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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Friday, May 27, 2022 1:52:16 PM
CASE NUMBER: 2021 CV 04232 Docket ID: 36346545
MIKE FOLEY
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
KURT & CHARMAINE GOEBEL * CASE NO. 2021 CV 04232
Plaintiffs JUDGE WILLIAM H. WOLFF
v. * DEFENDANT COLONIAL LANE
IMPROVEMENT ASSOCIATION’S
COLONIAL LANE IMPROVEMENT MEMORANDUM IN OPPOSITION
ASSOCIATION TO PLAINTIFFS’ MOTION FOR
* LEAVE TO AMEND COMPLAINT
Defendant
Plaintiffs seek to amend their complaint to add a claim for defamation based on an article
in the neighborhood Newsletter. The language at issue on page 3 simply is an opinion of the author
and not a false statement of fact. Even if viewed as defamatory, Plaintiffs failed to plead all the
necessary elements of a defamation per quod claim because they do not allege special damages.
To allow the addition of Plaintiffs’ new claim, would prejudice the Association due to the
additional discovery that would need to be served and responded to by Plaintiffs before their
depositions could be taken. Also, based on Plaintiffs’ responses and testimony, the Association
might need to retain an expert and produce an expert report to address Plaintiffs alleged damages.
When considering a request to amend a complaint, the court can consider factors, including
whether the Plaintiffs make a prima facie showing of support for the new matter sought to be
pleaded, the timeliness of the motion, and whether the proposed amendment would prejudice the
opposing party. See Wilmington Steel Prods., Inc. v. Cleveland Elec. Illuminating, 60 Ohio St.3d
120, 573 N.E.2d 622 (1991). “Where a plaintiff fails to make a prima facie showing of support for
new matters sought to be pleaded, a trial court acts within its discretion to deny a motion to amend
the pleading.” Id. at syllabus. In making such a showing, the plaintiff must marshal support for the
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A Legal Professional Association
new matters sought to be pleaded, and the amendment cannot be simply a delaying tactic or one
which would cause prejudice to the defendant. Id.
To succeed on their defamation claim, Plaintiffs must establish that the article in the
Newsletter contains 1) a false statement of fact that was made about the Plaintiffs, 2) the statement
was defamatory, 3) the statement was published, 4) the Plaintiffs suffered injury as a proximate
result of the publication, and 5) the Association acted with the requisite degree of fault in
publishing the statement. See Am. Chem. Soc. v. Leadscope Inc., 133 Ohio St.3d 366, 390, 978
N.E.2d 832.
Additionally, there are two types of defamation claims: defamation per se and defamation
per quod. Defamation per se occurs when a statement is defamatory on its face and subject only to
one meaning. Becker v. Toulmin, 165 Ohio St. 549, 556, 138 N.E.2d 391 (1956). When a statement
appears innocent on its face and is only defamatory through interpretation, innuendo, or
consideration of extrinsic evidence, then it is defamatory per quod. Gosden v. Louis, 116 Ohio
App.3d 195, 206, 687 N.E.2d 481, 488 (Ohio Ct. App. 1996). Special damages must be pleaded
and proven. If a statement is defamatory per quod, the plaintiff must plead and prove special
damages, although no such requirement exists for defamation per se. Murray v. Knight-Ridder,
Inc., 7th Dist. Belmont No. 02 BE 45, 2004-Ohio-821, ¶ 16.
Here, the Newsletter article, which is the basis of Plaintiffs’ motion, fails to meet the
threshold of a defamatory statement. Plaintiffs argue that the article contains two false statements
of fact – 1) the Plaintiffs own the grate (the Goebel grate) and 2) the Plaintiffs are responsible for
maintaining the grate.
-2-
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A Legal Professional Association
The reference to the “Goebel” grate simply was a geographical identifier for that specific
grate because an identical grate is located across the Lane on another resident’s property. Also, the
article does not expressly state any wrongdoing by Plaintiffs or that they are responsible for
maintaining the grate. Instead, the author simply notes that the accumulation of leaves and mud
blocks the natural drainage of the storm water runoff. Despite Plaintiffs’ characterizations, the
Newsletter is not an official publication from the Association’s Board of Trustees, and the
statements simply reflect an opinion.
Even if the article is considered defamatory, the statements would be deemed defamation
per quod because the statements are subject to more than one meaning, depending on the
interpretation or innuendo. The statements are capable of both an innocent meaning, as well as a
defamatory meaning through interpretation or innuendo. In fact, Plaintiffs essentially acknowledge
their claim is for defamation per quod when they state, “The article suggests that the Goebels have
negligently maintained the ‘Goebel grate.’” (Emphasis added.) See Plaintiffs’ Motion for Leave
to Amend Complaint, p. 3.
