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Kerns v. Schmidt6/9/1994
ction against Schmidt on the basis that the relevant statutes do not afford him a remedy for Schmidt's failure to obtain Kerns's consent to the artificial insemination.
Neither Schmidt's motion to dismiss nor the trial court's decision on the motion identifies the rule of civil procedure which would authorize the dismissal. Clearly, the requirements of Civ.R. 41(B) have not been met, nor did Schmidt couch his motion as one for summary judgment under Civ.R. 56, although it would appear the trial court treated the motion to dismiss, which argues matters outside the pleadings, in that manner. Finally, the motion to dismiss does not expressly identify Civ.R. 12(B) as its basis, although Schmidt did assert the court's lack of jurisdiction over the action and Kerns's inability to provide evidentiary support for the allegations in his complaint.
Kerns has not objected to the procedural manner in which Schmidt's motion to dismiss was raised or adjudicated, and so we will not address any possible procedural error in the trial court's dismissal. Instead, we will interpret the motion as being a motion to dismiss for failure to state a claim on which relief can be granted under Civ.R. 12(B)(6). It has been held that such a motion will be successful only where it appears "beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus.
According to Kerns, in the absence of a statutory remedy, the trial court was required to have afforded him a common-law remedy, otherwise the statutory requirement of consent is rendered a nullity. Kerns asserts that, in the absence of a statutory remedy for breach of a statute, a court must fashion a common-law remedy.
In addressing this issue, the trial court relied upon Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144, which addressed whether a private civil action for damages may be maintained where no statutory remedy is provided for violation of an employment statute relating to age discrimination. Although Fawcett involved an unrelated statute, the trial court found its reasoning applicable to the issue raised herein, stating that:
"It appears to the Court that the General Assembly, by enacting a statute addressing non-spousal artificial insemination, sought to provide a solution to the potential parentage issues which may arise as a result of a woman who is artificially inseminated by a donor other than her husband. An example of the legislature's concern over the paternity question is evidenced by the language of R.C. 3111.38 stating that the failure to secure a signed consent form from the recipient and husband will not alter the paternity consequences. It follows that if the General Assembly wished to confer the right to compensatory damages for noncompliance with the written consent requirement, it would have expressly so provided."
In Fawcett, the court relied on Johnson v. United States Steel Corp. (1964), 348 Mass. 168, 202 N.E.2d 816, which concluded that the duty alleged to have been breached in that case was "solely the creature of statute; no such duty exists at common law." Under Fawcett, because the statute did not expressly provide a civil remedy, and because there was no clear implication that such a remedy was intended, no common-law remedy could be obtained. However, the court also determined that the relevant statutes provided an administrative remedy, inferring that the General Assembly intended that violations of the statute be prosecuted by the Department of Industrial Relations, rather than redressed by pri
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