Opinion
CV-07-636138 CV-07-636139 CV-10-743461
09-01-2012
1020 BOLIVAR, LLC, et al., Plaintiffs, v. NICHOLAS A. ZARNAS, et al., Defendants. 1104 PROSPECT AVENUE AND LOCK, LLC, et al., Plaintiffs, v. NICHOLAS A. ZARNAS, et al., Defendants.
ORDER GRANTING PLAINTIFF CB 2010' S MOTION TO DISMISS THE COUNTERCLAIMS
This matter is before the Court on Plaintiff CB 2010's Motion to Dismiss the Counterclaims and Motion to Strike Claim V of the Counterclaims Raised Against CB 2010 in Cases CV-07-636138 and CV-07- 636139. Consistent with the following Opinion, the Court GRANTS the Plaintiffs Motion to Dismiss.
I. Claims I, III, and IV are Dismissed for Failing to State a Claim Upon Which Relief Can be Granted.
Claim I (Breach of the Forbearance Agreement), Claim III (Breach of Fiduciary Duty), and Claim IV (Declaratory Judgment) are premised on the assertion that CB 2010 owed a duty to pay certain real estate taxes and insurance out of the funds originally escrowed by Citizen's Bank (hereinafter "Citizens") and delivered to CB 2010 as part of a sale of the loans; which included the Frangos Defendants' loans. However, the Frangos Defendants no longer had such an interest in the escrowed money due to their failure to pay their loans in full by January 1, 2011. Upon the Frangos Defendants' failure to pay, all the escrowed funds became assets of CB 2010. As such, CB 2010 was under no obligation to pay the tax obligations of the Frangos Defendants. Therefore, Claims I, III, and IV are dismissed pursuant to Civ. R. 12(b)(6).
II. Claims II is Dismissed for Failing to State a Claim Upon Which Relief Can be Granted.
Claim II (Tortious Interference with Business Relationships) also fails to state a claim upon which relief may be granted. The tort of interference with business relationships or contractual rights generally causes a third person not to enter into or continue a business relation with another or not to perform a contract with another. A&B-Abell Elevator Co., Inc. v. Columbus/Central Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 14, 651 N.E.2d 1283, 1294. Additionally, Ohio imposes the burden of proving lack of privilege or improper interference on the plaintiff. Super Sulky, Inc. v. U.S. Trotting Ass'n, 174 F.3d 733, 741 (6 Cir. 1999) (citing Kenty v Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 650 N.E.2d 863, 866 (1995)).
Cir. 2001) (applying Ohio law, stating an "allegation that a party interfered with certain unspecified business relationships...is a just a legal conclusion. Absent some factual allegation that [the tortfeasors] actions ended or prevented some business relationship, " a 12(b)(6) dismissal is proper.).
However, not only have the Frangos Defendants failed to identify what business relationship CB 2010 has interfered with, and they have also failed to allege that CB 2010 had knowledge, intent, or lack of justification. See Gibson v. City Yellow Cab Co. (9 Dist.) 2001 Ohio App. LEXIS 518 at *8 (finding when the complaint did not allege that the defendant was present or participated in the decision out of which the interference arose, plaintiff could not demonstrate the requisite elements and dismissal under Rule 12(B)(6) was proper); see also, Wilkey v. Hull 366 Fed. Appx., 634, 638 (6
Cir. 1999) (citing Kenty v Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 650 N.E.2d 863, 866 (1995)).
Furthermore, by not identifying any improper conduct or interference on behalf of CB 2010, the Frangos Defendants have failed to establish the lack of privilege in the business transaction. Super Sulky, Inc. v. U.S. Trotting Ass'n, 174 F.3d 733, 741 (6
Therefore, having failed to allege the necessary elements of tortious inference with business relations, Claim II is dismissed pursuant to Civ. R. 12(b)(6).
III. Claims V is Dismissed for Failing to State a Claim Upon Which Relief Can be Granted.
Claim V seeks to rescind the sale contract between Citizens and CB 2010. However, "in Ohio, only a party to a contract or a third-party beneficiary of the contract may bring an action for an alleged breach of the contract." Grant Thornton v Windsor House, Inc., 57 Ohio St.3d 158, 161, 566 N.E.2d 1220, 1223 (1991) (citing Visintine & Co. v. New York, Chicago, & St. Louis RR. Co., 169 Ohio St. 505 (1959).
The Frangos Defendants were neither parties nor intended third-party beneficiaries to the sale contract between Citizens and CB 2010. Therefore, in accordance with Ohio law, Claim V is dismissed pursuant to Civ. R. 12(b)(6).
IV. Conclusion
Therefore, the Court finds that all the Frangos Defendants' claims against CB 2010 are to be dismissed pursuant to Civ. R. 12(b)(6). Given the Court's finding, it is not necessary to address Plaintiffs remaining arguments for dismissal. However, this Court reserves the right to analyze such arguments in the future if it deems so necessary.
The Court hereby GRANTS CB 2010's Motion to Dismiss.
IT IS SO ORDERED.