author: CALLAHAN, Judge.

text:
    CITY OF HUDSON, et al., Appellants v. STATE of Ohio, Appellee
    No. 28730
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: June 20, 2018
    R. TODD HUNT, WILLIAM R. HANNA, and BRENDAN D. HEALY, Cleveland, Attorneys at Law, for Appellants.
    MIKE DeWINE, Attorney General of Ohio, and RENATA Y. STAFF and SARAH E. PIERCE, Assistant Attorneys General, for Appellee.
    JAY R. CARSON, Cleveland, and RACHEL E. LYONS, Attorneys at Law, for Amicus Curiae, CITA-The Wireless Association.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Appellants, 34 northeast Ohio municipalities ("the Municipalities"), appeal from the judgment of the Summit County Common Pleas Court granting summary judgment in favor of Appellee, the State of Ohio ("the State"). For the reasons set forth below, this Court vacates and remands for proceedings consistent with this opinion.

I.

{¶ 2} Four days before Substitute Senate Bill 331 ("S.B. 331") went into effect, the Municipalities filed an action for declaratory judgment asserting various constitutional challenges to S.B. 331, and injunctive relief to enjoin the operation of all provisions of S.B. 331. Upon the close of the pleadings, the parties agreed to bifurcate the claims and proceed with cross motions for summary judgment on only two of the constitutional arguments.

{¶ 3} The trial court granted summary judgment in favor of the State and against the Municipalities finding that S.B. 331 did not violate the one-subject rule and, thereby, is constitutional. The trial court did not enter any ruling regarding the parties' alternative constitutional argument regarding the three-reading rule. Upon the Municipalities' unopposed motion, the trial court added the Civ.R. 54(B) certification to the judgment entry.

{¶ 4} The Municipalities have timely appealed from this judgment, raising four assignments of error. Additionally, before this Court is an amicus curiae brief in support of the constitutionality of S.B. 331 filed, with leave of this Court, by CITA-The Wireless Association. Further, both the Municipalities and the State have filed multiple notices of supplemental authorities.

II.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED WHEN IT DETERMINED THAT [S.B. 331] DID NOT VIOLATE ARTICLE II, SECTION 15(D) OF THE OHIO CONSTITUTION, COMMONLY REFERRED TO AS THE ONE-SUBJECT RULE.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ESTABLISHED AN ERRONEOUS STANDARD FOR REVIEWING ONE-SUBJECT CHALLENGES.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED WHEN IT REFUSED TO INVALIDATE AND SEVER THOSE PROVISIONS OF
S.B. 331 UNRELATED TO THE ORIGINAL SUBJECT OF THE BILL.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN CONCLUDING [THE MUNICIPALITIES] FAILED TO ESTABLISH A VIOLATION OF THE ONE-SUBJECT RULE "BEYOND A REASONABLE DOUBT."

{¶ 5} The Municipalities raise four assignments of error challenging the trial court's determination that S.B. 331 is constitutional. As a preliminary matter, this Court must address the validity of the judgment entry being appealed.

{¶ 6} Upon review of the record and the judgment entry, this Court issued a show cause order to the parties to address two issues: 1) whether this Court has jurisdiction, and the propriety of the Civ.R. 54(B) certification in the context of judicial economy when there is no judgment against two of the municipalities who asserted the same cause of action, and 2) whether the judgment entry ruling on the first amended complaint is valid when there is a second amended complaint pending. The Municipalities and the State each filed a response to the show cause order. This Court will only address the validity of the judgment entry as it is dispositive in this matter.

{¶ 7} Both the Municipalities and the State assert that the judgment entry is valid and that this Court should proceed to consider the merits of the appeal. While this Court recognizes the parties' desire to proceed on the merits, this Court cannot review a judgment that is a nullity.

{¶ 8} In this case there was a complaint, a first amended complaint, and a second amended complaint. Eleven days after filing the original complaint, the Municipalities filed the first amended complaint which added twelve plaintiffs and two causes of action, deleted one cause of action, and modified the relief sought. Upon the consent of the State, the Municipalities filed a second amended complaint which added two more plaintiffs.

{¶ 9} Upon agreement of the parties, they filed cross motions for summary judgment as to the first and fourth causes of action only. The trial court granted summary judgment in favor of the State and against the Municipalities on the first cause of action, but did not enter any judgment as to the fourth cause of action. The trial court's judgment entry specified four times that the grant of summary judgment was based upon "Count I of the Plaintiffs' First Amended Complaint" despite the Municipalities properly filing a second amended complaint.

{¶ 10} The Ohio Supreme Court has stated that "it is elementary law that when a party substitutes an amended petition for an earlier one, this constitutes an abandonment of the earlier pleading and a reliance upon the amended one. The earlier pleading becomes functus officio." (Emphasis deleted.) State ex rel. Talaba v. Moreland , 132 Ohio St. 71, 75, 5 N.E.2d 159 (1936). Similarly, this Court has held that "[t]he filing of an amended complaint supplants the original or any prior complaint." Schaffer v. Huntington Natl. Bank , 9th Dist. Lorain No. 14CA010574, 2015-Ohio-207, 2015 WL 304175, ¶ 5. See Wells Fargo Bank, N.A. v. Russell , 9th Dist. Summit No. 28055, 2017-Ohio-5630, 2017 WL 2857296, ¶ 13, quoting Harris v. Ohio Edison Co. , 7th Dist. Mahoning No. 91 C.A. 108, 1992 WL 188511, at *2 (Aug. 3, 1992) (" 'An amended complaint takes the place of the original, which is then totally abandoned.' ").

{¶ 11} Because an amended pleading supersedes the original pleading, the latter is treated as being nonexistent. See Carlock v. Coleman , 7th Dist. No. 89 C.A. 121, 1990 WL 121874, at *2 (Aug. 22, 1990), quoting 75 Ohio Jurisprudence 3d 343, Pleading, Section 469. Thus, the trial court may only consider the latest amended pleading when deciding the issues in the case. See Mitchell v. Reese , 105 Ohio App. 40, 41, 142 N.E.2d 665 (10th Dist.1957), quoting Raymond v. T., St. L. & K.C. RR. Co. , 57 Ohio St. 271, 48 N.E. 1093 (1897), paragraph two of the syllabus. See also Carlock at *2 ; Snyder v. Gleason Constr. Co. , 6th Dist. Lucas No. L-12-1187, 2013-Ohio-1930, 2013 WL 1933165, ¶ 19-20. When there is an amended pleading, a judgment based on the original pleading is void. See Mitchell at 41, 142 N.E.2d 665. See also Yakov Re, LLC v. Rhodes , 1st Dist. Hamilton No. C-130349, 2014-Ohio-2025, 2014 WL 1999300, ¶ 6 (judgment based upon original complaint was a nullity).

{¶ 12} In their responses to this Court's show cause order, neither of the parties addressed the application of this legal principal to the facts of this case. The State argued that under Russell , 2017-Ohio-5630, at ¶ 14, there was no error in the trial court granting summary judgment based upon the first amended complaint, because "the factual allegations and claims for relief between the first and second complaint [were] perfectly identical" and thus, "the trial court [had] 'issued an order disposing of the underlying claims.' " (Emphasis deleted.) Instead of addressing whether the judgment entry was a valid judgment or a nullity as instructed in the show cause order, the State argued why the judgment entry was a final, appealable order. Accordingly, the State's response to this issue was not on point.

{¶ 13} Similar to the State, the Municipalities asserted that the first cause of action was the same in both the first and second amended complaints. The Municipalities, however, expanded this concept to argue that "[t]he trial court's incorrect reference to the [f]irst [a]mended [c]omplaint [was] harmless and should be disregarded." The Municipalities relied upon West v. McGrath , 8th Dist. Cuyahoga No. 101251, 2014-Ohio-4096, 2014 WL 4656818, in support of the application of harmless error to this case.

{¶ 14} This Court finds West to be distinguishable and unpersuasive. The Eighth District held that it was harmless error for the trial court to rule on the motion to dismiss based upon the complaint instead of the amended complaint because the allegations in the two pleadings were similar and there was no change in the parties. Id. at ¶ 7. While the allegations in the first and second amended complaint in this case are the same, unlike the facts in West, the parties are not the same in both pleadings.

{¶ 15} Instead, this Court finds persuasive the position taken by the Tenth and the First Districts that a judgment rendered on an original pleading is void or a nullity when there is an amended pleading pending. Mitchell , 105 Ohio App. at 41, 142 N.E.2d 665 ; Rhodes , 2014-Ohio-2025, at ¶ 6. When the Municipalities filed the second amended complaint, they abandoned their first amended complaint. See Russell , 2017-Ohio-5630, at ¶ 13, quoting Harris , 1992 WL 188511 at *2. Thus, the first amended complaint no longer existed for the trial court's consideration in deciding the cross summary judgment motions. See Carlock , 1990 WL 121874 at *2 ;

Mitchell at 41, 142 N.E.2d 665. Accordingly, it was error for the trial court to grant summary judgment based upon the Municipalities' first amended complaint and the August 1, 2017 judgment is a nullity. See Rhodes at ¶ 6. See also Snyder , 2013-Ohio-1930, at ¶ 20.

