Martin v. Wegman , 2019 Ohio 2935 ( 2019 )

[Cite as Martin v. Wegman, 2019-Ohio-2935.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CHARLES RICHARD MARTIN, II, : APPEAL NOS. C-180268
C-180308
Plaintiff-Appellant, : TRIAL NOS. A-1704203
A-1706197
vs. :
O P I N I O N.
DONALD A. WEGMAN, :
Defendant-Appellee. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified in C-180308;
Appeal Dismissed in C-180268
Date of Judgment Entry on Appeal: July 19, 2019
Harry B. Plotnick, for Plaintiff-Appellant,
Frederick J. Johnson, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
C ROUSE , Judge.
{¶1} Plaintiff-appellant Charles Martin appeals the trial court’s dismissal of
his defamation claim. We modify the judgment so that dismissal is without
prejudice, and affirm as modified.
Facts and Procedure
{¶2} Martin initially filed a defamation claim under the case numbered A-
1704203 and, after voluntarily dismissing the claim without prejudice, refiled his claim
under the case numbered A-1706197. Martin’s complaint alleged that defendant-
appellee Donald Wegman “published false, misleading and defamatory statements
about plaintiff in written correspondence both to government officials and on
defendant’s personal Facebook account.” According to the complaint, Wegman
published that Martin
was an adult male member of the community who was filming defendant
and his 12-year-old daughter with a drone…implying that the alleged acts
were committed for immoral purposes.
{¶3} Wegman filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a
claim upon which relief could be granted. After hearing oral argument, the trial court
granted the motion and dismissed the complaint with prejudice, saying “the complaint
doesn’t state enough on its face. If there were attachments, if it was said in the text that
would be one thing and it would be enough.”
{¶4} In his sole assignment of error, Martin contends that because the
complaint stated a claim against Wegman for defamation as matter of law, the trial
court erred in dismissing his complaint pursuant to Civ.R. 12(B)(6). For the reasons
set forth below, we modify the judgment dismissing Martin’s complaint, and affirm it
as modified.
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Dismissal of Appeal No. C-180268
{¶5} In his notice of appeal for the case numbered A-1704203, Martin states
that he is appealing the judgment of the court entered on May 7, 2018, but there was no
judgment on that date in that case. Martin voluntarily dismissed the case numbered A-
1704203 on October 30, 2017. May 7, 2018, is the date the trial court entered judgment
for Wegman in the case numbered A-1706197. Martin appeals an order that does not
exist for a case in which he voluntarily dismissed his claim. Therefore, the appeal
numbered C-180268 is dismissed.
Standard of Review
{¶6} An order granting a Civ.R. 12(B)(6) motion to dismiss is reviewed de
novo. Perrysburg Twp. v. Rossford, 103 Ohio St. 3d 79, 2004-Ohio-4362, 814 N.E.2d
44, ¶ 5.
Sufficiency of the Complaint in the Appeal Numbered C-180308
{¶7} Civ.R. 8(A) provides for notice pleading, requiring 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.” A Civ.R. 12(B)(6)
motion to dismiss “is procedural and tests the sufficiency of the complaint.” State ex
rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St. 3d 545, 548, 605 N.E.2d
378 (1992). The material allegations of a complaint are taken as true, with all
reasonable inferences drawn in favor of the nonmoving party, and the complaint will
only be dismissed if it appears beyond doubt that the plaintiff can prove no set of
facts entitling him to recover. Id.
{¶8} It is unclear on what basis the trial court granted the motion to dismiss.
The court said the complaint didn’t “state enough on its face,” and took issue with
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OHIO FIRST DISTRICT COURT OF APPEALS
Martin’s failure to attach the exact defamatory statement. However, dismissal for failure
to attach the statement would be improper. It is sufficient that the complaint clearly
identifies the substance of the defamatory remarks, which Martin’s complaint did. See
Boutsicaris v. Akron Gen. Med. Ctr., 9th Dist. Summit No. 17941, 1997 WL 270552,
*6 (May 14, 1997). Nevertheless, because the complaint did not plead all the necessary
elements of a defamation per quod claim, the trial court properly dismissed the
complaint for failure to state a claim upon which relief can be granted.