When a statement is defamatory per quod, Plaintiffs are required to plead special damages
which they did not. Also, Civ. R. 9(G) requires that claims for defamation per quod be pled with
specificity, which Plaintiffs did not do. As a result, this Court is justified in its discretion to deny
Plaintiffs’ Motion to Amend Complaint due to their failure to make “a prima facie showing of
support for the new matter sought to be pleaded.”
Finally, the addition of the defamation claim will prejudice the Association because
additional written discovery will need to be served to and responded by Plaintiffs before their
depositions can be taken. Further, based on Plaintiffs’ responses and deposition testimony, the
-3-
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A Legal Professional Association
Association might need to retain a previously undisclosed expert to address Plaintiffs’ claimed
damages and produce a report.
Based on Plaintiffs’ failure to plead special damages, the prejudice to the Association due
to the additional written and possible expert discovery needed, and the simple truth that the
statements at issue are not defamatory, Defendant, Colonial Lane Improvement Association,
requests this Court to deny Plaintiffs’ Motion for Leave to Amend Complaint. Alternatively, if the
Court decides to grant the motion, the Association requests the Court set a pretrial scheduling
conference to establish a revised Pretrial Order to allow the Association sufficient time to complete
discovery and prepare expert reports.
Respectfully submitted,
_/s/ Nicole A. Mitchell_______
Nicole A. Mitchell (0068178)
Gregory S. Kessler (0066597)
Freund, Freeze & Arnold
8899 Brookside Avenue, Suite 203
West Chester, OH 45069
T: 513-587-3917
F: 513-618-3917
nmitchell@ffalaw.com
gkessler@ffalaw.com
Attorneys for Defendant, Colonial Lane
Improvement Association
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FREUND, FREEZE & ARNOLD
A Legal Professional Association
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing was served this 27th day of
May 2022, via electronic mail upon the following:
Richard L. Carr, Jr. (0003180)
Auman, Mahan & Furry
110 North Main Street, Suite 1000
Dayton OH 45402-1738
rlc@amfdayton.com
Attorney for Plaintiffs
_/s/ Nicole A. Mitchell_________
Nicole A. Mitchell (0068178)
-5-
FREUND, FREEZE & ARNOLD
A Legal Professional Association
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Friday, May 27, 2022 1:52:16 PM CASE NUMBER: 2021 CV 04232 Docket ID: 36346545 MIKE FOLEY CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION KURT & CHARMAINE GOEBEL * CASE NO. 2021 CV 04232 Plaintiffs JUDGE WILLIAM H. WOLFF v. * DEFENDANT COLONIAL LANE IMPROVEMENT ASSOCIATION’S COLONIAL LANE IMPROVEMENT MEMORANDUM IN OPPOSITION ASSOCIATION TO PLAINTIFFS’ MOTION FOR * LEAVE TO AMEND COMPLAINT Defendant Plaintiffs seek to amend their complaint to add a claim for defamation based on an article in the neighborhood Newsletter. The language at issue on page 3 simply is an opinion of the author and not a false statement of fact. Even if viewed as defamatory, Plaintiffs failed to plead all the necessary elements of a defamation per quod claim because they do not allege special damages. To allow the addition of Plaintiffs’ new claim, would prejudice the Association due to the additional discovery that would need to be served and responded to by Plaintiffs before their depositions could be taken. Also, based on Plaintiffs’ responses and testimony, the Association might need to retain an expert and produce an expert report to address Plaintiffs alleged damages. When considering a request to amend a complaint, the court can consider factors, including whether the Plaintiffs make a prima facie showing of support for the new matter sought to be pleaded, the timeliness of the motion, and whether the proposed amendment would prejudice the opposing party. See Wilmington Steel Prods., Inc. v. Cleveland Elec. Illuminating, 60 Ohio St.3d 120, 573 N.E.2d 622 (1991). “Where a plaintiff fails to make a prima facie showing of support for new matters sought to be pleaded, a trial court acts within its discretion to deny a motion to amend the pleading.” Id. at syllabus. In making such a showing, the plaintiff must marshal support for the FREUND, FREEZE & ARNOLD A Legal Professional Association new matters sought to be pleaded, and the amendment cannot be simply a delaying tactic or one which would cause prejudice to the defendant. Id. To succeed on their defamation claim, Plaintiffs must establish that the article in the Newsletter contains 1) a false statement of fact that was made about the Plaintiffs, 2) the statement was defamatory, 3) the statement was published, 4) the Plaintiffs suffered injury as a proximate result of the publication, and 5) the Association acted