The opinion
[Cite as Grubb & Assocs., LPA v. Brown, 2018-Ohio-3526.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
GRUBB & ASSOCIATES LPA C.A. No. 17CA011201
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STEPHEN J. BROWN, ESQ. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellees CASE No. 16CV191158
DECISION AND JOURNAL ENTRY
Dated: September 4, 2018
SCHAFER, Presiding Judge.
{¶1} Plaintiffs-Appellants, Natalie F. Grubb, Esq. (“Attorney Grubb”) and Grubb &
Associates, L.P.A. (collectively “Grubb”) appeal the decision of the Lorain County Court of
Common Pleas granting a Civ.R. 12(B)(6) motion to dismiss in favor of Defendant-Appellee,
Medina County Publications, Inc. (the “Medina Gazette”). We affirm.
I.
{¶2} On July 18, 2014, the Medina Gazette published an article entitled “Former client
sues attorney[.]” According to the article, Grubb’s former client, Amanda France, had filed a
lawsuit accusing Grubb of fraud, breach of duty, and failure to provide competent services. The
article went on to describe the allegations Amanda France made in her complaint against Grubb.
The article also reported on statements made by Amanda France’s attorney, Stephen Brown,
regarding the claims alleged in Amanda France’s action against Grubb.
2
{¶3} Thereafter, on December 13, 2016, Grubb filed suit against the Medina Gazette
alleging claims of defamation per se and tortious interference with a business relationship.1
Grubb filed her first amended complaint (the “complaint”) on June 15, 2017, which asserted only
two claims, counts two and three, against the Medina Gazette. In the complaint, Grubb claimed
that the Medina Gazette published a defamatory article that “falsely accused [Grubb] by
numerous allegations that on their face reflect upon Attorney Grubb’s character in a manner that
will cause her to be ridiculed, hated, held in contempt, or in a manner that will injure her in her
trade or profession as an attorney.” Further, Grubb claimed that the Medina Gazette tortiously
interfered with Grubb’s “existing business relationship” with Grubb’s “then client, John France.”
Grubb explains in the complaint that John France was the husband of Amanda France—the
former client who filed the lawsuit against Grubb prompting the article in the Medina Gazette.
{¶4} The Medina Gazette responded with a Civ.R. 12(B)(6) motion seeking dismissal
of counts two and three of the complaint. Grubb opposed the motion. The trial court granted the
motion, finding that Grubb failed to state claims, for defamation and tortious interference with a
business relationship, upon which relief could be granted. By way of the August 29, 2017
journal entry, the trial court dismissed Grubb’s claims against the Medina Gazette.
{¶5} Grubb timely appealed the trial court’s decision, asserting three2 assignments of
error. For ease of analysis, we consider the assignments of error out of order.
1
Grubb also asserted claims against other named defendants, attorneys Stephen J. Brown
and Jennifer Matyac, however, those parties and the associated claims are not relevant to this
appeal.
2
We note that the “statement of assignments of error” in Grubb’s brief references a
fourth assignment of error purporting to challenge the trial court’s grant of a summary judgment
motion. However, Grubb did not present that assignment of error or argue it in the brief.
Moreover, our review of the record reflects that there has been no summary judgment ruling in
this matter.
3
II.
Assignment of Error II
The trial court erred in granting the [Medina] Gazette’s motion to dismiss
when Count II of the first amended complaint is sufficient to state a claim
against the [Medina] Gazette for libel/defamation per se as a matter of law.
{¶6} In the second assignment of error, Grubb submits that the trial court erred in
dismissing the claim of libel—defamation per se—for failure to state a claim. The trial court
determined that the Medina Gazette article reported the allegations actually made in Amanda
France’s complaint, but did not assert the truth of those allegations. The trial court concluded,
inter alia, that the pleadings established that the article, as presented, was true, and therefore not
actionable. Grubb challenges the trial court’s determination and argues that the complaint
sufficiently stated a claim. We disagree.
{¶7} This Court reviews an order granting a Civ.R. 12(B)(6) motion to dismiss de
novo. Perrysburg Twp. v. City of Rossford, 103 Ohio St. 3d 79, 2004-Ohio-4362, ¶5. A Civ.R.
