DOUG WOODS v. BRIAN W. SHARKIN, ET AL.
No. 110567
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 9, 2022
[Cite as Woods v. Sharkin, 2022-Ohio-1949.]
KATHLEEN ANN KEOUGH, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-920913
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
RELEASED AND JOURNALIZED: June 9, 2022
Appearances:
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.
KATHLEEN ANN KEOUGH, J.:
{¶ 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“),
{¶ 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.
{¶ 5} Woods alleged that in February 2018, Tyes caused property damage to one of his homes in Maple Heights. As a result, Woods obtained an eviction and money judgment against her for the damage and for a bad check that she issued. According to Woods, Tyes retaliated against him for the eviction by conspiring with an unknown male (referred to in the complaint as “Unknown Father of Children of Latanya Tyes” or “UFC“) to intimidate him by threatening him with physical harm. Woods further alleged that UFC caused damage to a vehicle.
{¶ 6} In July 2017, Woods commenced eviction proceedings against Willis, who hired attorney Brian W. Sharkin (“Sharkin“) to represent her.2 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
{¶ 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 advice to future tenants. During the interview, Pagonakis stated that the three women rented the same Maple Heights home from Woods, who subsequently evicted them from the home. Pagonakis also interviewed Garfield Heights Municipal Court Judge Deborah Nicastro, who opined that tenants lack education on their rights and responsibilities when entering into lease contracts. Pagonakis also interviewed Woods, who explained the difficulties in being a landlord, especially when tenants do not abide by the terms of their lease - including not paying rent and the water bill - and allowing unauthorized individuals and pets to live in the homes. Woods alleged in his complaint that this news story contained false and inflammatory statements that placed him in a false light. Woods attached to his complaint and incorporated by reference a printout of the news story
{¶ 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 placing flyers titled “Public Service Announcement” on Woods‘s rental properties and on parked cars in the vicinity. According to Woods, the flyers identified him and his business and contained the following statements: “[u]nfair and horrible landlords who evict people for no reason” and “[i]nstead of doing business with them, you should view them the same way you do pedophiles, drug dealers, slumlords, baby killers, or someone with a contagious disease. Stay away from them and do not rent from them!!! #Slumlords, #Whatauglyhome, #Followus.”
{¶ 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
{¶ 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 mold. According to Woods, Clos told the tenant that instead of remediating the mold, Woods hired “thugs to install a new roof on the house to cover it up.” He alleged that these statements caused the tenant to request a Section 8 inspection and “notify [him] of her need to break the lease.” According to Woods, the inspection did not reveal any mold issues.
{¶ 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.
{¶ 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 contracts for the purchase of real and personal property. He alleged that he suffered monetary damages for the amounts he expended in accordance with the terms of the contracts. Specifically, he averred that he made improvements and repairs to the real property. In support of these allegations, he attached to his complaint and incorporated by reference the contracts he entered into with RC Investments and Paisley.
{¶ 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
{¶ 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
{¶ 19} On January 31, 2020, Froude moved for judgment on the pleadings 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,4 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.
{¶ 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, however, and further, sua sponte found that Woods‘s complaint failed to state a claim against those non-answering defendants. The trial court therefore dismissed Woods‘s complaint against those defendants. Finally, the trial court denied Woods‘s motion to dismiss Sharkin‘s counterclaim.
{¶ 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.
{¶ 25} Woods now appeals, raising two assignments of error.5
II. Dispositive Motions and Counterclaims
{¶ 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 contends in his brief in opposition to Sharkin‘s motion for sanctions that the settlement agreement filed with the court is incorrect. We note, however, that Woods has not filed any motion with the trial court seeking to vacate or set aside the settlement agreement. Accordingly, any argument raised on appeal challenging any ruling regarding appellees Sharkin, Froude, and Willis will not be considered.
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, 2011-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
{¶ 29} Appellate review of rulings on
{¶ 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,6 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“) had not been served with the complaint at the time of the hearing. Accordingly, it was proper for the trial court to not enter a default judgment against Boulevardez.
{¶ 35} Regarding the remaining defendants, the record shows that these defendants were either served by certified mail or regular U.S. Mail and have failed to file an answer or otherwise defend the complaint against them. Accordingly, Woods contends that the trial court abused its discretion in denying his motion for default and further erred in sua sponte dismissing the complaint pursuant to
{¶ 36}
{¶ 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
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.
