DOUG WOODS v. BRIAN W. SHARKIN, ET AL.
No. 110567
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 26, 2022
[Cite as Woods v. Sharkin, 2022-Ohio-1752.]
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-19-920913
Doug Woods, pro se.
Gallagher & Sharp, LLP, Timothy T. Brick, and Maia E. Jerin, for appellee Brian W. Sharkin.
Baker & Hostetler, LLP, Michael K. Farrell, and Daniel M. Kavoras, for appellees Scripps Media, Inc., d.b.a. WEWS-TV, the E.W. Scripps Company, and Joe Pagonakis.
{¶ 1} Plaintiff-appellant, Doug Woods (“Woods“), appeals the trial court‘s decision dismissing his complaint. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
I. Factual and Procedural Background
{¶ 2} On September 4, 2019, Woods filed a civil complaint against 22 named defendants raising 17 causes of action. In his complaint and the attached incorporated documents, he asserted the following facts and allegations.
{¶ 3} Woods owns several single-family residential properties in the greater Cleveland area under the business name “What a Lovely Home.” At times, he has filed evictions proceedings, some of which resulted in money judgments against his tenants. Specific to this case, Woods was granted separate evictions and/or civil judgments in the Garfield Heights Municipal Court against former tenants Monique Willis (“Willis“), Erin Webb (“Webb“), Arliea Marshall a.k.a. McBryde (“Marshall“), Latanya Tyes (“Tyes“), Lashawn Deener (“Deener“), Dominque Jeter (“Jeter“), Jacqueline Johnson (“Johnson“), Mary Lamar (“Lamar“), and Andromeda Hicks (“Hicks“) (collectively “former tenants“).
{¶ 4} Woods alleged that because of the eviction proceedings, Johnson conspired with Martin Greer (“Greer“), who damaged his property and intimidated and threatened him regarding the return of Johnson‘s security deposit. He further alleged that Greer caused damage to a vehicle. Woods alleged that these actions occurred from September 2017 until November 2018.
{¶ 6} In July 2017, Woods commenced eviction proceedings against Willis, who hired attorney Brian W. Sharkin (“Sharkin“) to represent her.1 Woods alleged that Willis and Sharkin made defamatory statements about him insinuating that he was engaging in unlawful business practices. Woods alleged that Sharkin gathered the former tenants and contacted Joe Pagonakis (“Pagonakis“), a reporter with News Channel 5, to create and broadcast a story to further this “campaign of harassment.”
{¶ 7} On September 5, 2018, News Channel 5 broadcast and published a news story (hereinafter “news report“) regarding the rise in eviction proceedings in Cuyahoga County. Pagonakis reported the story and interviewed Webb, Tyes, and Marshall regarding their experiences during the eviction process, and offering
{¶ 8} Woods alleged that following this news story, Webb, Marshall, Tyes, Deener, and Lamar colluded and conspired through the social media platforms of Facebook and Twitter to gather current and former tenants of Woods in an effort to intentionally and maliciously defame him. This effort, according to Woods, included
{¶ 9} Woods further alleged that in October and November 2018, Sharkin and Willis orchestrated additional social media attacks through the use of Twitter accounts for the purposes of intentionally and maliciously defaming his character and reputation. Woods alleged that the Twitter posts were made by the former tenants and discussed their “great job” on the Public Service Announcement and sought to “come up with some other things to say” about Woods‘s rental properties. The responses included that Woods is a “crook,” “thief,” “lowlife corrupt criminal with shady business practices,” Woods‘s houses have “rats and roaches,” “black mold,” “bed bugs,” and “will burn down from bad electrical.” In support of his allegations, Woods attached to his complaint and incorporated by reference a printout of various Twitter feeds and conversations making allegations about Woods and his rental properties, which, according to Woods, were untrue.
{¶ 10} Woods alleged that John Clos (“Clos“) also made defamatory statements about one of his rental properties when he told one of Woods‘s tenants that when Woods purchased the home in which she was living, the home contained
{¶ 11} Woods alleged that from February 2018 until June 2018, Webb made unwelcome demands “that [Woods] engage in intimate conduct where submission to the request or demand, either implicitly or explicitly, was made a condition related to her ongoing rental of the” property. He alleged that her conduct created a “sexually harassing housing environment,” in violation of the Fair Housing Act.
{¶ 12} In April 2019, Woods initiated garnishment proceedings against Webb. He alleged that during this proceeding, Webb accused him of engaging in fraudulent activity, insinuated that they had a sexual and romantic relationship, and verbally called Woods “the devil” in the Garfield Heights Municipal Courthouse.
{¶ 13} According to Woods, Webb subsequently published false and inflammatory statements about him with the Better Business Bureau. He alleged that Webb published these reviews under her own name, but also under the fictitious names of “Domioneice Espay” and “Amber Boulevardez.” In support, he attached to his complaint and incorporated by reference a printout of the reviews found on the Better Business Bureau regarding Woods and What a Lovely Home.
{¶ 14} Woods further alleged that based on the conduct of all of the defendants, RC Investments and David Paisley (“Paisley“) rescinded or breached
{¶ 15} Woods alleged in his complaint that the aforementioned conduct by all defendants caused him significant physical, emotional, psychological, and financial harm, interfered with current and prospective business relationships, and infringed on his constitutional and statutory rights. He requested monetary relief from the defendants, jointly and severally, a temporary restraining order and injunctive relief, and any other relief the court deemed necessary.