with the requisite degree of fault in publishing the statement. See Am. Chem. Soc. v. Leadscope Inc., 133 Ohio St.3d 366, 390, 978 N.E.2d 832. Additionally, there are two types of defamation claims: defamation per se and defamation per quod. Defamation per se occurs when a statement is defamatory on its face and subject only to one meaning. Becker v. Toulmin, 165 Ohio St. 549, 556, 138 N.E.2d 391 (1956). When a statement appears innocent on its face and is only defamatory through interpretation, innuendo, or consideration of extrinsic evidence, then it is defamatory per quod. Gosden v. Louis, 116 Ohio App.3d 195, 206, 687 N.E.2d 481, 488 (Ohio Ct. App. 1996). Special damages must be pleaded and proven. If a statement is defamatory per quod, the plaintiff must plead and prove special damages, although no such requirement exists for defamation per se. Murray v. Knight-Ridder, Inc., 7th Dist. Belmont No. 02 BE 45, 2004-Ohio-821, ¶ 16. Here, the Newsletter article, which is the basis of Plaintiffs’ motion, fails to meet the threshold of a defamatory statement. Plaintiffs argue that the article contains two false statements of fact – 1) the Plaintiffs own the grate (the Goebel grate) and 2) the Plaintiffs are responsible for maintaining the grate. -2- FREUND, FREEZE & ARNOLD A Legal Professional Association The reference to the “Goebel” grate simply was a geographical identifier for that specific grate because an identical grate is located across the Lane on another resident’s property. Also, the article does not expressly state any wrongdoing by Plaintiffs or that they are responsible for maintaining the grate. Instead, the author simply notes that the accumulation of leaves and mud blocks the natural drainage of the storm water runoff. Despite Plaintiffs’ characterizations, the Newsletter is not an official publication from the Association’s Board of Trustees, and the statements simply reflect an opinion. Even if the article is considered defamatory, the statements would be deemed defamation per quod because the statements are subject to more than one meaning, depending on the interpretation or innuendo. The statements are capable of both an innocent meaning, as well as a defamatory meaning through interpretation or innuendo. In fact, Plaintiffs essentially acknowledge their claim is for defamation per quod when they state, “The article suggests that the Goebels have negligently maintained the ‘Goebel grate.’” (Emphasis added.) See Plaintiffs’ Motion for Leave to Amend Complaint, p. 3. When a statement is defamatory per quod, Plaintiffs are required to plead special damages which they did not. Also, Civ. R. 9(G) requires that claims for defamation per quod be pled with specificity, which Plaintiffs did not do. As a result, this Court is justified in its discretion to deny Plaintiffs’ Motion to Amend Complaint due to their failure to make “a prima facie showing of support for the new matter sought to be pleaded.” Finally, the addition of the defamation claim will prejudice the Association because additional written discovery will need to be served to and responded by Plaintiffs before their depositions can be taken. Further, based on Plaintiffs’ responses and deposition testimony, the -3- FREUND, FREEZE & ARNOLD A Legal Professional Association Association might need to retain a previously undisclosed expert to address Plaintiffs’ claimed damages and produce a report. Based on Plaintiffs’ failure to plead special damages, the prejudice to the Association due to the additional written and possible expert discovery needed, and the simple truth that the statements at issue are not defamatory, Defendant, Colonial Lane Improvement Association, requests this Court to deny Plaintiffs’ Motion for Leave to Amend Complaint. Alternatively, if the Court decides to grant the motion, the Association requests the Court set a pretrial scheduling conference to establish a revised Pretrial Order to allow the Association sufficient time to complete discovery and prepare expert reports. Respectfully submitted, _/s/ Nicole A. Mitchell_______ Nicole A. Mitchell (0068178) Gregory S. Kessler (0066597) Freund, Freeze & Arnold 8899 Brookside Avenue, Suite 203 West Chester, OH 45069 T: 513-587-3917 F: 513-618-3917 nmitchell@ffalaw.com gkessler@ffalaw.com Attorneys for Defendant, Colonial Lane Improvement Association -4- FREUND, FREEZE & ARNOLD A Legal Professional Association CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing was served this 27th day of May 2022, via electronic mail upon the following: Richard L. Carr, Jr. (0003180) Auman, Mahan & Furry 110 North Main Street, Suite 1000 Dayton OH 45402-1738 rlc@amfdayton.com Attorney for Plaintiffs _/s/ Nicole A. Mitchell_________ Nicole A. Mitchell (0068178) -5- FREUND, FREEZE & ARNOLD A Legal Professional Association