Redding v. United States Parachute Assn., Inc.Redding v. United States Parachute Assn., Inc.
Case Information
*1
[Cite as
Redding v. United States Parachute Assn., Inc.
,
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY
WESLEY REDDING, CASE NO. 2022-G-0024 Plaintiff-Appellant,
Civil Appeal from the - vs - Court of Common Pleas UNITED STATES PARACHUTE
ASSOCIATION, INC., et al.,
Trial Court No.
O P I N I O N
Decided: March 20, 2023 Judgment: Affirmed in part, reversed in part, and remanded
Wesley Redding, pro se, 338 Irma Drive, Chardon, OH 44024 (Plaintiff-Appellant). Tyler Tarney and Eric Leist, Gordon Rees Scully Mansukhani, LLP, 41 South High Street, Suite 2495, Columbus, OH 43215 (For Defendants-Appellees).
JAMES A. BROGAN, J., Ret., Second Appellate District, sitting by assignment. Appellant, Wesley Redding, has filed the instant pro se appeal from the judgment of the Geauga County Court of Common Pleas. In general, appellant challenges the trial court’s dismissal of his multi-cause-of-action complaint. For the reasons discussed in this opinion, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings. The underlying complaint is premised upon appellant’s allegation that he
was wrongfully dеnied membership in the United States Parachute Association (“USPA”). The named defendants and appellees herein are as follows: USPA, Sherry Butcher, *2 Marcie Anne Smith, AerOhio Skydiving Center, and Cleveland Skydiving Center (collectively “appellees”). In his complaint, appellant asserts he was a member of the USPA from March 31, 2004 through June 30, 2021. After his membership expired, on July 2, 2021, he attempted to renew his membership, but was denied. Appellant’s complaint generally claims that appellees wrongfully refused to
renew his membership, in violation of USPA’s Governance Manual (“Manual”), in violation of Ohio law, and in retaliation for filing various complaints with the Federal Aviation Administration (“FAA”). In particular, the complaint asserts appellees breached а contract between themselves and appellant; appellees were negligent; they violated R.C. 1729.24; they violated the Sarbanes-Oxley Act; they intentionally interfered with a business interest; they breached a duty of good faith and fair dealing; and they violated R.C. 4113.52, Ohio’s Whistleblower statue. Appellant additionally sought injunctive relief. Appellees filed a motion to dismiss based upon Civ.R. 12(B)(6). Appellees specifically broke down each claim in appellant’s complaint and argued that, viewing the allegations in his favor, no set of facts would entitle him to relief. Appellant duly opposed the motion. In his memorandum in opposition, appellant simply argued that USPA, by permitting appellant to participate in an apрeal of his membership via the “non-member” administrative process, appellees were not entitled to argue the Manual was inapplicable to the parties’ relationship. The trial court converted appellees’ motion into a motion for judgment on the pleadings pursuant to Civ.R. 12(C). After considering the parties’ relative arguments, the trial court concluded that no genuine issue of material fact existed that would entitle him to relief on any of the claims. The complaint was therefore dismissed. Appellant now appeals and assigns six errors for this court’s review. His first provides:
The trial court abused it’s discretion by committing fraud and excusable neglect against plaintiff-appellant in granting defendants- appellees’ motion to dismiss, as defendants’ motion is a fraud under Civ. R 60(B)(1) - (5), pursuant to R.C § 2913.01(A) - (C), and R.C. § 2913.43(A) - (B). The trial court specifically state (1) “Nowhere does Redding allege that a contract exists between non-members and any of the defendants” (T.d 41, p. 3, ¶3) ; (2) “there is no alleged contract between Redding and any of the defendants” (T.d 41, p. 4, ¶4); and (3) “Redding has not alleged the existence, or submitted evidence of a binding contract between the parties” (T. d. 41, p. 9, ¶1). Defendants-appellees’ exhibit “A”, the USP A Governance Manual, Appendix C Section 1 states “In a membership organization like the USPA, disciplinary proceedings and other disputes are best resolved within the organization. Accordingly, the USPA’s Board of Directors has adopted this policy as part of USPA’s members’ contracts of mеmbership with the USPA (including group members’ contracts of membership) to encourage resolution within the organization” (T.d. 18, p. 99, ¶2). The USPA Governance Manual is a contract bound by the laws of this state pursuant to R.C 2307.39. Additionally, “Since it is not possible for USPA to revoke the membership