{¶ 16} In lieu of "declaring the trial court's decision a nullity," the Municipalities requested a limited remand in order to seek a nunc pro tunc order from the trial court pursuant to Civ.R. 60(A). The Municipalities are asking this Court to treat this as a clerical error.

{¶ 17} The Ohio Supreme Court has stated that "[t]he effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment." (Internal citations omitted.) Romito v. Maxwell , 10 Ohio St.2d 266, 267, 227 N.E.2d 223 (1967). Based on the foregoing discussion, this Court must proceed as if the August 1, 2017 judgment entry does not exist. See State v. Bedford , 184 Ohio App.3d 588, 2009-Ohio-3972, 921 N.E.2d 1085, ¶ 10 (9th Dist.). Thus, it follows that this Court cannot remand a case to the trial court with instructions to nunc pro tunc a judgment that does not exist. The Municipalities' motion for limited remand is denied.

{¶ 18} Even if this Court were to disregard the effect of the void judgment, the Municipalities' request for a limited remand fails because there is not clear and convincing evidence before this Court that there was a clerical error in the judgment entry.

{¶ 19} Courts have inherent authority to issue nunc pro tunc entries "so that the record speaks the truth," but that authority is limited "to reflecting what the court actually decided, not what the court might or should have decided or what the court intended to decide." State ex rel. Fogle v. Steiner , 74 Ohio St.3d 158, 163-164, 656 N.E.2d 1288 (1995). "Errors subject to correction by the court include a clerical error, mistake, or omission that is mechanical in nature and apparent on the record and does not involve a legal decision or judgment." State v. Lester , 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 18. This Court has stated that "[t]he power of a court to enter nunc pro tunc orders should be exercised upon evidence which shows 'clearly and convincingly' that such former action was in fact taken." Ohio Dept. of Commerce v. NCM Plumbing Corp. , 9th Dist. Summit No. 21878, 2004-Ohio-4322, 2004 WL 1837042, ¶ 19, quoting Jacks v. Adamson , 56 Ohio St. 397, 47 N.E. 48 (1897), syllabus. To support the fact that the trial court did take the action and that there was a clerical error, there needs to be "such convincing evidence as to exclude all conjecture." Jacks at 404, 47 N.E. 48.

{¶ 20} The Municipalities asserted that "the trial court's reference to the [f]irst [a]mended [c]omplaint [was] a clerical error" and "[t]he trial court inadvertently referenced the incorrect amended complaint in its judgment entry." The Municipalities, however, provided no factual support from the record to support this position, and instead simply put forth conjecture that there was a clerical error.

{¶ 21} The judgment entry specifically identified on four separate occasions the first amended complaint as the pleading upon which summary judgment was considered and granted. There is nothing contrary in the judgment entry to support the Municipalities' position that the trial court, in fact, based its summary judgment decision on the second amended complaint and "inadvertently referenced" the first amended complaint.

{¶ 22} Further, the docket reflects the Municipalities filed the second amended complaint pursuant to the consent of the State and not upon leave of court. Thus, the trial court was not actively put on notice by the parties of the filing of the second amended complaint. Moreover, neither party identified upon which pleading the summary judgment motions were premised. Based on the foregoing, there was not clear and convincing evidence that "the trial court's reference to the [f]irst [a]mended [c]omplaint [was] a clerical error" to support a limited remand for a nunc pro tunc entry.

III.

{¶ 23} The Municipalities' assignments of error are moot. The August 1, 2017 judgment entry of the Summit County Common Pleas Court is vacated and the cause is remanded for consideration of the cross summary judgment motions as applied to the second amended complaint.

Judgment vacated and cause remanded.

SCHAFER, P.J.

TEODOSIO, J.

CONCUR.

      Functus officio is defined as "[h]aving fulfilled the function * * * or accomplished the purpose, and therefore of no further force or authority. Applied to * * * an instrument, * * * which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect." Black's Law Dictionary 606 (5th Ed. 1979).


source: Caselaw Access Project

author: TUCKER, J.

license: Public Domain

text:
    Larry C. JAMES, et al., Plaintiffs-Appellants v. David HOFFMAN, et al., Defendants-Appellees
    No. 27735
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on June 22, 2018
    JAMES E. ARNOLD, Atty. Reg. No. 0037712 and GERHARDT A. GOSNELL, II, Atty. Reg. No. 0064919, 115 West Main Street, 4th Floor, Columbus, Ohio 43215, Attorneys for Plaintiffs-Appellants; and BONNY J. FORREST, pro hac vice, 555 Front Street, Suite 1403, San Diego, California 92101, Attorney for Plaintiffs-Appellants Larry C. James, L. Morgan Banks, III, Debra L. Dunivin, and Russell Newman; and LOUIS J. FREEH, pro hac vice, 2550 M Street NW, 2nd Floor, Washington, DC 20037, Attorney for Plaintiff-Appellant Stephen Behnke
    J. STEVEN JUSTICE, Atty. Reg. No. 0063719 and GLEN R. McMURRY, Atty. Reg. No. 0082600, 210 West Main Street, Troy, Ohio 45373, and BARBARA S. WAHL, pro hac vice, and KAREN E. CARR, pro hac vice, 1717 K Street, NW, Washington, DC 20006, Attorneys for Defendant-Appellee American Psychological Association
    D. JEFFREY IRELAND, Atty. Reg. No. 0010443, ERIN E. RHINEHART, Atty. Reg. No. 0078298, and CHRISTOPHER C. HOLLON, Atty. Reg. No. 0086480, 110 North Main Street, Suite 1600, Dayton, Ohio 45402, and THOMAS G. HENTOFF, pro hac vice, and JOHN K. VILLA, pro hac vice, 725 Twelfth Street, NW, Washington, DC 20005, Attorneys for Defendants-Appellees Sidley Austin LLP and David Hoffman
   TUCKER, J.

{¶ 1} Plaintiffs-appellants, L. Morgan Banks, III; Stephen Behnke; Debra L. Dunivin; Larry C. James; and Russell Newman, appeal from a pair of decisions issued by the trial court on August 25, 2017, in which the court determined that it lacked personal jurisdiction over Defendants-appellees, the American Psychological Association ("APA"), Sidley Austin LLP ("Sidley-Austin"), and Sidley-Austin partner David Hoffman. Appellants argue that the trial court erred because Appellees purposefully engaged in certain activities within this state, because the causes of action set forth in the complaint arose from Appellees' activities here, and because the trial court's exercise of personal jurisdiction over Appellees would be reasonable as a matter of practicality. We find that the trial court did not err, and therefore, we affirm the decisions.

I. Facts and Procedural History

{¶ 2} In October 2014, the publication of the book Pay Any Price: Greed, Power, and Endless War prompted the APA to investigate allegations that it had collaborated with elements of the federal government to promote the use of abusive methods for conducting interrogations related to national security. Compl. ¶ 2-3; APA's Br. 4; Sidley-Austin's Br. 2. The APA chose the law firm of Sidley-Austin, with Hoffman as lead attorney, to perform the investigation, during the course of which the firm "reviewed more than 50,000 pages of documents" and interviewed 148 witnesses.

Sidley-Austin's Br. 2. Two of the interviews took place in Ohio, and a total of six of the witnesses were residents of Ohio, including Appellant, Larry James. Appellants' Br. 5; Sidley-Austin's Br. 2. James spoke with investigators in his office in Dayton. Appellants' Br. 5; Sidley-Austin's Br. 4.

{¶ 3} Sidley-Austin submitted its final report (the "Report") to the APA in late June or early July 2015. See Appellants' Br. 2. fn.1; APA's Br. 2; Sidley-Austin's Br. 1 fn.2; Mot. of Sidley-Austin and Hoffman to Dismiss under D.C. Code § 16-5502, Ex. 2A, Apr. 7, 2012 (revised version of the Report dated September 4, 2015). A copy of the Report appeared on the website of The New York Times on July 10, 2015, and the APA posted a copy of the Report on its own website later that day. APA's Br. 5; see Appellants' Br. 5.

{¶ 4} On February 16, 2017, Appellants filed their complaint against Appellees, asserting eleven claims for defamation and one claim for false light invasion of privacy. See Compl. ¶ 303-304, 325-326, 346-347, 367-368, 388-389, 408-409, 427-428, 446-447, 464-465, 485-486, 515-516 and 524. Appellees responded to the complaint by filing three motions to dismiss on April 7, 2017: the APA filed a single motion to dismiss based alternatively on Civ.R. 12(B)(2), the doctrine of forum non conveniens, and D.C. Code § 16-5502 (2012), whereas Sidley-Austin and Hoffman filed two motions, one pursuant to the rule and the doctrine of forum non conveniens, and the other pursuant to the District of Columbia Code.

