HOLLY TRIVETT FISHER, et al. v. KASSIM AHMED, et al.
C.A. No. 29340
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
March 31, 2020
[Cite as Fisher v. Ahmed, 2020-Ohio-1196.]
SCHAFER, Judge.
STATE OF OHIO COUNTY OF SUMMIT ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2018-07-2848
{¶1} Plaintiff-Appellant, Holly Trivett Fisher, appeals the judgment of the Summit County Court of Common Pleas granting the motion of Defendant-Appellee, Summit County, for judgment on the pleadings and granting the motion of Defendant-Appellee, Kassim Ahmed, to dismiss for failure to state claim upon which relief can be granted. For the reasons that follow, this Court reverses the judgment as to the two counts of defamation only.
I.
{¶2} Fisher and her husband filed a complaint against Ahmed and the Summit County Prosecutor‘s Office on July 10, 2018. The original complaint asserted causes of action for defamation, intentional infliction of emotional distress, and loss of consortium. Ahmed and the Prosecutor‘s Office each filed a motion to dismiss the complaint.
{¶3} The Fishers filed an amended complaint on September 21, 2018. In the amended complaint they named as defendants Ahmed and Summit County and dropped the Prosecutor‘s Office as a defendant. The amended complaint asserted two counts of defamation per se, and one count each of intentional infliction of emotional distress, loss of consortium, and civil liability for violation of
{¶4} The trial court issued its judgment entry on February 20, 2019. The trial court granted the County‘s motion for judgment on the pleadings as to all counts asserted in the amended complaint and entered judgment in favor of the County. The trial court also granted Ahmed‘s motion and dismissed all claims asserted against Ahmed.
{¶5} Fisher timely appealed the trial court‘s entry of judgment in favor of the County and dismissal of her claims against
II.
{¶6} On appeal, Fisher presents four assignments of error contesting the trial court‘s decision dismissing the claims for defamation as to Ahmed and entering judgment on the defamation claims in favor of the County. Fisher argues that the trial court failed to properly and appropriately apply the standard for ruling on the motion to dismiss and motion for judgment on the pleadings. Fisher contends that the trial court construed facts alleged in the complaint in the movant‘s favor, ignored facts alleged in the complaint, and asserts that the decision contained errors of law, and fact.
{¶7} Preliminarily, we will discuss topics germane to each of the assignments of error. Ahmed‘s and the County‘s motions presented similar and overlapping arguments, and the trial court did not distinguish between the motions as to the basis for its decision. Accordingly, we will address the applicable standards of review for a
Civ.R. 12(B)(6) motion to dismiss
{¶8} A
{¶9} When construing a motion to dismiss pursuant to
{¶10} This Court reviews an order granting a
Civ.R. 12(C) motion for judgment on the pleadings
{¶11}
{¶12} Because a
R.C. Chapter 2744 immunity
{¶13} Ohio‘s Political Subdivision Tort Liability Act, which governs political subdivision liability and immunity, is codified in
{¶14} The trial court flatly rejected Fisher‘s position that, pursuant to
{¶15} Additionally, the trial court summarily stated that Fisher had not pleaded “any facts, as distinguished from conclusory statements, to overcome Ahmed‘s immunity as an employee of the County under
{¶16} On the grounds of political subdivision immunity, the trial court dismissed all counts of the action as to Ahmed and granted judgment on all counts in favor of the County. In the first two assignments of error, Fisher contends that the trial court erred by entering judgment on and dismissing the claims for slander and libel pursuant to
The trial court erred in finding Fisher alleged no set of facts that could prove Fisher‘s slander and libel claims did not arise out of Fisher‘s employment relationship with Summit County under R.C. [] 2744.0(B).
