[Cite as Weiler v. DLR Group, 2023-Ohio-1221.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
SHAWN WEILER, :
Plaintiff-Appellant, :
v. : No. 112091
DLR GROUP, A NEBRASKA CORP., : ET AL.,
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 13, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-964279
Appearances:
Shawn Weiler, pro se.
A. Steven Dever Co., L.P.A., and A. Steven Dever, for appellees.
SEAN C. GALLAGHER, J.:
This cause came to be heard upon the accelerated calendar pursuant
to App.R. 11.1 and Loc.App.R. 11.1. Shawn Weiler appeals the dismissal of his action based on the failure to state a claim upon which relief could be granted. For the
following reasons, the trial court’s judgment dismissing the action is affirmed.
Weiler filed a complaint advancing two claims for tortious
interference with a business relationship: DLR Group, Inc., headquartered in
Omaha, Nebraska, interfered with Weiler’s employment with Osborn Engineering
Company; and DLR Group also interfered with his attempts to thereafter secure a
new job. As is relevant to the discussion of Weiler’s allegations, there are five
elements to a tortious interference claim: “(1) [the existence of] a business
relationship or contract; (2) the defendant’s knowledge of the relationship or
contract; (3) the defendant’s intentional or improper action taken to prevent a
contract formation, procure a contractual breach, or terminate a business
relationship; (4) a lack of privilege; and (5) resulting damages.” Woods v. Sharkin,
2022-Ohio-1949, 192 N.E.3d 1174, ¶ 9o (8th Dist.). Any claim for tortious
interference requires allegations of an improper act or conduct. Id., citing Syed v.
Poulos, 8th Dist. Cuyahoga Nos. 103137 and 103499, 2016-Ohio-3168, ¶ 17, and
Baseball at Trotwood, L.L.C. v. Dayton Professional Baseball Club, S.D.Ohio No.
C-3-98-260, 2003 U.S. Dist. LEXIS 27460 (Sept. 2, 2003). In order to present a
cognizable claim for relief, a plaintiff must include allegations of fact supporting
each element of the tort claim.
According to Weiler’s allegations, Weiler worked for Westlake Reed
Leskosky (“WRL”) in 2016, when it was acquired by DLR Group. It is unclear
whether WRL is a subsidiary of DLR Group or was subsumed into DLR Group as part of the referenced acquisition. DLR Group outsourced services to Osborn on one
occasion during the relevant time frame. At one point, Weiler remembered a
conversation in which his manager at DLR Group stated that “upsetting an architect
would be [a] ‘very career limiting decision.’” Weiler’s manager later approached
Weiler, inquiring about prospective candidates who had submitted résumés. Weiler
told his manager he did not have any information about those candidates. DLR
Group terminated Weiler’s employment in April 2017.
Approximately a month later, Osborn hired Weiler.1 Over a year after
being hired at Osborn, Weiler sent an email addressed to “many employees” at WRL.
He attached a copy of the email to his complaint, the copy of which was reproduced
over two print pages, redacting all but two partial sentences: “Hello WRL
employees, [. . .] [t]ime passed and I started a new job at The Osborn Engineering
Company. In a last ditch[. . . .]”2 Weiler did not explain the reason for, or the
contents of, the email. In response to the email, an architect employed by DLR
Group contacted an individual at Osborn expressing anger at its contents and
1 Weiler filed a separate action against Osborn in CV-22-964282 advancing similar allegations as raised in the underlying action. Based on a different procedural posture, the dismissal was reversed in Weiler v. Osborn, 8th Dist. Cuyahoga No. 112023, 2023- Ohio-619. Weiler did not disclose the related proceeding to either this court or the trial court.
