Couzens v. Union Bank & Trust Co.

2024 Ohio 306, 234 N.E.3d 661

• Court: Ohio Court of Appeals
• Decided: January 31, 2024
• Docket: C-230130
• Status: Published

Opinion

[Cite as Couzens v. Union Bank & Trust Co., 2024-Ohio-306.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

BISHOP VICTOR S. COUZENS, : APPEAL NO. C-230130 TRIAL NO. A-2003661 Plaintiff-Appellant, :

vs. : O P I N I O N.

UNION BANK AND TRUST CO., :

Defendant-Appellee. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 31, 2024

Mezibov Butler and Marc D. Mezibov, for Plaintiff-Appellant,

DeBlasis Law Firm, LLC, and Rick D. DeBlasis, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Presiding Judge.

{¶1} This case concerns plaintiff-appellant Bishop Victor S. Couzens’s

allegations that Union Bank and Trust Co. (“Union Bank”) improperly encouraged

members of the Inspirational Bible Church (“IBC”) to terminate Couzens’s

employment contract as IBC’s senior pastor in order to continue doing business with

Union Bank. This appeal concerns the trial court’s grant of summary judgment in favor

of Union Bank. For the reasons that follow, we affirm the judgment of the trial court.

I. Procedural History

{¶2} In his amended complaint, Couzens claimed that Union Bank is liable

for tortious interference with contractual relations, tortious interference with business

relations, defamation per se and per quod, false-light invasion of privacy, and civil

conspiracy. While litigating motions in the trial court, Couzens abandoned his claims

for false-light invasion of privacy and defamation.

{¶3} Union Bank filed a motion for summary judgment on the remaining

claims. Following briefing from the parties, supported by exhibits and depositions, the

trial court granted summary judgment in favor of Union Bank. This appeal timely

followed.

II. Factual History

{¶4} In January 2015, IBC signed a loan agreement with Union Bank for $5.1

million in funding in exchange for a mortgage on the church’s property, alleged in this

action to be worth approximately $15 million. The loan was to last five years, with

monthly payments of approximately $33,000 during the life of the loan and a balloon

payment of the remaining amount due upon maturity in January 2020. In May 2017,

IBC and Union Bank entered into a loan-modification agreement, reducing the

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monthly payments to around $27,000, but leaving the other terms of the loan in place.

{¶5} From 2016 through 2020, church membership and revenue dropped

precipitously. Membership had dropped from a peak of as many as 2,000 to between

180 to 200 congregants. Annual revenue dropped from $1.6 million in 2016 to

$500,000 in 2020. Union Bank alleges that this drop in revenue is directly

attributable to negative publicity regarding Couzens. The record also reveals that

Couzens took out additional loans in the church’s name and that the repayment of

those additional loans caused IBC to miss payments owed to Union Bank in 2019.

{¶6} In August 2019, IBC and Union Bank entered into a “Forbearance

Agreement.” In the agreement, IBC acknowledged that it was in default on its loan

from Union Bank. Union Bank agreed that, in exchange for forbearing to file for

foreclosure against IBC, IBC would list the church’s property for sale, make interest-

only payments for the remainder of the loan term, and would deliver certain financial

information to Union Bank.

{¶7} In September 2019, Couzens hired Bishop Z.T. Davis to serve as

“executive pastor” and oversee IBC’s finances, including negotiations with Union

Bank. Couzens was not involved in the negotiations as he left Cincinnati for a

sabbatical in Florida.

{¶8} In November or December 2019, Davis presented a plan to Union Bank

for repaying the loan. Union Bank neither rejected nor accepted the offer. Instead,

Charity Kuehn, Union Bank’s Vice President for Church Lending and primary contact

person for the loan, emailed IBC explaining that any further negotiations with IBC to

restructure the loan would be contingent on the retirement, resignation, or removal of

Couzens from any position at IBC.

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{¶9} Couzens alleges, and Union Bank disputes, that at some point between

the end of December 2019 and the beginning of January 2020, Kuehn visited

Cincinnati to discuss options for repaying the loan. Couzens suggests that at the

meeting, Kuehn pressured the members and leadership of IBC to remove Couzens.

{¶10} In early January 2020, a group of church members purporting to act for

the church voted to remove Couzens as pastor. Couzens contends that the group did

not have the authority to make such a decision. Couzens was informed that his

purported termination would be effective on February 7, 2020. Members of the church

contacted the Forest Park Police Department to request an off-duty security detail for

the church services on February 9. When Couzens showed up to preach that morning,

officers escorted him from the premises for trespassing.

III. Analysis

{¶11} In his first assignment of error, Couzens argues that the trial court erred

in granting summary judgment on his claims of tortious interference with his business

and contractual relationship with IBC. In his second assignment of error, Couzens

argues that the trial court erred in granting summary judgment on his civil-conspiracy

claim.