{¶ 5} Following a hearing, the trial court sustained Appellees' motions to dismiss in two decisions issued on August 25, 2017. The court held, albeit implicitly, that although it theoretically could have exercised personal jurisdiction over Appellees under R.C. 2307.382, such an exercise of jurisdiction would not be "consistent with the Due Process Clause of the Fourteenth Amendment." See Order Granting Mot. of APA to Dismiss 1, Aug. 25, 2017; Order Granting Mot. of Sidley-Austin and David Hoffman to Dismiss 1, Aug. 25, 2017. On September 22, 2017, Appellants timely filed their notice of appeal.

II. Analysis

{¶ 6} Appellants argue that the trial court should have found that Appellees are subject to specific personal jurisdiction and overruled their motions to dismiss. Appellants' Br. 8-10; see also Kauffman Racing Equip., L.L.C. v. Roberts , 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 46-47 (distinguishing between "general" and "specific" personal jurisdiction). Determining "whether an Ohio trial court has personal jurisdiction over a nonresident defendant [requires] a two-step analysis." Kauffman Racing at ¶ 28, citing U.S. Sprint Communications Co. Ltd. Partnership v. Mr. K's Foods, Inc. , 68 Ohio St.3d 181, 183-184, 624 N.E.2d 1048 (1994). First, the court must determine "whether the long-arm statute [i.e., R.C. 2307.382 ] and the applicable rule of civil procedure [i.e., Civ.R. 4.3 ] confer jurisdiction." Id. Second, if the long-arm statute would confer jurisdiction, then the court must determine "whether the exercise of jurisdiction would deprive the nonresident defendant of the right to due process of law under the Fourteenth Amendment to the United States Constitution." Id.

{¶ 7} When a challenge is raised, the "plaintiff [bears] the burden of establishing" that the trial court has personal jurisdiction over the defendant. EnQuip Technologies Group, Inc. v. Tycon Technoglass, S.r.l. , 2d Dist. Greene Nos. 2009 CA 42 & 2009 CA 47, 2010-Ohio-28, 2010 WL 53151, ¶ 57, citing Ashton Park Apts., Ltd. v. Carlton-Naumann Constr., Inc. , 6th Dist. Lucas No. L-08-1395, 2009-Ohio-6335, 2009 WL 4446934, ¶ 12. The court, in reaching its decision, "must 'view [the] allegations in the pleadings and the documentary evidence in a light most favorable' to the plaintiff and resolv[e] all reasonable[,] competing inferences in [the plaintiff's] favor." Kauffman Racing at ¶ 27, quoting Goldstein v. Christiansen , 70 Ohio St.3d 232, 236, 638 N.E.2d 541 (1994). A ruling on personal jurisdiction "is a question of law that [an] appellate court[ ] review[s] de novo." Id.

A. Assignment of Error No. 1

{¶ 8} For their first assignment of error, Appellants argue that:

THE TRIAL COURT ERRED IN GRANTING THE MOTION OF DEFENDANT AMERICAN PSYCHOLOGICAL ASSOCIATION TO DISMISS FOR LACK OF PERSONAL JURISDICTION.

{¶ 9} Appellants contend that the trial court erred by finding that it could not exercise personal jurisdiction over the APA consistent with principles of due process. Appellants' Br. 8-10. According to Appellants, the APA subjected itself to the jurisdiction of Ohio courts by publishing the Report in Ohio; by publishing the Report even though it "knew that [statements in the Report] would cause injury in Ohio"; and by ratifying the acts of Sidley-Austin and Hoffman in preparing the Report, which included a handful of visits to the state and six interviews with Ohio residents. See id. at 12-18.

{¶ 10} The trial court did not discuss the application of R.C. 2307.382 in its decisions of August 25, 2017, and the parties likewise have not addressed the statute in their briefs to this court. R.C. 2307.382(A) authorizes an Ohio court to exercise personal jurisdiction over a nonresident who, among other things, "[t]ransact[s] any business" here or causes "tortious injury" to one or more persons within the state as the result of an act committed elsewhere "with the purpose of injuring persons," so long as the act "might reasonably have [been] expected" to cause injury to a person in Ohio. See also EnQuip Technologies Group , 2d Dist. Greene Nos. 2009 CA 42 & 2009 CA 47, 2010-Ohio-28, ¶ 60. Although R.C. 2307.382(A) has been interpreted broadly, particularly on the basis of the phrase "[t]ransacting any business" in R.C. 2307.382(A)(1), its reach is not unlimited. See, e.g., Kauffman Racing , 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 5-6 and 41-44 ; EnQuip Technologies at ¶ 60-62 ; Ashton Park Apts. , 6th Dist. Lucas No. L-08-1395, 2009-Ohio-6335, ¶ 3 and 14-18. The APA, however, has not formally challenged the trial court's implicit application of the statute.

{¶ 11} Assuming, then, that R.C. 2307.382 nominally invested the trial court with personal jurisdiction over the APA, the second step of the jurisdictional inquiry requires an evaluation of whether the court's exercise of jurisdiction would have comported with Appellees' rights to due process. Kauffman Racing at ¶ 28. Due process "is satisfied if [a] defendant has 'minimum contacts' with the forum state such that the maintenance of [a] suit does not offend ' "traditional notions of fair play and substantial justice." ' " Id. at ¶ 45, quoting Internatl. Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), internally quoting Milliken v. Meyer , 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940). The requirement of "minimum contacts" is met by a defendant's "purposeful availment" of the "privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of [the state's] laws." Hanson v. Denckla , 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) ; Kauffman Racing at ¶ 45.

{¶ 12} Within this framework, personal jurisdiction "can be either general or specific, depending upon the nature of the [defendant's] contacts * * * with the forum state." (Citation omitted.) Kauffman Racing at ¶ 46. A nonresident who has "continuous and systematic contacts" with a given state is subject to general jurisdiction and may be sued even on causes of action unrelated to the nonresident's ongoing activity in the forum. Kauffman Racing at ¶ 46 ; EnQuip Technologies at ¶ 74. Specific jurisdiction, on the other hand, applies only when: (1) the nonresident defendant has purposefully taken advantage of the privilege of operating within the forum state; (2) the plaintiff's claims arise out of the defendant's activities in the forum state; and (3) the acts of the defendant, or the consequences caused thereby, have a substantial enough connection to the forum to make the exercise of jurisdiction over the defendant reasonable. See Southern Machine Co. v. Mohasco Industries, Inc. , 401 F.2d 374, 381 (6th Cir.1968) ; Kauffman Racing at ¶ 51 and 70-71 ; see also EnQuip Technologies , 2010-Ohio-28, ¶ 75.

1. The APA did not purposefully avail itself of the benefits and protections of Ohio law.

{¶ 13} Appellants do not argue that the trial court has general jurisdiction over the APA. See Appellants' Br. 9-10. They argue instead that the court has specific jurisdiction because the APA's activities in Ohio satisfy the tripartite test articulated by the Sixth Circuit in Southern Machine . See id. With respect to the first part of the test, Appellants posit that the APA purposefully availed itself of the privilege of conducting its affairs in Ohio through its publication of the Report here "on multiple occasions"; by asking its members, some of whom were residents of Ohio, to cooperate with Sidley-Austin's investigation; and through the service of two Ohioans on its board of directors. Appellants' Br. 12, 14 and 18. Arguing that Sidley-Austin and Hoffman were the APA's agents, Appellants add that the APA vicariously availed itself of the privilege of operating in Ohio through the interviews of "a total of six Ohio residents during the preparation of the Report," two of which took place in the state. (Emphasis omitted.) Id. at 15.

a. The publication of the Report did not constitute purposeful availment.

{¶ 14} Regarding publication, Appellants present the following list of occasions on which the APA, itself or through Sidley-Austin, published the Report: (1) on or about June 27, 2015, in an email announcement sent by Sidley-Austin notifying the APA's board of directors that the Report could be viewed on a secure website; (2) on July 10, 2015, in a social media announcement issued by the APA; (3) on July 10, 2015, on the APA's website; and (4) on September 4, 2015, also on the APA's website. Appellants' Br. 12-13. Appellants maintain that these publications demonstrate purposeful availment because the email announcement reached the two members of the APA's board of directors who lived in Ohio, because the social media announcement "reach[ed] approximately 1,392" Ohioans, and because the Report itself "became accessible to the world," including "the 1[,]500 members of [the] APA * * * in Ohio," after being posted on the APA's website. Id. Accepting for sake of analysis that Sidley-Austin's activities may be imputed to the APA on the basis of an agency relationship, we find that the APA did not "expressly aim[ ]" the Report at Ohio on any of these occasions. See Calder v. Jones , 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984).

{¶ 15} The APA hired Sidley-Austin to investigate allegations of collusion and to prepare a written report detailing the results of the investigation. Sidley-Austin, then, had affirmative obligations to perform the investigation, to prepare a written report, and to deliver that report to its client, the APA-a nonprofit corporation headquartered in Washington, D.C. and capable of acting "only through its employees, subsidiaries, or agents." U1it4less, Inc. v. FedEx Corp. , 871 F.3d 199, 205 (2d Cir.2017) ; Compl. ¶ 47. In 2015, the APA's board of directors had 13 members, of whom two were residents of Ohio and three were residents of Georgia, the latter being the state with the greatest representation on the board that year. See Affidavit of Russell Newman ¶ 17 and Ex. J, May 6, 2017; Sidley-Austin's Br. 3. The board is the "administrative agent" of the APA body with "sole authority to approve policy and [to] appropriate * * * revenue," the Council of Representatives. Compl. ¶ 47.

