[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.
