Stainbrook v. Ohio Sec'y of State

• Decision Date: 25 April 2017
• Docket Number: No. 16AP–314,16AP–314
• Citation: 88 N.E.3d 1257,2017 Ohio 1526
• Parties: Jon STAINBROOK, Plaintiff–Appellant, v. OHIO SECRETARY OF STATE, Defendant–Appellee.
• Court: Ohio Court of Appeals

88 N.E.3d 1257

2017 Ohio 1526

Jon STAINBROOK, Plaintiff–Appellant,

v.OHIO SECRETARY OF STATE, Defendant–Appellee.

No. 16AP–314

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

Rendered on April 25, 2017

On brief: The Law Office of Mark Davis, LLC, and Mark A. Davis, Toledo, for appellant. Argued: William M. Todd.

On brief: Michael DeWine, Attorney General, Randal W. Knutti, Columbus, and Jeanna V. Jacobus, for appellee. Argued: Randall W. Knutti.

DECISION

TYACK, P.J.

{¶ 1} Jon Stainbrook is appealing from the dismissal of his lawsuit in the Court of Claims of Ohio pursuant to Civ.R. 12(B)(1) and 12(B)(6) for lack of subject-matter jurisdiction and failure to state a claim on which relief can be granted. For the following reasons, we affirm the judgment of the Court of Claims.

{¶ 2} Stainbrook assigns six errors for our consideration:

I. The Trial Court Erred In Finding the Defamation Arose Only Before June 5, 2014.

II. The Trial Court Erred By Failing to Find Defamation in Husted's June 5, Letter.

III. The Trial Court Erred Upon Dismissal of the False Light Claim.

IV. The Trial Court Erred Upon Dismissal of Wrongful Termination Claim.

V. The Trial Court Erred By Dismissing the Denial of Due Process Claim.

VI. The Trial Court Erred By Dismissing the Conspiracy Claim.

{¶ 3} Stainbrook, with the assistance of counsel, filed this lawsuit in the Court of Claims. The lawsuit asserts a variety of claims against Secretary of State Jon Husted, and other politically active individuals, both Democrats and Republicans, who were not alleged to be state employees. Thus, the lawsuit was proper only as to the Secretary of State in the Court of Claims.

{¶ 4} Stainbrook was appointed as a member of the Lucas County Board of Elections ("Board") in 2011. He was reappointed in 2014. After his reappointment, he transmitted numerous reports of what he viewed to be violations of federal and state law committed by or being committed by other members of the Board and by staff of the Board.

{¶ 5} Stainbrook felt his complaints involving the Board were not being taken seriously and, as a result according to Stainbrook, Secretary of State Husted and others decided to turn on Stainbrook and defame him. Stainbrook viewed a "Transparency Committee" appointed to investigate the situation as being nothing more than a sham committee which had the intentions to harm him politically and to defame him personally with false accusations. The Transparency Committee was comprised of a former Democratic Secretary of State, a former State Democratic Chair, a prominent Republican former Assistant Secretary of State and a prominent Republican attorney with close ties to a former Republican Governor and Secretary of State. After over 20 hours of public meetings, the Transparency Committee recommended to the Secretary of State that Stainbrook be removed from his position on the Board. The Secretary of State did so after a hearing lasting seven hours was conducted. The Secretary of State informed Stainbrook of his removal by way of a letter sent on June 5, 2014.

{¶ 6} After Stainbrook's removal, Stainbrook filed the lengthy complaint on June 5, 2015 which initiated this lawsuit in the Court of Claims alleging: false light invasion of privacy, defamation, and slander per se. Counsel for the Secretary of State filed a motion to dismiss the lawsuit.

{¶ 7} The judge assigned to the Court of Claims dismissed several of the claims because the lawsuit was not filed before June 5, 2015—within one year of the allegedly false statements being made. Thus, the suit was initiated after the time permitted by the applicable statute of limitations. R.C. 2305.11(A).

{¶ 8} The trial court judge separately addressed other claims which were based on a letter issued by Husted on June 5, 2014. The complaint filed by Stainbrook states, at paragraph 49:

[F]or the last year, countless newspapers, news outlets, and internet blogs have reported on the false contents of the Transparency Committee, Mr. Damschroder's clumsy, legally flawed, and factually inaccurate hearing officer report, and [Husted's] defamatory letter removing Mr. Stainbrook from the Lucas County Board of Elections.

{¶ 9} The judge found that paragraph 49 was not sufficiently pled to state a claim and therefore the judge dismissed the claims which remained. With that background, we now turn to the assigned errors.