{¶ 16} With this context in mind, Sidley-Austin's email announcement of June 27, 2015, cannot fairly be characterized as purposeful availment of the privilege of transacting business in Ohio. The firm had no control over the whereabouts of the members of its client's board of directors, but it did have an obligation to deliver the Report to the APA. See Appellants' Br. 5; APA's Br. 5; Sidley-Austin's Br. 2. Thus, the locations of the members of the board were effectively coincidental with respect to Sidley-Austin's fulfillment of its obligations to the APA.

{¶ 17} By contrast, the social media announcement issued by the APA via Twitter on July 10, 2015, along with the posting of the Report on the APA's website, made the Report "accessible to the world," including a significant number of Ohio residents. See Appellants' Br. 6-7; APA's Br. 5; Sidley-Austin's Br. 3-4. The significance, in Appellants' view, lies in the APA's knowledge that "defamatory statements [in the Report] would cause injury in Ohio," inasmuch as the "tort of libel is generally held to occur wherever the offending material is circulated." (Citation omitted.) Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 777, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) ; see Appellants' Br. 12-14; Appellants' Reply to Sidley-Austin's Br. 3-4. Hence, because the APA knew the Report would cause harm in this state, Appellants argue that the fact publications of the Report reached at least some residents of Ohio establishes purposeful availment on the part of the APA. See Appellants'

Br. 12-14; Appellants' Reply to the APA's Br. 6-7; Appellants' Reply to Sidley-Austin's Br. 4. Under "these circumstances," say Appellants, the APA "should have reasonably anticipated being haled into court in Ohio." Appellants' Br. 15.

{¶ 18} To determine whether a nonresident defendant has "minimum contacts" with a forum, "a court properly focuses on 'the relationship among the defendant, the forum, and the litigation.' " Calder v. Jones , 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), quoting Shaffer v. Heitner , 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). The Calder case originated with a lawsuit in a California court against the president of the Florida-based National Enquirer , along with one of its reporters, brought by actor Shirley Jones in response to an allegedly libelous article. Id. at 784-785, 104 S.Ct. 1482. Notwithstanding that the "article [had been] written and edited by [the defendants] in Florida," the Court observed that the article "concerned the California activities of a California resident"; that the article "impugned the professionalism of an entertainer whose television career was centered in California"; that the article "was drawn from California sources" almost entirely; and that "the brunt of the harm, in terms of [Jones's] emotional distress and the injury to her professional reputation, was suffered in California." (Citations omitted.) See id. at 785 and 788-789, 104 S.Ct. 1482. The Court concluded accordingly that the defendants' "actions were expressly aimed at California," which was "the focal point both of the story and the harm suffered," and held that the defendants were subject to personal jurisdiction in California as a result. (Emphasis added.) Id. at 789, 104 S.Ct. 1482.

{¶ 19} In this case, the Report concerned the foreign and domestic activities of residents of several states (including the District of Columbia). See Report 2-4, 9-14, 16-18, 20, 31, 36-39, 42-53, 58-59, 62-63 and 143; see also Appellants' Br. 5; Newman Aff. ¶ 14 and Ex. H; Sidley-Austin's Br. 2. For example, the executive summary prefacing the Report states that "key APA officials, principally the [former] APA Ethics Director[, Stephen Behnke,] joined and supported at times by other APA officials, colluded with important [United States Department of Defense] officials to have [the] APA [adopt] loose, high-level ethical guidelines" for national security-related interrogations. (Emphasis added.) See Report 9 and 12; Compl. ¶ 40. Appellant Stephen Behnke resides in Washington, D.C., and although he has engaged in professional collaborations "with the Ohio Psychological Association, the Ohio State Board of Psychology," the Veterans Administration in Cleveland, and sundry "educational institutions" in the state, the record includes no evidence that these collaborations were anything other than routine incidents of his former position as the APA's Ethics Director. See id.

{¶ 20} Three of the four other appellants are also not Ohio residents and make no claim that their careers are "centered in"

Ohio. See Calder , 465 U.S. at 788, 104 S.Ct. 1482 ; Compl. ¶ 38-42; see also Report 532, 534 and 537. Appellant Russell Newman, a California resident, "began his career as a psychologist at Harding Hospital in Worthington, Ohio," but the record includes no evidence that he has had any other legally meaningful connection to the state in more than 20 years. Compl. ¶ 42; see Newman Aff. ¶ 12. Newman, who "was forced to resign his positions" at Alliant International University in San Diego, California, avers that he and his wife-Appellant, Debra L. Dunivin, who resides in California or Washington, D.C.-have had difficulty finding employment since the Report was published, though the complaint and Newman's affidavit suggest that their careers were centered in the District of Columbia in the past, and in California more recently. See Compl. ¶ 41-42; Newman Aff. ¶ 6-7 and 12-13. Likewise, Appellant L. Morgan Banks, III, resides in North Carolina and has no obvious connection to Ohio. Compl. ¶ 39; Report 534. Of the five appellants, only Larry James has a career centered in this state. Compl. ¶ 38; see Affidavit of Larry James ¶ 2, 4 and 21, May 5, 2017.

{¶ 21} In Calder , while overtly declining to consider the lower court's position that the defendants' pre-publication "investigative activities" formed an "independent basis for an assertion of [personal] jurisdiction," the Supreme Court noted, and then reiterated, that the author of the defamatory publication had "rel[ied] on [tele]phone calls to sources in California for the information contained in [his] article." See Calder , 465 U.S. at 783, 785, 787 fn.6 and 788, 104 S.Ct. 1482. The repeated mention of the location of the author's sources implies that the Court assigned some importance to this fact, even if the Court did not decide that it should dictate the outcome of the case. Unlike the article at issue in Calder , however, the Report seems to have been drawn from sources in many locations, mostly outside of Ohio. See Report 6-7. Only six of 148 persons interviewed during Sidley-Austin's investigation were Ohioans; only two of "more than 200 interviews" were held in Ohio; and the "more than 50,000 pages of documents" reviewed for the Report appear to have had no distinct geographical origin. See Appellants' Br. 5-6; Report 6-7; Sidley-Austin's Br. 2.

{¶ 22} The Calder opinion referred, as well, to the jurisdiction in which "the brunt of the harm" is suffered. Calder , 465 U.S. at 788-789, 104 S.Ct. 1482. Appellants Banks, Behnke, Dunivin, and Newman live and work in other states (or the District of Columbia), and based on the Court's reasoning in Calder , the brunt of any "emotional distress [they experienced, or] injury to [their] professional reputation[s]," occurred not in Ohio, but in the jurisdictions where they reside or practice their professions. See id. at 789, 104 S.Ct. 1482. Again, Appellant James is the sole exception, given that he lives and works in Ohio.

{¶ 23} Yet, even assuming that all of the appellants were harmed here to some extent, and discounting the importance of the locus of the "brunt of the harm," the relationship among Appellees, the State of Ohio, and Appellants' causes of action is no less tenuous. For instance, in Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 772, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), a resident of New York sued Hustler Magazine, Inc., an Ohio corporation, for libel in federal district court in New Hampshire. On review of an opinion from the First Circuit Court of Appeals deciding that the district court could not properly exercise personal jurisdiction over Hustler, the Supreme Court reversed, declaring jurisdiction proper regardless of the fact that "only a small portion of [the allegedly offending issues of the magazine] were distributed in New Hampshire," because the limited circulation nonetheless represented a "continuous[ ] and deliberate [ ] exploit[ation] [of] the New Hampshire market." (Emphasis added.) Id. at 772, 775 and 781, 104 S.Ct. 1473. The Court remarked, in reaching its conclusion, that although "the bulk of the harm done to [Keeton] occurred outside New Hampshire," presumably in Keeton's home state of New York, the same could be said "in almost every libel action brought somewhere other than the plaintiff's domicile." See id. at 780-781, 104 S.Ct. 1473. Seeing "no justification for restricting libel actions to the plaintiff's home forum" on this basis, the Court held that "the victim of a libel, like the victim of any tort, may choose to bring suit" in any forum, so long as the defendant has minimum contacts with that forum. Id.

{¶ 24} Aside from the harm for which Appellants seek recovery, the Report has little substantive relationship to Ohio-it concerns the activities of residents of several states, discusses events that occurred elsewhere, and presents information drawn from sources in a variety of places. See Report 9, 12-14, 16-18, 20, 36-39, 42-53, 58-59, 62-63, 532, 534 and 537; Compl. ¶ 38-42; Appellants' Br. 5; Sidley-Austin's Br. 2; James Aff. ¶ 2, 4 and 21; Newman Aff. ¶ 6-7 and 12-14 and Ex. H. That is, even if Ohio is a focal point of some of the harm allegedly caused by the Report's publication, Ohio is not the focus of the narrative set forth in the Report. See Calder , 465 U.S. at 789, 104 S.Ct. 1482. In addition, the circumstances suggest "no reason to believe that [the APA] intended to establish 'continuing relationships and obligations' " in Ohio by commissioning or publishing the Report, meaning that the Report "represents nothing more than an isolated transaction," as opposed to one element in an ongoing series of contacts. See Kerry Steel, Inc. v. Paragon Industries, Inc. , 106 F.3d 147, 151 (6th Cir.1997).

