FAP Properties XL, L.L.C. v. Griffin

[Cite as FAP Properties XL, L.L.C. v. Griffin, 2022-Ohio-3410.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
FAP PROPERTIES XL, LLC, : APPEAL NO. C-210646
TRIAL NO. A-2003939
Plaintiff-Appellee, :
vs. :
O P I N I O N.
MICHAEL L. GRIFFIN, :
Defendant-Appellant, :
and :
MICHAEL L. GRIFFIN AS TRUSTEE :
OF TRUST, d.b.a. TINT MASTERS,
:
and
:
NECOLE MITCHELL,
:
Defendants.
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 28, 2022
Strauss Troy Co., LPA, and Ryan F. Hemmerle, for Plaintiff-Appellee,
Michael L. Griffin, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Michael Griffin appeals the trial court’s decision to
dismiss his counterclaims1 against plaintiff-appellee FAP Properties XL, LLC (“FAP”).
For the reasons stated herein, we affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} In October 2020, FAP filed a complaint for forcible entry and detainer
against Griffin as trustee of the Michael L. Griffin Trust, doing business as Tint
Masters (“Tint Masters”), and against Griffin and Necole Mitchell individually as
guarantors (together, “defendants”). The complaint alleged that: (1) Tint Masters
failed to cease its operation of its collision repair and auto body shop, which was a
violation of the lease agreement; (2) Tint Masters owed FAP $15,000, the balance of
the rent under the lease; (3) Griffin was a personal guarantor of Tint Masters’
obligations as the tenant, and Tint Masters was liable for physical damages and other
related costs; and (4) Mitchell was also a personal guarantor of Tint Masters’
obligations. FAP attached to the complaint a copy of the parties’ lease agreement, the
30-, 15- and 3-day notices that FAP provided to Tint Masters, which stated that Tint
Masters was in violation of its lease for operating a collision and body shop on the
premises, and the personal guarantees signed by Griffin and Mitchell. 2
{¶3} In November 2020, defendants filed an answer and counterclaims,
stating that they would not stop conducting body work, and invoked their right to use
“the Severability clause” to remove the terms regarding auto detailing from the lease
1 Griffin and Mitchell jointly filed a notice of appeal. Only Griffin, however, filed a brief. As Griffin
is not a licensed Ohio attorney, we consider his arguments on appeal as involving his counterclaims
only. See Disciplinary Counsel v. Kafele, 108 Ohio St.3d 283, 2006-Ohio-904, 843 N.E.2d 169, ¶
14-15 (unauthorized practice of law occurs when a layperson provides legal services, files
documents, and attempts to manage legal actions).
2 The other items listed in the notices were resolved by the time FAP filed its complaint.
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OHIO FIRST DISTRICT COURT OF APPEALS
as “it [was] not a service that the Defendants have ever offered for their business.”
They argued that Tint Masters did not become aware of the restriction to perform only
auto-detailing services until one year after signing the lease because defendants did
not draft the lease and they “inadvertently overlooked” the auto-detailing clause.
Defendants asserted that they presented FAP with a “Notice and Demand” affidavit
explaining this. Further, Defendants supplied a list of services that Tint Masters had
provided over the previous 16 months.
{¶4} Count one of the counterclaim alleged that FAP’s claim was fraudulent
as it contained false and slanderous statements and assertions, and that FAP
published these statements to others by “filing a frivolous complaint.” Count two
alleged that FAP’s actions intentionally and/or negligently caused Griffin and Mitchell
emotional distress by filing false claims. Defendants sought $20 million in
compensatory and punitive damages, attorney fees (even though they appeared pro
se), and other “appropriate relief.”
{¶5} In November 2020, FAP voluntarily dismissed its complaint without
prejudice. Defendants’ counterclaims survived the dismissal.
{¶6} FAP moved to dismiss defendants’ counterclaims, arguing that Mitchell
and Griffin lacked standing and failed to plead fraud with particularity under Civ.R.
9(B). Further, FAP argued that the alleged defaming statements were made within the
confines of a judicial proceeding and such statements were privileged.
{¶7} Defendants responded, asserting that FAP’s complaint was frivolous,
FAP fraudulently misrepresented the address of the premises, which “voids everything
that it touches,” and that FAP defamed defendants by alleging that they owed rent.
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{¶8} In October 2021, FAP appeared for an ex parte hearing on its motion for
a temporary restraining order (“TRO”) and injunction.3 Defendants were not present.
