[Cite as Ebbing v. Stewart, 2016-Ohio-7645.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
ERIN M. EBBING, :
Plaintiff-Appellant, : CASE NO. CA2016-05-085
: OPINION
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:
TRACY STEWART, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2016-02-0327
Erin M. Ebbing, 3800 Princeton Road, Hamilton, Ohio 45011, plaintiff-appellant, pro se
Tracy Stewart, 2524 Grand Blvd., Hamilton, Ohio 45011, defendant-appellee, pro se
Graydon Head & Ritchey LLP, John C. Greiner, 1900 Fifth Third Center, 511 Walnut Street,
Cincinnati, Ohio 45202, for defendants-appellees, Ohio/Oklahoma Hearst Television, Inc.
d.b.a. WLWT News 5 and Karin Johnson
Lawrence E. Barbiere, 5300 Socialville Foster Road, Suite 200, Mason, Ohio 45040, for
defendants-appellees, Fairfield Township, John Vanderyt, Brian Schulten, Corey Stebbins
and Matthew Fruchey
HENDRICKSON, J.
{¶ 1} Plaintiff-appellant, Erin M. Ebbing, appeals the decision of the Butler County
Court of Common Pleas denying her motion to join her husband, Joseph P. Ebbing, as a
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plaintiff, and dismissing her complaint. For the reasons set forth below, judgment is affirmed
in part, reversed in part, and the matter remanded for further proceedings.1
{¶ 2} Erin's complaint seeks declaratory judgment and injunctive relief, in addition to
monetary damages for landlord-tenant, defamation, "criminal acts," and constitutional claims.
The complaint named multiple defendants for the various counts, which all stem from a
landlord-tenant dispute.
{¶ 3} Erin is the owner and landlord of a rental home that is managed by Joseph and
located on Princeton Road in Fairfield Township. Tracy Stewart rented this residence from
Erin for most of 2014 through January 31, 2015. In the final month of this rental period, a
dispute began between Stewart and Joseph regarding the notice required to schedule
showings for possible future tenants and the date which Stewart would be fully moved out the
residence. On several occasions, Joseph informed Stewart of his expectation that she
completely vacate the residence by midnight on January 31, 2015. In response, Stewart
communicated to Joseph that she might need a short period beyond that date to complete
her move. From this disagreement, an ongoing dispute developed, which led Stewart to
place several emergency phone calls to police to complain about Joseph's conduct.
{¶ 4} On February 1, 2015, the dispute continued when Joseph entered the
residence in the middle of the night before Stewart had completely vacated. Again, Stewart
placed an emergency phone call to police to complain of Joseph's recent actions. Fairfield
Police responded to the complaint and advised Joseph of Ohio's eviction laws, directed him
to refrain from entering the residence until Stewart had completely vacated, and warned him
that he would be arrested if he did not leave the premises. Since Joseph refused to leave
the premises, officers placed him under arrest and charged him with criminal trespassing.
1. Pursuant to Loc.R. 6(A), we hereby sua sponte remove this case from the accelerated calendar for purposes
of issuing this opinion.
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{¶ 5} Later that afternoon, Joseph returned to the residence and changed the locks.
In so doing, he discovered Stewart's daughter alone inside the property and informed her she
must leave the property and return her key. Joseph further informed her that she could wait
for Stewart at his home next door. When Stewart discovered her daughter was waiting at the
Ebbings' home, she placed another emergency phone call to police. Fairfield Township
police responded and charged Joseph with burglary, abduction, and obstructing justice.
{¶ 6} On February 4, 2015, WLWT News 5 aired a news segment and posted a
substantially similar online article describing the circumstances of the arrest and the charges
against Joseph. The focus of the report was the dispute between Joseph and Stewart. The
report did not mention Erin by name, but rather, briefly identified her in passing as the owner
and landlord of the property.
{¶ 7} Based on the foregoing, Erin filed a complaint in the Butler County Court of
Common Pleas alleging claims against the following the defendants: Fairfield Township,
Fairfield Township Officers John Vanderyt, Brian Schulten, Corey Stebbins, and Matthew
Fruchey (referred to collectively as "township appellees"); Ohio/Oklahoma Hearst Television
Inc. d.b.a. WLWT and reporter Karin Johnson (referred to collectively as "WLWT"); and
Stewart. Township appellees answered denying all claims and raised several defenses
including failure to state a claim upon which relief can be granted. WLWT filed a motion to
dismiss Erin's claims pursuant Civ.R. 12(B)(6) for failure to state a claim upon which relief
can be granted. Before the trial court ruled on WLWT's motion, Erin filed a motion to join
Joseph as a plaintiff pursuant to Civ.R. 19 and Civ.R. 19.1. Shortly thereafter, the trial court
issued an entry and order granting WLWT's motion to dismiss, denying Erin's motion to join
Joseph, and sua sponte dismissing the case in toto.