{¶ 25} Moreover, regardless of the fact that the APA made the Report "available to the world," and thereby to the residents of Ohio, the mere foreseeability that the Report might cause Appellants harm in Ohio is insufficient, standing alone, to justify a finding that the APA purposefully availed itself of the privilege of operating in Ohio. Appellants' Br. 13; see, e.g., Reynolds v. Internatl. Amateur Athletic Fedn. , 23 F.3d 1110, 1120 (6th Cir.1994) ; Oasis Corp. v. Judd , 132 F.Supp.2d 612, 624 (S.D.Ohio 2001) ; Kauffman Racing, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 59-60, 63-65 and 67-68. The Kauffman Racing case involved a defamation lawsuit against a defendant from Virginia who entered into a business transaction with an Ohio corporation but "never physically entered" the state. Kauffman Racing at ¶ 1-3. Although the record established only that five or more Ohioans had actually seen the defendant's allegedly defamatory statements, the Ohio Supreme Court deemed the exercise of personal jurisdiction to be warranted because the defendant "intended the effects of his conduct to be felt in Ohio," or in other words, because the defendant's conduct "went well beyond foreseeability." (Emphasis in original.) Id. at ¶ 41-42, 67 and 73. Comparing the facts to Calder , the Court noted that in both cases the allegedly defamatory statements related to the plaintiffs' activities within their respective home states; that the plaintiffs' reputations were centered in their home states; that the statements relied on information sourced from the plaintiffs' home states; and that the statements were thus focused on the plaintiffs' home states. See id. at ¶ 57-60.

{¶ 26} The record in the instant matter provides no such indications that the APA intended the brunt of any harm caused by the Report to be suffered in Ohio. See Kauffman Racing at ¶ 56, 59-60 and 67-68. Finding that Ohio was not "the focal point both of the story [set forth in the Report] and of the harm [allegedly] suffered" as a consequence of the Report's publication, we conclude that the APA did not purposefully avail itself of the privilege of conducting its affairs in Ohio by publishing the Report. (Emphasis added.) See Calder , 465 U.S. at 789, 104 S.Ct. 1482.

b. Neither the APA's request that its members cooperate with the preparation of the Report, nor the membership of Ohioans on the APA's board of directors, constitutes purposeful availment.

{¶ 27} Appellants argue that the APA actively sought out the privilege of transacting business in Ohio by asking certain witnesses here to cooperate with Sidley-Austin's investigation. Appellants' Br. 5 and 17-18. They also argue that the APA had minimum contacts with Ohio by way of the membership of Ohioans on its board of directors. See id. at 18.

{¶ 28} Regarding the former argument, Appellants themselves assert that the "possible witnesses" in Ohio were in possession of information of particular relevance to the investigation. See id. at 5 and 18. Nevertheless, the importance of the witnesses' information suggests that the APA asked the witnesses to cooperate with the investigation not because of where they resided, but because of what they knew. See id. ; see also Sidley-Austin's Br. 10-11 and 13.

{¶ 29} Regarding the latter argument, Appellants note that Ohio residents on the APA's board of directors "participated [by telephone and email] in [b]oard meetings and decisions" involving the Report. Appellants' Br. 18. Yet, the fact that Ohio residents served on the board does not demonstrate that the APA sought to invoke the shield and sword of Ohio law any more than the fact that Georgia residents served on the board demonstrates that the APA sought to avail itself of the privilege of conducting its affairs in Georgia. See Newman Aff. ¶ 17 and Ex. J, May 6, 2017; Sidley-Austin's Br. 3.

{¶ 30} We find that the APA did not purposefully avail itself of the protections of Ohio law by asking its Ohio membership to cooperate with Sidley-Austin's investigation. Similarly, we find that the APA did not have minimum contacts with Ohio simply because Ohio residents served on its board of directors.

c. The APA did not purposefully avail itself of the privilege of operating in Ohio as the result of the investigative activities undertaken by Sidley-Austin and Hoffman.

{¶ 31} Appellants contend that because Sidley-Austin and Hoffman acted as the APA's agents, the APA should be held to have established minimum contacts with Ohio through the investigation performed by Sidley-Austin. See Appellants' Br. 15-16. Specifically, Appellants posit that the investigation constituted purposeful availment on the basis of "interview[s] of a total of six Ohio residents," of which two "were [conducted] in-person in Ohio." (Emphasis omitted.) Id. at 15. Characterizing three of the six interviews as conspicuously significant, Appellants add that the quality of these contacts, rather than the quantity, "determines whether purposeful availment" has occurred. See id.

{¶ 32} We find that the interviews of Ohio residents did not constitute purposeful availment, especially given that Ohio residents accounted for approximately 4 percent of the 148 witnesses interviewed by Sidley-Austin. Appellants' Br. 5-6; Report 6-7; Sidley-Austin's Br. 2. Notwithstanding the comparative significance of the information provided by these witnesses, the fact that they lived in Ohio is little more than happenstance. Furthermore, the alleged importance of the information suggests that Appellees would have sought out these witnesses irrespective of where they resided.

2. Appellants' claims do not arise from the APA's activities in Ohio.

{¶ 33} According to Appellants, because they have been defamed in Ohio as the result of the Report's publication, and because the Report itself was the product of the APA's pre-publication activities in Ohio, their claims for defamation arise from the APA's conduct of its affairs here, thereby satisfying the second part of the Southern Machine test. See Appellants' Br. 19. In Southern Machine , the Sixth Circuit Court of Appeals held that for a court in a given forum to have personal jurisdiction over a nonresident defendant, "three criteria" must be met, of which the second is the requirement that the plaintiff's "cause of action * * * arise from the defendant's activities" there. Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968) ; see also Kauffman Racing , 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 70. A cause of action having a substantial connection to the defendant's activities in the forum satisfies this criterion, which should be evaluated pursuant to a " 'lenient standard.' " Kauffman Racing at ¶ 70, quoting Bird v. Parsons , 289 F.3d 865, 875 (6th Cir.2002).

{¶ 34} Because the "tort of libel is generally held to occur wherever the offending material is circulated," Appellants' claims have some connection to the publication of the Report. See Keeton , 465 U.S. 770, 777, 104 S.Ct. 1473, 79 L.Ed.2d 790 ; Kauffman Racing at ¶ 41, citing Keeton , 465 U.S. at 777, 104 S.Ct. 1473. The brunt of the harm caused by the Report's allegedly defamatory content, however, occurred outside of Ohio, and the APA's pre-publication activities here were largely limited to a handful of visits, communications with its membership in the state, and the service of two Ohioans on its board of directors. In the absence of a more substantial connection among Appellants' claims and the APA's conduct in Ohio, we find that Appellants' claims did not arise from the APA's activities here.

3. The APA's activity in Ohio and the harm allegedly caused by the publication of the Report do not have a substantial enough connection to this state for the exercise of personal jurisdiction over the APA to be reasonable.

{¶ 35} Appellants argue that the exercise of personal jurisdiction in this case would be reasonable because litigating in Ohio would not be unduly burdensome for the APA, because Ohio has a legitimate interest in the outcome of the litigation, and because Appellants themselves have an "interest in repairing the damage to their reputations" in Ohio. Appellants' Br. 21. This argument relies on the inference that the third element of the Southern Machine test is satisfied when the first and second elements have been met. (Citations omitted.) See Kauffman Racing at ¶ 71 ; Appellants' Br. 20-21.

{¶ 36} We have found that Appellants have not satisfied the first and second elements of the Southern Machine test. Consequently, we need not consider the third element of the test, particularly because our finding that the APA did not purposefully avail itself of the privilege of operating in Ohio "is dispositive." Dean v. Motel 6 Operating L.P. , 134 F.3d 1269, 1275 (6th Cir.1998).

{¶ 37} We find that the APA did not purposefully avail itself of the privilege of conducting its affairs within Ohio and that Appellants' causes of action do not arise from the APA's activities in this state. Therefore, we conclude that the APA is not subject to the personal jurisdiction of the trial court. Appellants' first assignment of error is overruled.

B. Assignment of Error No. 2

{¶ 38} For their second assignment of error, Appellants argue that:

THE TRIAL COURT ERRED IN GRANTING THE MOTION OF DEFENDANTS SIDLEY AUSTIN LLP AND DAVID HOFFMAN TO DISMISS FOR LACK OF PERSONAL JURISDICTION.

