Bumpus v. Lloyd Ward, P.C., Case No. 2012-CA-5
| Citation | 2012 Ohio 4674 |
| Decision Date | 09 October 2012 |
| Docket Number | Case No. 2012-CA-5 |
| Parties | MARTHA BUMPUS Plaintiff-Appellant v. LLOYD WARD, P.C., ET AL Defendant-Appellee |
| Court | United States Court of Appeals (Ohio) |
JUDGES:
Hon. W. Scott Gwin, J.
For Plaintiff-Appellant
JEREMIAH HECK
KATHERINE L. KEENAN
For Defendant-Appellee
FREDERICK STRATMANN
ADAMS BABNER, LLC
{¶1} Appellant Martha Bumpus ["Bumpus"] appeals the January 23, 2012 Judgment Entry of the Knox County Court of Common Pleas dismissing her case against appellees Lloyd Ward P.C, dba Lloyd Ward & Associates, Lloyd Ward Group, LLC, Lloyd Ward, ABD Debt Relief Ltd., Co., Lloyd Renger and Kevin Devoto [hereinafter collectively "Ward"].
{¶2} Bumpus alleges that Ward is a "for profit" debt relief or credit repair company that promises consumers resolution of their credit card debt at a substantial discount. Unfortunately, some such companies predatory fee practices can exacerbate the consumer's financial problems.
{¶3} Ohio protects its citizens from predatory and potentially harmful debt relief practices by the Ohio Debt Adjustment Act, R.C. Chapter 4710 ["DACA"], the Ohio Credit Services Organization Act, R.C. Chapter 4712 ["CSOA"], and the Ohio Consumer Sales Practices Act, R.C. Chapter 1345 ["CSPA"].
{¶4} Bumpus filed a complaint on May 6, 2011 alleging in part that Ward has attempted to circumvent the consumer protection laws by advancing a pretense that the debt relief services are being performed by an attorney, thereby evading the consumer protection laws applicable to debt settlement and credit repair companies. Bumpus alleged in her complaint that an attorney did not in fact perform the services.
{¶5} In response on June 23, 2011, Ward filed a "Motion to Dismiss or in the Alternative to Transfer Venue." Ward argued that Bumpus' complaint failed to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6). Ward further arguedthat if the court did not dismiss the complaint pursuant to Civ.R. 12(B)(6), the court, pursuant to Civ.R. 3 and 12(B)(3), should find Knox County, Ohio to be an inconvenient forum. Ward asked the trial court to stay the proceedings to allow Bumpus to cure this defect by filing the suit in the State of Texas. Ward attached four exhibits to its motion.
Assignments of Error
{¶7} Bumpus raises two assignments of error,
{¶8} "I. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION TO DISMISS OR IN THE ALTERNATIVE TRANSFER VENUE.
{¶9}
{¶10} At the outset we recognize, as do the parties, that the trial court's January 23, 2012 does not specifically state whether the trial court dismissed the case for failure to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6) or for forum non-conveniens pursuant to Civ.R. 3 and 12(B)(3).
{¶11} In her first assignment of error, Bumpus argues that the trial court erred in dismissing her complaint for failure to state a claim on which relief can be granted.
{¶12} When granting a motion to dismiss under Civ.R. 12(B)(6), "it must appear beyond doubt that the plaintiff can prove no set of facts entitling [plaintiff] to relief." Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279, 1995-Ohio-187, 649 N.E.2d 182. (Internal citation omitted.) The claims set forth in the complaint must be plausible, rather than conceivable. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While a complaint attacked by a Civ.R. 12(B)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds for her entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Id. Factual allegations must be enough to raise a right to relief above the speculative level. Id. The court looks not at whether the plaintiff "will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
{¶13} "All that the civil rules require is a short, plain statement of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it is based." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 L.Ed.2d 80(1957). See also Civ.R. 8(A)(1). When filing a claim pursuant to Civ.R. 8(A), "[a] party is not required to 'plead the legal theory of recovery'"; furthermore, "a pleader is not bound by any particular theory of a claim but that the facts of the claim as developed by the proof establish the right to relief." Illinois Controls, Inc. v. Langham, 70 Ohio St.3d 512, 526, 639 N.E.2d 771(1994). Indeed, "that each element of [a] cause of action was not set forth in the complaint with crystalline specificity" does not render it fatally defective and subject to dismissal. Border City S. & L. Assn. v. Moan, 15 Ohio St.3d 65, 66, 472N.E.2d 350(1984). However, "'the complaint must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.'" Fancher v. Fancher, 8 Ohio App.3d 79, 83, 455 N.E.2d 1344(1st Dist. 1982), quoting 5 Wright & Miller, Federal Practice & Procedure: Civil at 120-123, Section 1216 (1969).
{¶14} Civ.R. 12(B) states:
When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.
{¶15} "It is the court's responsibility either to disregard extraneous material or to convert a motion to dismiss into a motion for summary judgment when additional materials are submitted." Keller v. Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 18. Moreover, "courts cannot rely on evidence or allegations outside the complaint to determine a Civ.R. 12(B)(6) motion." State ex rel. Fuqua v. Alexander, 79 Ohio St. 3d 206, 207, 680 N.E.2d 985. It is error to do so. Id. Where a trial court chooses to consider materials outside the pleadings, the court must convert the motionto dismiss into a motion for summary judgment, notify all parties and give them a reasonable opportunity to present all materials made pertinent to such a motion by Rule 56. Civ.R. 12(B); State ex rel. The v. Cos. v. Marshall, 81 Ohio St.3d 467, 470, 692 N.E.2d 198 (1998).
{¶16} An order granting a Civ.R. 12(B)(6) motion to dismiss is subject to de novo review. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. In reviewing whether a motion to dismiss should be granted, we accept as true all factual allegations in the complaint. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753(1988).
{¶17} In her first cause of action, Bumpus alleged that Ward violated the CSPA and the DACA.
{¶18} Accepting the allegations of the complaint as true, the Court finds that Bumpus has adequately pled "a short and plain statement of the claim" that "give[s] the defendant fair notice" of the claim and plaintiff's grounds for relief. Twombly, 550 U.S. at 554-555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (quoting Fed.R.Civ.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Here, Bumpus tracks the language of the CSPA's definition of "consumer" "supplier"; the DACA definition of "engaging in debt adjustment activities" and identifies the conduct, which allegedly brings Ward within each statute. Such allegations satisfy the liberal notice pleading requirements of Civ.R. 8(a) and preclude dismissal pursuant to Civ.R. 12(B)(6).
{¶19} In Count 2 of her complaint, Bumpus alleged Ward violated the CSOA. Thus, Bumpus must set forth sufficient facts demonstrating that she is a "buyer" and Ward qualifies as a "credit services organization" under the statutory definition. Snook v. Ford Motor Co., 142 Ohio App.3d 212, 216, 755 N.E.2d 380 (2nd Dist. 2001).
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