{¶ 16} On September 24, 2019, Clos filed an answer denying the allegations and setting forth various affirmative defenses. On February 4, 2020, he moved for judgment on the pleadings.
{¶ 17} On November 8, 2019, Sharkin filed an answer and counterclaim. The counterclaim requested the trial court to declare Woods a vexatious litigator pursuant to
{¶ 18} On November 11, 2019, Pagonakis, Scripps Media, Inc., d.b.a. WEWS-TV, and E.W. Scripps (collectively “media defendants“) moved to dismiss Woods‘s complaint pursuant to
{¶ 20} Woods moved for default judgment against the defendants who were served with his complaint but did not file an answer or otherwise plead — Webb, Curvvy Nurse,3 Mashall, Lamar, Tyes, Jeter, Hicks, Greer, Espay, Boulevardez, Paisley, RC Investments, and Johnson (collectively “non-answering defendants“). He also moved to dismiss Sharkin‘s counterclaim.
{¶ 21} On March 2, 2021, the trial court conducted a combined oral hearing on the various motions and heard arguments from the parties. At the conclusion of the hearing, the trial court ruled on each motion, providing its justification and explanation for its decision. Subsequently, the trial court issued a written journal entry memorializing its ruling but without any detailed explanation. Succinctly, the trial court (1) granted the media defendants’ motion to dismiss in its entirety; (2) granted Deener‘s motion to dismiss; (3) granted Sharkin‘s motion for judgment on the pleadings; (4) granted Froude‘s motion for judgment on the pleadings; and (5) granted Clos‘s motion for judgment on the pleadings.
{¶ 22} The trial court acknowledged that certain defendants who were properly served with the complaint failed to file an answer or otherwise file any responsive pleading. The trial court denied Woods‘s motion for default judgment,
{¶ 23} Sharkin‘s counterclaim remained pending and the court established a discovery schedule. In March 2021, the court conducted a hearing on various motions pertaining to the counterclaim, including Woods‘s motions to strike, for sanctions, and for summary judgment; and Sharkin‘s motion for summary judgment. The trial court partially granted Woods‘s motion to strike, but denied all other motions, including the cross-motions for summary judgment.
{¶ 24} On May 6, 2021, following a telephone conference advising the court of settlement, Sharkin filed a notice of dismissal of his counterclaim, attaching the settlement agreement and release. Pursuant to the agreement, any and all claims regarding this case and another case pending in Garfield Heights Municipal Court between Woods, Sharkin, Froude, and Willis, were settled. The agreement expressly stated that the agreement was “intended to prohibit any and all future litigation, insurance claims, and appeals.” With the filing of the dismissal, all prior interlocutory orders became final and appealable.
{¶ 25} Woods now appeals, raising two assignments of error.4
{¶ 26} In his first assignment of error, Woods contends that
[t]he trial court‘s decision to grant the dispositive motions and dismiss the [c]omplaint against both [a]ppellees who had defended and those who failed to defend[,] as well as allow the [c]ounterclaim to proceed, was prejudicial, erroneous, improper, unlawful[,] and an abuse of discretion.
Under this assignment of error, Woods challenges the trial court‘s decision that (1) denied his motion for default judgment against the non-answering defendants, and sua sponte dismissed his complaint against those defendants pursuant to
{¶ 27} At the outset, we note that Woods entered into a settlement agreement with Sharkin, Froude, and Willis. The agreement expressly stated that the parties were waiving all claims against each other regarding this case, including any future litigation and “appeals.” As a result, Sharkin, Froude, and Willis requested that this court sanction Woods for filing a frivolous appeal against them. Froude and Willis withdrew their request after Woods dismissed the appeal against them. Woods also dismissed the appeal against Sharkin, but Sharkin‘s request for sanctions remains pending and will be addressed by this court in a subsequent journal entry. Woods
A. Standard of Review — Civ.R. 12(B)(6) and 12(C)
{¶ 28} This court recently set forth the appropriate
We review rulings on
Civ.R. 12(B)(6) motions to dismiss under a de novo standard. “A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. * * * Under a de novo analysis, we must accept all factual allegations of the complaint as true and all reasonable inferences must be drawn in favor of the nonmoving party.” NorthPoint Props. v. Petticord, 179 Ohio App.3d 342, 2008-Ohio-5996, 901 N.E.2d 869, ¶ 11 (8th Dist.). “For a trial court to grant a motion to dismiss for failure to state a claim upon which relief can be granted, it must appear ‘beyond doubt from the complaint that the plaintiff can prove no set of facts entitling her to relief.‘” Graham v. Lakewood, [2018-Ohio-1850, 113 N.E.3d 44, ¶ 47 (8th Dist.)] quoting Grey v. Walgreen Co., 197 Ohio App.3d 418, 2018-Ohio-6167, 967 N.E.2d 1249, ¶ 3 (8th Dist.).
