Hersh v. Grumer

• Decision Date: 29 July 2021
• Docket Number: No. 109430,109430
• Citation: 176 N.E.3d 1135
• Parties: Akiva HERSH, Plaintiff-Appellant, v. Rabbi Yisrael GRUMER, et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

176 N.E.3d 1135

Akiva HERSH, Plaintiff-Appellant,

v.Rabbi Yisrael GRUMER, et al., Defendants-Appellees.

No. 109430

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: July 29, 2021

Triscaro & Associates, Ltd., and Joseph J. Triscaro, Solon, for appellant.

Gallagher Sharp, L.L.P., and Markus E. Apelis, Cleveland, for appellees Rabbi Yisrael Grumer, Congregation Shomre Shabbos, Rabbi Yitzchok Margareten, Congregation Green Road Synagogue, Rabbi Binyamin Blau, Congregation Chabad House of Cleveland, Rabbi Sholom Ber Chaikin, Congregation Zichron Chaim, Rabbi Alexander Charlop, Rabbi Moshe Garfunkel, Congregation Jewish Learning Connection Inc., and Rabbi Ephraim Nisenbaum.

Gallagher Sharp, L.L.P., Mark A. Greer, and Liz R. Phillips, Cleveland, for appellees Rabbi Mordechai Mendelson and Congregation Zemach Zedek of Cleveland Heights.

Molly Steiber Harbaugh, Cleveland, for appellees Rabbi Raphael Davidovich and The Heights Jewish Center, and The Beth Hamidrosh Hagodol Ohave Emuno Anshe Grondo Congretation.

Ulmer & Berne L.L.P., Robert E. Chudakoff, Joshua A. Klarfeld, and Kenneth A. Zirm, Cleveland, for appellees Rabbi Naphtali Burnstein, Rabbi Aharon Lebovics, and Young Israel of Greater Cleveland.

Zagrans Law Firm and Eric H. Zagrans, Cleveland; The Schwartz Law Firm and Fred P. Schwartz, for appellees Rabbi Avraham Bensoussan, Beis Eliyahu Synagogue/Torah Center, Congregation Bais Avrohom, Rabbi Nissim Abrin, Aleksander Shul, Rabbi Shneur Zalman Denciger, Rabbi Sholom Ber Chaikin, Chabad House of Cleveland, Rabbi Moshe Einstadter, Congregation Torah Utefilah, Rabbi Boruch Hirschfeld, Rabbi Yehuda Cahan, and Rabbi Shmuel Spitz.

McNeal Schick Archibald & Biro Co., L.P.A., and Marilyn J. Singer, Cleveland; The Schwartz Law Firm and Fred P. Schwartz ; Zagrans Law Firm and Eric H. Zagrans, for appellees Rabbi Yehuda Blum and Congregation K'Hal Yereim.

Hannah Campbell & Powell, L.L.P., Kenneth A. Calderone and Frank G. Mazgaj, Akron, for appellees Rabbi Ari Spiegler and Beachwood Kehilla.

Reminger Co., L.P.A., and Brian D. Sullivan, Cleveland, for appellees Rabbi Dovid Aaron Gross and Congregation Beis Doniel.

JOURNAL ENTRY AND OPINION

LISA B. FORBES, J.:

{¶ 1} Akiva Hersh ("Hersh") appeals the trial court's order granting the defendants’, who are individuals and religious entities in the Orthodox Jewish community of the Cleveland area ("the Defendants"), motions to dismiss and motions for judgment on the pleadings in this defamation-based action. Upon review of the facts and pertinent law, we reverse the trial court's judgment and remand for proceedings consistent with this judgment.

I. Facts and Procedural History

{¶ 2} According to Hersh's complaint, in 2015, he moved to the Cleveland area and began working within the Orthodox Jewish community, specifically "for the son of Rabbi Mordechai Gifter." Hersh "assisted Rabbi Zalman Gifter to oppose certain wrongdoings within the Cleveland Orthodox Jewish community, and as a consequence thereof received threats by certain influential members of the community." On August 13, 2018, the Defendants "read an announcement concerning Hersh before all of their respective congregations, and a written form of such announcement was also posted at each congregation." This announcement ("the Letter") states as follow:

As Rabbonim in the community, we have a responsibility to protect all our members.

We therefore must share with you that we have recently learned that [Hersh] is alleged to have engaged in inappropriate behavior with young men under the age of thirteen.

We have also learned that police reports have been filed detailing his activities.

We understand that he is attempting to create a Boy Scout troop. We are concerned that this is a potentially unhealthy and dangerous situation.

We alert you to our concerns and warn you not to let young children be in his care.

{¶ 3} On August 29, 2018, "the Cleveland Jewish News published a news article titled ‘Orthodox, Modern Orthodox synagogues warn members of suspicious man.’ " Also in August 2018, other "articles" were posted online on various websites with headlines including, "Cleveland Rabbis: Don't Give Akiva Meir Hersh Access to Children" and "Akiva Hersh of Cleveland a Sexual Predator?"

