Heartland of Urbana OH, LLC v. McHugh Fuller Law Grp., PLLC, No. 2016–CA–3.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: WELBAUM, J.
• Citation: 2016 Ohio 6959,72 N.E.3d 23
• Parties: HEARTLAND OF URBANA OH, LLC, Plaintiff–Appellant v. McHUGH FULLER LAW GROUP, PLLC, Defendant–Appellee.
• Docket Number: No. 2016–CA–3.
• Decision Date: 23 September 2016

72 N.E.3d 23
2016 Ohio 6959

HEARTLAND OF URBANA OH, LLC, Plaintiff–Appellant
v.
McHUGH FULLER LAW GROUP, PLLC, Defendant–Appellee.

No. 2016–CA–3.

Court of Appeals of Ohio, Second District, Champaign County.

Sept. 23, 2016.

72 N.E.3d 26

Robert M. Anspach, J. Randall Engwert, Joseph S. Center, Toledo, OH, for Plaintiff–Appellant.

Thomas P. Mannion, Judd R. Uhl, Michelle L. Gorman, Cleveland, OH, for Defendant–Appellee.

WELBAUM, J.

{¶ 1} In this case, Plaintiff–Appellant, Heartland of Urbana, LLC ("Heartland"), appeals from a summary judgment rendered in favor of Defendant–Appellee, McHugh Fuller Law Group PLLC ("McHugh"). In support of its appeal, Heartland contends that the trial court erred in holding that its claims for injunctive relief were moot. Heartland further contends that the trial court erred in finding that its claims arising under Ohio's Deceptive Trade Practices Act ("DTPA") failed under the Lanham Act, 15 U.S.C. 1125, and Diamond Co. v. Gentry Acquisition Corp., 48 Ohio Misc.2d 1, 531 N.E.2d 777 (C.P.1988). Finally, Heartland contends that the trial court erred by concluding that Heartland's failure to amend its complaint to request a retraction precluded the court from granting such relief.

{¶ 2} We conclude that the case was not moot. Even if McHugh conceded that it could no longer run the same advertisement due to statutory amendments, Heartland was entitled to have the trial court consider whether McHugh willfully engaged in a deceptive trade practice, and if so, whether Heartland was entitled to attorney fees. Furthermore, the trial court erred in rendering summary judgment in favor of McHugh. The advertisement was literally false under the false by necessary implication doctrine, and in such situations involving comparative advertisements, likely injury is presumed. A rebuttable presumption of causation and injury in fact also arose—which was not rebutted by McHugh in a manner sufficient to warrant summary judgment in its favor.

72 N.E.3d 27

{¶ 3} Finally, the request for a retraction was sufficiently pled, and the trial court erred in concluding that it was precluded from granting such a remedy. Accordingly, the judgment of the trial court will be reversed, and this cause will be remanded for further proceedings.

I. Facts and Course of Proceedings

{¶ 4} McHugh is a Mississippi law firm. Michael J. Fuller is an attorney licensed in several jurisdictions, including Mississippi, Georgia, New York, Washington D.C., Kentucky, Ohio, Missouri, Wisconsin, West Virginia, Florida, Pennsylvania, and Tennessee. Fuller is a member/manager of McHugh.

{¶ 5} On December 13, 2014, McHugh published a full-page advertisement in the Urbana Daily Citizen newspaper that discussed Heartland, a skilled nursing care facility located in Urbana, Ohio. In addition, the advertisement was published online, on the newspaper's website. The advertisement contained a picture of Heartland's facility in Urbana, and stated:

ATTENTION!

The government has cited

HEARTLAND OF URBANA NURSING

AND REHABILITATION CENTER

for failing to provide necessary care and

services to maintain the highest well-being

of each resident.

If you suspect that a loved one was

NEGLECTED or ABUSED

at Heartland of Urbana,

call McHugh Fuller today!

Has your loved one suffered?

Bedsores

Broken Bones

Unexplained Injuries

Death

{¶ 6} The words "Attention," "Neglected or Abused," and "Death," were in bold type and were colored red. "Cited" was also underlined in red. In addition, the advertisement contained contact information, including a phone number for McHugh, and a statement that the advertisement was "advertising material." Michael Fuller's name was also listed on the advertisement.