{¶17} In her first assignment of error, Fisher asks this Court to reverse the trial court‘s decision to enter judgment in favor of the County, as it relates to her defamation claims, based on political subdivision immunity. Fisher contends that the trial court erred when it found that she failed to plead sufficient facts to support her claim that her causes of action necessarily arose out of her employment relationship with the County, thereby implicating
{¶18}
{¶19} A court engages in a three-tiered analysis to determine whether a political subdivision is immune from liability for damages in a civil action. Moss v. Lorain Cty. Bd. of Mental Retardation, 9th Dist. Lorain No. 13CA010335, 2014-Ohio-969, ¶ 10. The first tier establishes generally that “a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision * * * in connection with a governmental or proprietary function.”
{¶20} “Statutory immunity, including political-subdivision immunity, is an affirmative defense,” which must be asserted in a responsive pleading. Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, ¶ 17, citing Turner v. Cent. Local School Dist., 85 Ohio St.3d 95, 98 (1999). While a political subdivision may utilize
{¶21} A plaintiff is under no obligation to prove her own case in the initial pleadings and certainly “‘need not affirmatively dispose of the immunity question altogether at the pleading stage.‘” Chunyo v. Gauntner, 9th Dist. Summit No. 28346, 2017-Ohio-5555, ¶ 10, quoting Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-Ohio-677, ¶ 8 (10th Dist.) (concluding that requiring a plaintiff to demonstrate an exception to immunity at the pleading stage would be tantamount to “requiring a plaintiff to overcome a motion for summary judgment at the pleading stage.“). A plaintiff does not have to “anticipate a political subdivision[‘s] defenses and plead specific facts to counteract a possible affirmative defense of sovereign immunity.” Hitchcock v. Akron City Schools Bd. of Education, 9th Dist. Summit No. 23632, 2008-Ohio-2668, ¶ 13. Thus, there is no “heightened pleading requirement” that would require Fisher to allege specific facts regarding exceptions to immunity when bringing suit against a political subdivision. Rogers v. Akron City School Sys., 9th Dist. Summit No. 23416, 2008-Ohio-2962, ¶ 17.
{¶22} Upon review of the pleadings, this Court cannot discern a plausible foundation for the trial court‘s summary conclusion that the County was entitled to political subdivision immunity without exception. Regardless, the trial court erred by faulting Fisher for failing to establish in her complaint that
{¶23} Because
Assignment of Error II
The trial court erred in finding Fisher alleged no set of facts that could overcome Ahmed‘s immunity as a Summit County employee under RC. [] 2744.03(A).
{¶24} In her second assignment of error, Fisher asks this Court to reverse the trial court‘s decision dismissing her defamation claims against Ahmed based on employee political subdivision
immunity. Fisher contends that she pleaded sufficient facts to show that Ahmed‘s defamatory statements were made with malicious purpose, in bad faith, and in a wanton or reckless manner.
{¶25} Pursuant to
{¶26} In its ruling, the trial court faulted Fisher for failing to plead “any facts, as opposed to conclusory statements, to overcome Ahmed‘s immunity as a County employee under
{¶27} “[A]
Alternative grounds for judgment and dismissal.
{¶28} Having sustained the first two assignments of error we conclude that the trial court erred by entering judgment and dismissing the defamation claims based on political subdivision immunity. However, after dismissing and entering judgment as to all of Fisher‘s claims on immunity grounds, the trial court proceeded to enter judgment and dismiss the claims based on the alternative arguments Ahmed presented in his motion to dismiss and the County presented in its motion for judgment on the pleadings. Prior to addressing Fisher‘s third and fourth assignments of error, we will preliminarily discuss the trial court‘s additional consideration of Fisher‘s claims, as well as the elements of a defamation claim. Here again, the topics are germane to these assignments of error, both of which involve a de novo review of the County‘s
{¶29} Regarding the claims for defamation, the trial court found that Fisher‘s claims failed for several reasons. First, the trial court stated that Fisher‘s failure to specifically allege in the complaint that Ahmed‘s statements were made “without privilege” was fatal to the defamation claims. The trial court also concluded that “the written statements by Ahmed about which [are the subject of the second count of Fisher‘s complaint] were absolutely privileged because they were statements made to law enforcement officials or to members of management pursuant to Summit County Codified Ordinances Section 169.19.” Additionally, the trial court further implied “that Ahmed‘s oral statements were qualifiedly privileged,” because Fisher had “not ple[aded] facts, as opposed to conclusory statements, to support her argument that they were made with actual malice * * *.”