and ratings of a non-current member” (T.d. 18, p. 42, ¶9), plaintiff-appellant was indisputably “a member of the USPA from March 31, 2004 through June 30, 2021” (T.d. 41, p. 2 ¶3). Therefore, the trial courts statements are fraudulent as plaintiff-appellant was “a member” and the Governance Manual is a contract between USPA and it’s members. Further, the trial court’s fraudulent statements defrauded the trial court. Consequently, the trial court committed fraud, excusable neglect, or other misconduct under Civ. R. 60(B)(1) - (5) pursuant to R.C § 2913.01(A) - (C), and R.C. § 2913.43(A) - (B), which deprived рlaintiff appellant’s substantial right to a jury trial under R.C § 2505.02(B) and R.C § 2505.02(B)(1) in which a pecuniary obligation, the complaint, is incurred. (Sic throughout.) Given its rambling nature and arbitrary citation to the civil rules and inapplicable statutes, it is difficult to discern, from the assigned error alone, the nature of appellant’s argument. In the body of his argument, however, appellant asserts that the trial court committed fraud and excusable neglect in granting appellees’ motion to dismiss. In particular, appellant asserts appellees’ “motion is a ‘fraud’” under Civ.R. 60(B)(1) - (5); the motion is somehow, by definition, a criminal fraud pursuant to R.C. 2913.01(A); and the motion amounts to the crime of “securing a writing by fraud,” in violation of R.C. *4 2913.43(A) and (B). Appellant claims that appellees’ motion to dismiss is based upon frаudulent (criminal or otherwise) statements which deprived him of the substantial right to a jury trial. In support of this point, he cites R.C. 2505.02(B), the statute governing final, appealable orders.
{¶6}
Initially, none of the above arguments were raised in appellant’s
memorandum in opposition to appellees’ motion to dismiss
.
A party who does not bring
an alleged error to the trial court’s attention forfeits the right to challenge that error on
appeal.
See, e.g., Ashmore v. Eversole,
2d Dist. Montgomery No. 15672, 1996 WL
685568, *6 (Nov. 29, 1996). Even where the challenge has been forfeited, however, an
appellate court may recognize plain error.
Goldfuss v. Davidson,
Appellant did not file a Civ.R. 60(B) motion. It is therefore inapplicable. Further, there were no intimations in appellant’s complaint that appellees
engaged in any criminal conduct or that any criminal investigation vis-à-vis fraud occurred. Hence, appellant’s reference to Ohio’s criminal code is also inapposite. Finally, R.C. 2505.02(B) discusses matters that “affect a substantial right” in relation to whether an order from a trial court is either final and appealable or *5 interlocutory. That statute, however, is not germane to the content of appellees’ argumentation in their motion to dismiss. It is therefore irrelevant to the trial court’s decision granting appellees’ motion to dismiss. With respect to appellant’s assertion that appellees’ motion to dismiss made
“fraudulent allegations,” appellant cites the following points: (1) “But nowhere in the manual does it state that it is a binding contract between USPA and members.”; (2) “Plaintiff contract claims fail because, even if there was a contract he was not a member at the time the alleged breach occurrеd”; and (3) “However, the conduct which Plaintiff alleges constituted a breach occurred after Plaintiff sought to renew his membership on July 2, 2021.” Appellant fails to argue, let alone demonstrate, how any of the foregoing statements were false or made with any intent to mislead the court. As a result, his claim that appellees’ representations were fraudulent is without merit. Appellant next contends the trial court erred in granting appellees’ motion
to dismiss because it improperly relied upon appellees’ statements that no contractual relationship existed between appellant and USPA. He asserts (1) he previously had a membership with USPA; (2) he attempted to renew his membership within 30 days of its expiration as provided by the Manual, Section 1-1, Art. 1, Section 4; (3) his membership was revoked pursuant to an administrative process provided by Art. 1, Section 6.4(F)(2) of the Manual; and (4) as a result, he established a prima facie contractual relationship between himself and appellees. Initially, it would appear some of the named appellees were likely not
directly involved in revoking appellant’s USPA membership. The Manual speaks to the *6 manner in which the USPA addresses its members and what rights and obligations USPA and its members might share. Art. 1, Section 4 addresses “Delinquencies,” and provides:
Notification of failure to pay indebtedness, other than dues, to USPA, when due, shall be sent to the delinquent member within thirty (30) days following USPA notification of the delinquency. If the said indebtedness shall not have been paid within thirty (30) days after mailing of the notice, the membership of said individual or group shall be terminated. This provision addresses “indebtedness,” not “dues,” which, according to
the Manual, every member must pay. Art. 1, Section 7. In this respect, appellant’s attempt to renew his membership after its expiration does not apply. Moreover, Art. 1, Section 4 concerns itself with USPA’s obligation to notify an indebted (delinquent) member of the debt within 30 days of its awareness of the delinquency. To the point, the section does not afford a former or an inactive member 30 days from the date of his or her membership expiration to pay his or her dues for membership. In short, Art. 1, Section 4 is inapplicable to appellant’s situation. Additionally, even though USPA did not renew appellant’s membership
pursuant to the Manual, this does not imply he was somehow an imputed “member” of USPA. To the contrary, Art. 1, Section 6.4(F)(2) sets forth procedural channels for “a disciplinary investigation” of “Non-Members.” It would seem, from the face of the allegations in the complaint, that USPA followed these procedures. See Complaint, ¶28- 29. The Manual draws a distinction between disciplinary actions for members
and non-members. The Manual, in discussing non-member potential renewals, points
out that “[s]ince it is not possible for USPA to revoke the membership and ratings of a
non-current member, the board would need to examine the situation to determine if it
*7
would be deemed reasonable to allow the expired member to renew membership and
ratings.” Art.1, Section 6.4(F)(3). It is undisputed that, at the time appellant sought
renewal, he was not a “current member.” “To have a valid and enforceable contract there
must be an offer by one party and an acceptance of the offer by another.”
Huffman v.
Kazak Bros., Inc.
, 11th Dist. Lake No. 2000-L-152,
The trial court abused it’s discretion by committing fraud and excusable neglect against plaintiff-appellant in granting defendants- appellees' motion to dismiss, as defendants’ motion is a fraud under Civ. R 60(B)(1) - (5), pursuant to R.C § 2913.01 (A) - (C), and R.C. § 2913.43(A) - (B). Defendants-appellees’ statement in their motion to dismiss “The USPA made this decision pursuant to the procedures applicable to non members set forth in Section 1-6.4.F of the USPA Governance Manual” (T.d. 18, p.2, ¶1). Plaintiff-appellant’s response, exhibit “A”, establishes "The Executive Committee has declared you ineligible for membership in accordance with USPA Membership “By-Laws” (T.d. 29, p. 8, ¶1). Defendants-appellees’ exhibit “A” establishes “Any member may be censured, susрended, or expelled by the USPA Executive Committee, with such action to be reviewed by the BOD, for causes but not limited to transgression of basic ethical principles as detailed in the Constitution, By-laws, and policies of USPA” (T.d. 18, p. 23, ¶1). Therefore, defendants- appellees’ statements are fraudulent as USPA Executive Committee declared plaintiff-appellant ineligible for USPA membership in accordance with USPA membership “by-laws” and not a “disciplinary action investigation” under Section 1-6.4.F which constituted a *8 breach of plaintiff-appellant’s USPA membership. Further defendants-appellees' statements are fraudulent, by the use of deception, misrepresentation, or any conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, which defrauded the trial court. Additionally, the trial court relied upon defendants-appellees’ fraudulent statements and specifically state (1) “Redding was not a member at the time” (T.d 41, p. 4, ¶2); and (2) “Redding has not alleged proximate cause” (T.d. 41, p. 7, ¶2). Consequently, the trial court committed fraud, excusable neglect, misconduct, or any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, under Civ. R. 60(B)(1) - (5) pursuant to R.C § 2913.01(A) - (C), and R.C. § 2913.43(A) - (B), which deprived plaintiff-appellant’s substantial right to a jury trial under R.C § 2505.02(B) and R.C § 2505.02(B)(1) in which a pecuniary obligation, the complaint, is incurred. (Sic throughout.) Appellant’s second assignment of error appears to recycle the same arguments alleged under his first assigned error. Because the allegations are essentially duplicative of those already addressed, his second assignment of error lacks merit. Appellant’s third assigned error reads:
The defendants-appellees’ committed extrinsic fraud and excusable neglect by the use of deception and misrepresentation in their motion to dismiss under Civ. R. 60(B)(l) (5), pursuant to R.C § 2913.01(A) - (C), and R.C. § 2913.43(A)-(B). Defendants-appellees’ "knowingly" state (1) “the Governance manual did not create any contractual rights”; (2) “nor any contract on Defendants” (T.d 18, p. 3, ¶2); and (3) “nowhere in the Manual does it state that it is a binding contract between the USPA and members” (T.d. 18, p. 5, ¶2). Despite defendants-appellees' еxhibit “A”, the USPA Governance Manual, Appendix C Section 1 states “In a membership organization like the USPA, disciplinary proceedings and other disputes are best resolved within the organization. Accordingly, the USPA’s Board of Directors has adopted this policy as part of USPA’s members’ contracts of membership with the USPA (including group members’ contracts of membership) to encourage resolution within the organization” (T.d. 18, p. 99, ¶2). The USPA Governance Manual is a contract bound by the laws of this state pursuant to R.C 2307.39. Further, “Since it is not possible for USPA to revoke the membership and ratings of a non-current member” (T.d. 18, p. 42, ¶9), plaintiff-appellant was indisputably “a member of the USPA from March 31, 2004 through June 30, 2021” (T.d. 41, p. 2, ¶3). Therefore, defendants appellees’ *9 statements are fraudulent as the Governance Manual is a contract between USPA and it’s members. Additionally, defendants- appellees knowingly made fraudulent statements, or any conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law under Civ. R. 60(B)(1)-(5) pursuant to R.C § 2913.01(A)-(C). Consequently, defendants-appellees’ obtained, by deception, some benefit for oneself or defendants’, or to “knowingly” cause, by deception, some detriment to plaintiff-appellant and caused the trial court to execute an order on their motion to dismiss, which is any writing obtained by deception under R.C § 2913.43(A) - (B). Furthermore, defendants- appellees’ deprived Redding’s substantial right to a jury trial under R.C § 2505.02(B) and R.C § 2505.02(B)(1) in which a pecuniary obligation, the complaint, is incurred. (Sic throughout.) {¶20} Similar to his second assignment of error, appellant reiterates many of the same points as he did in his first assignment of error under his third assigned error. He points, however, to Appendix C, Section 1 of the Manual as providing some indicia of a contractual relationship between himself and USPA. That Section, entitled “Internal Resolution Policy,” provides, in relevant part:
In a membership organization like the USPA, disciplinary proceedings and other disputes are best resolved within the organization, if possible, through simple procedures administered promptly and fairly. Accordingly, the USPA’s Board of Directors has adopted this Policy as part of the USPA members’ contracts of mеmbership with the USPA (including group members’ contracts of membership), to encourage resolution within the organization. While the above clause indicates that membership with the USPA
constitutes a contract, we previously concluded that, under these facts, appellant, at the relevant time, was a non-member. As a result, he was not a member of the organization when his membership was not renewed. His point is therefore without merit. Appellant’s third assignment of error lacks merit. Appellant’s fourth assigned error reads:
The defendants-appellees committed extrinsic fraud and excusable neglect, by the use of deception and misrepresentation, or any *10 conduct, act, or omission that creates, confirms, or perpеtuates a false impression in another, including a false impression as to law in their motion to dismiss under Civ. R. 60(B)(1) - (5), pursuant to R.C § 2913.01(A)-(C), and R.C. § 2913.43(A)-(B). Defendants-appellees’ statement in their motion to dismiss.” The USPA made this decision pursuant to the procedures applicable to non members set forth in Section 1-6.4.F of the USPA Governance Manual” {T.d. 18, p.2, ¶1). Plaintiff-appellant’s response, exhibit “A”, establishes “The Executive Committee has declared you ineligible for membership in accordance with USPA Membership “By-Laws” (T.d. 29, p. 8, ¶1). Defendants-appellees’ exhibit “A” establishes “Any member may be censured, suspended, or expelled by the USPA Executive Committee, with such action to be reviewed by the BOD, for causes but not limited to transgression of basic ethical principles as detаiled in the Constitution, By-laws, and policies of USPA” (T.d. 18, p. 23, ¶1). Additionally, defendants-appellees’ state “During all times alleged in the Complaint, USPA had a Governance Manual, it also contains