{¶ 43} For this reason, the trial court erred in sua sponte dismissing Woods‘s complaint against the non-answering defendants pursuant to
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 to commit trespass (cause of action 8); negligence (cause of action 11); fraud/fraudulent concealment or negligent misrepresentation (cause of action 12); intentional infliction of emotional distress (cause of action 14); civil conspiracy (cause of action 15); and injunctive relief (cause of action 17).
{¶ 45} The trial court granted the media defendants’
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 reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.‘” Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 9, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Const. Trades Council, 73 Ohio St. 3d 1, 7, 651 N.E.2d 1283 (1995).
{¶ 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).
{¶ 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)
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 defamatory meaning because the publication reported both sides of the litigated controversy, including quotes from both parties. Id. at ¶ 82-83. The court explained, “the average reader would learn that the [lawsuit] had been filed and could easily understand the gist of the claims and defenses from the brief quotes that the parties provided regarding their opinions about the lawsuit.” Id. at ¶ 84. Thus, “[c]onsidering the article as a whole and the fact that the article contained a true and accurate summary of the legal proceedings at the time, we hold that the statements in the article are, as a matter of law, not defamatory.” Id. at ¶ 86.
{¶ 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
{¶ 55} Moreover, we find that the news report, on its face, is substantially true based on the allegations and admissions contained in the complaint. “Truth is an absolute defense against a claim of defamation.” Shifflet v. Thomson Newspapers (Ohio), Inc., 69 Ohio St.2d 179, 183, 431 N.E.2d 1014 (1982). Under the substantial truth doctrine, “[m]inor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991).
{¶ 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
{¶ 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 negotiating a compromise; and (4) falsely inferring or attributing to him the statement that “the growing number of evictions are caused by a tough economy.” None of those inaccuracies, however, change the overall “gist” of the news report, which informed the average reader or viewer that evictions are on the rise and that courts view it as a serious problem, and then further provided perspectives from both a landlord and tenants about the eviction process. This balanced reporting, along with Woods admitting in his complaint the underlying facts that he evicted and obtained judgments against the three tenants, renders the news report substantially true. See Shifflet, 69 Ohio St.2d at 187,
{¶ 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
{¶ 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 sufficiently pleaded an actionable claim for defamation against the media defendants. We find Hersh distinguishable.
{¶ 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
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 seclusion, tortious interference with a contractual relationship, tortious interference with business relationships, private nuisance, negligence, and intentional infliction of emotional distress — that are based entirely on the publication of the news report. It is well-settled that a plaintiff who cannot recover for defamation cannot recover under other legal theories based on the same publication, because those claims are subject to the same First Amendment protections. See Shifflet, 69 Ohio St.2d at 184,
{¶ 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 publicized matter and the false light in which the other would be placed.” Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451, 866 N.E.2d 1051, ¶ 58; see also Varanese v. Gall, 35 Ohio St.3d 78, 80, 518 N.E.2d 1177 (1988) (actual malice requires proof that defendant “published the defamatory statement either with actual knowledge that the statement was false, or with a high degree of awareness of its probable falsity“). Woods does not provide any factual support for actual malice by the media defendants.
{¶ 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).
{¶ 64} Woods‘s twelfth cause of action for fraud, fraudulent concealment, or in the alternative, negligent misrepresentation, fails to state a claim against the media defendants because the First Amendment shields reporters from liability for actions taken during the newsgathering process, and because the complaint did not satisfy
{¶ 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 communicating the information. Delman v. Cleveland Hts., 41 Ohio St.3d 1, 4, 534 N.E.2d 835 (1989).
{¶ 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).
{¶ 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
{¶ 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 defendants fails to state a claim upon which relief could be granted. The trial court did not err in granting the media defendants’
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
{¶ 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 Announcement” on several of his occupied properties, at random locations, and on cars in parking lots near his rental properties. The complaint alleged that the flyers included “false and unprivileged defamation per se, per quod[,] and false light statements” about him and his business, What a Lovely Home. Specifically, the complaint alleged that the flyers included statements such as: “Unfair and horrible landlords who evict people for no reason” and “Instead of doing business with them, you should view them the same way you do pedophiles, drug dealers, slumlords, baby killers or someone with a contagious disease. Stay away from them and do not rent from them!!! #Slumlords, #Whatauglyhome, #Followus.”
{¶ 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
{¶ 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 (defamation per quod to the plaintiff). Thomas v. Cohr, Inc., 197 Ohio App.3d 145, 2011-Ohio-5916, 966 N.E.2d 915, ¶ 24 (1st Dist.).