Therefore, “[a]s long as there is a set of facts, consistent with the plaintiff‘s complaint, which would allow the plaintiff to recover, the court may not grant a defendant‘s motion to dismiss.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). Additionally, a court may not dismiss a complaint under
{¶ 30} When reviewing the sufficiency of a complaint, this court is mindful that
{¶ 31} When reviewing a
{¶ 32} Woods‘s complaint sets forth 17 causes of action and names 22 defendants. For clarity, this court will address each dispositive motion separately.
B. Defendants Who Failed to Answer or Otherwise Plead
{¶ 33} Woods moved for default judgment against Webb, Curvvy Nurse, Marshall, Lamar, Tyes, Jeter, Hicks, Greer, Espay, Boulevardez, Paisley, RC Investments, and Johnson,5 claiming that pursuant to
{¶ 34} As an initial matter, our review of the docket reveals that defendants Boulevardez and “Unknown Father of Children of Latanya Tyes” (“UFC“) were not served with the complaint as required by
{¶ 36}
{¶ 37} At the March 2, 2021 hearing, the trial court acknowledged that the non-answering defendants were properly served, but noted that
{¶ 38} We find that the trial court acted within its discretion in denying Woods‘s motion for default but erred in dismissing the complaint pursuant to
{¶ 39} Generally, a court may dismiss a complaint on its own motion pursuant to
{¶ 40} In this case, the trial court did not give Woods notice that it could sua sponte dismiss his complaint against the non-answering defendants at the default hearing. Moreover, after the trial court denied Woods‘s motion for default, it did not give Woods any opportunity to respond to the trial court‘s consideration of dismissing the complaint under
This is such a case because the complaint lacks merit and plaintiff obviously cannot prevail on the facts alleged in the complaint. For the reasons already stated on the record with respect to allegations against the other defendants, plaintiff[‘s] complaint against his former tenants fails to state any claim upon which relief may be granted and is therefore without merit and for these reason[s] the court dismisses the complaint as to the remaining defendants even though they may be technically in default.
(Tr. 35.)
{¶ 41} Sua sponte dismissals “‘prejudice appellants as they deny any opportunity to respond to the alleged insufficiencies.‘” MBNA Am. Bank, N.A. v. Canfora, 9th Dist. Summit. No. 23588, 2007-Ohio-4137 ¶ 14, quoting McMullian v. Borean, 6th Dist. Ottawa No. OT-05-017, 2006-Ohio-861, ¶ 16. “‘[A]ppellate review is frustrated when a trial court offers no explanation or reasoning for a sua sponte dismissal.‘” Id., quoting McMullian at id.
{¶ 42} Here, although the trial court offered some basis for its dismissal, our review of the complaint reveals that the allegations against the non-answering defendants and the other defendants who filed dispositive motions are not the same. Even though the allegations may arise out of the same circumstances and fall under the same causes of actions, the allegations against the non-answering defendants are separate and distinct. Because of this, the trial court‘s reliance on its reasoning as applied to the other answering defendants as its basis for dismissing the complaint against the non-answering defendants was in error. For example, Woods alleges that the non-answering defendants made defamatory statements about him through the use of flyers and social media — conduct not alleged against the media
{¶ 43} For this reason, the trial court erred in sua sponte dismissing Woods‘s complaint against the non-answering defendants pursuant to
C. Media Defendants — Civ.R. 12(B)(6)
{¶ 44} Woods named the media defendants in 13 causes of action — defamation per se (cause of action 1); defamation per quod (cause of action 2); false light invasion of privacy (cause of action 3); invasion of privacy (wrongful intrusion upon seclusion) (cause of action 4); tortious interference with a business relationship (cause of action 5); tortious interference with a contractual relationship (cause of action 6); private nuisance (cause of action 7); trespass and civil conspiracy
{¶ 45} The trial court granted the media defendants’
{¶ 46} Regarding Woods‘s remaining claims, the trial court dismissed those causes of action because the allegations in the complaint were conclusory or insufficient as a matter of law; the causes of action were not identifiable separate causes of action; and Woods failed to plead actual malice. We find no error in the trial court‘s decision.
1. Causes of Action 1 and 2 — Defamation
{¶ 47} “In Ohio, defamation occurs when a publication contains a false statement ‘made with some degree of fault, reflecting injuriously on a person‘s
{¶ 48} “A defamation claim against a news organization requires proof that (1) the organization made a false statement, (2) the statement was defamatory, (3) the organization published the statement, (4) the plaintiff was harmed as a proximate result of the publication, and (5) the organization acted with the requisite degree of fault in publishing the statement.” Anderson v. WBNS-TV, Inc., 158 Ohio St.3d 307, 2019-Ohio-5196, 141 N.E.3d 192, ¶ 9, citing Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 77.
{¶ 49} A court decides “‘as a matter of law whether certain statements alleged to be defamatory are actionable or not.‘” Leadscope at ¶ 78, quoting Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 6 Ohio St.3d 369, 372, 453 N.E.2d 666 (1983).
