Pincus v. Pincus

127 N.E.3d 393, 2018 Ohio 5231
CourtCourt of Appeals of Ohio, Eighth District, Cuyahoga County
DecidedDecember 20, 2018
DocketNo. 106845
StatusPublished
Cited by3 cases

This text of 127 N.E.3d 393 (Pincus v. Pincus) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Eighth District, Cuyahoga County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pincus v. Pincus, 127 N.E.3d 393, 2018 Ohio 5231 (Ohio Super. Ct. 2018).

Opinion

ANITA LASTER MAYS, J.:

*395{¶1} Plaintiff-appellant Helene Frum Pincus ("Helene") appeals the trial court's grant of motions for judgment on the pleadings in favor of defendants-appellees, husband and wife, David Pincus ("David") and Arlene Pincus ("Arlene"), brother-in-law and sister-in law of Helene, Evan T. Byron ("Byron"), the attorney for David and Arlene, and Byron's former law firm, Lieberman, Dvorin & Dowd, L.L.C. ("LDD"). We affirm the trial court's judgments.

I. Background and Facts

{¶2} On September 15, 2016, the family-owned Pincus Bakery closed after operating for 48 years in the University Heights community. In June 2017, Byron filed suit against Helene on behalf of Arlene and David who are judgment creditors of Helene's husband, Steven Pincus ("Steven"). The bakery was founded by the parents of Steven and David Pincus. Steven worked as a full-time manager for 30 years and David worked part-time from 1992 to 2013. Reportedly, only Steven and his wife Helene made substantial monetary contributions to the business.

{¶3} Prior to the bakery closing Arlene, as legal representative for David, sued Steven and the bakery in December 2014, claiming mismanagement by Steven and receipt of a disproportionate share of the business income.1 Steven and the bakery counterclaimed. The bakery was forced to close in spite of a $50,000 cash gift by Helene's sister and brother-in-law, the Cohens. The Cohens also purchased Steven and Helene's home at the foreclosure sheriff's sale and allowed them to remain in residence.

{¶4} In October 2016, Steven and the bakery consented to a $500,000 judgment in the 2014 case and dismissed their counterclaims. Helene states that Arlene, David, and Byron waged a campaign of "harassment and intimidation against Helene and her family * * * to coerce Helene and/or the Cohens to satisfy the judgment."

{¶5} Arlene hired Byron and LDD to pursue the judgment. On June 7, 2017, Byron and LDD, on behalf of Arlene and David, filed a fraudulent transfer action against Helene purportedly including allegations against Helene that were previously made in the 2014 action against Steven and the bakery. On June 23, 2017, Byron sent a copy of the fraudulent transfer complaint to the Cleveland Jewish News newspaper ("CJN") purportedly with the full knowledge of David, Arlene, and LDD. The paper subsequently published the complaint.2

*396{¶6} Helene filed the instant case on October 2, 2017, arguing that the appellees acted maliciously because the fraudulent transfer complaint contained "numerous false and defamatory complaints against Helene." Appellant's brief, p. 5. Helene posits that

The decision to republish such salacious allegations to a local media outlet whose target audience specifically includes Helene's neighbors, family, friends and acquaintances gives rise to a reasonable inference that the [a]ppellees acted with malice and for an ulterior motive, to wit, to coerce Helene into paying off, or soliciting funds from the Cohens to pay off, the consent judgment against her husband.

Id. at p. 5-6.

{¶7} Count 1 of the complaint in the instant case claimed Arlene, David, and Byron made false or misleading defamatory statements against Helene at LDD's direction or acquiescence. Count 2 alleged Byron published the defamatory statements with the knowledge of the other parties to harass and embarrass Helene. Count 3 alleged invasion of privacy, right of seclusion, or nonpublicity by defendants-appellees. Count 4 asserted invasion of privacy and false light. Count 5 alleged intentional infliction of emotional distress and Count 6 alleged that defendants-appellees perverted and abused the legal process by publicizing the complaint. Appellees filed answers and subsequently moved for judgment on the pleadings pursuant to Civ.R. 12(C).

{¶8} On February 13, 2018, the trial court granted judgment on the pleadings for Byron and LDD. The trial court held:

Defendants Evan T. Byron and Lieberman, Dvorin and Dowd, LLC are entitled to judgment as a matter of law on all claims. Under the doctrine of absolute privilege, statements made in a judicial proceeding which bear some reasonable relationship to the proceeding are not actionable. See Surace v. Wuliger , 25 Ohio St.3d 229, 495 N.E.2d 939 (1986) ; Kutnick v. Fischer , 8th Dist. Cuyahoga No. 81851, 2004-Ohio-5378 [2004 WL 2251799]. Here, statements made in the complaint bear some reasonable relationship to the proceeding and are absolutely privileged. Further, the court finds there is no evidence defendants acted with malice or that defendants actually knew or recklessly disregarded the truth.

Journal entry No. 102513702 (Feb. 13, 2018).

{¶9} On February 21, 2018, the trial court granted judgment on the pleadings for Arlene and David:

The court finds that defendants Arlene Pincus and David Pincus are entitled to judgment as a matter of law on all claims. Under the doctrine of absolute privilege, statements made in a judicial proceeding which bear some reasonable relationship to the proceeding are not actionable. See Surace v. Wuliger , 25 Ohio St.3d 229, 495 N.E.2d 939 (1986) ; Kutnick v. Fischer , 8th Dist. Cuyahoga No. 81851, 2004-Ohio-5378 [2004 WL 2251799]. Here, statements made in the complaint bear some reasonable relationship to the proceeding and are absolutely privileged. Further, the court finds there is no evidence defendants acted with malice or that defendants actually knew or recklessly disregarded the truth.

Journal entry No. 102609878 (Feb. 21, 2018).

{¶10} Helene appeals the trial court's judgments. We affirm.

II. ASSIGNMENTS OF ERROR

{¶11} Helene proffers three assignments of error:

*397I. The trial court erred in applying the doctrine of absolute privilege to republication of defamatory statements in a complaint to a disinterested third party.
II. The trial court erred in granting judgment on the pleadings where allegations relating to malice were sufficiently stated.
III.

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Bluebook (online)
127 N.E.3d 393, 2018 Ohio 5231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pincus-v-pincus-ohctapp8cuyahog-2018.