{¶ 8} It is from this decision that Erin now appeals.
{¶ 9} Assignment of Error No. 1:
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{¶ 10} TRIAL COURT REVERSIBLY ERRED AND MALICIOUSLY DEPRIVED
PLAINTIFF OF HER CONSTITUTIONAL RIGHTS BY UNLAWFULLY GRANTING WLWT['S]
MOTION TO DISMISS BECAUSE AS A MATTER OF LAW PLAINTIFF'S CLAIMS ARE
SUFFICIENT PURSUANT TO STATUTORY LAW.
{¶ 11} Civ.R. 12(B)(6) authorizes the dismissal of a complaint if it fails to state a claim
upon which relief can be granted. Marchetti v. Blankenburg, 12th Dist. Butler No. CA2010-
09-232, 2011-Ohio-2212, ¶ 9. "In order to prevail on a Civ.R. 12(B)(6) motion, 'it must
appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling
relief.'" Id., quoting DeMell v. The Cleveland Clinic Found., 8th Dist. Cuyahoga No. 88505,
2007-Ohio-2924, ¶ 7. In ruling on a complaint pursuant to Civ.R. 12(B)(6), a 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., 40 Ohio St.3d 190,
192 (1988). "A trial court's order granting a motion to dismiss pursuant to Civ.R. 12(B)(6) is
subject to de novo review on appeal." BAC Home Loans Servicing, L.P. v. Kolenich, 194
Ohio App.3d 777, 2011-Ohio-3345, ¶ 35 (12th Dist.). An appellate court must independently
conduct a review of the complaint to determine the appropriateness of the dismissal. Id. at ¶
35.
{¶ 12} In this case, Erin seeks damages for a defamation claim against WLWT.
Defamation is a false publication that injures a person's reputation. Dale v. Ohio Civ. Serv.
Emp. Assn., 57 Ohio St.3d 112, 117 (1991). "In order to be actionable, a plaintiff in a
defamation action must show that the alleged defamatory statement was 'of and concerning'
the plaintiff." Whiteside v. United Paramount Network, 12th Dist. Madison No. CA2003-02-
008, 2004-Ohio-800, ¶ 15, quoting New York Times Co. v. Sullivan, 386 U.S. 254, 267
(1964).
{¶ 13} WLWT moved to dismiss Erin's defamation claim on the basis that the
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complaint fails to allege how the purported defamatory statements were "of and concerning"
Erin. The trial court agreed and found this argument demonstrated Erin was not a real party
in interest. Therefore, the trial court dismissed the claim on the basis that Erin failed to
establish standing.
{¶ 14} Civ.R. 17(A) states "[e]very action shall be prosecuted in the name of the real
party in interest." A real party in interest is one who receives a direct benefit or injury based
on the outcome of the case. State ex rel. Botkins v. Laws, 69 Ohio St.3d 383, 387 (1994).
One who merely possesses an interest in the action itself is not a real party in interest. Id.
Further, "[b]ecause a real party in interest is an individual who has suffered an injury in a
matter, a party lacks standing if not a real party in interest." Mousa v. Mt. Carmel Health
Sys., Inc., 10th Dist. Franklin No. 12AP-737, 2013-Ohio-2661, ¶ 12. A party lacks standing to
invoke the court's jurisdiction without some real interest in the subject matter of the action.
Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No. CA2009-11-288, 2010-Ohio-
4802, ¶ 9.
{¶ 15} WLWT's argument in its motion to dismiss demonstrates both an attack on
Erin's capacity to sue and an insufficiency in her claim for failing to allege facts to support the
essential elements of a defamation claim. However, "[i]t is well established that before an
Ohio court can consider the merits of a legal claim, the person seeking relief must establish
standing to sue." State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d
451, 469 (1999).
{¶ 16} The bases for Erin's defamation claim arose from the WLWT News 5 television
segment and its subsequent website article which reported the circumstances of Joseph's
arrest and pending charges. Based on a thorough review of the record, without addressing
the merits of the claim itself, it is clear that Erin is not a real party in interest to assert such a
defamation claim. Neither the television news broadcast nor the online article mentions Erin
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by name. Rather, the only times Erin is identified are in reference to Joseph or the property.
Specifically, "[Joseph] said he asked the girl to leave his wife's rental property[,]" and the
property "was owned by Joseph['s] * * * wife." Erin's interest in the action is limited to the
news reports discussion of her husband; thus, her complaint fails to sufficiently demonstrate
how she has suffered a direct injury to meet the requirements of Civ.R. 17(A). Accordingly,
we find that Erin does not have standing to bring this action.