{¶ 50} “‘In determining whether a statement is defamatory as a matter of law, a court must review * * * the totality of the circumstances’ and by ‘read[ing] the statement[] * * * in the context of the entire [publication] determine whether a [reasonable] reader would interpret [it] as defamatory.‘” (Brackets sic.) Leadscope at ¶ 79, quoting Mann v. Cincinnati Enquirer, 1st Dist. Hamilton No. C-09074, 2010-Ohio-3963, ¶ 12, citing Scott v. News-Herald, 25 Ohio St.3d 243, 253, 496 N.E.2d 699 (1986)
{¶ 51} “‘[T]he words of the publication should not be considered in isolation, but rather within the context of the entire [publication] and the thoughts that the [publication] through its structural implications and connotations is calculated to convey to the reader to whom it is addressed.‘” Leadscope, 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, at ¶ 79, quoting Connaughton v. Harte Hanks Communications, Inc., 842 F.2d 825, 840 (6th Cir.1988), aff‘d, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989).
{¶ 52} Accepting the factual allegations of the complaint as true and viewing all reasonable inferences in favor of Woods, we find that Woods‘s defamation claims as alleged in causes of action 1 and 2 fail as a matter of law because: (1) the news broadcast and subsequently published article contained balanced reporting; (2) when viewed as a whole, the news report was substantially true or nondefamatory; and (3) Ohio does not recognize defamation by implication.
a. Leadscope — Balanced Reporting
{¶ 53} The Ohio Supreme Court held in Leadscope that news reports summarizing legal disputes between two parties are not actionable as a matter of law when the report includes statements from both parties along with a summary of the litigation. Leadscope at ¶ 81-86. In Leadscope, the court overturned a jury verdict, concluding that despite the jury finding that the defendant made false statements to the press, the news report deprived the defendant‘s statement of its
{¶ 54} In this case, the news broadcast and publication, reviewed as a whole, offsets any potentially defamatory content because it provided the former tenants and Woods an opportunity to tell their sides of the story in the context of a prior litigated dispute. In the news report, the former tenants admitted that they were late in paying rent, and then provided their experience going through the eviction process. Woods offered his perspective about the difficulties of being a landlord. The news report also offered insight by Judge Nicastro regarding tenants’ lack of education and awareness when entering into a lease agreement. Accordingly, we conclude that the statements were made in the context of an accurate and balanced report of the positions of both sides of the dispute and thus, the statements are either nondefamatory or their alleged defamatory meaning was removed by the report. Because we find the statements not actionable, Woods‘s causes of action for defamation per se and per quod were properly dismissed pursuant to
{¶ 56} Woods alleged in the complaint that he evicted Webb, Tyes, and Marshall, the women featured in the news broadcast. This fact was truthfully reported in the news report. Additionally, he alleged that he sought and received judgments against them for damage to his Maple Heights home. This fact was also truthfully reported in the news report. Woods‘s allegations for defamation concern the news report‘s word choices and overall perspective, and he asserts that certain details are false. However, our review of the news report reveals that none of his allegations identify any factual inaccuracies about him that render the news report materially false and defamatory.
{¶ 57} Woods identified factual inaccuracies in the news report that he alleged render the report defamatory and actionable — (1) claims asserted by the tenants that contradict the judgment rendered against them; (2) a statement by Pagonakis that courts suggest “better landlord-tenant education,” rather than only “tenant education and awareness” as stated by Judge Nicastro; (3) a statement that Woods would consider sitting down with the tenants featured in the report and
{¶ 58} Woods alleged that the news broadcast used tone and “darkened images and dramatic music” to imply “illegal and immoral activity.” But giving “an inaccurate slant” to an otherwise accurate report does not make it actionable because, as the trial court recognized, “Ohio does not recognize libel through implied statements.” Stohlmann v. WJW TV, Inc., 8th Dist. Cuyahoga No. 86491, 2006-Ohio-6408, ¶ 13, citing Krems v. Univ. Hosps. of Cleveland, 133 Ohio App.3d 6, 12, 726 N.E.2d 1016 (8th Dist.1999)7
{¶ 59} Woods relies on this court‘s recent opinion in Hersh, 8th Dist. Cuyahoga No. 109430, 2021-Ohio-2582, to support his position that his complaint
{¶ 60} Unlike in this case and Leadscope, Hersh did not involve a news report presenting two opposing sides of a dispute. To the contrary, the defendant in Hersh was accused of sending a letter containing accusations that the plaintiff had engaged in “inappropriate behavior with young men under the age of thirteen,” and expressing concern that the plaintiff‘s intent to start a Boy Scout troop would be “a potentially unhealthy and dangerous situation,” and further “warn[ing]” the recipients “not to let young children be in his care.” Id. at ¶ 26. This court found that the plaintiff had adequately alleged defamation because the only reasonable interpretation of the letter was that the plaintiff was being accused of engaging in pedophilia — plainly a defamatory charge, if false. Id. at ¶ 36, 45; see also Wilson v. Wilson, 2d Dist. Montgomery No. 21443, 2007-Ohio-178, ¶ 13 (accusation of pedophilia “constituted defamation per se because the assertion of pedophilia involves a charge of moral turpitude and is an indictable offense“). Here, the alleged factual inaccuracies in the news report are nondefamatory, and the report plainly falls within the Ohio Supreme Court‘s ruling in Leadscope rendering publications presenting both sides of a legal dispute not actionable defamation as a matter of law. Accordingly, Hersh is not applicable.