12(B)(6) motion tests the sufficiency of the complaint, and dismissal is appropriate where the
complaint “fail[s] to state a claim upon which relief can be granted.” Regarding sufficiency,
notice pleading only requires that the complaint “shall contain * * * a short and plain statement
of the claim showing that the party is entitled to relief[.]” Civ.R. 8(A). However, “the complaint
must still set forth operative facts to give the opposing party ‘fair notice of the nature of the
action.’” Vagas v. City of Hudson, 9th Dist. Summit No. 24713, 2009-Ohio-6794, ¶ 10, quoting
Mogus v. Scottsdale Ins. Co., 9th Dist. Wayne Nos. 03CA0074, 04CA0002, 2004-Ohio-5177, ¶
15. “Moreover, ‘a complaint must be more than ‘bare assertions of legal conclusions.’” Id.
quoting Copeland v. Summit Cty. Probate Court, 9th Dist. Summit No. 24648, 2009-Ohio-4860,
¶ 10.
4
{¶8} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must
presume that all factual allegations of the complaint are true and make all reasonable inferences
in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
Before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove
no set of facts entitling her to recovery. O‘Brien v. Univ. Community Tenants Union, Inc., 42
Ohio St.2d 242 (1975), syllabus. In determining a motion pursuant to Civ.R. 12(B)(6), the court
cannot rely on evidence or allegations outside of the complaint. State ex rel. Fuqua v.
Alexander, 79 Ohio St.3d 206, 207, 1997-Ohio-169. However, “[m]aterial incorporated in a
complaint may be considered part of the complaint for purposes of determining a Civ.R.
12(B)(6) motion to dismiss.” State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d
247, fn. 1 (1997)
{¶9} Grubb claims that the allegedly defamatory article published by the Medina
Gazette is libelous per se. To establish a claim for libel, Grubb must demonstrate five elements:
(1) that a false statement of fact was made, (2) the statement was defamatory, (3) the statement
was published, (4) the plaintiff suffered injury as a proximate result of the publication, and (5)
the defendant acted with the requisite degree of fault in publishing the statement. Am. Chem.
Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, ¶ 77. Whether or not certain
statements alleged to be defamatory are actionable is a matter for the court to decide. Id. at ¶ 78,
quoting Yeager v. Local Union 20, 6 Ohio St.3d 369, 372 (1983). Written matter, such as the
article at issue, “is libelous per se if, on its face, it reflects upon a person’s character in a manner
that will cause him to be ridiculed, hated, or held in contempt; or in a manner that will injure him
in his trade or profession.” Gosden v. Louis, 116 Ohio App.3d 195, 207 (9th Dist.1996).
5
{¶10} We begin our analysis by considering the first element of a claim of libel: whether
the Medina Gazette made a false statement of fact. Leadscope at ¶ 77. The “Background”
section of Grubb’s complaint precedes the stated causes of action and includes a subsection
entitled “The Defamatory Article in the Medina Gazette” which summarizes and quotes portions
of the article. Those portions of the article that Grubb references either report statements made
by Amanda France’s attorney, Stephen Brown, or describe the allegations contained in Amanda
France’s lawsuit. Within this subsection there is no indication which, if any, of these quoted
statements Grubb believes to be false.
{¶11} In count two of the complaint, Grubb asserts the claim of libel/defamation per se
and, in addition to incorporating all preceding paragraphs by reference, states the following:
54. The [a]rticle was false and defamatory per se, as it falsely accused [Grubb] by
numerous allegations that on their face reflect upon Attorney Grubb’s character in
a manner that will cause her to be ridiculed, hated, held in contempt, of in a
manner that will injure her in her trade or profession as an attorney.
55. The [Medina] Gazette could have been [sic] easily verified that Amanda
France had no standing to bring her action against [Grubb] and that the
[m]ortgage [d]eed was signed by John France.
56. The [a]rticle is further false and defamatory per se because it accuses Attorney
Grubb of mortgage fraud, which is a criminal offense of moral turpitude.
57. The [a]rticle was published without privilege in the [Medina] Gazette, a
Medina County publication that is widely circulated to the general public.
58. The [Medina] Gazette was at least negligent in failing to make any attempt to
ascertain the truth or veracity of the France Complaint or statements made to the
[Medina] Gazette by Brown, which a casual search of public records would have
revealed as false. Further, the [Medina] Gazette has published unverified and
false statements regarding [Grubb] and their clients in the [a]rticle and numerous
other articles over the past several years.
59. As a direct and proximate result of the published false statements in the
[Medina] Gazette, [Grubb is] presumed as a matter of law to have suffered
damages * * *.
6
Although Grubb refers to “numerous allegations” and makes passing reference to “unverified
and false statements” in the article, Grubb only identifies one statement in the article that she
claims is false and defamatory per se: an accusation that Attorney Grubb engaged in mortgage
fraud, a criminal offense of moral turpitude. While Grubb alleges as a matter of fact that the
article contains an accusation of mortgage fraud, such a claim is belied by the article itself, which
is attached to the complaint as “Exhibit F” and incorporated into the pleading. We accept as true
not only the factual allegation in the complaint, but also all items properly incorporated into the
complaint. Vagas, 2009-Ohio-6794 at ¶ 11.