{¶9} This court, in Thomas v. Cohr, Inc., 197 Ohio App. 3d 145, 2011-Ohio-
5916, 966 N.E.2d 915, ¶ 24 (1st Dist.), delineated the elements of a defamation claim
under Ohio law.
A private person who brings a defamation claim must plead and prove:
(1) a false and defamatory statement, (2) about the plaintiff, (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 to the plaintiff.
{¶10} In order for a statement to be defamatory per se, it must be
defamatory upon the face of the statement. Becker v. Toulmin, 165 Ohio St. 549,
556, 138 N.E.2d 391 (1956). When a statement is only defamatory through
interpretation, innuendo, or consideration of extrinsic evidence, then it is
defamatory per quod and not defamatory per se. Id. “[I]f a statement is defamatory
per quod, the plaintiff must plead and prove special damages,” though no such
requirement exists for defamation per se. Murray v. Knight–Ridder, Inc., 7th Dist.
Belmont No. 02 BE 45, 2004-Ohio-821, ¶ 16.
{¶11} Martin’s complaint alleges only an action for defamation per quod.
His complaint states,
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OHIO FIRST DISTRICT COURT OF APPEALS
[s]pecifically, without the privilege to do so, defendant published that
plaintiff was an adult male member of the community who was filming
defendant and his 12-year-old daughter with a drone and admitted the act
to the police, implying that the alleged acts were committed for immoral
purposes.
The complaint states that the Facebook post implies that the acts were committed for
an immoral purpose. Thus, Martin’s complaint states a claim for defamation per
quod, and he must plead special damages.
{¶12} Looking broadly to the distinction between general and special
damages, general damages are those which are a necessary consequence of the harm.
They are implied by law and do not need to be pled. Klein Structural Steel Co. v.
John J. Pool Co., 26 Ohio App. 420, 423, 160 N.E. 520 (6th Dist.1927); See F.A.A. v.
Cooper, 566 U.S. 284, 295-296, 132 S. Ct. 284, 182 L. Ed. 2d 497 (2012) (in
defamation cases, general damages “cover loss of reputation, shame, mortification,
injury to the feelings and the like”).
{¶13} General damages are presumed in defamation per se cases. Williams
v. Gannett Satellite Information Network, Inc., 162 Ohio App. 3d 596, 2005-Ohio-
4141, 834 N.E.2d 397, ¶ 7 (1st Dist.). 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.
Id. at ¶ 8.
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{¶14} A statement that is defamatory per se need only tend to injure the
plaintiff in his trade or occupation. (Emphasis in original.) Id. at ¶ 10. “To require
that [the plaintiff] have alleged actual career harm would be to require the proof of
special damages associated with defamation per quod.” Id. Thus, general allegations
of injury to occupation, or profession, are merely allegations of general damages,
while a concrete allegation of actual economic or pecuniary harm distinguishes
special damages. This conclusion is supported by decisions of the Ohio Supreme
Court and other appellate courts.
{¶15} Special damages are those direct financial losses resulting from the
plaintiff’s impaired reputation, such as lost profits to his business. See Moore v. P.
W. Pub. Co., 3 Ohio St. 2d 183, 190, 209 N.E.2d 412 (1965) (“special damage
concerned the claimed monetary loss in plaintiff’s business.”).
{¶16} In Bigelow v. Brumley, 138 Ohio St. 574, 594-595, 37 N.E.2d 584
(1941), the plaintiff failed to allege any “loss of injury actually suffered as a direct
consequence of an impaired reputation,” and so his cause of action for defamation
per quod was dismissed for failure to plead special damages.
{¶17} In Peters v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
14AP-1048, 2015-Ohio-2668, ¶ 1, 7, the court held that the plaintiff failed to plead
special damages where he alleged great pain of mind and body and extreme
emotional distress. The court described special damages as “those direct financial
losses resulting from plaintiff’s impaired reputation.” Id. at ¶ 7.