{¶ 7} After becoming aware of the advertisement, Heartland filed a complaint for injunctive and other relief, along with a request for a temporary restraining order ("TRO"), with the common pleas court on December 24, 2014. The complaint contained claims for violation of the DTPA, as well as violations of Ohio common law, including claims for defamation and false light invasion of privacy. Heartland alleged in the complaint that McHugh advertised its services across the country, and that its systematic efforts to entice clients to bring suit against Heartland and other skilled care facilities included a pattern of ongoing newspaper and online advertisements that were false, fraudulent, deceptive, and misleading.

{¶ 8} The complaint further alleged that the language in the advertisement falsely led readers to believe that Heartland had been cited recently. However, Heartland had not had a citation of any kind for over two years, and had not had a citation remotely similar to the one alleged in the advertisement since June 24, 2010, more than four years previously. Furthermore, even the June 2010 citation, classified as an "F–309" citation, did not cause harm to any nursing home patient, and the deficiencies had been corrected in June 2010. In all counts of the complaint, as well as the prayer for relief, Heartland asked the trial court for an injunction, attorney fees and costs of the action, and such further relief as the court deemed equitable.

72 N.E.3d 28

{¶ 9} On December 24, 2014, Heartland also filed a motion for a temporary restraining order ("TRO"). The motion was supported by the affidavit of Heartland's Licensed Nursing Home Administrator, Dan Arnold, who stated that Heartland was an 85–bed, skilled nursing home facility that was ranked overall by the federal government as a "Five Star" nursing home, which is the highest ranking available to nursing homes. Arnold further stated that Heartland had most recently been subject to regular annual surveys on February 20, 2014, and November 23, 2012, during which the Ohio Department of Health had found no deficiencies, and had issued no citations. Consistent with the allegations in the complaint, Arnold additionally stated that the only citation remotely similar to the one referenced in the complaint had occurred more than four years earlier, on the June 24, 2010 survey, and had not resulted in harm to any nursing home patient. The deficiency was also corrected shortly after the June 2010 survey.

{¶ 10} The trial court held an ex parte TRO hearing on December 24, 2014, at which only counsel for Heartland appeared. After hearing Heartland's arguments, the trial court entered a TRO and set a preliminary injunction hearing for January 7, 2015. The restraining order precluded McHugh from using the advertisements in question, and required the ads to be removed from the public domain, including the websites of both the newspaper and McHugh. On December 31, 2014, Heartland filed a motion seeking a show cause order, because McHugh had not complied with the TRO, and the advertisement remained visible to the public. Heartland then filed a motion for a preliminary and permanent injunction. In the memorandum accompanying the motion, Heartland asked the trial court, among other things, to require McHugh to publish a full-page retraction of its prior advertisement.

{¶ 11} On January 7, 2015, the parties agreed to extend the TRO until the application was heard by a court of competent jurisdiction. On the same day, McHugh filed a notice of removal to federal court. Subsequently, the matter was removed to federal court, but was remanded by the federal court to common pleas court in April 2015, because the amount in controversy required for diversity actions had not been satisfied. Ultimately, in May 2015, the trial court ordered McHugh to file an answer to the complaint.

{¶ 12} In May 2015, McHugh filed a motion asking the trial court to dissolve the TRO. McHugh claimed in the motion that the TRO deprived it of income, because McHugh relied on advertising for its income.¹ However, in June 2015, McHugh withdrew its motion and the parties agreed to continue the TRO until the matter could be set for hearing by a court of competent jurisdiction. Shortly thereafter, the court set the matter for trial in October 2015, and ordered a discovery cut-off of September 30, 2015.

72 N.E.3d 29

{¶ 13} On August 3, 2015, McHugh filed a list of its expert and lay witnesses, and included only one lay witness, Michael Fuller. McHugh indicated that Fuller had been involved in the design, creation, and production of the advertisement, and had knowledge about the publicly available information concerning the following matters: citations issued to Heartland that were reviewed and used in creating the advertisement and its content; information that was not used in the advertisement; the target audience of the advertisement; and the response to the advertisement.

{¶ 14} Heartland then attempted to schedule Michael Fuller's deposition. The record clearly indicates that McHugh obstructed access to Fuller by refusing to supply him for a deposition on September 15, 2015, even though the parties had agreed upon the date and location well in advance of the scheduled time for the deposition.

{¶ 15} Moreover, McHugh's explanation to the court for the failure to supply Fuller for the September 15, 2015 deposition was contradicted by the record. Specifically, McHugh filed a motion for a protective order on September 14, 2015, asking the court to stay Fuller's...