{¶ 17} Nonetheless, even if Erin had sufficiently alleged facts to demonstrate
standing, her defamation claim must fail pursuant to Civ.R. 12(B)(6) because she concedes
in her complaint that the above-mentioned statements referring to her as the landlord and
owner of the property are true statements.
{¶ 18} In addition to the defamation claim, Erin also alleges a laundry list of criminal
acts committed by WLWT and township appellees as well as various violations of the Ohio
and United States Constitutions. However, because the only factual allegations in the
complaint pertaining to WLWT are in reference to the defamation claim, all other claims
against WLWT must be dismissed pursuant to Civ.R. 12(B)(6). Moreover, construing the
complaint in a light most favorable to Erin, it is still devoid of any relevant facts or pertinent
legal authority to support her countless allegations of "criminal acts" and constitutional
violations by township appellees. In paragraph four of Erin's complaint, she alleges 24
criminal acts from which she seeks relief, and then, provides no factual support beyond mere
citations to the Revised Code. These bare legal assertions are insufficient to constitute fair
notice and an opportunity to respond, as required under Ohio's notice-pleading standard.
See Klan v. Med. Radiologists, Inc., 12th Dist. Warren No. CA2014-01-007, 2014-Ohio-2344,
¶ 13 ("to constitute fair notice, the complaint must still allege sufficient underlying facts that
relate to and support the alleged claim, and may not simply state legal conclusions"), quoting
Tuleta v. Med. Mut. of Ohio, 8th Dist. Cuyahoga No. 100050, 2014-Ohio-396, ¶ 12.
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{¶ 19} Furthermore, the complaint is scant of references to any alleged injuries
suffered by Erin. Rather, it thoroughly discusses the dispute detailed above between Joseph,
Stewart, and township appellees. Thus, under the same rationale as the defamation claim,
Erin lacks standing to assert the remaining claims against township appellees.
{¶ 20} Therefore, Erin's first assignment of error is hereby overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} TRIAL COURT REVERSIBLY ERRED AND MALICIOUSLY DEPRIVED
PLAINTIFF OF HER CONSTITUTIONAL RIGHTS BY UNLAWFULLY GRANTING SUA
SPONTE MOTIONS TO DISMISS ALL OTHER DEFENDANTS.
{¶ 23} In support of Erin's second assignment of error, she argues the trial judge
unlawfully practiced law in his court by sua sponte dismissing all remaining claims against all
other parties in its entry and order granting WLWT's motion to dismiss. In dismissing the
remaining claims, the trial court found that the alleged landlord-tenant dispute between Erin
and Stewart did not meet the minimum monetary amount needed for the court to exercise its
jurisdiction over the claim. The trial court further found the remainder of the complaint
warranted dismissal pursuant to Civ.R. 12(B)(6) for all remaining parties.
{¶ 24} Our analysis of Erin's second assignment of error begins with the claims
brought against Stewart. After a thorough review of the record, it is clear that service of
process has not been effectuated for Stewart, which is also reflected in the trial court's entry
and order dismissing Erin's complaint. Pursuant to Civ.R. 3(A), "[a] civil action is commenced
by filing a complaint with the court, if service is obtained within one year from such filing upon
a named defendant, or upon an incorrectly named defendant whose name is later corrected *
* *, or upon a defendant identified by a fictitious name whose name is later corrected * * *."
(Emphasis added.) The Ohio Supreme Court has previously ruled that a judgment rendered
against a party before meeting the requirements of Civ.R. 3(A) is void. See Patterson v. V &
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M Auto Body, 63 Ohio St.3d 573, 577 (1992).
{¶ 25} In Patterson, the Ohio Supreme Court analyzed whether a plaintiff may
maintain a lawsuit against a defendant solely under the fictitious name in which the
defendant does business. Id. at 575-77. Specifically, the named defendant was a sole
proprietorship, which does not have a separate legal identity. Id. at 576. The court began its
analysis by citing a previous decision that found if a defendant in a lawsuit is not an actual or
legal entity, then any judgment rendered against that entity is void. Id., citing Cobble v.
Farmer's Bank, 63 Ohio St. 528, 536 (1900). Next, the court looked to Civ.R. 3(A) to hold
that a lawsuit where an incorrectly named party is not later corrected has yet to commence.
Patterson at 576. As such, the court held that a judgment rendered against a nonexistent,
nonlegal entity, in a case that has not commenced is void. Id. at 577. This holding is
consistent with another decision of the Ohio Supreme Court, which found that a case that
has yet to commence due to lack of service of process cannot be dismissed. Kossuth v.
Bear, 161 Ohio St. 378, 384-85 (1954). Therefore, the trial court's sua sponte dismissal of all
claims against Stewart is void because Stewart has not been properly served process.