{¶18} In Griffis v. Klein, 2d Dist. Montgomery No. 22285, 2008-Ohio-2239,
¶ 46-47, quoting Whiteside v. Williams, 12th Dist. Madison No. 2006-06-021, 2007-
Ohio-1100, ¶ 7, the court held that allegations in the complaint of injury to
reputation, humiliation, emotional distress, and loss of self-esteem were inadequate
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to plead special damages because they did not constitute “an actual temporal loss of
something having economic or pecuniary value.”
{¶19} In Whiteside at ¶ 6, the plaintiff alleged in his complaint that the
statements “affected * * * plaintiff in his profession as a musician who relies on
music for therapy and as a future livelihood.” The court determined that there was
no indication that the plaintiff suffered special damages because he did not allege an
“actual, temporal loss of something having economic or pecuniary value.” Id. at ¶ 7.
Also, Civ.R. 9(G) requires that claims for defamation per quod be pled with
specificity, which the plaintiff did not do. Id.
{¶20} Martin has not claimed a pecuniary harm, an economic harm, or any
specific harm related to his profession. In fact, the portion of his complaint which
discusses harm nearly quotes the language one would expect in a defamation per se
claim. In his complaint, Martin says,
the false and misleading statements made by defendant adversely reflect
upon the character of plaintiff by bringing him into ridicule, hatred, and
contempt, and have affected him injuriously both in his profession and in
his reputation in the community.
Compare Becker v. Toulmin 165 Ohio St. 549, 553, 138 N.E.2d 391 (1956), where the
Ohio Supreme Court said that to constitute libel per se, the statement must reflect
“upon the character of such person by bringing him into ridicule, hatred, or
contempt, or affect him injuriously in his trade or profession.”
{¶21} While Martin’s complaint may recite language from the defamation
per se definition in Becker, his factual allegations cannot sustain an action for
defamation per se because the Facebook post requires interpretation in order to be
considered defamatory. Meanwhile, his allegations regarding damages cannot
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OHIO FIRST DISTRICT COURT OF APPEALS
sustain an action for defamation per quod, because he does not allege special
damages. Absent an explanation of how the harm extends beyond reputation and
translates into a separate harm, like an economic harm, the complaint fails to plead
special damages at all, much less with the specificity required by Civ.R. 9(G).
{¶22} Even though Martin’s complaint is insufficiently pled, “a dismissal for
failure to state a claim is without prejudice except in those cases where the claim
cannot be pleaded in any other way.” Fletcher v. Univ. Hosps. of Cleveland, 120
Ohio St. 3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 17. Since failure to plead special
damages is the fatal defect in Martin’s complaint, the claim possibly could be pled
another way. Dismissal therefore should be, and is, without prejudice. See
Cunningham v. UTI Integrated Logistics, Inc., S.D. Ill. No. CIV 09-1019-GPM, 2010
WL 1558718, *5 (Apr. 19, 2010) (holding that a 12(B)(6) dismissal of a defamation
per quod claim is without prejudice when it fails to specifically plead damages).1
Conclusion
{¶23} Damages are not sufficiently pled in Martin’s complaint to survive
Wegman's motion to dismiss, and so Martin’s sole assignment of error is overruled.
The complaint should be dismissed without prejudice. The trial court’s judgment
dismissing Martin’s complaint is modified to reflect that it is without prejudice, and
we affirm the judgment as modified in the appeal numbered C-180308. The appeal
numbered C-180268 is dismissed.
Judgment accordingly.
1 The two-dismissal rule requiring dismissal with prejudice does not apply in this case because
only the first dismissal was a notice dismissal, whereas the second dismissal is by order of the
court. See Olynyk v. Scoles, 114 Ohio St. 3d 56, 2007-Ohio-2878, 868 N.E.2d 254, ¶ 13 (in order
for the double-dismissal rule to apply, both dismissals must be notice dismissals under Civ.R.
41(A)(1)(a)).
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OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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