The court refused to issue an ex parte TRO because Defendants were not notified of
the hearing until the afternoon of the hearing.
{¶9} A few days later, after hearing arguments from FAP and Griffin, the
court granted FAP’s motion for a temporary restraining order. The entry noted that
there was a substantial likelihood that FAP would prevail on the merits because
defendants’ conduct associated with its business violated the parties’ lease agreement.
{¶10} In November 2021, the trial court dismissed defendants’ counterclaims.
Griffin and Mitchell appealed. Mitchell did not file a brief.
II. Law and Analysis
{¶11} As his sole assignment of error, Griffin argues that the trial court erred
by granting FAP’s motion to dismiss the counterclaims under Civ.R. 12(B)(6) because
FAP did not show beyond a doubt that defendants could not prove entitlement to
relief. Griffin contends that the trial court did not consider all the merits of the case
and ignored important facts and allegations.
{¶12} A judgment granting a Civ.R. 12(B)(6) motion is subject to de novo
review. Arnold v. Kroger Co., 1st Dist. Hamilton No. C-150291, 2016-Ohio-190, ¶ 5. In
reviewing whether a motion to dismiss is proper, we accept all factual allegations in
the complaint as true. Id. Dismissing a complaint under Civ.R. 12(B)(6) tests the
sufficiency of the complaint, and the appellate court construes the allegations in a light
most favorable to the plaintiff. Wick v. Ach, 1st Dist. Hamilton No. C-180243, 2019-
Ohio-2405, ¶ 4. A motion to dismiss should not be granted “unless it appears beyond
3 The ex parte hearing was before the equity judge, rather than the judge assigned to the case.
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doubt from the complaint that the plaintiff can prove no set of facts entitling him to
recovery.” White v. Pitman, 2020-Ohio-3957, 156 N.E.3d 1026, ¶ 16 (1st Dist.).
The trial court properly dismissed the counterclaims
1. The lease is binding
{¶13} Griffin first argues that the lease was “defective.” “A court must construe
a contract against its drafter, but when the terms are unambiguous and clear on their
face, the court need not look beyond the plain language of the contract to determine
the rights and obligations of the parties.” World Harvest Church v. Grange Mut. Cas.
Co., 148 Ohio St.3d 11, 2016-Ohio-2913, 68 N.E.3d 738, ¶ 36, quoting Beasley v.
Monoko, Inc., 195 Ohio App.3d 93, 2011-Ohio-3995, 958 N.E.2d 1003, ¶ 30 (10th
Dist.).
{¶14} We find nothing defective in the lease. The lease explicitly states that
Tint Masters was to provide auto-detailing and tinting services. That Tint Masters and
Griffin “inadvertently overlooked” that term does not excuse them from breaching the
lease. “Parties to contracts are presumed to have read and understood them and * * *
a signatory is bound by a contract that he or she willingly signed.” Preferred Capital,
Inc. v. Power Engineering Group, Inc., 112 Ohio St.3d 429, 2007-Ohio-257, 860
N.E.2d 741, ¶ 10. The record does not contain the “Notice and Demand” letter that
purportedly reflected the services that Tint Masters provided. Moreover, there is
nothing to suggest that the letter would have represented an addendum to the lease.
2. The ex parte TRO hearing did not injure Griffin
{¶15} Griffin asserts that the trial court permitted a “mock trial” to occur in
the guise of a TRO hearing. The trial court held an ex parte TRO hearing, but it refused
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to grant the TRO because Griffin had not received timely notice. Therefore, if any error
occurred, it was harmless because the trial court ruled in favor of Griffin.
3. Griffin did not show fraud
{¶16} Fraud is “a knowing misrepresentation of the truth * * * to induce
another to act for his or her detriment.” Id., quoting Curran v. Vincent, 175 Ohio
App.3d 146, 2007-Ohio-3680, 885 N.E.2d 964, ¶ 18 (1st Dist.). The elements of civil
fraud are (1) a misrepresentation, (2) material to the transaction, (3) made falsely,
knowingly, or recklessly, (4) with the intention of misleading another into a justifiable
reliance on those facts, (5) that causes the other party injury. Id. Civ.R. 9(B) provides
that fraud claims must be stated with particularity.
{¶17} The counterclaims do not specify what false statements were made
against Griffin individually—the complaint stated that Tint Masters, not Griffin,
breached the lease. Moreover, Griffin’s assertion that an incorrect address constitutes
fraud fails. The incorrect address was not material to the transaction, there were no
facts showing that it was made with an intention of misleading Griffin, and the
incorrect address did not injure Griffin.