{¶30} The trial court also stated that, to be actionable, a defamatory statement must be untrue. The trial court apparently concluded that “Ahmed‘s statements were about a matter of public concern” and, therefore, “the First Amendment required [] Fisher to plead facts showing that they were untrue.” Focusing only on a portion of “Ahmed‘s statements—that [] Fisher saw him in the Courthouse hallway, and nevertheless collided with him—“the trial court found that Fisher‘s complaint “does not aver facts showing that the gist of [those statements] are untrue” and disregarded the remainder of Ahmed‘s statements alleged in the complaint as “exaggeration” constituting “opinion or hyperbole, which is not actionable as a matter of law.”
{¶31} The trial court concluded that, because Fisher did not plead facts to support each of the elements of defamation,
Elements of a defamation claim.
{¶32} “Defamation is a false publication that injures a person‘s reputation.” Gosden v. Louis, 116 Ohio App.3d 195, 206 (9th Dist.1996). “Written defamation is known as libel; spoken defamation is known as slander.” Id. To prevail in a defamation case, a plaintiff must demonstrate five elements:
(1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that the defendant acted with the requisite degree of fault in publishing the statement.
Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193 ¶ 77. To establish the requisite degree of fault, the plaintiff must show fault of at least negligence on the part of the defendant, though stricter burdens of proof apply in certain circumstances. Northeast Ohio Elite Gymnastics Training Ctr., Inc. v. Osborne, 183 Ohio App.3d 104, 2009-Ohio-2612, ¶ 7 (9th Dist.).
{¶33} There are two kinds of defamation; defamation per se occurs when material is defamatory on its face; defamation per quod occurs when material is defamatory through interpretation or innuendo. Gosden, at 206. Fisher asserted one count of slander per se and one count of libel per se. An allegedly slanderous or libelous statement is actionable as defamation per se if it: (1) alleges an indictable criminal offense involving moral turpitude; (2) imputes a loathsome or contagious disease that would exclude a person from society; (3) tends to injure a person in his trade or occupation; and, additionally, (4) written matter is libelous per se if it tends to subject a person to public hatred, ridicule, or contempt. Dunnigan v. City of Lorain, 9th Dist. Lorain No. 02CA008010, 2002-Ohio-5548, ¶ 35; Gosden, at 207.
Assignment of Error III
The trial court erred in finding Fisher alleged no set of facts that could prove Ahmed‘s slanderous and libelous statements were made without privilege.
{¶34} In her third assignment of error, Fisher argues that, “[s]ince absolute and qualified privileges are a defense and not prima facie elements, the trial court erred in dismissing Fisher‘s slander and libel claims for failing to aver Ahmed‘s slanderous and libelous statements were published without privilege.”