guidelines for disciplinary actions against both members and nonmembers, including denying membership” (T.d 18, p. 5, ¶2). Therefore, defendants-appellees’ admit in their own words the USPA breached plaintiff-appellant’s USPA membership in accordance with Section 1-6.4.F of the USPA Governance Manual (T.d. 41, p. 42, ¶¶7-9). Further, defendants-appellees admit the Governance Manual contains guidelines for disciplinary actions against both members and nonmembers, and USPA denied plaintiff-appellant’s USPA membership. The USPA Governance Manual is a contract and/or agreement bound by the laws of this state pursuant to R.C 2307.39. Consequently, defendants-appellees fraudulent statements committed fraud, excusable neglect, or other misconduct under Civ. R. 60(B)(1) - (5) pursuant to R.C § 2913.01(A) - (C), and R.C. § 2913.43(A)-(B), which deprived plaintiff-appellant's substantial right to a jury trial under R.C § 2505.02(B) and R.C. § 2505.02(B)(1) in which a pecuniary obligation, the complaint, is incurred. (Sic throughout.) Appellant’s assertions under this assignment of error mirror those
previously asserted. Thus, the assigned error lacks merit. Appellant’s fifth assigned error reads:
The trial court abused it’s discretion and committed prejudicial erroneous error by citing a non-party in reference to plaintiff- appellant’s claims, under Civ. R. 71. The trial court cited a non-party USPS to Redding's Intentional Interference with a Business claim stating: “Moreover, the USPS is not alleged to have known about any *11 prospective contract for future employment (T.d. 41, p. 8, f.n. 8). Defendants-appellees’ exhibit “A”, the USPA Governance Manual, Appendix C Section 1 states. “In a membership organization like the USPA, disciplinary proceedings and other disputes are best resolved within the organization. Accordingly, the USPA’s Board of Directors has adopted this policy as part of USPA’s members’ contracts of membership with the USP A (including group members’ contracts of membership) to encourage resolution within the organization” (T.d. 18, p. 99, ¶2). The USPA Governance Manual is a contract bound by the laws of this state pursuant to R.C 2307.39. Therefore, plaintiff- appellant did have a USPA membership contract of membership with the USPA. Further, when an order is made in favor of a person who is not a party to the action, Redding may enforce obedience to the order; and, when obedience to an order may be lawfully enforced against a person who is not a party, the trial court is liable for enforcing obedience to the order. Consequently, the trial court committed fraud, excusable neglect, or other misconduct under Civ. R. 60(B)(1) - (5) pursuant to R.C § 2913.01(A) - (C), and R.C. § 2913.43(A) - (B), which deprived appellant’s ("Redding") substantial right to a jury trial under R.C § 2505.02(B) and R.C § 2505.02(B)(1) in which a pecuniary obligation, the complaint, is incurred. (Sic throughout.) Appellant takes issue with a purported clerical error in the trial court’s
judgment where, he claims, the court denoted “USPA” and “USPS.” Appellant asserts this error occurred in the trial court’s analysis of his “intentional interference with a business interest” claim. A review of the judgment does not support appellant’s accusation. Regardless, even if the court wrongfully designated USPA as USPS at one point in the judgment, it is apparent from the manner in which the trial court addressed the issues any such misidentification was an accident. We therefore conclude, when viewed in relation to the entirety of the judgment, this error was inadvertent and non- prejudicial. Any remaining point advanced under this assigned error has been
addressed supra. Appellant’s fifth assignment of error lacks merit. *12 Appellant’s sixth assigned error reads:
The trial court abused it’s discretion by not considering the manifest weight of the evidence against plaintiff-appellant as defendants- appellees' exhibits “A” (T.d. 18, рp. 16- 100) and exhibit “B” (T.d. 18, pp. 101-148) establishes plaintiff-appellant's complaint in it’s entirety, which effected his substantial right to a jury trial under R.C § 2505.02(B), R.C § 2505(B)(l) and ruling on the pleadings under Civ. R. 12(C), pursuant to Civ.R 12(B)(6). (Sic throughout.) Under his final assignment of error, appellant claims the trial court erred in failing to consider the manifest weight of the evidence (namely, the Manual) in dismissing his complaint. We do not agree. Initially, we do not review a trial court’s judgment dismissing a complaint
using a manifest-weight standard. Civ.R. 12(C) motions are specifically for resolving
questions of law.
