Cannabis for Cures, L.L.C. v. State of Ohio Bd. of Pharm.

[Cite as Cannabis for Cures, L.L.C. v. State of Ohio Bd. of Pharm., 2018-Ohio-3193.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
CANNABIS FOR CURES, L.L.C. :
:
Plaintiff-Appellant : Appellate Case No. 2018-CA-12
:
v. : Trial Court Case No. 2017-CV-0612
:
STATE OF OHIO BOARD OF : (Civil Appeal from
PHARMACY : Common Pleas Court)
:
Defendant-Appellee :
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OPINION
Rendered on the 10th day of August, 2018.
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RENEA MURNAHAN-TURNER, 42 N. Fountain Avenue, Springfield, Ohio 45502
Plaintiff-Appellant, Pro Se
YVONNE TERTEL, Atty. Reg. No. 0019033, and HENRY APPEL, Atty. Reg. No.
0068479, 30 E. Broad Street, 26th Floor, Columbus, Ohio 43215
Attorneys for Defendant-Appellee
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HALL, J.
{¶ 1} Renea Murnahan-Turner appeals pro se the dismissal of the complaint filed
by Cannabis for Cures LLC against the State of Ohio Board of Pharmacy. Murnahan-
Turner lacks standing to appeal, so we must dismiss.
I. Background
{¶ 2} Cannabis for Cures LLC (CFC) filed this lawsuit against the Board of
Pharmacy on October 25, 2017. The complaint asserted three counts criticizing the bill
that authorized medical marijuana in Ohio, H.B. 523. The first count alleged that the Board
was “abusing their role in the Medical Industry for their own industries[‘] interest here in
this State of Ohio.” The second count alleged that the Board was “discriminating against
Medical Doctors by not allowing them to have any Investments or ownership of
dispensary licenses.” And the third count alleged that the Board was “discriminating
against economically disadvantaged Ohioans due to they have to be in Ohio residence
according to section 3796.11 of the Ohio Revised Code demonstrates that the applicant
is in compliance with the applicable tax laws of the state.” The relief sought was this:
“Plaintiff wants the Board of Pharmacy completely eliminated from the Medical Marijuana
Industry and removed from the House Bill 523.” The complaint stated that CFC was
represented by Renea Murnahan-Turner, “CEO of Cannabis for Cures, LLC, Ohio
Advocate for Medical Marijuana Research and Development, CEO of Medical Marijuana
Rebuild Ohio and a very proud CEO of Veterans Clinics. (To allow Cannabis to treat
PTSD.).” Murnahan-Turner is not an attorney.
{¶ 3} The Board filed a motion to dismiss under Civ.R. 12(B)(1) and (6). It argued
that the complaint was a legal nullity because, under Ohio law, a limited-liability company
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may be represented in court only by a licensed attorney. The Board also argued that CFC
had not identified any constitutional problems with H.B. 523 and that it was seeking to
have the court change the law based on policy disagreements. Lastly, the Board argued
that CFC lacked standing because it failed to show any particular harm from H.B. 523
and argued that the Board lacked the authority to do what CFC wants.
{¶ 4} CFC filed an omnibus response in which it sought to do several things. It first
sought to amend the complaint by “adding Renea Murnahan-Turner as a plaintiff.” CFC
also asked to transfer the case to Franklin County. And it asked the trial court to sanction
the Board for continuing to accept applications for dispensary licenses, asserting that the
filing of the lawsuit acted as an injunction. At the end of its response, CFC stated: “Plaintiff
Request[s] the Board to overrule the will of the Ohio General Assembly by replacing the
Board of Pharmacy with the Liquor Control Commission and the Ohio Department of
Health. In the House Bill 523.”
{¶ 5} The Board filed a reply in support of its motion to dismiss, arguing that CFC’s
opposition should be treated as a motion for leave to intervene and should be denied
because the only proper response to a complaint that is a nullity is to dismiss the case
without prejudice. The Board emphasized that CFC could hire an attorney to refile the
case and that Murnahan-Turner could file her own lawsuit pro se. The Board also noted
that if CFC’s response was treated as an amended complaint, the trial court would lack
subject matter jurisdiction because the complaint seeks monetary damages from the
State, making the action one that can be heard only in the Court of Claims.
