[Cite as Woods v. Sharkin,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

DOUG WOODS, :

Plaintiff-Appellant, : No. 110567 v. :

BRIAN W. SHARKIN, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED RELEASED AND JOURNALIZED: June 9, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-920913

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. ON RECONSIDERATION1

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”),

1 The original decision in this appeal, Woods v. Sharkin, 8th Dist. Cuyahoga No. 110567,

, released on May 26, 2022, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01. 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.

{¶ 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

2 In 2019, Willis obtained new counsel, attorney Jeffrey Froude (“Froude”). Woods alleged that Willis and Froude acted without authorization in taking photographs of his rental property. According to Woods, both Willis and Froude made defamatory statements about him to the tenants, causing the tenants to stop paying rent and performing under the lease. 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

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 subsequently posted on September 6, 2018, by Pagonakis on the News Channel 5

website, as well as a “transcribed” version of the televised news story.3

{¶ 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

3 The transcript attached to the complaint is a chart prepared by a notary public denoting what each person said during the news broadcast. Although the media defendants in their motion to dismiss reference a website where the news broadcast can be located on the internet, a copy of the actual televised news broadcast that was aired has not been provided to this court. None of the parties have raised any objection to the “transcript” or the reference to the news story contained on the website. 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

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. {¶ 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

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 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 R.C. 2323.52(A)(2). Sharkin subsequently moved for judgment on the

pleadings regarding Woods’s complaint.

{¶ 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 Civ.R. 12(B)(6).

{¶ 19} On January 31, 2020, Froude moved for judgment on the pleadings

pursuant to Civ.R. 12(C). And on February 6, 2020, Deener moved to dismiss

Woods’s complaint pursuant to Civ.R. 12(B)(6).

{¶ 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.

4 Woods alleges that “Curvvy Nurse” is a trade name registered in Ohio by Webb. {¶ 21} On March 2, 2020, 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,

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. {¶ 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.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 Civ.R.

12(B)(6); (2) granted the media defendants’ motion to dismiss pursuant to Civ.R.

12(B)(6); (3) granted Clos’s untimely motion for judgment on the pleadings; (4)

5 Woods raised three assignments of error in his appellate brief, but subsequently withdrew his second assignment of error when he voluntarily dismissed appellees Froude, Willis, and Sharkin from the appeal. granted Deener’s motion for judgment on the pleadings; (5) granted Sharkin’s

motion for judgment on the pleadings; (6) granted Froude’s motion for judgment

on the pleadings; and (7) denied his motion for summary judgment on Sharkin’s

counterclaim.

{¶ 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 Civ.R. 12(B)(6) standard

of review in Hersh v. Grumer,

,

(8th Dist.):

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,

,

,

(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, [

,

(8th Dist.)] quoting Grey v. Walgreen Co.,

,

,

(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,

,

(1991). Additionally, a court may not dismiss a complaint

under Civ.R. 12(B)(6) merely because it doubts the plaintiff will prevail. Bono v.

McCutheon,

, 2005-Ohio 299,

(2d Dist.).

{¶ 29} Appellate review of rulings on Civ.R. 12(C) motions for judgment on

the pleadings operates “under the same principles that this court would apply in

analyzing a motion to dismiss pursuant to Civ.R. 12(B)(6).” Jordan v. Giant Eagle

Supermarket, 8th Dist. Cuyahoga No. 109304,

.

{¶ 30} When reviewing the sufficiency of a complaint, this court is mindful

that Civ.R. 8(A) provides for notice pleading, which requires a “short and plain

statement of the claim showing that the pleader is entitled to relief, and a demand

for judgment for the relief to which the party claims to be entitled.” Even under

Ohio’s liberal pleading rules and notice-pleading standard, however, a cause of

action must be factually supported and courts need not accept bare assertions of

legal conclusions. Tuleta v. Med. Mut. of Ohio,

,

, ¶ 28 (8th Dist.); Harper v. Weltman, Weinberg & Reis Co., L.P.A., 8th Dist. Cuyahoga

No. 107439,

. Additionally, the court need not accept as true

any unsupported and conclusory legal propositions advanced in the complaint.

Morrow v. Reminger & Reminger Co. LPA,

,

,

(10th Dist.).