{¶ 4} On July 11, 2019, Hersh filed a complaint against the Defendants alleging defamation per se, defamation per quod, false light, and "intentional/negligent infliction of emotional distress." According to Hersh's complaint, the Defendants wrote the Letter "to ruin Hersh's reputation in the community * * * without any reasonable basis for believing [the statements] to be true." On December 27, 2019, the trial court granted the Defendants’ motions to dismiss and motions for judgment on the pleadings. Hersh appeals and presents three assignments of error for our review, arguing that the trial court erred in granting the Defendants’ motions:

1. The trial court erred in granting Defendants’ motions to dismiss and motions for judgment on the pleadings concerning Plaintiff's defamation claims.

2. The trial court erred in granting Defendants’ motions to dismiss and motions for judgment on the pleadings concerning Plaintiff's false light claim.

3. The trial court erred in granting Defendants’ motions to dismiss and motions for judgment on the pleadings concerning Plaintiff's intentional infliction of emotional distress claim.

II. Standard of Review

{¶ 5} We review rulings on Civ.R. 12(B)(6) motions to dismiss under a de novo standard. "A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. * * * Under a de novo analysis, we must accept all factual allegations of the complaint as true and all reasonable inferences must be drawn in favor of the nonmoving party." NorthPoint Props. v. Petticord , 179 Ohio App.3d 342, 2008-Ohio-5996, 901 N.E.2d 869, ¶ 11 (8th Dist.). "For a trial court to grant a motion to dismiss for failure to state a claim upon which relief can be granted, it must appear ‘beyond doubt from the complaint that the plaintiff can prove no set of facts entitling her to relief.’ " Graham v. Lakewood , 8th Dist., 2018-Ohio-1850, 113 N.E.3d 44, ¶ 47, quoting Grey v. Walgreen Co. , 197 Ohio App.3d 418, 2018-Ohio-6167, 967 N.E.2d 1249, ¶ 3 (8th Dist.).

{¶ 6} We analyze a Civ.R. 12(C) motion for judgment on the pleadings "under the same principles that this court would apply in analyzing a motion to dismiss pursuant to Civ.R. 12(B)(6)." Jordan v. Giant Eagle Supermarket , 8th Dist. Cuyahoga No. 109304, 2020-Ohio-5622, 2020 WL 7258579, ¶ 21.

{¶ 7} Prior to our analysis, however, we turn to the trial court's 34-page decision granting the Defendants’ motions, which focuses on "multiple, independent arguments for dismissing the case at this stage" set forth by the Defendants. The trial court's analysis of these defenses is based on an improper hybrid standard of review, which is not applicable to motions under Civ.R. 12(B)(6) and (C). Of particular note is that the trial court improperly considered two police reports that were attached to some of the Defendants’ answers and motions.

{¶ 8} We find that the trial court erred by considering these police reports for three reasons: 1) they are not relevant to whether Hersh stated a claim for defamation; 2) they were not properly incorporated into the pleadings; and 3) the trial court did not properly convert the Defendants’ motions to dismiss into motions for summary judgment.

{¶ 9} As to relevancy, the police reports are mentioned only in paragraph three of the Letter. Hersh is not alleging that paragraph three of the Letter is defamatory, and he is not disputing that the police reports were filed. There is no need to consider the police reports to determine whether his defamation claims survive the Defendants’ motions to dismiss and motions for judgment on the pleadings.

{¶ 10} Though the police reports were attached to some of the Defendants’ answers, they were not properly incorporated into the pleadings. We first define "pleadings." Pursuant to " Civ.R. 7(A), only complaints, answers and replies constitute pleadings." State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. , 65 Ohio St.3d 545, 549, 605 N.E.2d 378 (1992). Under Civ.R. 10(C), a "written instrument" attached to a pleading becomes part of the pleading. However, "not every document attached to a pleading constitutes a Civ.R. 10(C) written instrument." State ex rel. Leneghan v. Husted , 154 Ohio St.3d 60, 2018-Ohio-3361, 110 N.E.3d 1275, ¶ 17. Rather, a written instrument "has primarily been interpreted to include documents that evidence the parties’ rights and obligations, such as negotiable instruments, ‘insurance policies, leases, deeds, promissory notes, and contracts.’ " (Citation omitted.) Id. The police reports are not "written instruments" that were incorporated into the pleadings.

{¶ 11} Further, the trial court did not follow the procedure outlined in Civ.R. 12(B) to consider the police reports that were attached to some of the Defendants’ motions to dismiss and motions for judgment on the pleadings. Civ.R. 12(B) provides that "[w]hen 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." In other words, "[d]ocuments that are attached to a motion to dismiss may not be considered, unless [the trial] court properly converts the matter to a motion for summary judgment pursuant to Civ.R. 56." State ex rel. Rice v. Wolaver , 2d Dist. Greene No. 2015 CA 0031, 2016-Ohio-320, 2016 WL 525510, ¶ 5.

{¶ 12} Civ.R. 12(B) limits consideration to "only such matters outside the pleadings as are specifically enumerated in Rule 56." Pursuant to Civ.R. 56(C), a trial court may consider the following materials when ruling on a summary judgment...