{¶ 39} Appellants raise two assignments of error, though they present the assignments in the form of a single argument. Appellants' Br. 8. Our foregoing determination that the APA is not subject to the personal jurisdiction of the trial court likewise obviates the need for a separate analysis with respect to Sidley-Austin and Hoffman, given that we assumed for sake of analysis that Sidley-Austin and Hoffman's conduct could be attributed to the APA on the basis of an agency relationship. See also Appellants' Br. 15-18; Appellants' Reply to Sidley-Austin's Br. 2-3. Appellants' second assignment of error is overruled.

III. Conclusion

{¶ 40} We find that the trial court did not err by determining that it could not exercise personal jurisdiction over Appellees consistent with the principles of due process. Therefore, Appellants' assignments of error are overruled, and the trial court's decisions of August 25, 2017, sustaining Appellees' motions to dismiss are affirmed.

FROELICH, J. and HALL, J., concur.

      Section 16-5502 of the code is part of the District of Columbia's Anti-SLAPP Act of 2010; "SLAPP" is an acronym meaning "Strategic Lawsuits Against Public Participation." Sherrod v. Breitbart , 720 F.3d 932, 934 (D.C.Cir.2013).

      During the hearing on Appellees' motions to dismiss, Sidley-Austin and Hoffman informed the trial court that they were "not challeng[ing] jurisdiction under Ohio's long-arm statute." Tr. of Hr'g 9:1-9:5 and 11:11-11:23, Aug. 25, 2017. The APA stated that it "[did] not concede that there is long-arm jurisdiction," but in its instant brief, it offers no argument directed to the application of R.C. 2307.382. Id. at 27:21-28:2 and 38:3-38:12.

      Appellant Russell Newman avers that the "2005 APA Board of Directors" and the "2015 Board of Directors * * * each had two members from Ohio." Affidavit of Russell Newman ¶ 17, May 6, 2017. The two members from Ohio in 2005 were apparently not on the board in 2015. Compl. ¶ 59; Newman Aff. ¶ 17 and Ex. J; Appellants' Br. 12-13.

      Neither the email nor the Twitter announcement seems to have included a copy of the Report itself. See Affidavit of Barry Anton ¶ 4, May 2, 2017; Affidavit of William Strickland ¶ 4, Apr. 25, 2017; see also Affidavit of Stephen Behnke ¶ 14, May 5, 2017; Affidavit of Larry James ¶ 6, May 5, 2017; Newman Aff. ¶ 5 and Ex. C. Hence, we treat the announcements as publications of themselves strictly for our jurisdictional analysis and do not decide whether they would qualify as publications for purposes of the merits of a claim for defamation.

      We refer to the copy of the revised version of the Report dated September 4, 2015, and attached as Exhibit "2A" to the motion to dismiss under D.C. Code § 16-5502 filed by Sidley-Austin and Hoffman on April 7, 2017.

      Dunivin herself has not submitted an affidavit. The complaint alleges that she resides in Washington, D.C., but Newman avers that she lives in California. Compl. ¶ 42; Newman Aff. ¶ 13. The discrepancy might be explained by the fact that Newman executed his affidavit approximately three months after the filing of the complaint.

      The parties have not elaborated on the origin or precise nature of the documents. In its brief, Sidley-Austin refers to "more than 50,000 pages of documents," whereas the Report refers to "over 50,000 documents." (Emphasis added.) Report 6; Sidley-Austin's Br. 2; see also Appellants' Br. 5-6. Sidley-Austin states in the Report that the "most important" items were found among "a very large volume of emails and other documents" stored on the "APA's computer systems." Report 6. Whatever the actual number of documents might be, the compilation represents a variety of individual and organizational sources. Id. at 6-7.

      See supra note 3.


author: MARY EILEEN KILBANE, P.J.:

text:
    CITY OF CLEVELAND, Plaintiff-Appellee v. EMBASSY REALTY INVESTMENTS, INC., et al., Defendants-Appellants
    No. 105091
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 28, 2018
    Richard H. Drucker, 820 West Superior Avenue - Suite 800, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANTS.
    Barbara Langhenry, City of Cleveland Law Director, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114, David M. Douglass, Thomas A. Marino, Douglass & Associates Co., L.P.A., 4725 Grayton Road, Cleveland, Ohio 44135, Lawrence J. Roach, 55 Public Square - Suite 1717, Cleveland, Ohio 44113-1901, ATTORNEYS FOR APPELLEE.
    BEFORE: Kilbane, P.J., McCormack, J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   MARY EILEEN KILBANE, P.J.:

{¶ 1} Defendant-appellant, John E. Barnes, Jr. ("Barnes"), appeals from the Cleveland Municipal Court's decision granting summary judgment in favor of plaintiff-appellee, the city of Cleveland ("the city"). For the reasons set forth below, we affirm in part, reverse in part and remand.

{¶ 2} In October 2005, Barnes registered the trade name Embassy Realty Investments ("Embassy") and purchased a vacant commercial building located at 3902 Lee Road in Cleveland, Ohio ("the property"). Barnes purchased the property from the Southeast Cleveland Church of Christ ("Southeast") for $15,000. Seven years before Barnes purchased the property from Southeast, the city's director of building and housing determined the property was a public nuisance and issued notices of condemnation and demolition to Southeast. The city sent these same notices to Barnes at his tax mailing address after he acquired the property.

{¶ 3} Less than six months after Barnes purchased the property from Southeast, he entered into a 12-year lease agreement with Clear Channel Outdoor, Inc. ("Clear Channel"), which allowed Clear Channel to maintain a billboard on the property. The lease provided for an initial one-time advance payment of $45,000 upon execution of the lease agreement and annual rent of $1,250, paid in monthly installments of $104.17.

{¶ 4} In January 2007, the city issued notice to Barnes of various building code violations existing on the property and for conducting work without the necessary permits. The city subsequently issued a notice of condemnation to Barnes and posted the notice at the property.

{¶ 5} In December 2008, Barnes incorporated Embassy and transferred the property to Embassy by quitclaim deed. The deed recorded with the Cuyahoga County Auditor reflects that Embassy paid no consideration for the property. Barnes claims, however, that Embassy issued a cognovit note to him in the amount of $150,000 as consideration. The cognovit note identifies Barnes as president, secretary, and treasurer of Embassy; it further lists Barnes and his father, John Barnes, Sr., as the only two members of Embassy's board of directors. Barnes acknowledges he is Embassy's sole shareholder. After transferring his interest in the property to Embassy, Barnes remained lessor to Clear Channel and continued to personally receive monthly lease payments from Clear Channel.

{¶ 6} In August 2009, the city's contractor began demolition of the building on the property. Demolition was temporarily halted when the common pleas court issued a temporary restraining order to Barnes in a separate matter. A few days after issuing the restraining order, the common pleas court granted the city's request to dissolve the restraining order, and the city's contractor completed demolition.

{¶ 7} In July 2011, Barnes and Embassy filed a complaint against the city in federal district court, alleging various constitutional violations related to demolition of the property. Embassy Realty Invests., Inc. v. Cleveland , 976 F.Supp.2d 931 (N.D.Ohio 2013). The district court granted summary judgment in favor of the city on Barnes and Embassy's claims, but declined to exercise jurisdiction over the city's counterclaim for demolition costs. Id. at 945.

{¶ 8} In July 2014, the city filed its initial complaint in the present matter, seeking its costs for demolition of the property from both Embassy and Barnes. In December 2015, the municipal court granted the city's motion for partial summary judgment as to Embassy, entering judgment against it in the amount of $14,036, plus collection costs and $3,509 in attorney fees, with statutory interest from the date of demolition.

{¶ 9} In April 2016, the trial court granted the city's request to amend its complaint against Barnes. In the amended complaint, the city alleges that Barnes had complete control over Embassy and used its corporate form to "commit fraudulent and/or unlawful acts against [the city]." The city's amended complaint sought to pierce the corporate veil of Embassy to hold Barnes liable for the city's judgment against Embassy for the cost of demolition. Barnes subsequently moved to dismiss the city's amended complaint. In May 2016, the trial court denied Barnes's motion to dismiss.

{¶ 10} Later in May 2016, the city filed partial summary judgment as to Barnes. In September 2016, the municipal court granted the city's motion for summary judgment, and entered judgment against Barnes identical to that it previously rendered against Embassy.

{¶ 11} It is from this order that Barnes appeals, raising the following five assignments of error for review:

Assignment of Error One
The trial court erred when it denied [Barnes's] motion to dismiss on the ground that [the city] failed to commence its causes of action within the [four-year statute of limitations] as mandated by [R.C.] 1336.09.
Assignment of Error Two
The trial court erred when it denied [Barnes's] motion to dismiss on the ground that sections 3103.09(k) and 367.08(b) of the [Cleveland Codified Ordinances] only authorized [the city] to collect demolition costs from the named property owner on the date of the demolition of August 7, 2009[,] and thus, [the city] cannot collect demolition costs from [Barnes] and this matter should have been dismissed against him.
Assignment of Error Three
The trial court erred when it denied [Barnes's] motion to dismiss on the ground that [the city] failed to join a necessary party to the action herein, [Southeast], which is jointly and severally liable for demolition costs pursuant to sections 3103.09(k) and 367.08(b) of the [Cleveland Codified Ordinances] only authorized [the city] in that it was an owner in the chain of title of the subject realty after the service of the notice of condemnation, and thus, this case should be dismissed.
Assignment of Error Four
The trial court erred when it granted summary judgment against [Barnes] on the ground that [Barnes] committed fraud by transferring his interest in the subject premises to [Embassy] pursuant to the doctrine established in Belvedere Condominium Owners' Assn. v. R.E. Roark Cos. , 67 Ohio St.3d 274, [1993-Ohio-119, 617 N.E.2d 1075], but failed to commence its causes of action within the [four-year statute of limitations] as mandated by [R.C.] 1336.09.
Assignment of Error Five
The trial court erred when it granted the motion for summary judgment against [Barnes] on the grounds that genuine issues of material fact prevail as to whether [Barnes] committed fraud by transferring his interest in the subject premises to [Embassy] pursuant to the doctrine established in [ Belvedere ].