First Assignment of Error

{¶12} In his first assignment of error, Couzens argues that the trial court erred

in granting summary judgment in favor of Union Bank because there were genuine

issues of material fact that were inappropriate to resolve on summary judgment.

Specifically, Couzens argues that a jury should have been permitted to decide the

issues of causation, whether Couzens had an employment contract with IBC, whether

Union Bank was aware of the contractual relationship between Couzens and IBC,

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whether Union Bank intended IBC to breach its contract with Couzens, and whether

Union Bank’s interference was justified.

{¶13} This court reviews the trial court’s decision on summary judgment de

novo. Hefler v. Remke Mkts., Inc., 1st Dist. Hamilton No. C-200364, 2021-Ohio-2694,

¶ 7. “Summary judgment is appropriate if 1.) no genuine issue of material fact exists

for trial, 2.) the moving party is entitled to judgment as a matter of law, and 3.)

reasonable minds can come to but one conclusion and that conclusion is adverse to

the nonmoving party, who is entitled to have the evidence construed most strongly in

his or her favor.” Id., quoting Wal-Mart Realty Co. v. Tri-County Commons Assocs.,

LLC, 1st Dist. Hamilton No. C-160747, 2017-Ohio-9280, ¶ 8.

1. Tortious Interference with Contract

{¶14} “The elements of tortious interference with contract are (1) the existence

of a contract, (2) the wrongdoer’s knowledge of the contract, (3) the wrongdoer’s

intentional procurement of the contract’s breach, (4) lack of justification, and (5)

resulting damages.” Alexander v. Motorists Mut. Ins. Co., 1st Dist. Hamilton No.

C-110836, 2012-Ohio-3911, ¶ 33, citing Kenty v. Transamerica Premium Ins. Co., 72

Ohio St.3d 415, 416, 650 N.E.2d 863 (1995), paragraph two of the syllabus.

{¶15} Union Bank argues that it was justified in conditioning its future

negotiations with IBC on Couzens’s removal because it was protecting its own

legitimate business interests. In a tortious-interference case, the plaintiff bears the

burden of showing that the defendant lacked justification for the alleged interference.

Id. at ¶ 33, citing Andrews v. Carmody, 145 Ohio App.3d 27, 33, 761 N.E.2d 1076 (11th

Dist.2001). It is proper for the court to reject a tortious-interference claim “on the

grounds that the defendant was privileged to protect its own business relationships or

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that the plaintiff presented no evidence of the defendant’s intent to interfere.” Id. at

¶ 31, citing Elwert v. Pilot Life Ins. Co., 77 Ohio App.3d 529, 537, 602 N.E.2d 1219 (1st

Dist.1991).

{¶16} To determine whether the interference lacked justification, the Ohio

Supreme Court has adopted Restatement of the Law 2d, Torts, Section 767 (1979).

Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999),

paragraph three of the syllabus. In making such a determination, the court should

consider the following factors:

(a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the

interests of the other with which the actor’s conduct interferes, (d) the

interests sought to be advanced by the actor, (e) the social interests in

protecting the freedom of action of the actor and the contractual

interests of the other, (f) the proximity or remoteness of the actor’s

conduct to the interference, and (g) the relations between the parties.

Id.

{¶17} The trial court properly applied this framework to its analysis of Union

Bank’s claim of justification.

{¶18} There is no genuine issue of material fact regarding the nature of Union

Bank’s conduct. It is undisputed that Kuehn sent a pair of emails to IBC informing IBC

that Union Bank would not move forward with any further loan modifications as long

as Couzens was associated with IBC. While the parties dispute whether Kuehn

personally visited Cincinnati before the vote to oust Couzens to encourage the

membership to vote Couzens out, it is undisputed that Union Bank encouraged IBC to

cut ties with Couzens in order to maintain its business relationship with the bank. Even

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if we were to credit Couzens’s version of events, Union Bank’s conduct was the two

emails and Kuehn’s presentation of options for continuing the financial relationship

with the bank.

{¶19} There was no genuine issue of material fact regarding the motive of

Union Bank. The trial court found that the motivation of Union Bank was to protect

its financial interests and there was no evidence that it intended either to harm

Couzens or profit from Couzens’s termination. Couzens has not presented any

evidence of Union Bank’s ulterior motive. Instead, Couzens made a sweeping

allegation that “it was well known in the community of African American churches that

banks did not like to lend to black churches.” However, in this case, Union Bank had

already lent more than $5 million to IBC. Union Bank had no problem lending to IBC

in the first instance. Union Bank made efforts to protect its financial interests after

IBC defaulted on its loan, defaulted again after the loan-modification agreement, and

sought further modifications to its loan.

