756 N.E.2d 1263 | Ohio Ct. App. | 2001
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *732 This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellant, Edward L. Gilbert, appeals the entry of summary judgment against him in the Summit County Court of Common Pleas. Appellees, WNIR 100 FM, Bill Hall, Tom Nagel (aka Thomas E. Erickson), Howard Chizek, and Joe Finan, (hereinafter collectively referred to as "the WNIR defendants"), cross-appeal the trial court's denial of their motion to dismiss and denial of their motion for summary judgment on the claims of Delphinia Gilbert, cross-appellee. We reverse.
On March 9, 1998, the Gilberts filed suit against various radio stations including WNIR 100 FM and employees of those radio stations. The various other radio stations and their employees were dismissed, leaving the cross-appellants herein. On April 14, 2000, the WNIR defendants filed a motion for summary judgment. The Gilberts filed a brief in opposition on May 18, 2000. The WNIR defendants filed a reply memorandum on May 31, 2000. On June 8, 2000, the trial court ordered the WNIR defendants to reduce their voluminous motion for summary judgment to thirty pages by June 16, 2000. The WNIR defendants complied, filing a complying motion for summary judgment on June 15, 2000. The Gilberts responded to the WNIR defendants' reply memorandum on June 27, 2000. On September 5, 2000, the trial court entered summary judgment in favor of the WNIR defendants on Mr. Gilbert's claims, finding Mr. Gilbert to be a public figure. The trial court also found material issues of fact to remain regarding Mrs. Gilbert's claims. The trial court denied the WNIR defendants' motion to dismiss based on destruction of evidence on September 14, 2000. Mrs. Gilbert dismissed her remaining claims without prejudice on October 2, 2000. This appeal of the trial court's entry of summary judgment in favor of the WNIR defendants on Mr. Gilbert's claims followed.
THE TRIAL COURT ERRED IN FINDING THAT EDWARD GILBERT IS A PUBLIC FIGURE FOR THE PURPOSE OF GERTZ v. ROBERT WELCH, INC.
Mr. Gilbert avers that the trial court erred as a matter of law in finding him to be a public figure based on the facts adduced herein. We agree.
Pursuant to Civ.R. 56(C), summary judgment is proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc. (1977),
The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996),
This court has previously held that a defamation claim is composed of five elements:
(1) a false and defamatory statement, (2) about plaintiff, (3) published without privilege to a third party, (4) with fault of at least negligence on the part of the defendant, and (5) that was either defamatory per se [within the limits imposed by the United States Supreme Court in Dun Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985),
472 U.S. 749 ,762-63 ,86 L. Ed. 2d 593 ,604-05 (stating that where the one defamed is not a public figure and "the defamatory statements do not involve matters of public concern," "presumed and punitive damages in defamation cases absent a showing of `actual malice' [do] not violate the First Amendment")] or caused special harm to the plaintiff.
Gosden v. Louis (1996),
We will first address Mr. Gilbert's assignment of error and then address the issues presented in the WNIR defendants' brief as independent grounds for the affirmance of the trial court's entry of summary judgment. See App.R. 3(C)(2); R.C.
Mr. Gilbert's Status under Defamation Law
Mr. Gilbert asserts that the trial court erred in finding him to be a public figure, and therefore, erred in requiring him to present clear and convincing evidence of actual malice. We agree.
"[A]s is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a `public official.'" Rosenblatt v. Baer (1966),
If the party defamed is either a public official or public figure, the plaintiff must prove actual malice to recover on a defamation claim. Gertz *736 v. Robert Welch, Inc. (1974),
on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.
Id. at 351,
Hence, the first issue is whether Mr. Gilbert is a public official, public figure or a private individual, and accordingly, whether Mr. Gilbert must show actual malice or negligence to prevail on his defamation claims. The WNIR defendants aver that Mr. Gilbert is a public figure because Mr. Gilbert's name has been mentioned in newspaper articles and he has held press conferences regarding cases in which he has served as legal counsel. Further, he has been involved in politics, serving as a precinct committee person for the Democratic Party, on the central committee for the Democratic Party, and on the finance committee for two judicial campaigns. He is also involved in various civic and community organizations such as the United Negro College Fund, the Masonic Order, and Sigma Pi Phi. He has represented the National Association for the Advancement of Colored People. He is also a member of various bar associations, such as the Akron and Ohio Bar Associations. He was briefly mentioned on the last page of a three-page article in U.S. News and World Report regarding race relations in Akron, Ohio.