{¶35} We recognize that the description of the elements of defamation may vary from case to case. Relevant to this case, and as the County and Ahmed have emphasized, the publication element is sometimes described as a statement that is “‘published without privilege to a third party[.]‘” (Emphasis added.) Osborne, 2009-Ohio-2612 at ¶ 7, quoting Gosden at 206. Other cases omit the phrase “without privilege” when stating the publication element. See, e.g., Leadscope, 2012-Ohio-4193 at ¶ 77; Grubb & Assoc. LPA v. Brown, 9th Dist. Lorain No. 17CA011201, 2018-Ohio-3526, ¶ 9; Anderson v. WBNS-TV, Inc., 158 Ohio St.3d 307, 2019-Ohio-5196, ¶ 9. This distinction aside, a plaintiff is not required to plead facts to show the absence of a privilege because lack of privilege is not an
{¶36} However, privilege is a defense asserting that an alleged defamatory statement, “except for the occasion on which or the circumstances under which it [wa]s made, would be defamatory, and actionable.” Costanzo v. Gaul, 62 Ohio St.2d 106, 108 (1980). Otherwise stated, even where each of the essential elements of a defamation claim are established, the defendant can assert privilege to defend against liability for a defamatory statement. Consequently, we conclude that the trial court erred when it held that Fisher‘s failure to plead that Ahmed‘s statements were made without privilege was fatal to her claims for libel and slander.
{¶37} We next consider the trial court‘s conclusion that Ahmed‘s written statements were absolutely privileged as a matter of law, and that “to the extent” that Ahmed‘s oral statements were qualifiedly privileged, Fisher failed to plead facts to show that they were made with actual malice.
{¶38} Privileged communications may be either absolutely or qualifiedly privileged. Morgan v. Community Health Partners, 9th Dist. Lorain No. 12CA010242, 2013-Ohio-2259, ¶ 9. A qualified or conditional privilege “does not change the actionable quality of the words published, but merely rebuts the inference of malice that is imputed in the absence of privilege, and makes a showing of falsity and actual malice essential to the right of recovery.” Hahn, 43 Ohio St.2d 237 at 244. On the other hand, “absolute privilege protects the publisher of a false, defamatory statement even though it is made with actual malice, in bad faith and with knowledge of its falsity.” M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 505 (1994).
{¶39} “‘Affirmative defenses such as privilege (see
{¶40} “Absolute privilege is applied narrowly and ‘has been generally limited to legislative and judicial proceedings, and other acts of state[.]‘” Morgan v. Community Health Partners, 9th Dist. Lorain No. 12CA010242, 2013-Ohio-2259, ¶ 10, quoting Costanzo, **** at 109. Fisher alleged in her complaint that Ahmed made multiple libelous statements, including an incident report “sent to the [Summit County] Sheriff‘s Department whereby he accused her of criminal assault.” As a matter of public policy, an absolute privilege protects statements that report a possible
{¶41} Still, the incident report was not the only basis for Fisher‘s libel claim. Fisher also specifically alleged in the complaint that “Ahmed made multiple libelous statements in a letter written on [Summit County] Prosecutor‘s Office letterhead sent to Fisher‘s supervisor, co-workers, judges and employees within the Courthouse accusing her of assault, being boorish, rude, and unprofessional.” The trial court held that statements in Ahmed‘s letter were absolutely privileged as statements made to “management pursuant to Summit County Codified Ordinances Section 169.19.” Fisher contends that there is no absolute privilege for internal workplace reports and that the letter is not subject to absolute privilege. This Court is unaware of any authority for the application of absolute immunity for a letter sent to “management,” among others, in or associated with one‘s workplace. Moreover, insofar as the trial court found that Ahmed made the statements in the letter pursuant to a local ordinance, the pleadings do not support such a conclusion. Thus, we conclude that the trial court erred by finding that statements, other than those contained in the incident report to the Sheriff, were absolutely privileged.
{¶42} The Supreme Court of Ohio has stated that the essential elements of a conditionally or qualifiedly privileged communication include (1) good faith, (2) an interest to be upheld, (3) a statement limited in its scope to this purpose, and (4) a proper occasion, and publication in a proper manner and to proper parties only. Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, ¶ 9, quoting Hahn, 43 Ohio St.2d at 244. “The defense of qualified privilege applies to those situations where ‘society‘s interest in compensating a person for loss of reputation is outweighed by a competing interest that demands protection.‘” Jones v. White, 9th Dist. Summit No. 18109, 1997 WL 669737, *6, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 8 (1995). Once established, a qualified privilege can be defeated by a clear and convincing showing that the communication was made with actual malice. A & B-Abell at 11.