{¶ 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
{¶ 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.
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 or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. Id. at syllabus. To be actionable false light, “the statement made must be untrue.” Id. at ¶ 52; see also Murray v. Chagrin Valley Publishing Co., 2014-Ohio-5442, 25 N.E.3d 1111, ¶ 38 (8th Dist.) (finding there must be untruthful statements commenting on private matters to be actionable false light).
{¶ 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.
3. Invasion of Privacy – Wrongful Intrusion upon Seclusion
{¶ 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
{¶ 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 contractual breach, or terminate a business relationship; (4) a lack of privilege; and (5) resulting damages. Smith v. Natl. W. Life, 2017-Ohio-4184, 92 N.E.3d 169, ¶ 20-21 (8th Dist.), citing Byrne v. Univ. Hosps., 8th Dist. Cuyahoga No. 95971, 2011-Ohio-4110, ¶ 28. Because it is a tort, a claim of tortious interference requires an improper act. Syed v. Poulos, 8th Dist. Cuyahoga Nos. 103137 and 103499, 2016-Ohio-3168, ¶ 17, citing Baseball at Trotwood, L.L.C. v. Dayton Professional Baseball Club, S.D.Ohio No. C-3-98-260, 2003 U.S. Dist. LEXIS 27460 (Sept. 2, 2003).
{¶ 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,
{¶ 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 posts specifically targeted potential and current renters and contained statements that, if true, would cause individuals to breach existing contracts and business relationships. Woods alleged that based on the conduct of Deener and the former tenants, two business relationships ceased when the purchasers rescinded or breached their contracts with him for the purchase of real and personal property.
{¶ 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
{¶ 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 enjoyment of his property. Woods makes a bare assertion and legal conclusion in his complaint that Deener and the other former tenants unlawfully entered upon his property that was in his possession. Our review of the complaint, even viewing the allegations in favor of Woods, fails to reveal any supported factual allegation against Deener demonstrating that Woods was in possession of property when Deener entered without permission, or invaded his private use or enjoyment of his property.
{¶ 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);
{¶ 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.
{¶ 99} Even construing these allegations in favor of Woods, we find that Woods has failed to plead any actual or implied duty owed to Woods by Deener. These allegations are not actionable as alleged because they either do not exist under the law, arise as a breach of contract claim (breach of the lease), or only provide bare assertions that duty is owed.
{¶ 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 statements on Twitter and participating in creating flyers that encouraged others to view Woods and his business the same way as they would “pedophiles, drug dealers, slumlords, baby killers, or someone with a contagious disease.” According to the allegations in the complaint, the conduct was extreme because the Twitter posts indicate that Deener and the former tenants were fabricating falsehoods to damage Woods‘s business and reputation. Finally, Woods alleged that he suffered severe psychological injury and mental anguish. His complaint sufficiently pleaded this cause of action to survive Deener‘s
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
{¶ 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 independent from the conspiracy itself, we also find that Woods‘s adequately pleaded a claim for civil conspiracy to survive a
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
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.
{¶ 108} Woods alleged in his complaint that Clos told one of Woods‘s tenants that when Woods purchased the home in which she was living, the home contained mold. According to Woods, Clos told the tenant that instead of remediating the mold, Woods hired “thugs to install a new roof on the house to cover it up.” Woods stated that these statements caused the tenant to request a Section 8 inspection and “to notify [him] of her need to break the lease.” According to Woods, the inspection did not reveal any mold issues. Woods alleged that these statements made by Clos were false.
{¶ 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 deadline was merely set to “curb a series of endless filings and counter-filings.” The court noted that any specific date granted by the trial court controlled the determination of whether a specific dispositive motion was timely. Accordingly, we find this decision neither arbitrary nor unreasonable.
{¶ 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.
{¶ 113} Accordingly, the trial court‘s judgment dismissing the complaint against Clos is reversed in part and affirmed in part. Woods‘s claims for defamation per se and per quod and tortious interference with a contractual relationship survive Clos‘s
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
{¶ 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, specifically identify and dispose of all matters presented in this case. Woods‘s third assignment of error is overruled.
IV. Conclusion
{¶ 117} The trial court erred in dismissing the complaint against the 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
{¶ 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 Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
SEAN C. GALLAGHER, A.J., and
EILEEN T. GALLAGHER, J., CONCUR