Morrow v. Reminger & Reminger Co., L.P.A.

• Citation: 2009 Ohio 2665,915 N.E.2d 696,183 Ohio App.3d 40
• Decision Date: 09 June 2009
• Docket Number: No. 08AP-925.,08AP-925.
• Parties: MORROW et al., Appellants, v. REMINGER & REMINGER COMPANY L.P.A. et al., Appellees.
• Court: United States Court of Appeals (Ohio)

915 N.E.2d 696

183 Ohio App.3d 40

2009-Ohio-2665

MORROW et al., Appellants, v. REMINGER & REMINGER COMPANY L.P.A. et al., Appellees.

No. 08AP-925.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided June 9, 2009.

Hammond, Sewards & Williams and Gary W. Hammond, Columbus, for appellants.

Janik L.L.P., Steven G. Janik, Andrew J. Dorman, Jason D. Winter, and Kelly H. Rogers, Cleveland; and Maguire & Schneider, L.L.P., Keith Schneider, and Karl H. Schneider, Columbus, for appellee Reminger & Reminger Co., L.P.A.

Freund, Freeze & Arnold, and W. Frederick Fifner, Columbus; and Troutman Sanders L.L.P., Sean M. Hanifin, and Steven W. McNutt, Washington, DC, for appellee Medical Protective Company.

Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., Thomas E. Boyle, and Mark C. Melko, Columbus, for appellee Family Medicine Foundation, Inc.

FRENCH, Presiding Judge.

{¶ 1} Plaintiffs-appellants, Nicole Morrow, N. Gerald DiCuccio, Gail Zalimeni, and Butler Cincione & DiCuccio (the "Butler firm") (collectively, "appellants"), appeal the judgment of the Franklin County Court of Common Pleas, which dismissed their complaint against defendants-appellees, Reminger & Reminger Co., L.P.A. ("Reminger"), Family Medicine Foundation, Inc. ("FMF"), and The Medical Protective Company ("MedPro") (collectively, "appellees"), pursuant to Civ.R. 12(B)(6), for failure to state a claim upon which relief can be granted. For the following reasons, we affirm.

{¶ 2} Appellants initially filed a complaint against appellees on January 14, 2008, alleging conspiracy, fraud, intentional infliction of emotional distress, tortious interference with contractual relations, malicious prosecution, and abuse of process arising from appellees' alleged conduct in two prior lawsuits: Bright v. Thomas E. Rardin Family Practice Ctr. ("the Bright suit") and Family Medicine Found., Inc. v. Bright ("the Fam-Med suit").¹ In lieu of answers, appellees each filed a motion to dismiss appellants' complaint pursuant to Civ.R. 12(B)(6).

{¶ 3} On April 28, 2008, along with their memoranda contra the motions to dismiss, appellants filed a first amended complaint, which alleged the following claims: fraud; civil conspiracy; violation of the Ohio Corrupt Practices Act ("OCPA"), R.C. 2923.31, et seq.; perjury, in violation of R.C. 2921.11; falsification in violation of R.C. 2921.13; intentional infliction of emotional distress; tortious interference with contract business relations; malicious prosecution; and abuse of process. Each appellee again filed a Civ.R. 12(B)(6) motion to dismiss.

{¶ 4} On June 11, 2008, without leave of court, appellants filed an amended demand for judgment in which they requested injunctive relief, pursuant to R.C. 2923.34(B), for appellees' alleged OCPA violation, in addition to the monetary relief requested in the original and amended complaints. Each appellee moved the trial court to strike the amended demand.

{¶ 5} On September 15, 2008, the trial court issued decisions granting appellees' motions to dismiss the original and amended complaints and granting appellees' motions to strike the amended demand. The trial court entered its final judgment of dismissal on September 24, 2008.

{¶ 6} Having filed a timely notice of appeal, appellants assert the following assignments of error:

1. The Trial Court erred in Dismissing RICO claim.

2. The Trial Court erred in Striking Falsification claim.

3. The Trial Court erred in Striking Common Law Fraud claim.

4. The Trial Court erred in Striking Common Law Conspiracy claim.

5. The Trial Court erred in Striking Common Law claim for tort[i]ous interference with business relations.

6. The Trial Court erred in Striking Common Law claim for intentional infliction of emotional distress.

7. The Trial Court erred in applying the witness immunity Doctrine to bar Appellants' statutory and common law claims, which are supported by Appellees' falsification.

8. The Trial Court erred in failing to apply the proper standard of review to a Civ.R. 12(B)(6) Motion to Dismiss, which this court can correct on de novo review.

