Sky v. Van Der Westhuizen
| Decision Date | 20 May 2019 |
| Docket Number | No. 2018 CA 00127,2018 CA 00127 |
| Citation | 2019 Ohio 1960,136 N.E.3d 820 |
| Parties | Anastasia SKY, M.D., Plaintiff-Appellee v. Hilde VAN DER WESTHUIZEN, Defendant-Appellant |
| Court | Ohio Court of Appeals |
ADAM C. SHERMAN, DANIEL E. SHUEY, JESSICA K. CUNNING, ANDREW P. GURAN, VORYS, SATER, SEYMOUR and PEASE LLP, 106 South Main Street, Suite 110, Akron, Ohio 44308, For Plaintiff-Appellee.
NATALIE F. GRUBB, MARK E. OWENS, GRUBB and ASSOCIATES LPA, 437 West Lafayette Road, Suite 260-A, Medina, Ohio 44256, For Defendant-Appellant.
JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.
{¶1} Appellant Hilde Van Der Westhuizen appeals from the August 1, 2018, judgment entered in the Stark County Common Pleas Court awarding damages to Appellee Anastasia Sky, M.D. on her Complaint following a grant of default judgment.
{¶2} The relevant facts and procedural history are as follows:
{¶3} Appellee Anastasia Sky, M.D. is a psychotherapist, located in Dundas, Ontario, Canada. She has been practicing for approximately twenty-four years. (Vol. I at 13-17, 125). Dr. Sky is also a cat breeder of Birman cats and owns Skyhaven Birman Cattery. In addition to breeding, Dr. Sky also exhibits her cats at cat shows and has won awards, including the International Best of Breed Birman Champion Award during the 2014-2015 show season. Dr. Sky's cats and her cattery are registered with the Cat Fanciers Association, which is headquartered in Alliance, Stark County, Ohio. Appellant also shows her cats within the CFA, regularly traveling to Ohio to exhibit her cats at CFA shows, sell cats to other breeders, participate in CFA sanctioned cat shows and attend CFA Regional Banquets, where she has also received awards.
{¶4} Appellant Hilde Van Der Westhuizen is also a member of the Cat Fanciers Association. Appellant also registers her cats with the CFA and shows her cats within the CFA. (Vol. II at 27-28). Appellant has also owned a CFA registered Birman Cattery known as Kyatwo Birmans since 2004, and has been breeding cats for approximately twenty-five years. (Vol. II at 99-100).
{¶5} Appellant Van Der Westhuizen and Appellee Sky became friends after meeting at a cat show in 2013. (Vol. II at 29-31). In February, 2014, Appellant met and trained two of Dr. Sky's cattery employees, Mike and Cindy Gutcher. (Vol. II at 115).
{¶6} Going into the 2015-2016 season, Appellee Sky's and Appellant Van Der Westhuizen's cats were ranked number one and number two, with the season concluding on April 30, 2016. (Vol. II at 122-123).
{¶7} In March of 2016, an e-mail purporting to be from the Gutchers, Appellee Sky's former cattery workers, was sent to Linda Berg at the CFA alleging, among other things, that Dr. Sky's cats were being kept in deplorable conditions, and that she treated them cruelly and inhumanely. (Vol. I at 41, 95). Ms. Berg runs the CFA Breeder Assistance and Breeder Rescue Program and is also the CFA's contact for animal welfare issues. (Vol. II at 123). Similar e-mails were also sent to others in the cat breeding community, including CFA judges and photographers. (Vol. I at 93-96). Ohio residents Ruthann Cecela and Curt Gabbard were recipients of such e-mails. Id.
{¶8} On March 8, 2016, another e-mail was sent the CFA purporting to be from "Lisa Blackwells" wherein the author of the e-mail claimed to have purchased a kitten from Appellee in December, 2015, which had to be euthanized due to illness. The e-mail also alleged that Appellee kept over 20 kittens and 35 cats in wire cages. This e-mail was also sent to CFA judge Jeri Zotolli. Ms. Zotolli was often involved in judging the cats belonging to Appellant and Appellee during the time the two were in close competition. (Vol. I at 62-63).
{¶9} Additional e-mails were sent to the CFA from fake identities. On of these e-mails was received by Karen Lane, the CFA Birman Breed Council Secretary, who stated that e-mails were "pretty demeaning towards Dr. Sky about her... her cats and her cattery." (Vol. IV at 16-26, 394).
{¶10} Dr. Sky claims that as a result of these false e-mails, her reputation as a cat breeder was damaged and she suffered monetarily.
{¶11} During this same time period, multiple false reviews appeared in RateMDs.com critical of Dr. Sky. One of these ratings, posted on December 14, 2015, stated that Dr. Sky Another review, posted on March 11, 2016, read A review posted in July 3, 2016, claimed
{¶12} As a result of the false reviews about her medical practice, Appellee Sky claims that she lost income, lost referrals from fellow physicians, and had to counsel patients about the allegations made in the reviews about her. (Vol. I at 126-127, 130).
