ERIN M. EBBING v. TRACY STEWART, et al.
CASE NO. CA2016-05-085
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
11/7/2016
[Cite as Ebbing v. Stewart, 2016-Ohio-7645.]
HENDRICKSON, J.
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2016-02-0327
Tracy Stewart, 2524 Grand Blvd., Hamilton, Ohio 45011, defendant-appellee, pro se
Graydon Head & Ritchey LLP, John C. Greiner, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati, Ohio 45202, for defendants-appellees, Ohio/Oklahoma Hearst Television, Inc. d.b.a. WLWT News 5 and Karin Johnson
Lawrence E. Barbiere, 5300 Socialville Foster Road, Suite 200, Mason, Ohio 45040, for defendants-appellees, Fairfield Township, John Vanderyt, Brian Schulten, Corey Stebbins and Matthew Fruchey
O P I N I O N
HENDRICKSON, J.
{¶ 1} Plaintiff-appellant, Erin M. Ebbing, appeals the decision of the Butler County Court of Common Pleas denying her motion to join her husband, Joseph P. Ebbing, as a
{¶ 2} Erin‘s complaint seeks declaratory judgment and injunctive relief, in addition to monetary damages for landlord-tenant, defamation, “criminal acts,” and constitutional claims. The complaint named multiple defendants for the various counts, which all stem from a landlord-tenant dispute.
{¶ 3} Erin is the owner and landlord of a rental home that is managed by Joseph and located on Princeton Road in Fairfield Township. Tracy Stewart rented this residence from Erin for most of 2014 through January 31, 2015. In the final month of this rental period, a dispute began between Stewart and Joseph regarding the notice required to schedule showings for possible future tenants and the date which Stewart would be fully moved out the residence. On several occasions, Joseph informed Stewart of his expectation that she completely vacate the residence by midnight on January 31, 2015. In response, Stewart communicated to Joseph that she might need a short period beyond that date to complete her move. From this disagreement, an ongoing dispute developed, which led Stewart to place several emergency phone calls to police to complain about Joseph‘s conduct.
{¶ 4} On February 1, 2015, the dispute continued when Joseph entered the residence in the middle of the night before Stewart had completely vacated. Again, Stewart placed an emergency phone call to police to complain of Joseph‘s recent actions. Fairfield Police responded to the complaint and advised Joseph of Ohio‘s eviction laws, directed him to refrain from entering the residence until Stewart had completely vacated, and warned him that he would be arrested if he did not leave the premises. Since Joseph refused to leave the premises, officers placed him under arrest and charged him with criminal trespassing.
{¶ 6} On February 4, 2015, WLWT News 5 aired a news segment and posted a substantially similar online article describing the circumstances of the arrest and the charges against Joseph. The focus of the report was the dispute between Joseph and Stewart. The report did not mention Erin by name, but rather, briefly identified her in passing as the owner and landlord of the property.
{¶ 7} Based on the foregoing, Erin filed a complaint in the Butler County Court of Common Pleas alleging claims against the following the defendants: Fairfield Township, Fairfield Township Officers John Vanderyt, Brian Schulten, Corey Stebbins, and Matthew Fruchey (referred to collectively as “township appellees“); Ohio/Oklahoma Hearst Television Inc. d.b.a. WLWT and reporter Karin Johnson (referred to collectively as “WLWT“); and Stewart. Township appellees answered denying all claims and raised several defenses including failure to state a claim upon which relief can be granted. WLWT filed a motion to dismiss Erin‘s claims pursuant
{¶ 8} It is from this decision that Erin now appeals.
{¶ 9} Assignment of Error No. 1:
{¶ 11}
{¶ 12} In this case, Erin seeks damages for a defamation claim against WLWT. Defamation is a false publication that injures a person‘s reputation. Dale v. Ohio Civ. Serv. Emp. Assn., 57 Ohio St.3d 112, 117 (1991). “In order to be actionable, a plaintiff in a defamation action must show that the alleged defamatory statement was ‘of and concerning’ the plaintiff.” Whiteside v. United Paramount Network, 12th Dist. Madison No. CA2003-02-008, 2004-Ohio-800, ¶ 15, quoting New York Times Co. v. Sullivan, 386 U.S. 254, 267 (1964).
{¶ 13} WLWT moved to dismiss Erin‘s defamation claim on the basis that the
{¶ 14}
{¶ 15} WLWT‘s argument in its motion to dismiss demonstrates both an attack on Erin‘s capacity to sue and an insufficiency in her claim for failing to allege facts to support the essential elements of a defamation claim. However, “[i]t is well established that before an Ohio court can consider the merits of a legal claim, the person seeking relief must establish standing to sue.” State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469 (1999).