{¶ 31} When reviewing a Civ.R. 12(B)(6) motion, “[t]he factual allegations of

the complaint and items properly incorporated therein must be accepted as true.”

Vail v. Plain Dealer Publishing Co.,

,

(1995)

(in a Civ.R. 12(B)(6) review, the court considered the news column and press release

that were “attached to and incorporated by reference to her complaint”). Here, no

objection has been raised regarding the consideration of any documents attached to

Woods’s complaint.

{¶ 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 Civ.R. 55, he was entitled to

6 Although Woods also moved for default judgment against Willis, she will not be included in our discussion of this issue. As previously explained, Willis and Woods entered into a settlement agreement; accordingly, any discussion or resolution of this assignment of error does not pertain to Willis. a default judgment against these defendants who were served with the complaint

but failed to plead or otherwise defend.

{¶ 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 Civ.R.

12(B)(6).

{¶ 36} Civ.R. 55 governs default judgments and provides that when a party

against whom judgment is sought fails to plead or otherwise defend, the opposing

party may apply to the court for a default judgment. Civ.R. 55(A). A trial court’s

decision “to grant or deny a motion for default judgment” is reviewed under an

abuse of discretion standard. Bank of Am., N.A. v. Malone, 10th Dist. Franklin No.

11AP-860,

, ¶ 18. An abuse of discretion is not a mere error of law

or judgment; rather, it connotes an unreasonable, arbitrary, or unconscionable

attitude on the part of the trial court. Blakemore v. Blakemore,

,

(1983). {¶ 37} At the March 2, 2020 hearing, the trial court acknowledged that the

non-answering defendants were properly served, but noted that Civ.R. 55 affords

the trial court discretion and default may not be appropriate where the complaint

fails to state a claim upon which relief can be granted. The court exercised its

discretion and denied Woods’s motion for default judgment based on “the facts of

this case where plaintiff has filed suit against several former tenants, many of whom

are transient and difficult to locate.” The court additionally concluded that Woods’s

complaint failed to state a claim upon which relief could be granted; thus, it sua

sponte dismissed Woods’s complaint against these defendants.

{¶ 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 Civ.R.

12(B)(6) against the non-answering defendants.

{¶ 39} Generally, a court may dismiss a complaint on its own motion

pursuant to Civ.R. 12(B)(6), failure to state a claim upon which relief may be

granted, only after the parties are given notice of the court’s intention to dismiss and

an opportunity to respond. Prosen v. Dimora,

,

(8th Dist. 1992). The only instances of when a sua sponte dismissal of

complaint without notice is appropriate is when the complaint is frivolous or the

plaintiff cannot succeed on the facts stated in the complaint. State ex rel. Peeples v.

Anderson,

,

(1995).7

7 This proposition of law has primarily been applied to writs or other original actions filed in reviewing courts. {¶ 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 Civ.R. 12(B)(6). The trial court admitted that sua

sponte dismissal is “appropriate in some rare cases” but found that Woods’s

complaint warranted dismissal. It explained:

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,

, quoting McMullian v.

Borean, 6th Dist. Ottawa No. OT-05-017,

. “‘[A]ppellate review

is frustrated when a trial court offers no explanation or reasoning for a sua sponte

dismissal.’”

quoting McMullian at

{¶ 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

defendants. Additionally, some other causes of action were separate and distinct

from those against the answering defendants. For example, causes of action 9 and

10 (civil assault and property damage) only pertain to UFC and Greer; cause of

action 13 (quid pro quo and hostile environment harassment and violation of R.C.

4112.02(H)(4)(12)) only pertains to Webb; and cause of action 16 (breach of

contract) only pertains to defendants RC Investments and Paisley, who are not

alleged to be Woods’s former tenants. Accordingly, the trial court could not use its

rationale and justifications regarding the other defendants to support its decision to

dismiss the complaint against the remaining properly served, but non-answering

defendants.

{¶ 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). The

assignment of error as it pertains to these defendants is sustained; the trial court’s

decision is reversed in this respect. 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

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’ Civ.R. 12(B)(6) motion

to dismiss, finding at the hearing that Woods’s defamation claims fail to state a claim

because the news report, viewed as a whole, “was substantially true and to the extent

that any statements made during the course of the reporting were untrue such

statements do not rise to the level of being defamatory.” The court further found

that the statements made during the report “came in the context of reasonably

balanced reporting” and the statements were not “actionable as a matter of law.”

