2023 Ohio 1972
Ohio Ct. App.2023Background
- Craig Hartman and Marc Cashin (Husbands) were residents and committee members in Olympia, a 55+ homeowners association; Janis Kerch (Declarant) was a resident and former board president/consultant.
- On May 26, 2020 Declarant hand-delivered a letter to the board president documenting confrontations in the clubhouse and stating, among other things, “they prey on older single women.”
- The board president kept the letter and other complaints in a file; Husbands later received a packet of complaint letters and were temporarily removed from certain committees, prompting reputational complaints.
- Husbands sued Declarant for defamation per se and per quod; they later dismissed the per quod count and both parties moved for summary judgment on liability.
- The trial court granted Declarant summary judgment (finding the statement was opinion and not defamation per se) and denied Husbands’ partial summary judgment; Husbands appealed.
- The appellate court held the statement was a verifiable factual assertion and defamatory per se, but found genuine issues of material fact remain as to falsity/substantial truth, injury/causation, and whether qualified privilege applies; it reversed the grant of summary judgment to Declarant and affirmed denial of Husbands’ partial SJ as to liability only, and remanded.
Issues
| Issue | Plaintiff's Argument (Husbands) | Defendant's Argument (Kerch) | Held |
|---|---|---|---|
| Whether the phrase “they prey on older single women” is fact or protected opinion / defamatory per se | It is an unambiguous, pejorative factual accusation (predatory conduct) and thus defamatory per se | It is imprecise, subjective opinion; innocent constructions exist | Court: Statement is a verifiable factual assertion and defamatory per se; trial court erred treating it as opinion |
| Whether the statement is false or substantially true (falsity element) | Statement has no basis beyond a failed friendship; cannot be substantially true | Declarant relied on her personal observations and other resident complaints, so gist is substantially true | Genuine issue of material fact exists; summary judgment inappropriate for either party |
| Publication and injury / damages (presumption for defamation per se) | Letter caused reputational harm in community and led to committee removals; damages presumed | Letter was given to only board president; reputation is result of Husbands’ conduct and other complaints | Publication occurred (to board president) but causation and extent of injury are disputed; genuine factual issues remain |
| Qualified privilege and requisite fault (actual malice) | Declarant exceeded the scope of the board president’s request and acted from personal animus; malice is an issue for trial | Letter was solicited by the board president per HOA procedures and fairly made in discharge of community duties; qualified privilege applies | Genuine issues exist whether the statement was limited in scope and made in good faith; privilege not resolved on summary judgment |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (standard for de novo appellate review of summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (movant’s initial burden in summary judgment and reciprocal burden of nonmoving party)
- Wampler v. Higgins, 93 Ohio St.3d 111 (2001) (totality-of-the-circumstances test for fact vs. opinion in defamation)
- Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279 (1995) (constitutional protection for opinions)
- Scott v. News-Herald, 25 Ohio St.3d 243 (1986) (whether language is fact or opinion is a question of law; examine meaning to reasonable reader)
- Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App.3d 183 (2002) (definition and elements of defamation)
- Hecht v. Levin, 66 Ohio St.3d 458 (1993) (publication element for defamation requires communication to at least one other person)
- A & B-Abell Elevator Co. v. 73 Ohio St.3d 1 (1995) (qualified privilege: occasion, purpose, and effect on required degree of fault)
- Hahn v. Kotten, 43 Ohio St.2d 237 (1975) (elements of qualified privilege: good faith, interest, limited scope, proper occasion, proper parties)
- Sullins v. Raycom Media, Inc., 996 N.E.2d 553 (2013) (discussion of defamation per se and innocent construction rule)