{¶ 6} On December 18, 2017, the trial court granted the Board’s motion to dismiss
on the ground that, because she was not an attorney, Murnahan-Turner was not permitted
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to file a complaint on behalf of CFC.
{¶ 7} Murnahan-Turner filed a notice of appeal pro se in her own name, referring
to herself as the plaintiff in the case.
II. Analysis
{¶ 8} Murnahan-Turner’s pro se brief does not contain any assignments of error.
Nor does the brief squarely address the basis for the trial court’s dismissal. In any event,
we conclude that the trial court properly dismissed CFC’s complaint and that we must do
the same with this appeal.
{¶ 9} R.C. 4705.01 pertinently states:
No person shall be permitted to practice as an attorney and counselor at
law, or to commence, conduct, or defend any action or proceeding in which
the person is not a party concerned, either by using or subscribing the
person’s own name, or the name of another person, unless the person has
been admitted to the bar by order of the supreme court in compliance with
its prescribed and published rules.
This means that “only a licensed attorney may file pleadings and other legal papers in
court or manage court actions on another’s behalf.” Disciplinary Counsel v. Givens, 106
Ohio St. 3d 144, 2005-Ohio-4104, 832 N.E.2d 1200, ¶ 7. Pertinent here, the Ohio
Supreme Court has held that “a limited-liability company exists as a separate legal entity,
* * * and may be represented in court only by a licensed attorney.” Disciplinary Counsel
v. Kafele, 108 Ohio St. 3d 283, 2006-Ohio-904, 843 N.E.2d 169, ¶ 118, citing Union
Savings Assn. v. Home Owners Aid, 23 Ohio St. 2d 60, 64, 262 N.E.2d 558 (1970). That
the non-attorney representing the company is the company’s CEO does not matter. See
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Givens at ¶ 7 (saying that “a nonlawyer may not practice law in defense of a
corporate entity merely because he holds some official corporate position”); Sheridan
Mobile Village, Inc. v. Larsen, 78 Ohio App. 3d 203, 205, 604 N.E.2d 217 (4th Dist.1992),
citing Union Savings (saying that a corporation “may not * * * [maintain litigation or appear
in court] through an officer of the corporation or some other appointed agent”).
{¶ 10} We have said that “any filing by a non-attorney is viewed as a legal nullity.”
State v. Handcock, 2d Dist. Clark No. 2016-CA-3, 2016-Ohio-7096, ¶ 11. Indeed, “courts
throughout the state have consistently held that a complaint, or other pleading undertaken
on behalf of a corporation by a non-attorney, is a legal nullity.” DiPaolo Indus. Dev., L.L.C.
v. Blair & Latell Co., LPA, 11th Dist. Trumbull No. 2014-T-0006, 2014-Ohio-4317, ¶ 14.
“ ‘When a non-attorney files a complaint in a court in violation of R.C. 4705.01, the court
should dismiss the complaint without prejudice.’ ” Larsen at 205, quoting Williams v.
Global Constr. Co. Ltd., 26 Ohio App. 3d 119, 498 N.E.2d 500 (10th Dist.1985), paragraph
two of the syllabus; DiPaolo at ¶ 14 (quoting the same).
{¶ 11} Here, Murnahan-Turner filed the complaint on behalf of CFC. She admits
that she is not an attorney. So the complaint is a nullity. Which means that the request to
amend the complaint, by adding Murnahan-Turner as a plaintiff, is a nullity too. This defect
could not be remedied, because R.C. 4705.01 prohibits Murnahan-Turner from so much
as commencing the action on behalf of CFC.
{¶ 12} It is possible that the trial court could have dismissed CFC as plaintiff and
allowed Murnahan-Turner to file a separate complaint naming herself as plaintiff. But the
court was not required to permit such an amendment. By rule, a party may amend a
pleading “as a matter of course” within 28 days after serving it, or within 28 days after
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service of a Civ. R. 12 motion. Civ.R. 15(A). After that, a party may amend a pleading
“only with the opposing party’s written consent or the court’s leave,” which the court
should “freely give * * * when justice so requires.” Id. However, the complaint in the name
of the LLC was a nullity and Murnahan-Turner, individually, was not a party, so she did
not have standing to request an amendment. Likewise she was unable to intervene under
Civ.R. 24, because the complaint filed was a nullity and did not initiate an action at all.1
{¶ 13} Standing is “a jurisdictional requirement; a party’s lack of standing vitiates
the party’s ability to invoke the jurisdiction of a court—even a court of competent subject-
matter jurisdiction—over the party’s attempted action.” Bank of Am., N.A. v. Kuchta, 141
Ohio St. 3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 22. “Because standing to sue is
required to invoke the jurisdiction of the common pleas court, ‘standing is to be
determined as of the commencement of suit.’ ” Fed. Home Loan Mtge. Corp. v.