The court noted that any of the factual inaccuracies noted by Woods did not change

the overall story or reporting. Finally, the trial court determined that implied

statements — camera angles, tone, lighting — are not actionable. {¶ 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

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,

,

,

, ¶ 9,

quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Const. Trades

Council,

,

(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.,

,

,

, ¶ 9, citing Am. Chem. Soc. v. Leadscope,

Inc.,

,

,

, ¶ 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.,

,

(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,

, ¶ 12, citing Scott v. News-Herald,

,

(1986), and Mendise v. Plain Dealer Publishing Co.,

,

(8th Dist. 1990).

{¶ 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,

,

,

, at ¶ 79, quoting Connaughton v. Harte Hanks

Communications, Inc.,

(6th Cir. 1988), aff'd,

,

,

(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

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 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 Civ.R.

12(B)(6).

{¶ 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.,

,

(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.,

,

,

(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 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

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,

,

(truth

established by the express and implicit allegations in the complaint).

{¶ 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, 2oo6-

Ohio-64o8, ¶ 13, citing Krems v. Univ. Hosps. of Cleveland,

,

(8th Dist. 1999) 8

{¶ 59} Woods relies on this court’s recent opinion in Hersh, 8th Dist.

Cuyahoga No. 109430,

, 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,

(accusation of

8 Although the media defendants referenced in their motion to dismiss a website to allow the trial court to access the televised broadcast, our review under a Civ.R. 12(B)(6) is limited to the allegations in the complaint and the non-objected attachments. 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

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,

,

(fact that publication was true and protected by fair report privilege

was complete defense to all claims based on it); A&B-Abell Elevator Co., Inc.,

, 15,

(1995) (tortious interference); Vail,

,

(intentional infliction of emotional distress); Battig v.

Forschey,

,

(4th Dist. 1982) (any privileges

applicable to defamation claims apply with equal force to invasion of privacy

claims); Herring v. Adkins,

,

,

(C.P.) (“Claims of tortious interference with a business relationship are subject

to the First Amendment requirements that apply in claims for defamation.”).

Accordingly, because Woods failed to allege any facts to support the above claims

beyond relying on the same nondefamatory news report, those additional

publication-based claims were properly dismissed pursuant to Civ.R. 12(B)(6).

{¶ 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,

,

,

; see also

Varanese v. Gall,

,

(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,

,

(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

media defendants because the First Amendment shields reporters from liability for

actions taken during the newsgathering process, and because the complaint did not

satisfy Civ.R. 9(B).

{¶ 65} Civ.R. 9(B) provides: “In all averments of fraud or mistake, the

circumstances constituting fraud or mistake shall be stated with particularity.”

Fraud has various elements: (1) a representation (or concealment of a fact when

there is a duty to disclose) (2) that is material to the transaction at hand, (3) made

falsely, with knowledge of its falsity or with such utter disregard and recklessness as

to whether it is true or false that knowledge may be inferred, and (4) with intent to

mislead another into relying upon it, (5) justifiable reliance, and (6) resulting injury

proximately caused by the reliance. Burr v. Stark Cty. Bd. of Commrs.,

,

(1986). The elements of fraudulent concealment are:

(1) actual concealment of a material fact, (2) with knowledge of the fact concealed, (3) with the intent to mislead another into relying upon it; (4) justifiable reliance on

the concealment; and (5) injury proximately caused by the reliance. Bencivenni v.

Dietz, 11th Dist. Lake No. 2012-L-127,

.

{¶ 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.,

,

(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.,

(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

a landlord.” Accordingly, because the “representation” Woods relied on was true,

both his fraud and negligent misrepresentation claims were properly dismissed.

{¶ 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,

,

, ¶ 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.,

,

(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,

,

, ¶ 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,

(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’ Civ.R. 12(B)(6) motion to dismiss.

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

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 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 Civ.R.

12(B)(6). According to Deener, the accusations against her are not actionable

because the alleged statements were matters of opinion, and Woods failed to

sufficiently plead the other causes of action other than making conclusory

statements and bare assertions. Woods opposed Deener’s motion, contending that

the allegations in his complaint, when viewed in a light most favorable to him,

sufficiently state claims upon which relief could be granted.