{¶ 26} In so holding, we note that Erin's complaint names "WLWT News 5," which is
not a legal entity, but rather an operating division of the proper party, Ohio/Oklahoma Hearst
Television Inc. d.b.a. WLWT. Despite the analysis conducted above with respect to Stewart,
the clerical error in the caption of Erin's complaint did not deprive the trial court of jurisdiction
with respect to WLWT. See Engelhart v. Bluett, 1st Dist. Hamilton No. C-160189, 2016-
Ohio-7237, ¶ 11-12 (holding plaintiff may sue defendant under its trade name based on the
substance of the pleadings despite improper party named in case caption). In Engelhart, the
caption of the plaintiff's complaint named GMCC by its trade name, Grange Insurance.
Despite this clerical error, the First District looked to the substance of the pleadings as a
whole to determine if Engelhart named the proper party. In the case before us, the
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substance of the pleadings demonstrate Erin named the proper party, as WLWT was
apprised of the pendency of Erin's claims, informed the trial court of the clerical error, and
proceeded to file its motion to dismiss on other grounds. Furthermore, Erin attempted to
correct the clerical error by moving the trial court to join WLWT under the proper party name,
which the trial court did not expressly deny. Rather, the trial court expressly denied Erin's
motion to join Joseph and proceeded to refer to WLWT under the proper party name in its
order dismissing the case.
{¶ 27} Next, we address the trial court's sua sponte dismissal of all claims against
township appellees. "In general, a court may dismiss a complaint on its own motion pursuant
to Civ.R. 12(B)(6), failure to state a claim upon which relief can be granted, only after the
parties are given notice of the court's intention to dismiss and an opportunity to respond."
State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 161 (1995), citing State ex rel. Edwards v.
Toledo City School Dist. Bd. of Edn., 74 Ohio St.3d 106, 108 (1995). However, a court may
sua sponte dismiss a complaint without such notice where the complaint is frivolous or where
it is obvious the claimant cannot prevail on the facts alleged in the complaint. Edwards at
108, citing English v. Cowell, 10 F.3d 434, 437 (7th Cir.1993); and Baker v. Dir., U.S. Parole
Comm., 916 F.2d 725, 726 (D.C.Cir.1990).
{¶ 28} For the same reasons outlined in Erin's first assignment of error, the claims
against township appellees are frivolous and it is obvious Erin cannot prevail on the facts
alleged therein. Moreover, Erin has failed to demonstrate standing to assert such claims.
Thus, the trial court did not err in sua sponte dismissing all claims against township
appellees.
{¶ 29} Therefore, Erin's second assignment of error is hereby sustained in part and
overruled in part.
{¶ 30} Assignment of Error No. 3:
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{¶ 31} TRIAL COURT REVERSIBLY ERRED BY DENYING PLAINTIFF'S MOTION
AND NOT JOINING JOSEPH P. EBBING TO BE MADE A PARTY PLAINTIFF, AND
OHIO/OKLAHOMA HEARST TELEVISION TO BE MADE A PARTY DEFENDANT IN
VIOLATION OF CIV.R. 19(A) "JOINDER OF PERSONS NEEDED FOR JUST
ADJUDICATION[.]"
{¶ 32} The trial court denied Erin's motion to join Joseph as a plaintiff based on a
previous determination that Joseph is a vexatious litigator. See In re Joseph P. Ebbing,
Butler No. IR12-03-0202 (Mar. 2, 2015). Pursuant to R.C. 2323.52(A)(3), a vexatious litigator
is "any person who has habitually, persistently, and without reasonable grounds engaged in
vexatious conduct in a civil action or actions * * *." Once a court declares one a vexatious
litigator, that person cannot institute legal proceedings without first filing a motion for leave to
proceed with the court that entered the order. R.C. 2323.52(F)(1). Leave shall not be
granted, "unless the court of common pleas that entered that order is satisfied that the
proceedings or application are not an abuse of process of the court in question and that there
are reasonable grounds for the proceedings or application." Id. If the court of common pleas
denies the vexatious litigator's motion for leave, then no appeal shall follow. R.C.
2323.52(G).
{¶ 33} It is clear from the trial court's entry and order that it found Erin's motion to join
Joseph an abuse of process and that there were no reasonable grounds for the application.
In making this finding, the trial court stated the complaint and subsequent motion for joinder
were made "in an effort to ignore [Joseph's] status as a vexatious litigator and launch another
barrage of bombastic belligerence." Pursuant to R.C. 2323.52(G), the trial court's decision is
not subject to appeal. Therefore, Erin's third assignment of error is overruled.
{¶ 34} In conclusion, we find the trial court erred in dismissing the claims against
Stewart because service had not yet been perfected at the time of the dismissal. In all other
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respects, the decision of the trial court is affirmed.
{¶ 35} Judgment affirmed in part, reversed in part, and remanded.
M. POWELL, P.J., and RINGLAND, J., concur.
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