2 An email bearing the same date and including the same phrases was discussed in greater detail in Weiler v. C.L., 8th Dist. Cuyahoga No. 111657, 2022-Ohio-4212, ¶ 9, a case involving Weiler’s employment at WRL from May 2016 through April 2017 and detailing allegations of Weiler’s harassment of a coworker from his perspective. See also C.L. v. Weiler, 8th Dist. Cuyahoga No. 111474, 2023-Ohio-13, (affirming the order of contempt entered against Weiler for violating the terms of a protection order entered in favor of the coworker). “threatening economic consequences.” Weiler was informed of the conversation,
and Osborn terminated Weiler’s employment “for cause.” A copy of the termination
letter was also attached to the complaint. Other than the timing of the events, there
are no allegations tying Weiler’s termination for cause to the threat of “economic
consequences” referenced in the complaint.3
After losing his job with Osborn in June 2018, Weiler listed DLR
Group and WRL as previous employers on his résumé. He was able to secure a new
position four months after leaving Osborn. Although gainfully employed, Weiler
continued looking for other opportunities. In March 2020, Weiler was offered a
position with an unidentified company. A month after rejecting the other offer, he
lost his job.
Weiler started a new position in October 2020, but was terminated
the following December. Weiler continued his job search using pseudonyms for
“some of his prior employers.” It is unclear whether that included DLR Group or
WRL. The allegations do not provide that context. It is Weiler’s understanding,
based on a conversation he had with a “close relative” who was a “co-owner in a
business in the fall of 2020,” that potential employers contact a job applicant’s
previous employer during an application process. After securing a telephone
interview with an unidentified prospective employer, Weiler provided the
3 In general terms, appellate review typically focuses on the operative pleading, which in this case is the amended complaint. As will become apparent, discussing the complaint as originally filed, which was superseded by the amended complaint, is relevant to the allegations against DLR Group and Weiler’s motion for default judgment. interviewer with the actual names of those prior employers whose identity was
previously hidden. It is unclear which of his prior employers’ names were then
revealed. Weiler was not offered that position.
Based on those allegations in the complaint, Weiler claimed that DLR
Group, ostensibly through its employees, tortiously interfered with Weiler’s
employment at Osborn and thereafter interfered with all of Weiler’s prospective
employment opportunities.
DLR Group timely answered the allegations with general denials.
After DLR Group filed its answer, 28 days later as a matter of fact, Weiler filed an
amended complaint adding two additional parties to the action: Griff Davenport, a
resident of Minneapolis, Minnesota, and Paul Westlake, a resident of Cleveland,
Ohio. Davenport is alleged to be the CEO of DLR Group and Westlake the managing
principal of WRL.
The amended complaint also provided insight into the redacted email
referenced earlier. According to the amended complaint, the email “related public
— with regards to the company — actions of Davenport which might have indicated
criminal behavior” and further accused Westlake of unspecified “criminal behavior.”
Three days after Weiler sent the email, Westlake, the architect at DLR Group
generically referenced in the complaint, was alleged to have threatened Osborn with
unspecified “consequences,” the foundation of the first tortious interference claim.
Davenport, also as an employee of DLR Group, is alleged to have damaged Weiler’s
reputation, which impeded Weiler’s job search, the foundation of the second tortious interference claim. Importantly, the new pleading did not impact the
allegations against DLR Group but merely clarified the parties acting on behalf of
DLR Group.
On August 26, 2022, Weiler filed a motion for default judgment
against DLR Group based on its failure to file an answer to the amended complaint
within 14 days, as required under Civ.R. 15(A).4 DLR Group filed a brief in
opposition, seeking to strike the amended complaint or to permit the belated filing
of a responsive pleading. The same day, all three defendants jointly filed a motion
for judgment on the pleadings, asking for the case to be dismissed for the failure to
state a claim upon which relief could be granted under Civ.R. 12(B)(6).5
After granting Weiler leave to file an amended complaint, the trial
court granted the motion to dismiss, which was unopposed, concluding that the
amended complaint was “comprised of legal conclusions and is unsupported by any
factual allegations sufficient to raise a right to relief,” citing Tuleta v. Med. Mut. of
Ohio, 2014-Ohio-396, 6 N.E.3d 106, ¶ 56 (8th Dist.). Weiler timely appealed,
advancing four assignments of error.