The WNIR defendants do not aver that Mr. Gilbert is a public official, as he does not hold a public office. However, he may be a public figure or a limited purpose public figure. Based on the facts presented on summary judgment, we cannot conclude that he is either in regard to the matter herein. Mr. Gilbert has had many high profile cases and has issued press releases regarding them, but this does not render him a public figure. See Gertz,
The petitioner here was performing a professional representative role as an advocate in the highest tradition of the law, and under that tradition the advocate is not to be invidiously identified with his client. The important public policy which underlies this tradition — the right to counsel — would be gravely jeopardized if every lawyer who takes an "unpopular" case, civil or criminal, would automatically become fair game for irresponsible reporters and editors who might, for example, describe the lawyer as a "mob mouthpiece" for representing a client with a serious prior criminal record, or as an "ambulance chaser" for representing a claimant in a personal injury action.
Id. at 355,
The WNIR defendants have not demonstrated in their motion for summary judgment that Mr. Gilbert has achieved any more notoriety than any well-known attorney in the Akron legal community. Based on the evidence adduced upon summary judgment, we cannot conclude that Mr. Gilbert has utilized press coverage for personal aggrandizement, or to such a repeated and pervasive extent that he has become a public figure. "Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life." *738 Gertz,
One may become a limited-purpose public figure if one "voluntarily injects himself or is drawn into a particular public controversy," thereby becoming a public figure for a limited range of issues. Id. at 351,
In Young v. The Morning Journal (1998),
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. Accordingly, the privilege does not attach to the communication, but to the occasion on which it is made. It does not change the actionable quality of the publication, but heightens the required degree of fault. This affords some latitude for error, thereby promoting the free flow of information on an occasion worthy of protection.
A B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. Constr. TradesCouncil (1995),
The essential elements necessary to establish a qualified privilege are "`"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."'" (Citations omitted.) Id. at 8. Such a qualified privilege may be overcome by "actual malice." Costanzo v.Gaul (1980),
We can discern no qualified privilege applicable herein. News media have generally been found to possess a qualified privilege to reportactual facts concerning the commission of a crime, the arrest of an accused person, and the charges brought against that person, so long as report does not assert that the accused is guilty of the crime charged.Weisburgh v. Mahady (1986),
Here, the reports of Mr. Gilbert's arrest and flight from the jurisdiction were untrue. Moreover, the WNIR defendants have failed to show that the statements were from a police source, while the Gilberts have produced evidence that the statements were speculation by those who called WNIR radio talk programs and WNIR personnel. Construing the facts in a light most favorable to the nonmoving party, the statements broadcast by WNIR were completely false and did not report any official action or proceeding. The Gilberts were not involved with Dr. Prade's murder, had not been arrested, and were not attempting to flee the jurisdiction. Hence, no qualified privilege can be adduced from the facts here to date presented in the proceedings below.
3.
If the plaintiff in a defamation action is a private individual and the matter is not of public concern, the common-law rule that the defendant bears the burden of proving the truth of the allegedly defamatory statements may remain constitutionally permissible. PhiladelphiaNewspapers, Inc. v. Hepps (1986),
In her deposition, Mrs. Gilbert stated that she had heard numerous defamatory statements broadcast by WNIR. Specifically, upon deposition by the WNIR defendants, the following colloquy was had:
Q. What have you heard [on WNIR]? *741
A. I heard that — that I was — had been arrested, and that upon my arrest, I was taken to a psychiatric hospital.
* * *
Q. Tell me what else you heard.
A. First, I heard I was arrested, supposedly arrested trying to flee the country. I heard that I was — that I — also, I heard that I was arrested in New York. It was also stated that I was arrested in Cincinnati. It was also stated that I was arrested in Michigan. It was stated that my — that I had put my dog on Dr. Prade to harm her. * * * They said wherever there's smoke, there's fire.