{¶ 16} The bases for Erin‘s defamation claim arose from the WLWT News 5 television segment and its subsequent website article which reported the circumstances of Joseph‘s arrest and pending charges. Based on a thorough review of the record, without addressing the merits of the claim itself, it is clear that Erin is not a real party in interest to assert such a defamation claim. Neither the television news broadcast nor the online article mentions Erin
{¶ 17} Nonetheless, even if Erin had sufficiently alleged facts to demonstrate standing, her defamation claim must fail pursuant to
{¶ 18} In addition to the defamation claim, Erin also alleges a laundry list of criminal acts committed by WLWT and township appellees as well as various violations of the Ohio and United States Constitutions. However, because the only factual allegations in the complaint pertaining to WLWT are in reference to the defamation claim, all other claims against WLWT must be dismissed pursuant to
{¶ 20} Therefore, Erin‘s first assignment of error is hereby overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} TRIAL COURT REVERSIBLY ERRED AND MALICIOUSLY DEPRIVED PLAINTIFF OF HER CONSTITUTIONAL RIGHTS BY UNLAWFULLY GRANTING SUA SPONTE MOTIONS TO DISMISS ALL OTHER DEFENDANTS.
{¶ 23} In support of Erin‘s second assignment of error, she argues the trial judge unlawfully practiced law in his court by sua sponte dismissing all remaining claims against all other parties in its entry and order granting WLWT‘s motion to dismiss. In dismissing the remaining claims, the trial court found that the alleged landlord-tenant dispute between Erin and Stewart did not meet the minimum monetary amount needed for the court to exercise its jurisdiction over the claim. The trial court further found the remainder of the complaint warranted dismissal pursuant to
{¶ 24} Our analysis of Erin‘s second assignment of error begins with the claims brought against Stewart. After a thorough review of the record, it is clear that service of process has not been effectuated for Stewart, which is also reflected in the trial court‘s entry and order dismissing Erin‘s complaint. Pursuant to
{¶ 25} In Patterson, the Ohio Supreme Court analyzed whether a plaintiff may maintain a lawsuit against a defendant solely under the fictitious name in which the defendant does business. Id. at 575-77. Specifically, the named defendant was a sole proprietorship, which does not have a separate legal identity. Id. at 576. The court began its analysis by citing a previous decision that found if a defendant in a lawsuit is not an actual or legal entity, then any judgment rendered against that entity is void. Id., citing Cobble v. Farmer‘s Bank, 63 Ohio St. 528, 536 (1900). Next, the court looked to
{¶ 26} In so holding, we note that Erin‘s complaint names “WLWT News 5,” which is not a legal entity, but rather an operating division of the proper party, Ohio/Oklahoma Hearst Television Inc. d.b.a. WLWT. Despite the analysis conducted above with respect to Stewart, the clerical error in the caption of Erin‘s complaint did not deprive the trial court of jurisdiction with respect to WLWT. See Engelhart v. Bluett, 1st Dist. Hamilton No. C-160189, 2016-Ohio-7237, ¶ 11-12 (holding plaintiff may sue defendant under its trade name based on the substance of the pleadings despite improper party named in case caption). In Engelhart, the caption of the plaintiff‘s complaint named GMCC by its trade name, Grange Insurance. Despite this clerical error, the First District looked to the substance of the pleadings as a whole to determine if Engelhart named the proper party. In the case before us, the
{¶ 27} Next, we address the trial court‘s sua sponte dismissal of all claims against township appellees. “In general, a court may dismiss a complaint on its own motion pursuant to
{¶ 28} For the same reasons outlined in Erin‘s first assignment of error, the claims against township appellees are frivolous and it is obvious Erin cannot prevail on the facts alleged therein. Moreover, Erin has failed to demonstrate standing to assert such claims. Thus, the trial court did not err in sua sponte dismissing all claims against township appellees.
{¶ 29} Therefore, Erin‘s second assignment of error is hereby sustained in part and overruled in part.
{¶ 30} Assignment of Error No. 3:
{¶ 32} The trial court denied Erin‘s motion to join Joseph as a plaintiff based on a previous determination that Joseph is a vexatious litigator. See In re Joseph P. Ebbing, Butler No. IR12-03-0202 (Mar. 2, 2015). Pursuant to
{¶ 33} It is clear from the trial court‘s entry and order that it found Erin‘s motion to join Joseph an abuse of process and that there were no reasonable grounds for the application. In making this finding, the trial court stated the complaint and subsequent motion for joinder were made “in an effort to ignore [Joseph‘s] status as a vexatious litigator and launch another barrage of bombastic belligerence.” Pursuant to
{¶ 34} In conclusion, we find the trial court erred in dismissing the claims against Stewart because service had not yet been perfected at the time of the dismissal. In all other
{¶ 35} Judgment affirmed in part, reversed in part, and remanded.
M. POWELL, P.J., and RINGLAND, J., concur.