Schwartzwald, 134 Ohio St. 3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 24. Moreover, “a
common pleas court cannot substitute a real party in interest for another party if no party
with standing has invoked its jurisdiction in the first instance.” Id. at ¶ 38.
{¶ 14} A “determination of standing necessarily looks to the rights of the individual
parties to bring the action, as they must assert a personal stake in the outcome of the
action in order to establish standing.” (Emphasis sic.) Kuchta at ¶ 23, citing Ohio Pyro,
Inc. v. Ohio Dept. of Commerce, 115 Ohio St. 3d 375, 2007-Ohio-5024, 875 N.E.2d 550,
1 The Board filed a Notice of Supplemental Authority on July 24, 2018, representing that
Murnahan-Turner, individually, had subsequently filed a similar complaint in the Franklin
County Court of Common Pleas, which is pending. We conclude that information is not
an additional “authority” as contemplated by App. R. 24(I). The Board’s counsel also took
the position at oral argument that this case, because it was a nullity, and because it was
dismissed without prejudice, has no impact on that litigation. Accordingly, we do not
consider that filing in this decision.
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¶ 27. “Lack of standing is certainly a fundamental flaw that would require a court to dismiss
the action * * *.” Id., citing Schwartzwald at ¶ 40.
{¶ 15} Ultimately, though, we must dismiss this appeal, for one of two reasons,
depending on how the appeal is construed. The notice of appeal pertinently states: “Now
comes Plaintiff Renea Murnahan-Turner CEO of Cannabis for Cures, and hereby gives
notice that she is appealing the Dismissal decision.” Of course, Murnahan-Turner is not
the plaintiff. So if Murnahan-Turner is appealing on behalf of CFC, we must dismiss under
R.C. 4705.01, because she is not an attorney. We must also dismiss even if Murnahan-
Turner is attempting to appeal on her own behalf because the complaint she filed on
behalf of the LLC is a nullity and it is insufficient to have commenced an action in the
Clark County Court of Common Pleas. “It is a fundamental rule that an appeal may
generally be instituted only by ‘parties who are able to demonstrate a present interest in
the subject matter of the litigation which has been prejudiced by the judgment of the lower
court.’ ” In re Guardianship of Santrucek, 120 Ohio St. 3d 67, 2008-Ohio-4915, 896 N.E.2d
683, ¶ 5, citing Willoughby Hills v. C.C. Bar’s Sahara, Inc., 64 Ohio St. 3d 24, 26, 591
N.E.2d 1203 (1992). In other words, an appeal may be brought only by parties who have
standing, Rauch v. Jefferson Twp. Bd. of Zoning Appeals, 2d Dist. Montgomery No.
26941, 2016-Ohio-967, ¶ 6, that is, a “right to make a legal claim or seek judicial
enforcement of a duty or right,” Ohio Pyro at ¶ 27. Murnahan-Turner lacks standing to
appeal, because she fails to show that she has a personal interest that has been
prejudiced, giving her the right to appeal. So we must dismiss. See Rauch at ¶ 15
(concluding that the appellant’s lack of standing required dismissal of the appeal).
III. Conclusion
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{¶ 16} This appeal is dismissed.2
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FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Renea Murnahan-Turner
Yvonne Tertel
Henry G. Appel
Hon. Douglas M. Rastatter
2 While this appeal was pending, we ordered CFC to show cause why the appeal should
not be dismissed because it was instituted by a non-attorney (Murnahan-Turner). CFC
did not respond. Based on the Board’s response, we issued another order deferring
resolution of the show-cause order to our review of the appeal’s merits, which we have
now done.