* * *
Q. * * * When did you hear announced on WNIR that you had been arrested?
A. January 5.
Q. What was the precise comment that you heard?
A. That there was late-breaking news, that there has been an arrest made in the murder of Dr. Margo Prade.
Q. Anything more to the statement?
A. Something to the effect that arrested were local attorney Edward L. Gilbert and his wife Delphinia Gilbert.
Mr. Gilbert testified that he had heard a commentator or newsperson on WNIR state "`[m]ore to come on the arrest of a prominent black attorney and his wife for the murder of Dr. Prade.'" Mr. Gilbert further testified that these statements were "just malicious intentional blatant lie[s]." As the Gilberts were not arrested for the murder of Dr. Prade, nor were they involved in Dr. Prade's murder, these statements are false statements concerning Mr. Gilbert. Further, as Mrs. Gilbert testified to having heard the statements on WNIR, we cannot conclude that Mr. Gilbert did not show the existence of the statements. Construing the facts in a light most favorable to the nonmoving party, we cannot conclude that Mr. Gilbert failed to show that a material issue of fact remains as to the existence of false statements broadcast on WNIR.
4.
In a private figure defamation action, "the plaintiff must prove by clear and convincing evidence that the defendant failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication." Lansdowne,
The WNIR defendants do not challenge the Gilberts' claims on the element of fault, but rather, assert that the statements presented by the Gilberts on summary judgment were not defamatory. Construing the facts in a light most favorable to the Gilberts, statements broadcast by WNIR1 charged Mr. Gilbert with involvement in the murder of Dr. Prade. The statements were to the effect that the Gilberts had been arrested for that crime and provided theories on the Gilberts' motivation in committing the crime. The proffered motives included Mr. Gilbert having had an affair with Dr. Prade, Mrs. Gilbert having had an affair with Dr. Prade, the Gilberts and Dr. Prade having all had sexual relations with each other, and Mrs. Gilbert having had a relationship with the man Dr. Prade was then dating. The overriding theory was jealousy spawned by some form of love triangle. Further, the statements indicated that the Gilberts had been arrested while attempting to flee the jurisdiction, presumably to avoid prosecution.
The WNIR defendants aver that the statements are subject to an innocent construction. "The `innocent construction' rule provides that if a statement is `susceptible to two meanings, one defamatory and one innocent, the defamatory meaning should be rejected, and the innocent meaning adopted.'" Sethi v. WFMJ Television, Inc. (1999),
5.
"The publication of defamatory matter is an essential element to liability for defamation." Hecht v. Levin (1993),
"it is communicat[ed] intentionally or by a negligent act to one other than the person defamed." Any act by which the defamatory matter is communicated to a third party constitutes publication. Also, it is sufficient that the defamatory matter is communicated to one person only, even though that person is enjoined to secrecy.
(Emphasis original and citations omitted.) Id. As noted above, the standard for fault in publishing the statements that the Gilberts allege is clear and convincing evidence. Specifically, "the plaintiff must prove by clear and convincing evidence that the defendant failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication." Lansdowne,
In deposition testimony produced upon summary judgment, Marvin Hodoh stated "I think it was a caller that called in and said that — that the Gilberts had been arrested in New York, you know, with him trying to get his wife out of the country, wife and dog out of the country." John Wesley Sharp, who publishes a newsletter, stated that the information he "got from WNIR [was] that there was suspicion in the community that Mrs. Gilbert and Mr. Gilbert were involved" with Dr. Prade's murder. Further, he stated that he received information from WNIR "[t]hat people thought there was trying to be a cover-up" and "[t]hat the *744 people, in terms of WNIR, the people who were calling in, thought that Mr. Gilbert was using his position as an attorney to suppress [these allegations]."
The WNIR defendants assert that Mr. Gilbert must show publication by clear and convincing evidence. However, as noted above, Mr. Gilbert need show fault on the part of defendants in determining the truth or falsity of the information published or its defamatory character by clear and convincing evidence, but must show publication to another party by only a preponderance of the evidence. Construing the evidence adduced below in a light most favorable to Mr. Gilbert, we cannot conclude that a material issue of fact does not exist as to whether the statements were transmitted to another party. Two persons, other than the allegedly defamed parties, testified to having heard defamatory statements broadcast by WNIR. Accordingly, we find that a genuine issue of material fact remains as to the publication of the alleged statements.
6.