{¶43} In its judgment entry, the trial court assumed that “to the extent” that they were privileged, Fisher failed to plead facts, rather than conclusory statements, to show that the statements were made with actual malice. Thus, it does not appear that the trial court ever resolved the issue of whether Ahmed‘s oral statements were qualifiedly privileged. This is significant because “[t]he issue of malice is consigned to the question of abuse of privilege. It does not arise unless a privilege is first found to exist.” Id. Without a determination that a qualified privilege existed, the trial court had no cause to consider whether Fisher could demonstrate actual malice.
{¶44} Moreover, even if the pleadings could establish the existence of a qualified privilege, Fisher was not required to state facts to prove actual malice in the complaint. We again stress that a plaintiff is not required to prove her case at the pleading stage, let alone plead facts to
{¶45} The trial court erred, as a matter of law, when it held Fisher to a standard requiring her to plead facts in anticipation of an affirmative defense to show that she could overcome a qualified privilege to recover on her defamation claims. This error is compounded by the trial court‘s failure to determine in the first instance whether the complaint could conclusively show that Ahmed‘s statements met the elements necessary to establish the defense of qualified privilege. Dye, 1999 WL 692440 at *4. Therefore, we conclude the trial court erred by dismissing and entering judgment on Fisher‘s claims based on absolute and qualified privilege. Fisher‘s third assignment of error is sustained.
Assignment of Error IV
The trial court erred in finding Fisher alleged no set of facts that could prove Ahmed‘s slanderous and libelous statements were false.
{¶46} Fisher argues that the trial court erred in holding that Ahmed‘s statements were about a matter of public concern and, consequently, imposing a heightened standard of proof. Fisher further contends that the trial court erred by concluding that Fisher failed to plead facts to show that Ahmed‘s statements were untrue, and that any exaggeration by Ahmed was not actionable as a matter of law.
{¶47} In Ohio, when a private person alleges that she was defamed by a statement, the substance of which is a matter of public concern, she bears the burden of proving the falsity of the statement, and proving by clear and convincing evidence that the defendant was at least negligent in publishing it. Anderson, 2019-Ohio-5196 at ¶ 8, quoting Dale v. Ohio Civil Serv. Emps. Assn., 57 Ohio St.3d 112, 114 (1991); citing Lansdowne v. Beacon Journal Pub. Co., 32 Ohio St.3d 176, 180 (1987) and, Oney v. Allen, 39 Ohio St.3d 103, 106 (1988), fn. 2. To determine whether a statement is a matter of public concern, the court must consider the “content, form, and context [of the statement] as revealed by the whole record.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985), quoting Connick v. Myers, 461 U.S. 138, 147-148 (1983). “‘[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.‘” Woods v. Capital Univ., 10th Dist. Franklin No. 09AP-166, 2009-Ohio-5672, ¶ 38 (considering a newspaper publication of statements involving a matter of public concern), quoting San Diego v. Roe, 543 U.S. 77, 83-84, (2004).
{¶48} In its judgment entry, the trial court stated that
[t]o be actionable in Ohio, a defamatory statement must also be untrue, and because Defendant Ahmed‘s statements were about a matter of public concern, the First Amendment required Mrs.
Fisher to plead facts showing that they were untrue.
Even if it could be determined from the complaint that Ahmed‘s statements were a matter of public concern, we question the trial court‘s holding that plaintiff was required to “plead facts showing that [Ahmed‘s statements] were untrue.” While a statement involving a matter of public concern would enhance Fisher‘s burden of proof, here the trial court enhanced Fisher‘s burden of pleading: in addition to alleging that Ahmed‘s allegedly defamatory statements were false, the trial court would require Fisher to demonstrate facts to prove falsity of the statements within the complaint. This heightened pleading standard is not substantiated by the legal authority cited by the trial court or the parties, nor is this Court aware of any such authority. Therefore, we conclude that the trial court erred by dismissing and entering judgment on Fisher‘s defamation claims for failing to plead facts to show that Ahmed‘s allegedly defamatory statements are “untrue.”