State ex rel. Midwest Pride IV, Inc. v. Pontious
,
{¶32} As discussed under appellant’s first assignment of error, there was no contract between appellees and appellant at the time appellant alleged a breach. Thus, the trial court did not err in dismissing that claim. Next, appellant alleged appellees were negligent. To assert a claim for
negligence, a party must allege a duty owed by defendants, a breach of that duty,
causation, аnd damages.
Mussivand v. David
,
based upon appellant’s allegation that his purported status as a “whistleblower” caused the USPA (no other named appellees are addressed in the complaint) to unlawfully retaliate against him via conspiring to deny him USPA membership. To set forth a whistleblower claim under the Sarbanes-Oxley Act, a plaintiff
must first establish a prima facie case by proving, by a preponderance of the evidence,
“that: (1) [he or] she engaged in protected activity; (2) the employer knew that [he or] she
engaged in the protected activity; (3) [he or] she suffered an unfavorable personnel action;
and (4) the protected activity was a contributing factor in the unfavorable action.” (Internal
citations and footnotes omitted.)
Allen v. Admin. Review Bd.,
interference with a business interest claim. “The elements of tortious interference with a
business relationship are (1) a business relationship, (2) the tortfeasor’s knowledge
thereof, (3) an intentional interference causing a breach or termination of the relationship,
and, (4) damages resulting therefrom.” (Citation omitted.)
Diamond Wine & Spirits, Inc. v.
Dayton Heidelberg Distrib. Co.
,
employee/independent contractor at various parachute drop zones, including with Cleveland Skydiving Center. He then claimed that his USPA membership was terminated due to the wrongful actions of appellees. He claimed that he is unable to seek employment in the industry withоut a USPA membership. Appellant failed to allege that any appellee had any knowledge of any business relationship he possessed with area drop zones; moreover, although he claimed his membership was terminated by appellees’ “wrongful” actions, he does not specifically assert appellees’ intentional actions caused a breach of any business relationship of which appellees were, or in particular, USPA was aware. In sum, appellant failed to sufficiently plead the tort of intentional interference with a business relationship. The trial court did not err in dismissing this claim. Appellant next claims that appellees breached a duty of good faith and fair
dealing. In the complaint, he points out that “[e]very contract imposes upon each party a
promise and duty of good faith and fair dealing in its performance and enforcement.” As
discussed previously, however, appellant failed to establish the existence of a contract.
“Courts in Ohio have therefore recognized that there is no independent cause of action
*16
for breach of the implied duty of good faith and fair dealing apart from a breach of the
underlying contract.” (Citations omitted.)
Lucarell v. Nationwide Mut. Ins. Co.
, 152 Ohio
St.3d 453,
4113.52. To have a statutory cause of action, appellant must have been an employee. Appellant only alleged he had been an employee of one of the listed appellees, Cleveland Skydiving Center. Appellant asserted his employment relationship was severed due to the termination of his USPA membership. Appellant additionally alleged that each of the named appellees retaliated against him for filing complaints with the FAA by banning him from their jump zones and working together to prevent him from renewing his USPA membership. The Supreme Court of Ohio has observed:
R.C. 4113.52(A)(1) protects an employee for reporting certain information to outside authorities only if the following requirements have first been satisfied: (1) the employee provided the required oral notification to the employee’s supervisor or other respоnsible officer of the employer, (2) the employee filed a written report with the supervisor or other responsible officer, and (3) the employer failed to correct the violation or to make a reasonable and good faith effort to correct the violation.” (Emphasis original.) Contreras v. Ferro Corp. ,73 Ohio St.3d 244 , 248,652 N.E.2d 940 (1995). The complaint alleged certain named appellees were notified of potential
violations. “The statute mandates that the employer be informed of the violation both orally and in writing. An employee who fails to provide the employer with the required oral notification and written report is not entitled to statutory protection for reporting the information to outside authorities.” Id . *17 It is unclear whether appellant both orally notified his alleged employer,
Cleveland Skydiving Center and filed a written report. Still, reviewing the complaint in appellant’s favor, his allegation is sufficient to overcome a motion to dismiss. And, to the extent discovery is, at best, incomplete, we cannot say that appellant’s complaint with the FAA lacked substantive merit or was otherwise frivolous. Hence, it would be inappropriate to dispose of his R.C. 4113.52 count at the dismissal stage. As a result, the judgment, as it relates to the claim against defendant/appellee Cleveland Skydiving Center, must be reversed and remanded for further proceedings. As it relates to all other defendants/appellees, the trial court’s judgment is affirmed. Moreover, Courts interpreting the above statute have found that, “[t]o prove
a claim under § 4113.52, a plaintiff must show that: (1) he is entitled to protection under
the [Whistleblower] act; (2) he was subject to an adverse employment action; and (3)
there is a causal connection between the protected activity and the adverse employment
action.” (Citations omitted.)