{¶20} It is undisputed that the interest with which Union Bank interfered was

Couzens’s employment with IBC. We agree that there was no genuine issue of material

fact that Couzens had an employment interest that was subjected to interference at

least partially due to the prompting of Union Bank.

{¶21} The interest Union Bank sought to advance was protecting its own

business interest in keeping the loan to IBC active and recovering the loan amount.

Union Bank argues that its actions were necessary because it believed that Couzens’s

continued relationship with IBC jeopardized IBC’s ability to repay the loan. Couzens

has not provided any evidence to the contrary. Rather, Couzens argues that the bank

had less drastic means at its disposal, such as calling the loan pursuant to the default

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provisions or filing a foreclosure action against the property. However, these

arguments are unavailing: the loan was already set to mature with a balloon payment

due imminently in January 2020, and IBC’s negotiations with Union Bank were

intended to prevent foreclosure. Further, IBC had already agreed with Union Bank in

its prior loan-modification agreement to list the church for sale so that it could pay the

loan balance without going through foreclosure.

{¶22} With regard to the factor of the social interests in protecting the freedom

of action of the actor and the contractual interests of the other, the trial court found

that “[t]here is a societal interest in permitting a bank to condition a loan should they

so choose, but there is also an interest in permitting an individual to privately contract

for employment. This factor is neutral and favors neither party.” We agree with the

trial court’s assessment.

{¶23} There was no genuine issue of material fact regarding the proximity of

Union Bank’s conduct to the interference. Union Bank’s conduct of sending the emails

suggesting that Couzens be removed from his position at IBC immediately preceded

the vote to remove him.

{¶24} Finally, it is undisputed that the relationship between the parties is the

business relationship of lender and officer of the commercial borrower. This is an

arms-length relationship.

{¶25} There are no genuine issues of material fact relevant to the issue of

justification. We agree with the trial court that, when examining the Fred Siegel

factors, Couzens has failed to adduce evidence sufficient to show that Union Bank was

not justified in its conduct. Because Union Bank’s conduct was justified, we need not

consider the other elements of Couzens’s claim of tortious interference with contract.

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2. Tortious Interference with Business Relations

{¶26} “To prevail on a claim for tortious interference with a business

relationship, the plaintiff must show that the defendant intentionally and improperly

interfered with the plaintiff[’]s prospective business relations by either (1) inducing or

otherwise causing a third person not to enter into or continue the prospective relation,

or (2) preventing the plaintiff from acquiring or continuing the prospective relation.”

(Emphasis added.) Alexander, 1st Dist. Hamilton No. C-110836, 2012-Ohio-3911, at

¶ 30. Just as with the tortious-interference-with-contract claim, the plaintiff must

show that the alleged interference was without justification to prevail on a tortious-

interference-with-business-relations claim. Id. at ¶ 31.

{¶27} This court has not previously adopted a specific standard for

justification as a defense to tortious interference with business relations. However, we

previously recognized that the factors are similar to tortious interference with contract

in Clark v. Christ Hosp., 1st Dist. Hamilton No. C-060342, 2007-Ohio-4317, ¶ 20,

citing Fred Siegel, 85 Ohio St.3d at 176, 707 N.E.2d 853. Additionally, the Restatement

2d of Torts applies the same defenses to both torts. See 4 Restatement of the Law 2d,

Torts, Section 767, Comment a (1979). Therefore, we now hold that the same factors

for evaluating justification enumerated in Fred Siegel apply to a claim for tortious

interference with business relations.

{¶28} Because the same factors apply to both claims, our analysis above

applies equally to Couzens’s claim for tortious interference with business relations.

Couzens has failed to show that Union Bank’s conduct was not justified. Once again,

we need not consider the other elements of Couzens’s claim.

{¶29} Accordingly, Couzens’s first assignment of error is overruled.

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Second Assignment of Error

{¶30} In his second assignment of error, Couzens argues that the trial court

erred in granting summary judgment in favor of Union Bank on his claim of civil

conspiracy. As in his first assignment of error, Couzens argues that there are genuine

issues of material fact that should have been decided by a jury.

{¶31} Civil conspiracy is a derivative claim that “cannot be maintained absent

an underlying tort that is actionable without the conspiracy.” Meehan v. Mardis,

2019-Ohio-4075, 146 N.E.3d 1266, ¶ 46 (1st Dist.). Because we have held that the trial

court correctly granted summary judgment in favor of Union Bank on Couzens’s

tortious-interference claims, his civil-conspiracy claim must also fail.

{¶32} Couzens’s second assignment of error is overruled.

IV. Conclusion

{¶33} Couzens’s assignments of error are overruled, and the judgment of the

trial court is affirmed.

Judgment affirmed.

ZAYAS and BERGERON, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.