{¶49} The trial court found that Fisher, in her complaint, “does not aver facts showing that the gist of Ahmed‘s statements * * * are untrue.” The trial court went on to state that, insofar as Fisher alleged that “Ahmed exaggerated the import of her conduct, his exaggeration constitutes opinion or hyperbole, which is not actionable as a matter of law in Ohio.”
{¶50} Whether certain allegedly defamatory statements are actionable is a question for the court to determine as a matter of law. Leadscope, 2012-Ohio-4193 at ¶ 78, quoting Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of America, 6 Ohio St.3d 369, 372 (1983), abrogated on other grounds. To make that determination, the court must consider the defamatory statement in the totality of the circumstances, which entails reading an alleged defamatory statement in the context of the entire publication to determine whether a reasonable reader would deem the statement defamatory. Id. at ¶ 79 quoting Mann v. Cincinnati Enquirer, 1st Dist. Hamilton No. C-090747, 2010-Ohio-3963, ¶ 12.
{¶51} To determine whether a statement is actionable as a statement of fact, or not actionable as a statement of opinion, courts apply the four-part Scott/Vail test to consider: (1) “the specific language used,” (2) “whether the statement is verifiable,” (3) “the general context of the statement,” and (4) “the broader context in which the statement appeared.” Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279, 282 (1995), citing Scott v. News-Herald, 25 Ohio St.3d 243, 250 (1986). “The weight given to any one factor under this inquiry will vary depending on the circumstances of each case.” Wampler v. Higgins, 93 Ohio St.3d 111, 126 (2001), citing Vail at 282.
{¶52} In its analysis, the trial court seems to have conflated an assessment of the falsity of defamatory statements with the Scott/Vail test to determine whether protected speech is actionable as defamation: i.e. whether the defamatory statement consists of fact or opinion. Nevertheless, we need not untangle the trial court‘s analysis to resolve this assignment of error. In reaching its conclusion, the trial court selectively focused on certain allegations in the complaint, while ignoring others, to hold that Ahmed‘s statements were not actionable as a matter of law. Specifically, the trial court concluded that, because Fisher‘s allegations did not dispel the possibility that there may be some element of truth to the portion of Ahmed‘s statements accusing Fisher of purposefully
{¶53} The trial court went beyond a determination of whether, after construing all material factual allegations in the complaint and all reasonable inferences therefrom in her favor, Fisher could “prove no set of facts warranting the requested relief.” Contrary to the dictates of a
III.
{¶54} Based on the foregoing, and upon our review of the pleadings and our consideration of the limited substance offered in support of the array of arguments asserted in the motions for dismissal and for judgment on the pleadings, we conclude the trial court erred by determining that Fisher did not plead facts to support her claims of defamation and by dismissing counts one and two of the complaint. Accordingly, all four of Fisher‘s assignments of error are sustained. The judgment of the Summit County Court of Common Pleas entering judgment in favor of the County, and dismissing as to Ahmed, Fisher‘s claims of defamation is reversed. As Fisher has not asserted any error in the remainder of the trial court‘s judgment, it is affirmed. This matter is remanded to the trial court for further proceedings consistent with this decision.
Judgment reversed in part, and affirmed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
JULIE A. SCHAFER
FOR THE COURT
CARR, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
WARNER MENDENDALL and LOGAN TROMBLEY, Attorneys at Law, for Appellants.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JAQUENETTE S. CORGAN and MARVIN EVANS, Assistant Prosecuting Attorneys, for Appellee.
JUSTIN S. GREENFELDER, JUDE B. STREB, and PETER T. CAHOON, Attorneys at Law, for Appellee.