4Because Davenport and Westlake were new party defendants, their responses were due 28 days following service of the amended complaint. Civ.R. 12(A).
5 Although the DLR Group sought leave to file an answer to the amended complaint
and attached a copy of the answer to the motion for leave to file an answer instanter, the trial court deemed that motion moot after considering the Civ.R. 12(B)(6) defense asserted in the defendants’ motion for judgment on the pleadings. Thus, it appears the motion for judgment on the pleadings should have been simply captioned as a motion to dismiss. The difference between a motion to dismiss and a motion for judgment on the pleadings is not relevant to the merits of the claims advanced and discussed in this appeal. In the first assignment of error, Weiler claims the trial court erred by
granting him leave to amend his complaint because leave was not required under
Civ.R. 15(A). Weiler is correct to a certain extent, but that does not entitle him to
any relief.
There are three procedural mechanisms available to file an amended
complaint once an answer is filed. See Civ.R. 15(A). A “party may amend its
pleading once as a matter of course * * * if the pleading is one to which a responsive
pleading is required within twenty-eight days after service of a responsive pleading
* * *.” (Emphasis added.) Civ.R. 15(A); see also Staff Notes for July 1, 2013
amendment (“Rule 15(A) is amended to allow amendment without leave of court of
a complaint, or other pleading requiring a responsive pleading, for a period of 28
days after the service of a responsive pleading or motion”); Hunter v. Shield, 10th
Dist. Franklin No. 18AP-244, 2019-Ohio-1422, ¶ 13. Outside of that 28-day window,
the plaintiff must either seek written consent from the opposing party or request
leave of court to amend the pleading. Hunter at ¶ 13-14. An amended complaint,
once properly filed, supersedes the preceding ones. Fried v. Friends of
Breakthrough Schools, 8th Dist. Cuyahoga No. 108766, 2020-Ohio-4215, ¶ 12,
citing Morris v. Morris, 189 Ohio App.3d 608, 2010-Ohio-4750, 939 N.E.2d 928,
¶ 32 (10th Dist.) (applying the proposition of law that an amended pleading
supersedes the original pleading). In this case, the amended complaint was filed
within 28 days of DLR Group’s answer being served. Thus, Weiler has a point; leave may not have been required to file the
amended pleading at the time it was filed. Regardless of how the amended
complaint became the operative pleading, however, the trial court considered the
allegations contained within the four corners of the amended complaint for the
purposes of resolving the motion to dismiss. It is immaterial whether the
amendment occurred as a matter of right or through leave of court under Civ.R.
15(A). Either way, the amended complaint became the operative pleading as of the
date it was filed and through whichever procedural path was taken. As of the filing
date, the amended complaint superseded and, therefore, replaced the original
complaint. Any error in the way the amended complaint was recognized, even if the
existence of error is presumed for the sake of the discussion, that error would be, at
best, harmless because it did not impact a substantial right. Civ.R. 61. The first
assignment of error is overruled.
In the second assignment of error, Weiler claims the trial court erred
in granting the motion for judgment on the pleadings because the trial court’s
conclusion, that the amended complaint failed to include allegations of operative
facts in support of the elements of the tortious interference claims, “was false.” On
this point, Weiler relies on Tuleta, 2014-Ohio-396, 6 N.E.3d 106 (8th Dist.), and the concept of notice pleading — claiming that the factual allegations in the complaint
were sufficient to present a prima facie case to survive the motion to dismiss.6
Dismissals under Civ.R. 12 are reviewed de novo. Weiler v.
Technipower Inc., 8th Dist. Cuyahoga No. 111729, 2023-Ohio-465, ¶ 11. Under
Civ.R. 12(C), “[a]fter the pleadings are closed but within such time as not to delay
the trial, any party may move for judgment on the pleadings.” The defense of failure
to state a claim under Civ.R. 12(B)(6) may be made within a motion for judgment on
the pleadings or through a stand-alone motion to dismiss. Civ.R. 12(H). A motion
to dismiss for failure to state a claim upon which relief can be granted, whether the
defense is advanced through a motion to dismiss or a motion for judgment on the
pleadings, is procedural and tests the sufficiency of the complaint. State ex rel.
Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 605 N.E.2d 378
(1992). Appellate courts accept all factual allegations of the complaint as true, and
all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v.
6 Weiler failed to file a brief in opposition to the motion for judgment on the pleadings, and as a result, it could be said that he has forfeited all but plain error for any arguments challenging the trial court’s decision granting the motion to dismiss. Ohio Power Co. v. Burns, Slip Opinion No. 2022-Ohio-4713, ¶ 40 (arguments not presented to the trial court before it resolves the issue presented for review are forfeited for appellate review, except if the appellant can demonstrate the existence of plain error), citing State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, and Goldfuss v. Davidson, 79 Ohio St.3d 116, 121-122, 679 N.E.2d 1099 (1997); see also Tye v. Beausay, 2020-Ohio-3746, 156 N.E.3d 331, ¶ 77 (2d Dist.), quoting USA Freight, L.L.C. v. CBS Outdoor Group, Inc., 2d Dist. Montgomery No. 26425, 2015-Ohio-1474, ¶ 21, and Rodger v. McDonald’s Restaurants of Ohio, Inc., 8 Ohio App.3d 256, 258, 456 N.E.2d 1262 (8th Dist.1982), fn. 7. Weiler’s forfeiture of the arguments in defense of his claims, however, was not presented as a basis to affirm. For this reason, the merits of the argument as presented must be discussed. See Quarterman at ¶ 19. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991). A complaint “should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief.”
O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327
N.E.2d 753 (1975); Doe v. Greenville City Schools, Slip Opinion No. 2022-Ohio-
4618, ¶ 8. Thus, in reviewing the dismissal of a complaint under Civ.R. 12(B)(6),
whether advanced as a motion to dismiss under Civ.R. 12(B)(6) or as applied
through Civ.R. 12(C), it must be determined whether the plaintiff alleged “sufficient
operative facts to support this claim.” Tuleta at ¶ 36.
As has already been mentioned, the elements of a tortious
interference tort claim are “(1) a business relationship or contract; (2) the
defendant’s knowledge of the relationship or contract; (3) the defendant’s
intentional or improper action taken to prevent a contract formation, procure a
contractual breach, or terminate a business relationship; (4) a lack of privilege; and
(5) resulting damages.” Woods, 2022-Ohio-1949, 192 N.E.3d 1174, at ¶ 9o (8th
Dist.).
There are two independent tortious interference claims presented in
the amended complaint: interference with an existing business relationship
(Weiler’s employment with Osborn) and interference with prospective business
relationships (Weiler’s attempts to seek employment after his position was
terminated by Osborn). With respect to the latter claim, Weiler alleges that
Davenport, as an employee of DLR Group, interfered in Weiler’s job search through damaging his reputation. Weiler, however, failed to identify the existence of any
specific prospective business relationships that were prevented based on
Davenport’s conduct.
In order to substantiate a claim for tortious interference with a
prospective business relationship or contract, a plaintiff must include allegations of
fact demonstrating the existence of “an actual prospective contractual relation” that
but for the interference, would have been consummated. One Energy Ents., LLC v.
Ohio DOT, 10th Dist. Franklin No. 17AP-829, 2019-Ohio-359, ¶ 75 (string citing case
authority); see also Emanuel’s LLC v. Restore Marietta, Inc., 4th Dist. Washington
No. 22CA6, 2023-Ohio-147, ¶ 23, citing Wilkey v. Hull, 366 Fed.Appx. 634, 638 (6th
Cir.2010). “A vague assertion that a party interfered with certain unspecified
business relationships is insufficient to state a claim for tortious interference with a
business relationship.” Emanuel’s LLC at ¶ 23. Weiler has not presented any
allegations that demonstrate the existence of a prospective employment opportunity
that would have been entered but for the tortious conduct of Davenport and DLR
Group. The amended complaint is limited to a conclusion that his unsuccessful job
search was a result of Davenport ruining Weiler’s reputation based on Weiler’s belief
that prospective employers may have contacted Weiler’s previous employers.