2. Other Publication-Based Claims
{¶ 61} Aside from his defamation claims, Woods asserts seven other causes of action — false light invasion of privacy, false light wrongful intrusion upon
{¶ 62} Nevertheless, we further find that Woods‘s claims fail because he has not adequately alleged actual malice on the part of the media defendants. A plaintiff must show that the media defendants acted with actual malice — that is, the defendant “had knowledge of or acted in reckless disregard as to the falsity of the
{¶ 63} Woods‘s trespass claim as alleged against the media defendants in his eighth cause of action fails as a matter of law because Woods was not in possession of the property when the alleged trespass took place — a necessary element of a trespass claim under Ohio law. As this court has held, “[t]o prevail on a claim of trespass, the claimant must prove he had possession of the subject premises at the time of the trespass.” Northfield Park Assocs. v. NE Ohio Harness, 36 Ohio App.3d 14, 18, 521 N.E.2d 466 (8th Dist.1987). Here, Woods alleged that the media defendants and his former tenants filmed part of the broadcast “at [the] Applegate property” — the property where at least one of the former tenants had lived before Woods evicted them. But Woods also alleged that “[a]t the time, the Applegate property had a new and unrelated tenant occupying it.” In other words, while Woods continued to own the house, he was not in possession of it. As a result, his trespass claim fails as a matter of law, and the trial court correctly dismissed it.
{¶ 64} Woods‘s twelfth cause of action for fraud, fraudulent concealment, or in the alternative, negligent misrepresentation, fails to state a claim against the
{¶ 65}
{¶ 66} The elements of negligent misrepresentation are (1) one who, in the course of his or her business, profession, or employment, or in any other transaction in which he or she has a pecuniary interest; (2) supplies false information for the guidance of others in their business transactions; (3) is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information; and (4) if he or she fails to exercise reasonable care or competence in obtaining or
{¶ 67} Woods alleged in his complaint that the media defendants “misrepresented that their intention of conducting an interview with him was to get his side of the story on the struggles that he faces as a landlord.” Although Woods alleged that the story did not adequately portray “his side of the story” as allegedly promised, this subjective belief does not create a misrepresentation claim based on the media defendants’ efforts to secure an interview with Woods. Reporters misrepresenting their identity or purpose or promising “fair” or “sympathetic” coverage to sources cannot give rise to a misrepresentation claim. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 512 (4th Cir.1999) (no misrepresentation liability where reporters posed as employees).
{¶ 68} Moreover, according to the news report transcript attached to the complaint, the news report obtained Woods‘s side of the story. He told Pagonakis: “Well, as a landlord it‘s just hard.” Woods explained that many tenants are “sneaking people in to live, their [sic] not paying the water bill, they‘re not paying the rent, * * * they bring pets in when their [sic] not supposed to.” The published article contains the same quotes and also quotes Woods as saying: “I try to give all my tenants plenty of leeway when it comes to being late with the rent, but I need that money to keep my home maintained, and after four months it becomes difficult.” Accordingly, the media defendants obtained Woods‘s side of the story, which the media defendants promised to do — to “get [Woods‘s] side of the story on the struggles that he faces as
{¶ 69} Woods‘s cause of action for civil conspiracy also fails to state a claim against the media defendants because conspiracy is not an independent cause of action. “Ohio law does not recognize civil conspiracy as an independent cause of action.” Bender v. Logan, 2016-Ohio-5317, 76 N.E.3d 336, ¶ 78 (4th Dist.). That means that, under Ohio law, “[a]n underlying unlawful act is required before a civil conspiracy claim can succeed.” Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475, 700 N.E.2d 859 (1998). Accordingly, because Woods otherwise fails to state a viable tort claim, his civil conspiracy claim likewise fails as a matter of law. Mills v. Westlake, 2016-Ohio-5836, 70 N.E.3d 1189, ¶ 48 (8th Dist.) (plaintiff‘s failure to show the “existence of an unlawful act independent from the actual conspiracy” is “fatal to her civil conspiracy claim“).
{¶ 70} Woods‘s cause of action for injunctive relief fails because in general, injunctive relief is a remedy, not a cause of action. See, e.g., Premier Health Care Servs. v. Schneiderman, 2d Dist. Montgomery No. 18795, 2001 Ohio App. LEXIS 5170 (Aug. 21, 2001) (“A preliminary injunction is a remedy; it is not a cause of action or a claim for relief.“). Accordingly, it was proper for the trial court to dismiss Woods‘s claim for injunctive relief as asserted against the media defendants.
{¶ 71} Based on our de novo review and viewing the allegations in the complaint in favor of Woods, including the documents incorporated by reference and attached to the complaint, we find that the complaint against the media
D. Defendant Deener — Civ.R. 12(B)(6)
{¶ 72} Woods named Deener in twelve “causes of action” in his complaint — defamation per se; defamation per quod; invasion of privacy/false light; invasion of privacy/wrongful intrusion upon seclusion; tortious interference with a business relationship; tortious interference with a contractual relationship; private nuisance; trespass and civil conspiracy to commit a trespass; negligence; intentional infliction of emotional distress; civil conspiracy; and injunctive relief.
{¶ 73} Woods alleged in his complaint that Deener, along with the other former tenants, maliciously conspired as a group to engage in a campaign of harassment to defame him, harm him in his occupation, and cause him serious emotional distress, physical harm, and financial loss. He claimed that the former tenants engaged in this campaign by contacting the media defendants to broadcast and publish a news story to publicly defame him and place him in false light.