{¶12} The article stated, in pertinent part:
A Medina attorney who pleaded guilty to a fraud charge last year now faces a
lawsuit from a former client accusing her of fraud, breach of duty[,] and failure to
provide competent services.
Amanda France, of Tampa, Florida, filed a suit last week against attorney Natalie
Grubb in Medina County Common Pleas Court. In the suit, France alleges Grubb
failed to file a civil suit she was hired to prepare and accuses her of mortgage
fraud.
***
The suit also alleges that Grubb acquired an open-end mortgage deed worth
$130,000 on France’s Florida home. According to the Hillsborough County
auditor’s website, the property Grubb secured the mortgage on is owned by
France’s husband, John France.
Brown said Grubb took out the mortgage without notifying France or her
husband.
It is clear based on a plain reading of the article attached to the complaint that the Medina
Gazette does not accuse Grubb of mortgage fraud, but rather reports that Grubb’s former client is
suing Grubb for mortgage fraud. The article informs that Amanda France’s lawsuit alleged that
Grubb committed mortgage fraud by acquiring a mortgage on her home, and the reporter further
notes that the home appeared to be in the name of John France only. Such statements are
verifiably true because Grubb also attached a copy of Amanda France’s lawsuit to the complaint
7
as “Exhibit E” and incorporated it into the pleading. Again without accusing Grubb, the article
indicates that France’s attorney, Brown, said that Grubb took out the mortgage without notifying
France or her husband.
{¶13} The essence of Grubb’s argument is that the Medina Gazette published an article
reporting on Amanda France’s lawsuit without first investigating the allegations of the lawsuit or
considering the merit of the claims. However, the article did not report any of the allegations in
Amanda France’s lawsuit as matter of fact, but, rather, qualified them as having been alleged in
Amanda France’s complaint or stated by her attorney. Grubb has not pleaded the existence of
any actionable statement in the article falsely accusing Attorney Grubb of any act, let alone an
act reflecting upon her character in a manner that will cause her to be ridiculed, hated, or held in
contempt; or in a manner that will injure her in her trade or profession. See Gosden, 116 Ohio
App.3d at 207. Therefore, Grubb cannot establish any set of facts to support the first element for
a defamation claim that the article is libelous per se. Accordingly, we conclude that the trial
court did not err in dismissing the second count of the complaint for failure to state a claim upon
which relief can be granted.
{¶14} Grubb’s second assignment of error is overruled.
Assignment of Error III
The trial court erred in granting the [Medina] Gazette’s motion to dismiss
when Count II[I] of the first amended complaint is sufficient to state a claim
against the [Medina] Gazette for tortious interference with business
relationship.
{¶15} The same de novo standard of review applies to Grubb’s third assignment of
error, arguing that the trial court erred by dismissing its claim of tortious interference with a
business relationship pursuant to Civ.R. 12(B)(6). Rossford, 2004-Ohio-4362, at ¶5. In the
brief, Grubb contends that “John France was an ongoing client of [Grubb’s firm] for years * * *”
8
and claims that it is “clear from the [complaint] that the business relationship terminated and that
[Grubb’s firm] received no more work from Mr. France following the publication of the
[a]rticle.” Grubb fails to develop or support this argument. However, our de novo review
permits this Court to analyze this contention upon Grubb’s complaint.
{¶16} “The elements of ‘tortious interference with a business relationship are: (1) a
contractual or business relationship; (2) knowledge of the relationship by the tortfeasor; (3) an
intentional and improper act by the tortfeasor preventing formation of a contract, procuring
breach of a contract, or termination of a business relationship; (4) lack of privilege on the part of
the tortfeasor; and (5) resulting damage.’” Bindra v. Fuenning, 9th Dist. Summit No. 26489,
2013-Ohio-5722, ¶ 14, quoting Tripp v. Beverly Ent.-Ohio, Inc., 9th Dist. Summit No. 21506,
2003-Ohio-6821, ¶ 48. A claim for tortious interference with a business relationship is similar to
claim of tortious interference with a contract, “‘but occurs when the result of the interference is
not breach of contract, but that a third party does not enter into or continue a business
relationship with the plaintiff.’” Deems v. Ecowater Sys., 9th Dist. Summit No. 27645, 2016-
Ohio-5022, ¶ 26, quoting Magnum Steel & Trading L.L.C. v. Mink, 9th Dist. Summit Nos.
26127, 26231, 2013-Ohio-2431, ¶ 10.