{¶13} Additionally, Dr. Sky alleges as a result of the e-mails and false reviews, she had to incur costs to help her salvage her reputation including hiring legal professionals to assist in her addressing the defamatory acts, hiring someone to address and send e-mails in response, hiring a company to help with managing the cattery and its workers, paying the CFA for an inspection of her cattery, as well as hiring legal counsel to be present at the time of said inspection, and purchasing a membership to RateMDs.com to mitigate the damaging reviews. (Vol. I at 75, 82-85, 96, 103, 116; Vol. III at 184; Vol. IV at 256).
{¶14} Dr. Sky further alleges that she suffered mentally, emotionally and physically following these events. (Vol. I at 145-146). Dr. Sky saw a therapist for ten sessions to help her cope with her emotional and mental state. (Vol. I at 146-147).
{¶15} On July 21, 2016, Appellee Anastasia Sky, M.D. filed a Complaint against an unknown Appellant who directed defamatory correspondence to, among others, the Cat Fanciers Association (CFA), in Stark County, Ohio. From July to October 2016, Dr. Sky issued subpoenas to determine the identification of the perpetrator. Those subpoena responses identified Hilde Van Der Westhuizen as the author of the correspondence.
{¶16} On October 27, 2016, Dr. Sky filed her First Amended Complaint, which named Appellant Hilde Van Der Westhuizen and included six counts: (1) defamation per se, (2) defamation, (3) tortious interference with existing economic and/or business relationships, (4) tortious interference with prospective economic and/or business relationships, (5) violation of the Ohio Deceptive Trade Practices Act, R.C. § 4165.02(10) ("ODTPA"), and (6) intentional infliction of emotional distress.
{¶17} On November 18, 2016, Paul Godfread identified himself as Appellant's counsel, and Dr. Sky's attorneys provided him with a copy of the First Amended Complaint.
{¶18} On January 20, 2017, service by ordinary mail was completed under Civil Rule 4.6(D).
{¶19} Appellant failed to file an Answer by the answer date of February 18, 2017.
{¶20} On March 9, 2017, Appellee filed a Motion for Default Judgment.
{¶21} On March 9, 2017, Appellant filed her Brief in Opposition to Motion for Default Judgment. Appellant also filed an Affidavit of Defendant Hilde Van Der Westhuizen on the same date.
{¶22} On March 15, 2017, Appellee Sky filed a Brief in Support of her Motion for Default Judgment.
{¶23} On March 15, 2017, Appellant filed a motion for leave to file a motion to dismiss for lack of personal jurisdiction Instanter .
{¶24} On March 15, 2017, Appellee Sky filed her Brief in Opposition to Defendant Hilde Van Der Westhuizen's Motion for Leave to File Motion to Dismiss for Lack of Personal Jurisdiction Instanter .
{¶25} On March 23, 2017, Appellant filed a Reply Brief in Support of Motion for Leave to File Motion to Dismiss for Lack of Personal Jurisdiction Instanter .
{¶26} By Judgment Entry filed March 29, 2017, the trial court granted default judgment and found the motion for leave moot. The trial court also set a damages hearing for July 7, 2017.
{¶27} On April 13, 2017, Appellant filed a Motion to Vacate or Set Aside Default Judgment as Void Ab Initio , which the trial court denied on June 29, 2017.
{¶28} On April 25, 2017, Appellee Sky filed a Memorandum in Opposition to Defendant Hilde Van Der Westhuizen's Motion to Vacate or Set Aside Default Judgment as Void Ab Initio . Attached to said Memorandum were Affidavits of Dr. Sky and Attorney Adam C. Sherman.
{¶29} The day before the July 7th damages hearing, Appellant filed a notice of appeal, which this Court dismissed for lack of jurisdiction.
{¶30} Appellant next filed a motion to certify the judgment entries, which was denied on August 31, 2017.
{¶31} On November 3, 2017, a damages hearing commenced. The hearing was extended an additional five (5) days over the next five (5) months: December 13, 2017, February 28, 2018, March 1, 2018, and April 5-6, 2018. (Collectively "Damages Hearing.").
{¶32} On August 1, 2018, the trial court entered its judgment awarding Dr. Sky damages on Counts One, Five, Six, and, in part, on Count Two; and certain permanent injunctive relief.
{¶33} Appellant Van Der Westhuizen now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶34} "I. THE TRIAL COURT ERRED IN DENYING RELIEF TO APPELLANT FROM THE DEFAULT JUDGMENT BECAUSE IT LACKED PERSONAL JURISDICTION.
{¶35} "II. THE TRIAL COURT'S EVIDENTIARY FINDINGS IN SUPPORT OF ITS AWARD OF COMPENSATORY DAMAGES ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶36} "III. THE TRIAL COURT'S EVIDENTIARY FINDINGS IN SUPPORT OF ITS AWARD OF VORYS' ATTORNEY'S FEES ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶37} "IV. THE TRIAL COURT...
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