{¶ 74} Woods further alleged that in September 2018, Deener, along with the other former tenants, colluded and conspired by setting up social media accounts and/or participating in Facebook groups to locate and align all current and prospective tenants and contractual business relationships of Woods to intentionally and maliciously defame his character and reputation, and to cause him emotional distress, and physical and financial harm. Woods further alleged that the former tenants colluded and conspired by placing flyers titled “Public Service
{¶ 75} Woods also alleged in his complaint that in October and November 2018, Deener, along with other former tenants, used Twitter accounts to defame him and interfere with his business and contractual relationships. Woods alleged in the complaint that Deener made the following Twitter statements in response to other statements made by the other former tenants: “Doug Woods houses have black mold and it‘s not safe for your children! #Icantbreathe #badforasthma.” Woods attached and incorporated into his complaint a printout of the Twitter postings by the former tenants, including the one made by Deener.
{¶ 76} Deener filed a motion to dismiss the complaint pursuant to
{¶ 77} The trial court found that Deener‘s statements were matters of opinion, and thus, not actionable. Specifically, the court found that a reasonable reader of the alleged statements attributable to Deener would perceive those statements as expressing an opinion. The trial court concluded that considering the context in which the statements were made and the totality of the circumstances, the alleged statements were not actionable under the law.
{¶ 78} In our de novo review, we find that the trial court erred in granting Deener‘s
1. Defamation Per Se and Per Quod
{¶ 79} A person who brings a defamation claim must plead and prove: (1) a false and defamatory statement, (2) about that person, (3) published without privilege to a third party, (4) with fault or at least negligence on the part of the defendant, and (5) that was either defamatory per se or caused special harm
{¶ 80} As previously defined, a statement is defamatory per se when it falls into one of three categories: “(1) the imputation of a charge of an indictable offense involving moral turpitude or infamous punishment, (2) the imputation of some offensive or contagious diseases calculated to deprive the person of society, or (3) having the tendency to injure the plaintiff in his trade or occupation.” Wilson v. Harvey, 164 Ohio App.3d 278, 2005-Ohio-5722, 842 N.E.2d 83 (8th Dist.). In order for a statement to be defamatory per se, it must be defamatory upon the face of the statement. Becker v. Toulmin, 165 Ohio St. 549, 556, 138 N.E.2d 391 (1956).
{¶ 81} Viewing the statements attributed to Deener as true and after applying the four-part totality of the circumstances test when determining whether statements are fact or opinion,8 we find that an average reader could construe the statements as fact. Woods alleged that Deener posted Twitter statements stating that Woods‘s rental properties have “black mold,” which is “not safe for your children,” and participated in creating and posting the “Public Service Announcement” flyers on his rental homes and vehicles in the vicinity. Looking at the general context of the Twitter statement, it was made in response to a Twitter feed from former tenants regarding their experiences with renting from Woods and
{¶ 82} The same can also be said about the flyers. Regarding the “Public Service Announcement” flyers, Woods alleges in his complaint that the flyers made defamatory statements about him and his business and were placed in the vicinity of his rental properties. The statements on the flyers allege that Woods “evicts people for no reason,” and invite the reader to view Woods the same as “pedophiles, drug dealers, slumlords, baby killers, or someone with a contagious disease.” Whether Woods “evicts people for no reason” is verifiable, and the other statements made involve allegations of immoral turpitude.
{¶ 83} Accepting the factual allegations of the complaint as true and viewing all reasonable inferences in favor of Woods, we find that he sufficiently pleaded causes of action for defamation per se and per quod.
2. Invasion of Privacy — False Light
{¶ 84} The Ohio Supreme Court has recognized false light as a cause of action under the invasion-of-privacy umbrella. Welling, 113 Ohio St.3d 464, 2007-Ohio-2451, 866 N.E.2d 1051, at ¶ 61. To establish false light invasion of privacy, a plaintiff must show: (1) the defendant gave publicity to a private matter concerning the plaintiffs; (2) the publicity placed the plaintiff in a false light; (3) the false light would be highly offensive to a reasonable person; and (4) the defendant had knowledge of
{¶ 85} Accepting the factual allegations of the complaint as true and viewing all reasonable inferences in favor of Woods, the statements comment on private matters that placed Woods in a false light that would be highly offensive to a reasonable person. The tort “applies only when the defendant knows that the plaintiff, as a reasonable man, would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity.” Welling at ¶ 55.
{¶ 86} The comments made in this case were in regard to Woods and his business of renting properties in the greater Cleveland area. Woods alleged that Deener and the former tenants created and conducted a campaign against him by making false statements on social media and then printing flyers containing statements that placed him in a false light and caused interference with existing tenants and business relationships. According to Woods, the comments were not true, and he alleged sufficient facts to show that the statements were made with reckless disregard as to the falsity of the statements or that they painted him in a false light. Accordingly, Woods sufficiently pleaded a cause of action for false light/invasion of privacy.