That vague and conclusory allegation is insufficient to establish a
claim for tortious interference with prospective business relationships. Weiler failed
to include allegations identifying the existence of any specific, prospective business
relationships that would have been entered but for the alleged interference. With respect to the tortious conduct related to Westlake’s alleged
interference with Weiler’s employment at Osborn, the allegations are similarly
limited. Westlake obtained knowledge of Weiler’s employment relationship with
Osborn through the email accusing Westlake of criminal behavior, and according to
Weiler, Westlake thereafter caused Osborn to “maliciously” terminate his
employment. That naked assertion is not based on any factual allegations, and
accordingly, such a conclusion is not sufficient to demonstrate a claim of tortious
interference with a business relationship or contract. Tuleta, 2014-Ohio-396, 6
N.E.3d 106, at ¶ 36 (8th Dist.).
On this claim, the factual allegations as set forth in the amended
complaint are limited to Westlake calling an unidentified person at Osborn,
threatening Osborn with unidentified “consequences,” and expressing “how upset”
Westlake was over Weiler’s email that had accused Westlake of “criminal behavior.”
None of those allegations, even when accepted as true, demonstrate that Westlake
intended Osborn to terminate or otherwise interfere with Weiler’s employment to
avoid imposition of the unspecified consequences or that Westlake lacked any
privilege to discuss the matter with an Osborn employee.
The amended complaint does not contain allegations of fact
supporting each element of a tortious interference claim, and as a result, those
allegations are not sufficient to survive a motion to dismiss for failure to state a claim
under Civ.R. 12(B)(6). Without allegations of operative facts in support of each
element of a tort claim, the action is properly dismissed. See id. at ¶ 42, 46, 51, and 57. Accordingly, it cannot be concluded that the trial court erred in granting the
motion to dismiss the amended complaint. The second assignment of error is
overruled.
In the last two assignments of error, Weiler claims the trial court
erred in deeming his motion for default and DLR Group’s motion to strike the
amended complaint as being moot following the dismissal of the case. As a matter
of course, Weiler lacks standing to contest the trial court’s decision deeming DLR
Group’s motion moot. No more need be said on that point.
Even if deeming Weiler’s motion for default moot was construed as
denying him the relief requested, a trial court has discretion to grant or deny a
motion for default judgment. 533 Short N. LLC v. Zwerin, 10th Dist. Franklin No.
14AP-1016, 2015-Ohio-4040, ¶ 50, citing Zuljevic v. Midland-Ross Corp., Unitcast
Div., 62 Ohio St.2d 116, 119, 403 N.E.2d 986 (1980), fn. 2. “Under Civ.R. 55(A), a
default judgment is only proper when a party has ‘failed to plead or otherwise
defend.’” Miranda v. Saratoga Diagnostics, 2012-Ohio-2633, 972 N.E.2d 145, ¶ 28
(8th Dist.), quoting Chase Manhattan Automotive Fin. Corp. v. Glass, 11th Dist.
Trumbull No. 2000-T-0090, 2001 Ohio App. LEXIS 3187, 2001 WL 799875, *1
(July 13, 2001).
DLR Group did not fail to plead or otherwise defend the action
initiated by Weiler. An answer was filed to the original complaint, which contained
the same operative facts and allegations as advanced against DLR Group in the
amended complaint. The amended complaint solely added two additional parties and offered clarification with respect to some of the general allegations. In addition,
a motion for leave to file a belated answer was pending along with the motion for
default. In light of the procedural circumstances and the affirmance of the decision
dismissing the case based on the deficiencies within the amended complaint, it
cannot be concluded that the trial court abused its discretion by declaring the
motion for default as being moot based on the trial court’s resolution of the case.
The final two assignments of error are overruled.
The decision of the trial court is affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________ SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and MARY J. BOYLE, J., CONCUR