Barnes's Motion to Dismiss

{¶ 12} In the first three assignments of error, Barnes contends the trial court erred in denying his motion to dismiss the city's amended complaint. He presents numerous arguments in support of this contention, including the expiration of the statute of limitations under R.C. 1336.09. Barnes also asserts that the city's codified ordinances do not authorize it to collect demolition costs from him because he did not own the property at the time of demolition. He further argues that the trial court should have dismissed the matter for the city's failure to join Southeast as an indispensable party under Civ.R. 19.

{¶ 13} This court's review of a motion to dismiss under Civ.R. 12(B)(6) is de novo. Thomas v. Jackson Hewitt, Inc. , 192 Ohio App.3d 732, 2011-Ohio-618, 950 N.E.2d 578, ¶ 7 (8th Dist.), citing Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. In resolving a Civ.R. 12(B)(6) motion, a trial court is confined to the allegations contained in the complaint and, as an appellate court, we must independently review the complaint to determine if dismissal is appropriate. Id.

Statute of Limitations

{¶ 14} In the first assignment of error, Barnes argues that the trial court should have dismissed the present matter because it was not commenced within the four-year statute of limitations prescribed under R.C. 1336.09. In the fourth assignment of error, Barnes makes the same argument and asserts that the trial court should have denied the city's motion for summary judgment because the four-year statute of limitations had expired. The city disagrees, contending that the six-year statute of limitations under R.C. 2305.07 applies. We agree with the city.

{¶ 15} We determine the applicable statute of limitations "not from the form of pleading or procedure, but from the gist of the complaint." Hibbett v. Cincinnati , 4 Ohio App.3d 128, 131, 446 N.E.2d 832 (1st Dist.1982). Barnes, focusing on the city's argument that the 2008 property transfer was a "sham," contends the applicable statute of limitations is for fraudulent transfer claims under R.C. 1336.09. A review of the amended complaint demonstrates that the city does not rely on a theory of fraudulent transfer in arguing Barnes should be held liable, but rather alleges that Embassy was Barnes's alter ego and that Barnes should be held liable for the city's judgment against Embassy under a theory of piercing the corporate veil.

{¶ 16} The city, relying on the Cleveland Municipal Court Housing Division's decision in Cleveland v. Bumpers , Cleveland M.C. No. 2014 CVH010024 (Sept. 25, 2014), argues that because liability for demolition costs is created by state statute and city ordinance, the applicable statute of limitations is six years as provided in R.C. 2305.07.

{¶ 17} R.C. 2305.07 provides, in relevant part:

[A]n action * * * upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued.

{¶ 18} In Bumpers , the municipal court determined that the six-year statute of limitations under R.C. 2305.07 applies to collection actions for nuisance abatement under R.C. 715.261(B) and Cleveland Codified Ordinance ("C.C.O.") 3103.09, and that a cause of action under those provisions does not accrue until the municipality incurs the cost, e.g., when a property is demolished and the nuisance abated. Id. , citing Zion Nursing Home, Inc. v. Creasy , 6 Ohio St.3d 221, 224, 452 N.E.2d 1272 (1983) ("[A] cause of action arising from a statute accrues and the period specified in the statute of limitations begins to run when the violation giving rise to the liability occurs.").

{¶ 19} Here, the property was demolished in August 2009, and the city brought the present action to recover its demolition costs under C.C.O. 3103.09 in July 2014. Thus, the city brought this action within the six-year statute of limitations under R.C. 2305.07, and the trial court did not err in denying Barnes's motion to dismiss on the basis of the statute of limitations.

{¶ 20} Accordingly, the first and fourth assignments of error are overruled.

C.C.O. 3103.09

{¶ 21} Barnes's second and third assignments of error focus on a 2011 amendment to C.C.O. 3103.09, the ordinance under which the city is authorized to collect its costs for nuisance abatement.

{¶ 22} As an initial matter, we note that the former version of C.C.O. 3103.09, in effect in August 2009 when the building on the property was demolished, controls. Former C.C.O. 3103.09 provided, in pertinent part:

(j) Costs.
(1) Any and all expenses or costs incurred under this section for the removal * * * of a building or structure shall be paid by the owner of such building or structure[.]
* * *
(4) Notwithstanding the method of collection set forth in this division, the Director of Law may take any action necessary to collect the costs of demolition or boarding from the owner or other responsible party.

Former C.C.O. 3103.09, effective May 20, 2002.

{¶ 23} Although the city instituted the present action in 2014, after the effective date of the current version of C.C.O. 3103.09, the city asserts that it brings this action under the former version of the statute, in effect at the time of the demolition. Notably, the city's initial complaint pled that Embassy and Barnes were both directly, jointly, and severally liable for demolition costs, whereas the amended complaint seeks to pierce the corporate veil of Embassy to attach liability to Barnes.

{¶ 24} Barnes asserts that former C.C.O. 3103.09 only authorized the city to bring suit to collect demolition costs against the named property owner. Therefore, he argues that because he was not the record title owner at the time of demolition, he cannot be held responsible for demolition costs under the new, amended law as an owner "in the chain of title from the time of receipt of a notice of condemnation until demolition." C.C.O. 3103.09(k)(2). He argues to hold otherwise would constitute an ex post facto violation of the Ohio Constitution.

{¶ 25} We find this argument unpersuasive. In asserting this argument, Barnes ignores language of former C.C.O. 3103.09 providing that the city's law director "may take any action necessary to collect the costs of demolition or boarding from the owner or other responsible party ." (Emphasis added.) Former C.C.O. 3103.09(j)(4). The city argues that Barnes was the "alter ego" of Embassy and is responsible for Embassy's failure to remedy the housing code violations that ultimately resulted in demolition of the property. Additionally, as discussed above, the city's amended complaint seeks to pierce the corporate veil of Embassy to hold Barnes liable, rather than asserting a direct theory of liability against Barnes.

{¶ 26} Barnes further contends that, under the current version of the statute, Southeast is jointly and severally liable and an indispensable party to this action under Civ.R. 19(A). He argues that the trial court should have granted his motion to dismiss under Civ.R. 19 for the city's failure to join Southeast.

{¶ 27} As discussed above, Barnes purchased the property from Southeast, the owner of the property at the time the city first issued a notice of condemnation in 1998. Barnes relies on language of the current version of C.C.O. 3103.09(k)(2), which provides that

[a]ny and all owners of a building or structure, who appear in the chain of title from the time of receipt of a notice of condemnation until demolition of the building or structure, shall be jointly and severally responsible for all costs and expenses incurred relating to the demolition and all costs and expenses of prosecution or collection related thereto.

{¶ 28} He argues that under the current version of the ordinance, Southeast is a necessary party under Civ.R. 19 that should have been joined. We find this argument unpersuasive. As discussed above, the city brings this action under the former version of C.C.O. 3103.09 that was in effect at the time of the demolition. Under the former version of the ordinance, Southeast, and Barnes himself, are not jointly and severally liable as owners in the chain of title after condemnation of the building on the property.

{¶ 29} In support of this argument, Barnes cites to Civ.R. 19(A)(1), which provides that "[a] person who is subject to service of process shall be joined as a party in the action if * * * in his absence complete relief cannot be accorded among those already parties[.]"

{¶ 30} This court has held that an obligor who is jointly and severally liable is not necessarily a party who is needed for just adjudication under Civ.R. 19(A). W. 11th St. Partnership v. Cleveland , 8th Dist. Cuyahoga No. 77327, 2001 WL 112121, 6 (Feb. 8, 2001). The trial court should order the joinder of a joint and several tortfeasor if the party meets one of the criteria set out in Civ.R. 19(A). Id.

{¶ 31} Barnes states that "[c]learly, [Southeast is] a necessary and indispensable party to [this action]," but fails to demonstrate that in its "absence complete relief cannot be accorded among those already parties." Civ.R. 19(A)(1). We do not find that the absence of Southeast prevented complete relief from being accorded to the existing parties to this case.

{¶ 32} Based on the foregoing, we find that the trial court did not err in denying Barnes's motion to dismiss the city's amended complaint for failure to join Southeast. Accordingly, the second and third assignments of error are overruled.