{¶ 87} In Lunsford v. Sterilite of Ohio, L.L.C., 162 Ohio St.3d 231, 2020-Ohio-4193, 165 N.E.3d 245, ¶ 32-33, the Supreme Court explained that the wrongful intrusion into one‘s private activities has been called “intrusion upon seclusion.” In order to properly plead this cause of action, the complaint must allege (1) that there was an intrusion by the defendant into a matter, (2) that plaintiff had a right to keep private, and (3) that the method of the intrusion would be considered highly offensive to a reasonable person. Id. at ¶ 34, citing Sustin v. Fee, 69 Ohio St.2d 143, 145, 431 N.E.2d 992 (1982).
{¶ 88} Accepting the factual allegations of the complaint as true and viewing all reasonable inferences in favor of Woods, we find that he failed to sufficiently plead this cause of action. He does not allege any intrusion by Deener in a private matter. His allegation centers around Deener returning to or intruding upon his rental properties for the purposes of causing him harm. This allegation makes bare assertions and conclusory statements.
{¶ 89} Accordingly, the trial court did not err in dismissing the fourth cause of action as alleged against Deener.
4. Tortious Interference with Business and Contractual Relationships
{¶ 90} The elements of a claim for tortious interference with a business relationship or contract are: (1) a business relationship or contract; (2) the defendant‘s knowledge of the relationship or contract; (3) the defendant‘s intentional or improper action taken to prevent a contract formation, procure a
{¶ 91} In Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 176, 707 N.E.2d 853 (1999), the Ohio Supreme Court reaffirmed the elements of the cause of action of tortious interference with contract as enumerated in paragraph two of the syllabus of Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 650 N.E.2d 863 (1995). Those elements are: (1) the existence of a contract, (2) the wrongdoer‘s knowledge of the contract, (3) the wrongdoer‘s intentional procurement of the contract‘s breach, (4) the lack of justification, and (5) resulting damages.
{¶ 92} Accepting the factual allegations of the complaint as true and viewing all reasonable inferences in favor of Woods, we find that he sufficiently pleaded causes of action for interference with business and contractual relationships. The allegations set forth that Deener and former tenants maliciously and intentionally lobbied a campaign against Woods to prevent individuals from renting homes owned by Woods. Viewing the allegations in favor of Woods, the flyers and Twitter
{¶ 93} Accordingly, Woods‘s complaint sufficiently states a claim for tortious interference with business and contractual relationships.
5. Private Nuisance; Trespass and Civil Conspiracy to Commit a Trespass
{¶ 94} Causes of action 7 and 8 both pertain to the unauthorized presence on another‘s property. A private nuisance is “a nontrespassory invasion of another‘s interest in the private use and enjoyment of land.” Brown v. Cty. Commrs, 87 Ohio App.3d 704, 712, 622 N.E.2d 1153 (4th Dist.1993). In order for a private nuisance claim to be actionable, the invasion must be either intentional and unreasonable, or unintentional but caused by negligent, reckless, or abnormally dangerous conduct. Id.; see Taylor v. Cincinnati, 143 Ohio St. 426, 55 N.E.2d 724 (1944), paragraph three of the syllabus. In Ogle v. Hocking, 4th Dist. Hocking No. 14CA3, 2014-Ohio-5422, ¶ 39, the court set forth the elements of civil trespass: “(1) an unauthorized intentional act and (2) entry upon land in the possession of another.” Id., quoting DiPasquale v. Costas, 186 Ohio App.3d 121, 2010-Ohio-832, 926 N.E.2d 682, ¶ 102 (2d Dist.).
{¶ 95} Woods‘s claims for private nuisance and trespass fail because he fails to sufficiently allege that Deener entered upon or invaded the private use and
{¶ 96} Accordingly, Woods‘s complaint fails to state a claim for private nuisance, trespass, or civil conspiracy to commit trespass.
6. Negligence
{¶ 97} To prove negligence, Woods must allege and prove the existence of a duty, a breach of that duty, and injury proximately resulting from the breach. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984); Chambers v. St. Mary‘s School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998). “A defendant‘s duty may be established by common law, legislative enactment, or by the particular facts and circumstances of the case.” Chambers at 565, citing Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954), paragraph one of the syllabus.
{¶ 98} Woods claims that Deener owed him a duty “not to impede or circumvent [his] right to due process and a fair trial” by subjecting him to a trial by “court of public opinion.” He further contends that Deener owed him a duty pursuant to the terms of her lease to not return to his property once evicted. Finally, Woods contends that Deener owed him a duty to protect him from harm.
{¶ 100} Woods‘s negligence claim therefore was properly dismissed pursuant to
7. Intentional Infliction of Emotional Distress
{¶ 101} In Lombardo v. Mahoney, 8th Dist. Cuyahoga No. 92608, 2009-Ohio-5826, ¶ 6, this court held:
To establish a claim for intentional infliction of emotional distress, a plaintiff must prove the following elements: (1) the defendant intended to cause, or knew or should have known that his actions would result in serious emotional distress; (2) the defendant‘s conduct was so extreme and outrageous that it went beyond all possible bounds of decency and can be considered completely intolerable in a civilized community; (3) the defendant‘s actions proximately caused psychological injury to the plaintiff; and (4) the plaintiff suffered serious mental anguish of a nature no reasonable person could be expected to endure.
See also Hersh, 2021-Ohio-2582, 176 N.E.3d 1135, at ¶ 44.