I. STANDARD OF REVIEW

{¶ 10} "The standard to apply for a dismissal pursuant to Civ. R. 12(B)(1), lack of jurisdiction over the subject matter, is whether the plaintiff has alleged any cause of action cognizable by the forum." Avco Fin. Servs. Loan, Inc. v. Hale, 36 Ohio App.3d 65, 520 N.E.2d 1378 (10th Dist.1987). A motion to dismiss for failure to state a claim on which relief can be granted pursuant to Civ.R. 12(B)(6) is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Comm., 65 Ohio St.3d 545, 605 N.E.2d 378 (1992). In construing the complaint, the material allegations of the complaint are taken as admitted. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). All reasonable inferences must also be drawn in favor of the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). In order for the court to dismiss the complaint "it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ. Community Tenants Union, 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.

{¶ 11} "In resolving a Civ.R. 12(B)(6) motion to dismiss, the trial court may consider only the statements and facts contained in the pleadings, and may not consider or rely on evidence outside the complaint." Powell v. Vorys, 131 Ohio App.3d 681, 684, 723 N.E.2d 596 (10th Dist.1998). Indeed, when construing the complaint in favor of the nonmoving party, a court is " ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ " Carasalina, LLC v. Smith Phillips & Assocs., 10th Dist. No. 13AP-1027, 2014-Ohio-2423, 2014 WL 2573466, ¶ 14, quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), see also Haas v. Village of Stryker, 6th Dist. No. WM-12-004, 2013-Ohio-2476, 2013 WL 3055763, ¶ 10 (Only factual allegations are presumed to be true and only claims supported by factual allegations can avoid dismissal.).

{¶ 12} As an appellate court, we must independently review the complaint to determine if dismissal was appropriate. McGlone v. Grimshaw, 86 Ohio App.3d 279, 285, 620 N.E.2d 935 (4th Dist.1993). A motion to dismiss or a motion for judgment on the pleading based on the bar of the statute of limitations should be granted only if the complaint conclusively demonstrates on its face that the action is barred by the statute of limitations. Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 433 N.E.2d 147 (1982), paragraph three of the syllabus.

II. DEFAMATION

{¶ 13} The first assignment of error contests the trial court's finding that the alleged defamation occurred more than one year before the lawsuit was initiated. Counsel for Stainbrook argues that paragraph 47 of the complaint pleads facts indicating defamation after the time of Stainbrook's removal from the Lucas County Board of Elections. Paragraph 47 reads:

The Secretary widely publicized Mr. Stainbrook's removal in a report posted to his website and in releases to the media. The Secretary gave multiple media interviews and video statements that were distributed and broadcast throughout Ohio and the United States. Mr. Stainbrook's good name was dragged through the mud on news channels, newspapers, and the internet, and Mr. Stainbrook became fodder for unjust ridicule and embarrassment. Stories with titles, such as, Elections Board to Investigate Stainbrook, Member Accused of Wrongdoing by Former Employee appeared and were read widely. Moreover, the Secretary escalated the negative publicity over the ensuing months during his public speaking engagements and during his re-election campaign fundraisers.

Paragraph 47 seems to state that the fact of Stainbrook's removal from the Lucas County Board of Elections was published. His removal from the Board of Elections is an undeniable fact. Although that fact may be embarrassing for Stainbrook, a true fact cannot be the basis for a defamation lawsuit.

{¶ 14} To establish a defamation claim, a plaintiff must show that the defendant made a false statement, that the false statement was defamatory, that the false defamatory statement was published, the plaintiff was injured and the defendant acted with the required degree of fault. Roe v. Heap, 10th Dist. No. 03AP-586, 2004-Ohio-2504, 2004 WL 1109849, ¶ 21. No fact except the fact of Stainbrook's removal is alleged and that the Secretary of State escalated publicity of that.

{¶ 15} The complaint does not properly assert any claim for defamation after the date of June 5, 2014. Any claim for defamation based on an action that allegedly occurred before June 5, 2014 is time-barred. R.C. 2305.11(A) provides that "[a]n action for libel [and] slander * * * shall be commenced within one year after the cause of action accrued." A cause of action for defamation accrues upon publication of the complained matter. Guccione v. Hustler Magazine, Inc., 64 Ohio Misc. 59, 413 N.E.2d 860 (1978). "A complaint may be dismissed under Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations when the complaint on its face conclusively indicates that the action is time-barred." Ohio Bur. of Workers' Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 13, citing Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11. The trial court was correct in its ruling.

{¶ 16} The first assignment of error is overruled.

{¶ 17} The second assignment of error asserts specifically that the letter sent to Stainbrook on June 5, 2014,...