Piercing the Corporate Veil

{¶ 33} In the fifth assignment of error, Barnes argues that the trial court erred in granting the city's motion for summary judgment against him. He asserts that his conduct did not amount to fraud, and therefore, the trial court erred in piercing the corporate veil of Embassy to hold him liable for the city's judgment against Embassy.

{¶ 34} We review an appeal from a grant of summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate. Kestranek v. Crosby , 8th Dist. Cuyahoga No. 93163, 2010-Ohio-1208, 2010 WL 1099923, ¶ 14.

{¶ 35} In Zivich v. Mentor Soccer Club , 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998), the Ohio Supreme Court stated the appropriate test as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (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, said party being entitled to have the evidence construed most strongly in his favor. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

(Citations omitted.)

{¶ 36} Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(D) ; Mootispaw v. Eckstein , 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).

{¶ 37} This court has recognized "[a] fundamental rule of corporate law is that, normally, shareholders, officers, and directors are not liable for the debts of the corporation." State ex rel. Petro v. Mercomp, Inc. , 167 Ohio App.3d 64, 2006-Ohio-2729, 853 N.E.2d 1193, ¶ 20 (8th Dist.), citing Belvedere Condominium Unit Owners' Assn ., 67 Ohio St.3d 274, 287, 617 N.E.2d 1075. In Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-4827, 895 N.E.2d 538, the Ohio Supreme Court explained the exception to this general principle, noting that shareholders are not absolutely immune from liability for the actions of their corporations, and that the "veil" of a corporation may be pierced where it would be unjust to allow a shareholder to hide behind corporate protections. The Dombroski court further explained:

"[L]ike every other fiction of the law, when urged to an intent and purpose not within its reason and policy, [the corporate form] may be disregarded." State ex rel. Atty. Gen. [v. Std. Oil Co. , 49 Ohio St. 137, 177, 30 N.E. 279 (1892),] at paragraph one of the syllabus. Shareholders may thus be held liable for their own bad acts notwithstanding the protections afforded by the corporate form when they use the corporation "for criminal or fraudulent purposes" to the detriment of a third party. Belvedere [at 289, 617 N.E.2d 1075]. Piercing the corporate veil in this manner remains a "rare exception,"
to be applied only "in the case of fraud or certain other exceptional circumstances." Dole Food Co. v. Patrickson , 538 U.S. 468, 475, 123 S.Ct. 1655, 155 L.Ed.2d 643 [ (2003) ].
Id. at ¶ 17.

{¶ 38} In Belvedere , the Ohio Supreme Court established a three-prong test for courts to apply when deciding whether to pierce the corporate veil:

The corporate form may be disregarded and individual shareholders held liable for wrongs committed by the corporation when (1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner as to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from such control and wrong. Belvedere at paragraph three of the syllabus.

{¶ 39} The Dombroski court modified the second prong of the Belvedere test, holding that in order "to fulfill the second prong of the Belvedere test for piercing the corporate veil, the plaintiff must demonstrate that the defendant shareholder exercised control over the corporation in such a manner as to commit fraud, an illegal act, or a similarly unlawful act." Dombroski at ¶ 29. The Supreme Court cautioned that courts should apply this limited expansion of the piercing-the-corporate-veil test cautiously and only in instances of extreme shareholder misconduct. Id.

{¶ 40} The first prong of the Belvedere test requires the city to show that Barnes had such a level of control over Embassy that it was indistinguishable from or the "alter ego" of Barnes. Belvedere, 67 Ohio St.3d at 288, 617 N.E.2d 1075. Ohio courts consider various factors to determine the extent to which a party sought to be held personally liable exercised dominance and control over the corporation, including:

(1) grossly inadequate capitalization, (2) failure to observe corporate formalities, (3) insolvency of the debtor corporation at the time the debt is incurred, (4) shareholders holding themselves out as personally liable for certain corporate obligations, (5) diversion of funds or other property of the company property for personal use, (6) absence of corporate records, and (7) the fact that the corporation was a mere facade for the operations of the dominant shareholder(s).
Robert A. Saurber Gen. Contr., Inc. v. McAndrews , 12th Dist. Butler No. CA2003-09-239, 2004-Ohio-6927 [2004 WL 2937627], ¶ 27, citing LeRoux's Billyle Supper Club v. Ma , 77 Ohio App.3d 417, 422-423, 602 N.E.2d 685 (6th Dist.1991). Although these factors are instructive, their presence is not required to pierce the corporate veil "where equity demands that the fiction of corporate personhood be ignored." Mercomp , 167 Ohio App.3d 64, 2006-Ohio-2729, 853 N.E.2d 1193, at ¶ 26, citing Carter-Jones Lumber Co. v. LTV Steel Co. , 237 F.3d 745, 749 (6th Cir.2001).

{¶ 41} The record in the present matter is replete with evidence of Barnes's sole control over Embassy and further demonstrates the presence of nearly all of the foregoing factors. Barnes's deposition testimony indicates that Embassy was undercapitalized - he explained that he put his own money into the property and received a personal loan for improvements to the property prior to transferring the property to Embassy. The evidence presented by the city demonstrates that, apart from Barnes's filing articles of incorporation for Embassy with the Ohio Secretary of State, no other corporate formalities were observed. Barnes admits that Embassy kept minimal corporate records and had no separate bank account - he acknowledged the lease payments from Clear Channel continued to be paid to him personally after Embassy purchased the property.

{¶ 42} Additionally, Barnes stipulated that Embassy never filed a federal or state tax return, and that Embassy generated no income from its inception through the time of demolition. Thus, it is clear that Embassy was insolvent at the time of the demolition. Barnes also testified that after he sold the property to Embassy, he continued to pay the property taxes and property maintenance, including snow removal and having the grass cut.

{¶ 43} Despite the presence of these factors, Barnes denies any fraud related to his transfer of his interest in the property to Embassy. He further argues that he did not commit any fraud in conducting Embassy's affairs, and that he did not incorporate Embassy to defraud the city or any other potential creditor. The city contends, however, that the citations for building code violations and the violation notices issued to both Barnes and Embassy "are clear evidence of illegal and unlawful acts" that satisfy the second prong of the Belvedere test. We disagree with Barnes that the city can only pierce the corporate veil by proving fraud. However, we do not find that the city's presentation of the violation notices themselves satisfy the second prong of the test.

{¶ 44} To satisfy the second prong of Belvedere and Dombroski , the city must show that Barnes exercised control over Embassy in such a manner as to commit fraud or illegal or unlawful acts against the city. Belvedere , 67 Ohio St.3d at 289, 617 N.E.2d 1075 ; Dombroski , 119 Ohio St.3d 506, 2008-Ohio-4827, 895 N.E.2d 538, at ¶ 29.

{¶ 45} In Springfield v. O'Sesco , 2d Dist. Clark No. 94-CA-45, 1994 WL 730547 (Dec. 28, 1994), the Second District Court of Appeals also considered an appeal from a trial court's summary judgment order allowing a municipality to pierce the corporate veil to hold an individual named Long - a corporate officer and sole shareholder - liable for demolition costs to abate a nuisance on corporately owned property. The Second District held that "[m]aintaining a nuisance is a tort for which an officer may be held liable," but found that the city of Springfield had not presented sufficient evidence demonstrating that Long himself personally maintained the alleged nuisance. Similarly, in the instant case, although we find that Barnes exerted control over Embassy, we do not find the city presented sufficient evidence to support a finding that Barnes personally maintained the nuisance.

{¶ 46} Although the city presented evidence of Barnes's control over Embassy, from which one could infer that Barnes was personally responsible for Embassy's unlawful act, i.e., the continued failure to remedy the building code violations to avoid demolition, the record lacks evidence demonstrating that Barnes exercised this control over Embassy in such a manner as to commit this unlawful act. Dombroski at ¶ 29.

{¶ 47} Our de novo review of a summary judgment motion requires us to view the evidence and any inferences to be drawn therefrom in a light most favorable to the nonmoving party. Grafton, 77 Ohio St.3d at 105, 671 N.E.2d 241 ; Hounshell v. Am. States Ins. Co. , 67 Ohio St.2d 427, 433, 424 N.E.2d 311 (1981). If after viewing the evidence and any inferences in this light reasonable minds can come to differing conclusions, the motion should be overruled. Id.

{¶ 48} Here, we find that reasonable minds could come to different conclusions as to whether Barnes did in fact exercise his control over Embassy to unlawfully maintain the nuisance.

{¶ 49} Based on the foregoing, we cannot find that the city presented sufficient evidence to satisfy all elements required to pierce the corporate veil and hold Barnes personally liable. We further find that a genuine issue of material fact exists for trial as to whether Barnes personally maintained the nuisance after he sold the property to Embassy. Therefore, the trial court erred in granting the city's motion for summary judgment.

{¶ 50} Accordingly, the fifth assignment of error is sustained.

{¶ 51} Judgment affirmed in part, reversed in part, and the matter remanded for further proceedings consistent with this opinion.

MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY; TIM McCORMACK, J., DISSENTS IN PART (SEE SEPARATE OPINION)

{¶ 52} I dissent in part in that I would fully affirm the decision of the trial court.