{¶17} In count three of the complaint, Grubb alleges as follows:
61. There was an existing business relationship between [Grubb] and their then
client, John France.
62. The Defendants knew of this business relationship.
63. The Defendants have [tortiously] interfered with said business relationship,
causing Mr. France to cease to conduct business with [Grubb].
64. Defendants’ interference with [Grubb]’s business relationship with Mr. France
was undertaken knowingly, maliciously and without right, privilege or
justification, for their own economic benefit and personal gain.
9
{¶18} Examining the first element of the claim, the existence of a contractual or
business relationship, Grubb alleges that that there was an existing business relationship with
John France. Grubb then makes the bald assertion that defendant tortiously interfered with this
relationship and caused Mr. France to cease to conduct business with Grubb. As this claim
relates to the Medina Gazette, it appears from the complaint that the allegedly tortious conduct is
publication of the article on July 18, 2014. However, in the complaint, Grubb avers that the
attorney-client relationship between Grubb and John France—the only relationship alleged in the
complaint—ended on May 20, 2013, citing to a court order granting a motion to withdraw as
counsel attached to the complaint and incorporated into the pleadings as “Exhibit D.” Thus, the
facts that Grubb has alleged in the complaint, taken together with the incorporated material,
establish that the only alleged relationship between Grubb and John France was not “existing”
when the Medina Gazette published the article at issue, but rather that it had terminated more
than a year prior to any alleged action on the part of the Medina Gazette.
{¶19} Specific facts alleged in the complaint refute the vague assertion that a business
relationship existed, and we conclude that Grubb has failed to plead the existence of a
contractual or business relationship to satisfy the first element of the claim. Further, having
failed to establish the existence of a business relationship, Grubb has not alleged any facts to
support a claim that the article published by the Medina Gazette caused John France to terminate
or discontinue a business relationship with Grubb. Accordingly, we determine that Grubb also
failed to plead the third element of a claim of tortious interference with a business relationship,
and we conclude that the trial court did not err in dismissing this claim for failure to state a claim
upon which relief can be granted.
{¶20} Grubb’s third assignment of error is overruled.
10
Assignment of Error I
The trial court erred in granting the [Medina] Gazette’s motion to dismiss
when [Grubb]’s first amended complaint set forth such facts that could
entitled appellants to recover for the claims asserted.
{¶21} In the first assignment of error Grubb contends that the complaint set forth
sufficient facts to recover on claims against the Medina Gazette. However, aside from setting
forth the standard of review for a motion to dismiss, Grubb makes only a single conclusory claim
that
[t]he [t]rial [c]ourt erred in going beyond the sufficiency of the [complaint] to find
in favor of the [Medina] Gazette on its motion to dismiss, despite the fact that
there is a set of facts, when all factual allegations in the complaint are taken as
true and all reasonable inferences are drawn in favor of [Grubb], consistent with
the [complaint], which would allow [Grubb] to recover on their claims against the
[Medina] Gazette.
Grubb has not cited to authorities, statutes, or parts of the record, and has not presented an
argument supporting this contention as required by App.R. 16(A)(7).
{¶22} To the extent that Grubb intended to assign error to the manner in which the trial
court applied Civ.R. 12(B)(6), we find the issue moot because the proper standard has been
articulated and applied in our determination of the second and third assignments of error. In so
far as this assignment of error was intended to present any argument distinguishable from the
second and third assignments of error, Grubb has neither presented nor supported such an
argument and so we decline to consider it. See App.R. 12(A)(2), App.R. 16(A). An appellant’s
assignment of error must “provide[] this Court with a roadmap to guide our review.” Taylor v.
Hamlin-Scanlon, 9th Dist. Summit No. 23873, 2008-Ohio-1912, ¶ 12, citing App.R. 16(A). This
Court will not “chart its own course” when an appellant fails to provide guidance. Young v.
Slusser, 9th Dist. Wayne No. 08CA0019, 2008-Ohio-4650, ¶ 7. “It is not this Court’s duty to
11
create an appellant’s argument for him.” Thomas v. Bauschlinger, 9th Dist. Summit No. 27240,
2015-Ohio-281, ¶ 8.
{¶23} Grubb’s first assignment of error is overruled.
III.
{¶24} Grubb’s three assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgement affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
JULIE A. SCHAFER
FOR THE COURT
12
CARR, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
NATALIE F. GRUBB and MARK E. OWENS, Attorneys at Law, for Appellants.
JOHN T. MURPHY and MAIA JERIN, Attorneys at Law, for Appellees.
MONICA L. DIAS, Attorney at Law, for Appellee.