{¶ 102} Accepting the factual allegations of the complaint as true and viewing all reasonable inferences in favor of Woods, we find that he has sufficiently pleaded a cause of action for intentional infliction of emotional distress. He alleged that Deener and the former tenants intended to cause serious emotional distress by creating and conducting a harassment campaign against him and his business. According to Woods, Deener‘s conduct included posting false defamatory
8. Civil Conspiracy
{¶ 103} In order to maintain a claim of civil conspiracy in Ohio, Woods must establish the following: (1) a malicious combination of two or more persons; (2) causing injury to another person or property; and (3) the existence of an unlawful act independent from the conspiracy itself. Syed, 8th Dist. Cuyahoga No. 99884, 2013-Ohio-5739, at ¶ 14, citing Kenty, 72 Ohio St.3d 415, 419, 650 N.E.2d 863 (1995). An underlying unlawful act must be committed in order to establish an action for civil conspiracy. Gosden v. Louis, 116 Ohio App.3d 195, 219, 687 N.E.2d 481 (9th Dist.1996).
{¶ 104} Woods alleged that Deener and the former tenants acted together in a malicious manner in their attempts to defame him, place him in false light, interfere with business and contractual relationships, and engage in other tortious conduct. Because Woods sufficiently pleaded those causes of action, which are
9. Injunctive Relief
{¶ 105} Woods asserted a cause of action for injunctive relief. In general, injunctive relief is a remedy, not a cause of action. See, e.g., Schneiderman, 2d Dist. Montgomery No. 18795, 2001 Ohio App. LEXIS 5170 (“A preliminary injunction is a remedy; it is not a cause of action or a claim for relief.“). Because Woods has pleaded viable causes of action against Deener, the remedy of injunctive relief remains.
{¶ 106} Accordingly, the trial court‘s judgment dismissing the complaint against Deener is reversed in part and affirmed in part. The claims that survive against Deener are defamation per se; defamation per quod; invasion of privacy/false light; tortious interference with a business relationship; tortious interference with a contractual relationship; intentional infliction of emotional distress; and civil conspiracy. Woods‘s claim for injunctive relief is not a cause of action but remains as a prayer for relief.
E. Defendant Clos — Civ.R. 12(C)
{¶ 107} Woods named Clos in eight causes of action in his complaint — defamation per se; defamation per quod; invasion of privacy/false light; tortious interference with a contractual relationship; private nuisance; trespass and civil conspiracy to commit a trespass; intentional infliction of emotional distress; and injunctive relief.
{¶ 109} Clos, pro se, filed an answer denying the allegations and asserting several affirmative defenses, including failure to state a claim upon which relief could be granted. Subsequently, Clos moved for judgment on the pleadings pursuant to
{¶ 110} Woods contends that the trial court erred in granting Clos‘s motion to dismiss because it was untimely filed. We find no abuse of discretion in the trial court‘s decision to consider Clos‘s motion. The court noted when addressing another opposition filed by Woods to an alleged untimely motion that the general
{¶ 111} Although we find the trial court‘s decision granting Clos leave was not an abuse of discretion, we find that the trial court erred in granting Clos‘s
{¶ 112} We find that the trial court properly dismissed Woods‘s other causes of action against Clos for invasion of privacy/false light, private nuisance, trespass and civil conspiracy to commit a trespass, intentional infliction of emotional distress, and injunctive relief because Woods failed to state a claim beyond bare assertions and legal conclusions.
III. Final Judgment
{¶ 114} Woods contends in this third assignment of error that “the trial court‘s final judgment entry improperly disposed of the matter.” Woods contends, without citation to any legal authority, that the trial court‘s journal entry filed May 7, 2021, is vague.
{¶ 115} Although not relevant to the argument made by Woods on appeal, this court noted earlier that at the March 2, 2020 hearing, the trial court orally dismissed the claims against the non-answering defendants but did not indicate this language in the March 3, 2020 journal entry — the journal entry only noted that it disposed “of all pending motions.” Accordingly, to remove any perceived jurisdictional impediment, this court ordered the trial court to enter an order memorializing its oral decision regarding the non-answering defendants. The trial court issued the order on December 6, 2021.
{¶ 116} Accordingly, our review of the trial court‘s journal entries dated March 3, 2020, May 7, 2021, and December 6, 2021, when taken together,
IV. Conclusion
{¶ 117} The trial court erred in dismissing the complaint against the remaining non-answering defendants because it failed to give Woods notice of its intention to sua sponte dismiss the complaint pursuant to
{¶ 118} The trial court did not err in granting the media defendants’
{¶ 119} The trial court erred in dismissing the complaint in its entirety against Clos and Deener. Woods‘s complaint sufficiently pleaded causes of action against Clos for defamation per se and per quod and tortious interference with a contractual relationship. Regarding the allegations against Deener, Woods‘s complaint sufficiently pleaded causes of action for defamation per se, defamation per quod, invasion of privacy/false light, tortious interference with a business relationship, tortious interference with a contractual relationship, intentional infliction of emotional distress, and civil conspiracy. Additionally, Woods is entitled
{¶ 120} Judgment affirmed in part, reversed in part, and remanded for further proceedings.
It is ordered that parties share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
SEAN C. GALLAGHER, A.J., and
EILEEN T. GALLAGHER, J., CONCUR