9. The Trial Court erred in striking Amended Demand.

{¶ 7} A motion to dismiss for failure to state a claim is procedural and tests whether the complaint is sufficient. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548, 605 N.E.2d 378. In considering a Civ.R. 12(B)(6) motion to dismiss, a trial court may not rely on allegations or evidence outside the complaint. State ex rel. Fuqua v. Alexander (1997), 79 Ohio St.3d 206, 207, 680 N.E.2d 985. Rather, the trial court may review only the complaint and may dismiss the case only if it appears beyond a doubt that the plaintiff can prove no set of facts entitling the plaintiff to recover. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223 327 N.E.2d 753, syllabus. Moreover, the court must presume that all factual allegations in the complaint are true and draw all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. The court need not, however, accept as true unsupported legal conclusions in the complaint. See Hodge v. Cleveland (Oct. 22, 1998), 8th Dist. No. 72283, 1998 WL 742171; Eichenberger v. Petree (1992), 76 Ohio App.3d 779, 782, 603 N.E.2d 366. We review de novo a judgment on a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.

{¶ 8} Before specifically addressing appellants' assignments of error, a brief recap of the parties' history is helpful. Appellant Nicole Morrow, formerly known as Maria Nicole Bright, filed the Bright suit against the Thomas E. Rardin Family Practice Center ("Rardin") and three physicians, alleging claims arising out of her exposure to the HIV virus while obtaining medical care and treatment at Rardin. Appellants DiCuccio, Zalimeni, and the Butler firm were Morrow's legal counsel in the Bright suit. In December 1999, Morrow obtained a default judgment against Rardin for $978,840.41 in the Bright suit. Thereafter, Morrow attempted to enforce the default judgment against FMF, asserting that Rardin was a fictitious name of FMF, which operated within the building known as the Thomas E. Rardin Family Practice Center. In February 2000, represented by Reminger, FMF filed a motion to intervene in the Bright suit, denying that it did business as Rardin and maintaining that the default judgment was rendered against a nonentity. The trial court denied FMF's motion to intervene.

{¶ 9} On February 25, 2000, again represented by Reminger, FMF filed the Fam-Med suit to enjoin appellants from executing upon FMF's assets to satisfy the default judgment. On March 15, 2000, Morrow filed a counterclaim, requesting a declaration that Rardin was a fictitious name of FMF, against whom the default judgment was valid. On November 14, 2000, the Fam-Med court held that Rardin was a fictitious name of FMF and that the default judgment was valid against FMF. FMF did not appeal the determination that Rardin was a fictitious name of FMF, but argued, on appeal, that the default judgment was void because it was rendered solely against a non-entity. This court reversed, holding that a lawsuit may not be commenced or maintained against a defendant solely under a fictitious name. See Family Medicine Found., Inc. v. Bright (June 28, 2001), 10th Dist. No. 00AP-1476, 2001 WL 722103. The Supreme Court of Ohio reversed this court, however, and reinstated the trial court's judgment. See Family Medicine Found., Inc. v. Bright, 96 Ohio St.3d 183, 2002-Ohio-4034, 772 N.E.2d 1177.

{¶ 10} After the Supreme Court's ruling, FMF moved for Civ.R. 60(B) relief from the default judgment in the Bright suit, which had been stayed pending resolution of the Fam-Med suit. The trial court denied FMF's Civ.R. 60(B) motion, and FMF paid $1,620,000 to satisfy the default judgment and accrued interest.

{¶ 11} The basis for appellants' current claims is that appellees and their agents engaged in fraud, falsification, perjury, and conspiracy to commit fraud and perjury in advocating that FMF did not conduct business under the fictitious name of Rardin and in denying knowledge that FMF operated as Rardin to shield FMF (and its insurer, MedPro) from liability for the default judgment. Appellants' claims are based entirely on appellees' alleged conduct during the course of, and relevant to, the Bright and Fam-Med suits, including affidavit, deposition, and trial testimony and arguments contained in pleadings, motions, briefs, and other court filings.

{¶ 12} We first address appellants' claims for falsification and fraud and the corresponding second and third assignments of error. R.C. 2921.13 defines the offense of falsification and provides:

(A) No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies:

(1) The statement is made in any official proceeding.

* * *

(6) The statement is sworn or affirmed before a notary public or another person empowered to administer oaths.

(7) The statement is in writing on or in connection with a report or return that is required or authorized by law.

* * *

(F)(1) Whoever violates division (A)(1), * * * (6), (7), * * * of this section is guilty of falsification, a misdemeanor of the first degree.

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(G) A person who violates this section is liable in a civil action to any person harmed by the violation for injury, death, or loss to person or property incurred as a result of the commission of the offense and for reasonable attorney's fees, court costs, and other expenses incurred as a result of prosecuting the civil action commenced under this division. A civil action under this division is not the exclusive remedy of a person who incurs injury,...