4. Griffin did not show defamation
{¶18} Griffin’s counterclaim asserts that he was defamed by FAP because FAP
made false statements “published * * * to others by filing a frivolous complaint.”
{¶19} Defamation is a “publication [of a falsehood that] caus[es] injury to a
person’s reputation”; exposes the person “to public hatred, contempt, ridicule, shame
or disgrace”; or “affect[s] [the person] adversely in [the person’s] trade or business.”
(Citations omitted.) Grande Voiture D’Ohio La Societe des 40 Hommes et 8 Chevaux
v. Montgomery Cty. Voiture No. 34 La Societe Des 40 Hommes et 8 Chevaux, 2d Dist.
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Montgomery No. 28388, 2020-Ohio-3821, ¶ 22, quoting Matalka v. Lagemann, 21
Ohio App.3d 134, 136, 486 N.E.2d 1220 (10th Dist.1985).
{¶20} To prevail on a defamation claim, a plaintiff must prove that: (1) “the
defendant made a false statement of fact”; (2) the statement was defamatory; (3) the
statement was published; (4) the plaintiff was damaged; and (5) “the defendant acted
with the required degree of fault.” (Citation omitted.) Id.{¶21} Statements made in judicial proceedings have long been accorded an
absolute privilege. State v. Brown, 1st Dist. Hamilton No. C-190399, 2021-Ohio-597,
¶ 18. In Erie Cty. Farmers’ Ins. Co. v. Crecelius, 122 Ohio St. 210, 171 N.E. 97 (1930),
syllabus, the Supreme Court of Ohio held that “[n]o action will lie for any defamatory
statement made by a party to a court proceeding, in a pleading filed in such
proceeding, where the defamatory statement is material and relevant to the issue.”
{¶22} Griffin’s defamation argument fails both because the allegations in
FAP’s complaint involved Tint Masters, not Griffin, and because the allegations
contained within the complaint are privileged.
5. No intentional and/or negligent infliction of emotional distress
{¶23} Although Griffin did not assert emotional distress in a separate claim,
he argues that he suffered emotional damages.
{¶24} One who by extreme and outrageous conduct intentionally or recklessly
causes serious emotional distress to another is subject to liability for that emotional
distress. Daudistel v. Village of Silverton, 1st Dist. Hamilton No. C-130661, 2014-
Ohio-5731, ¶ 40, quoting Yeager v. Local Union 20, 6 Ohio St.3d 369, 453 N.E.2d 666(1983), syllabus. To state a claim for intentional infliction of emotional distress
(“IIED”), the plaintiff must show that the defendant’s conduct was so outrageous in
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character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious and utterly intolerable in a civilized community. Id.{¶25} To prevail on a claim for IIED, a plaintiff must show that (1) the
defendant intended to cause the plaintiff serious emotional distress, (2) the conduct
was extreme and outrageous, and (3) the defendant’s conduct proximately caused the
plaintiff’s serious emotional distress. Brunsman v. W. Hills Country Club, 151 Ohio
App.3d 718, 2003-Ohio-891, 785 N.E.2d 794, ¶ 17 (1st Dist.), quoting Phung v. Waste
Mgt., Inc., 71 Ohio St.3d 408, 410, 644 N.E.2d 286 (1994).
{¶26} Plaintiffs may recover for negligent infliction of severe emotional
distress by showing that they “witnessed or experienced a dangerous accident and/or
was subjected to an actual physical peril.” Cobb v. Mantua Twp. Bd. of Trustees, 11th
Dist. Portage No. 2003-P-0112, 2004-Ohio-5325, ¶ 27, quoting Kulch v. Structural
Fibers, Inc., 78 Ohio St.3d 134, 163, 677 N.E.2d 308 (1997).
{¶27} FAP filed its complaint for forcible entry and detainer based on Tint
Masters’ breach of the lease. Nothing alleged in the counterclaim rises to the conduct
necessary to be considered extreme or outrageous. And Griffin does not argue that he
was subjected to a dangerous accident or actual physical peril.
{¶28} Griffin’s sole assignment of error is overruled.
III. Conclusion
{¶29} For the reasons stated above, we overrule Griffin’s assignment of error
and affirm the trial court’s judgment.
Judgment affirmed.
BERGERON, P.J., and CROUSE, J., concur.
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Please note:
The court has recorded its entry on the date of the release of this opinion
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