669 N.E.2d 546 | Ohio Ct. App. | 1995
This is an appeal of an order of the Ross County Court of Common Pleas dismissing counts four and five of appellant's complaint. Appellant assigns one error.
"The trial court erred in ruling that the statements made to a board of township trustees were absolutely privileged."
Appellant filed an action alleging slander, libel and malicious interference with contract against several defendants. Two of those defendants, Les and Rita Park (appellees),1 filed a motion to dismiss counts four and five of the complaint as against them.
Count four alleged that Les Park and another defendant, while attending a meeting of the Union Township Board of Trustees, maliciously stated that appellant was "tearing up township roads and changing the flow of water." *826 Count four also alleges that as a result of the statements by appellee Les Park and others, appellant has suffered damages. Count five of the complaint alleges that appellees Rita and Les Park, along with others, acted "in unison, and with malice and with intent to harm the Plaintiff" by making false allegations against appellant to various public boards and officials, and that appellant suffered damages as a result.
Appellees' motion to dismiss asserted that because counts four and five alleged that appellees made the above statements to public officials, the statements were absolutely privileged, thus completely immunizing appellees from liability. Appellees argued that appellant's complaint therefore failed to state a claim upon which relief could be granted. Appellant filed a memorandum in opposition to the motion to dismiss.
The trial court found that appellees' statements were absolutely privileged and, thus, dismissed counts four and five as against appellees. Upon the trial court's finding that there was "no just reason for delay" pursuant to Civ.R. 54(B), appellant filed this timely appeal.
In order to dismiss a complaint pursuant to Civ.R. 12(B)(6), it must appear beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle plaintiff to relief. York v. Ohio State Hwy. Patrol (1991),
Affirmative defenses such as privilege (see Civ.R. 8[C]) generally are not properly raised in a Civ.R. 12(B)(6) motion because they usually require reference to materials outside the complaint. See, e.g., State ex rel. Freeman v. Morris (1991),
The trial court decided that the allegedly slanderous statements made to the board of trustees were absolutely
privileged.2 In Costanzo v. Gaul (1980),
"Privileged communications are divided into two general classes: those which are absolutely privileged, and those which are qualifiedly or conditionally privileged. The basic difference between the two is that complete protection is afforded by absolute privilege, whereas a qualified or conditional privilege affords protection only in the absence of ill motive or malice in fact.
"The application of absolute privilege is to be found in onlyvery limited areas of activity in our society. It has been generally limited to legislative and judicial proceedings, and other acts of state, such as communications made in the discharge of a duty of the Governor and heads of the executive departments of state.
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"[Absolute privilege] is conferred upon members of most state legislative bodies. * * * In Ohio, senators and representatives of the General Assembly are provided an absolute privilege for statements made in session, by Section
"* * *
"We [also] believe that the rule of absolute privilege may reasonably be applied to utterances made during the course of official proceedings by members of local governing bodies, at least where the statements relate to a matter under consideration, discussion, or debate." (Emphasis added.) Id. at 108-110, 16 O.O.3d at 135-137,
The Ohio Supreme Court has also recognized that as a matter of public policy, the doctrine of absolute privilege applies in a judicial proceeding to *828
statements which bear some reasonable relation to the subject matter of the action. See Surace v. Wuliger (1986),
The question in this case concerns statements by defendants who were not members of a legislative body, and is thus distinguishable from Costanzo, supra.3 In addition, the statements were not made in connection with a judicial proceeding, therefore the obvious considerations which called for the application of absolute privilege in Surace, supra, are also absent.
Rather, the complaints about appellant's activities were made both at a legislative meeting and outside of such a meeting, to various public officials. We believe that absolute privilege should not be invoked in such a case. At the same time, we recognize that one who brings a legitimate complaint to the attention of a public official should not be prevented from doing so by the ever-present threat of a defamation action.
In A B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. Constr. Trades Council (1995),
"* * * The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.
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"The defense of qualified privilege is deeply rooted in public policy. It applies in a variety of situations where society's interest in compensating a person for loss of reputation is outweighed by a competing interest that demands protection.
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"One type of interest protected by a qualified privilege is the public interest. The `public interest' privilege `involves communications made to those who may be expected to take official action of some kind for the protection of some interest of the public.'" Id. at 8-9,
The court went on to find that statements by those who provide information to government officials "in connection with the qualifications of bidders for public contracts are protected by a qualified privilege, because the public has an interest in ensuring that only competent, reliable and responsible contractors receive public work * * *." Id. at 9,
In the present case, count four of the complaint alleges that the appellees made statements to the Union Township Trustees regarding appellant's alleged destruction of township roads and the change of water flow. Count five of the complaint alleges that appellees made a wide variety of statements, several of which might be construed as affecting the public interest, and several of which appear to have little, if any, bearing upon the public interest.
In examining the statements regarding the destruction of township roads under the A B-Abell analysis, we note that the public clearly has an interest in preventing the destruction of township roads. In addition, it is undisputed that the allegedly defamatory statements were made to a public body which had a duty to oversee the maintenance of those roads. See R.C.
Counts four and five allude to several elements which are necessary to establish the defense of qualified privilege. However, both counts specifically allege that the offending statements were made with malice. In order to establish a qualified privilege, it must be shown that the defendant communicated *830
in good faith. See A B-Abell, supra,
Our decision in this regard is only strengthened by the fact that appellees did not file a brief on appeal. Under App.R. 18(C), if an appellee fails to file a brief, we may accept the appellant's statement of facts as correct, and reverse the judgment of the trial court if the appellant's brief reasonably supports such an action. See, e.g., State v. Middleton (1993),
Accordingly, we sustain appellant's assignment of error, reverse the judgment of the trial court, and remand this cause to the trial court for further disposition in conformity with our decision.
Judgment reversed and cause remanded.
STEPHENSON and KLINE, JJ., concur.