need to consider "defenses" other than a Civ.R. 12(B)(6) motion to dismiss it. Furthermore, for these same reasons, the trial court's denial of appellant's motion for reconsideration was proper. See Civ.R. 54(B); Bodo v. Nationwide Ins. Co. (1991), 75 Ohio App.3d 499. Accordingly, appellant's fourth and fifth assignments of error are also overruled. The orders of the trial court are affirmed. -16- 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 Common Pleas 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. JAMES D. SWEENEY, C.J., AND PATRICIA ANN BLACKMON, J., CONCUR JUDGE KENNETH A. ROCCO 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 .