{¶ 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 Civ.R. 12(B)(6) motion to dismiss because the factual allegations,

statements, and conduct attributed to Deener, if true, are sufficient to state a claim 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.

Woods’s claim for injunctive relief is not a cause of action, but remains as a prayer

for relief.

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.,

,

,

(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,

,

,

(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,

, 556,

(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,9 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

then dealing with legal proceedings involving Woods. The specific language used by

Deener is a statement that is verifiable. Additionally, because she is a former tenant

of Woods, the statement implies that she has firsthand knowledge that substantiates

the statement.

{¶ 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.

9 Specifically, a court should consider: the specific language at issue, whether the statement is verifiable, the general context of the statement, and the broader context in which the statement appeared. Vail,

,

, citing Scott,

,

. {¶ 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,

, 2007-Ohio-

2451,

. 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.

at syllabus. To be actionable false

light, “the statement made must be untrue.” Id. at ¶ 52; see also Murray v. Chagrin

Valley Publishing Co.,

,

, ¶ 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. {¶ 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.

3. Invasion of Privacy — Wrongful Intrusion upon Seclusion

{¶ 87} In Lunsford v. Sterilite of Ohio, L.L.C.,

, 2020-

Ohio-4193,

, 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,

,

(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

contractual breach, or terminate a business relationship; (4) a lack of privilege; and

(5) resulting damages. Smith v. Natl. W. Life,

,

, ¶ 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,

(Sept. 2,

2003).

{¶ 91} In Fred Siegel Co., L.P.A. v. Arter & Hadden,

,

(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.,

,

(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

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,

,

(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,

,

(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.”

quoting

DiPasquale v. Costas,

,

,

(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

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.,

,

(1984); Chambers v. St. Mary’s School,

, 565,

(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,

,

(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.

{¶ 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 Civ.R. 12(B)(6).

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,

,

.

{¶ 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 Civ.R. 12(B)(6) motion to dismiss.

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,

, citing Kenty v. Transamerica Premium Ins. Co.,

,

(1995). An underlying unlawful act must be

committed in order to establish an action for civil conspiracy. Gosden v. Louis,

,

(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

independent from the conspiracy itself, we also find that Woods’s adequately

pleaded a claim for civil conspiracy to survive a Civ.R. 12(B)(6) motion to dismiss.

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,

(“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.

{¶ 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 Civ.R. 12(C). According to Clos, the accusations against him are either

untrue or statements of opinion. Woods opposed Clos’s motion, contending that it was untimely filed based on the trial court’s case management schedule and that

Clos did not seek leave. Additionally, he claimed that the allegations in his

complaint, when viewed in a light most favorable to him, sufficiently state claims

upon which relief could be granted. The trial court found that Clos’s statements

were matters of opinion, and thus, not actionable.

{¶ 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 Civ.R.

12(C) motion in its entirety. We find that the trial court improperly dismissed

Woods’s claims against Clos for defamation per se and per quod and tortious

interference with a contractual relationship because the alleged statements made by

Clos to Woods’s tenant were false and insinuated that Woods violated the law by

concealing mold in one of his rental homes. According to Woods, this notification

caused the tenant to request a Section 8 inspection and break her lease. According

to Woods, the inspection did not reveal any mold. The allegations in the complaint must be accepted as true at this juncture. Accordingly, we find that the Woods’s

claims for defamation per se and per quod and tortious interference with a

contractual relationship were sufficiently pleaded to survive a Civ.R. 12(C) motion.

{¶ 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 Civ.R. 12(C) motion for judgment on the pleadings. Woods is also entitled to

pursue the injunctive relief sought in his prayer for relief in the event such relief is

appropriate.

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,

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 Civ.R. 12(B)(6).

{¶ 118} The trial court did not err in granting the media defendants’ Civ.R.

12(B)(6) motion to dismiss because Woods’s complaint failed to state a claim upon

which relief could be granted because the news report presented both sides of the

dispute between the parties and the news report was substantially truthful.

{¶ 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

to pursue the injunctive relief sought in his prayer for relief in the event such relief

is appropriate.

{¶ 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