Dobrski v. Ford Motor Co.,
entitled to protection. If his employment was severed due to legitimate complaints he *18 filed with the FAA, there was an arguable connection between an alleged protected activity and the purported adverse employment action. In this respect, we conclude appellant sufficiently pleaded the R.C. 4113.52 action such that it, as a matter of law, should withstand appellees’ motion to dismiss. Finally, appellant sought injunctive relief. In the complaint, he alleged:
Without just cause, legal justification or due process, Defendant USPA has revoked Plaintiff’s membership and by such action has caused and will continue to cause Plaintiff immediate and irrevocable harm in that: a. Plaintiff will suffer a loss and diversion of his opportunities and ability to jump; b. Plaintiff will continue to suffer a loss of employment in the industry; c. Plaintiff will suffer damage to his position.
Appellant asked the trial court to “immediately and permanently enjoin Defendants from decertifying Plaintiff and to restore Plaintiff’s status as a good standing member of the USPA.” Initially, the USPA did not “revoke” appellant’s membership. It simply did
not accept his membership renewal. Appellant’s characterization of the USPA’s decision not to accept his renewal application is therefore inaccurate. Moreover, it is unclear what appellant means by “dеcertifying.” He alleges, unless he is a member of the USPA, he will not have the opportunity to skydive in the future. Still, membership does not necessarily imply a form of certification. A prohibitory injunction preserves the status quo by enjoining a defendant
from performing the challenged acts in the future.
State ex rel. Leslie v. Ohio Hous. Fin.
Agency,
105 Ohio St.3d 261,
To state a claim for injunctive relief, a litigant must show that (1) it is
likely to succeed on the merits of the case, (2) the issuance of the
injunction will prevent irreparable harm, (3) the potential injury that
may be suffered [if the injunction is granted] will not outweigh the
potential injury suffered * * * if the injunction is not granted, and (4)
the public interest will be served by the granting of the injunction.
Cleveland v. Cleveland Elec. Illuminating Co.
,
must show by clear and convincing evidence that immediate and irreparable injury, loss
or damage will result to the applicant and that no adequate remedy at law exists. Actual
irreparable harm usually may not be presumed but must be proved.” (Internal citation
omitted.)
Middletown v. Butler Cty. Bd. of Cty. Commrs.
, 12th Dist. Butler No. CA94-03-
084,
established any of the elements necessary for injunctive relief. At the dismissal stage, however, a party does not have to specifically show each element of his or her cause of *20 action. With this in mind, it is unclear whether appellant has a “right” to have his membership reinstated or whether the trial court would have authority to “permanently” prevent appellees from “decertifying” him. Appellant’s R.C. 4113.52 claim was sufficiently pleaded against the
Cleveland Skydiving Center only. It does not appear from the complaint that Cleveland Skydiving Center controls or has a material voice in the USPA’s decision to renew or reject a membership request. Moreover, appellant’s complaint alleges he cannot skydive anywhеre without a USPA membership and, as such, it does not appear from the face of the complaint that Cleveland Skydiving Center has any authority to “certify” or “decertify” him. And, in appellant’s prayer for relief, he seeks a “[t]emporary and [p]ermanent [i]njunction restoring [his] USPA membership immediately * * *.” As a result, we conclude the trial court did not err in dismissing appellant’s claim against Cleveland Skydiving Center (or any of the remaining appellees) for injunctive relief. Appellant’s sixth assignment of error is without merit. For the reasons discussed in this opinion, the trial court’s judgment is
affirmed in part, reversed in part, and remanded for further proceedings. To wit, in light of the manner in which appellant’s complaint was pleaded, Count VII, his R.C. 4113.52 claim remains viable. Counts I through VI, as well as Count VIII, however, were properly dismissed.
JOHN J. EKLUND, P.J.,
MARY JANE TRAPP, J.,
concur.