If a statement is defamatory per se, the party about whom the statement was made may recover presumed damages without showing special harm.Gosden,
The matter herein was a criminal investigation of the murder of a preeminent Akron area physician. "Murder is a heinous crime that affects the public because of its disruption of society." Talley,
Mr. Gilbert's assignment of error is sustained. We find the WNIR defendants' arguments for affirmance on other grounds to lack merit.
1.
First Cross-Assignment of Error
THE TRIAL COURT ERRED BY DENYING CROSS-APPELLANTS' MOTION TO DISMISS FOR DESTRUCTION OF EVIDENCE.
The WNIR defendants assert that the trial court erred in failing to dismiss the Gilberts' case because the Gilberts had destroyed certain invaluable pieces of evidence. We find this argument to be not yet ripe for our review.
"If any party * * * fails to obey an order to provide or permit discovery * * * the court in which the action is pending may * * * dismiss the action[.]" Civ.R. 37(B)(2)(c). However, "`[j]udicial discretion must be carefully — and cautiously — exercised before [the Ohio Supreme Court] will uphold an outright dismissal of a case on purely procedural grounds.'" Quonset Hut, Inc. v. Ford MotorCo. (1997),
"Absent such extreme circumstances, a court should first consider lesser sanctions before dismissing a case with prejudice." Id. "The decision to dismiss a case pursuant to Civ.R. 41(B)(1) is within the sound discretion of the trial court." Quonset Hut, Inc.,
The WNIR defendants moved to dismiss the Gilberts' complaint because they aver that the Gilberts failed to comply with a discovery order requiring the production of tape recordings which the Gilberts' may have made of WNIR broadcasts. The Gilberts did provide some tapes in response to this order, but the WNIR defendants aver that the Gilberts had additional tapes, which they have destroyed. The trial court denied the WNIR defendants' motion to dismiss on September 14, 2000.
The trial court denied the WNIR defendants' motion to dismiss because the Gilberts had produced tape recordings and it was unclear as to whether the Gilberts ever had possessed additional recordings. Further, the trial court withheld its final determination on this matter due to this lack of evidence, stating:
[w]hether or not inconsistencies exist that cause the Defendants to believe that additional tapes exist is something that the Defendants can address during cross-examination at trial, if necessary. Further, should the Plaintiffs seek to introduce at trial tapes that have not been previously produced to the Defendants, at that time the Defendants may present the appropriate objections to the Court.
Hence, the trial court has not made a final determination on this issue and clearly finds the evidence below to be so lacking that a final determination is not yet appropriate.
As the trial court has not passed upon the issue of the existence of the additional tape recordings and whether the Gilberts destroyed them, the controversy raised in this assignment of error is not ripe. "The trial court simply did not reach or rule on" whether the Gilberts had complied with the discovery order or had engaged in the destruction of evidence. Egan v. Natl. Distillers Chem. *747 Corp. (1986),
2.
Second Cross-Assignment of Error
THE TRIAL COURT ERRED BY FAILING TO GRANT CROSS-APPELLANTS' MOTION FOR SUMMARY JUDGMENT IN TOTO.
The WNIR defendants assert that the trial court erred in failing to grant their motion for summary judgment as to both Mr. and Mrs. Gilbert. We find that the cause brought by Mrs. Gilbert was dismissed, and therefore, this assignment of error is not properly before this court.
Summary judgment was granted in favor of the WNIR defendants on Mr. Gilbert's claims. Thereafter, Mrs. Gilbert dismissed her claims without prejudice on October 2, 2000, pursuant to Civ.R. 41(A)(1)(a). This appeal followed.
In this assignment of error, the WNIR defendants seek to obtain the reversal of the trial court's denial of summary judgment on a claim, which has been voluntarily dismissed pursuant to Civ.R. 41(A)(1)(a). "It is axiomatic that such dismissal deprives the trial court of jurisdiction over the matter dismissed. After its voluntary dismissal, an action is treated as if it had never been commenced. Jurisdiction cannot be reclaimed by the court." (Citation omitted.) Zimmie v. Zimmie (1984),
As the claims upon which this assignment of error is based were dismissed, we find this assignment of error to be moot and decline to address it.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the County of Summit, Court of Common Pleas, 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(E).
Costs taxed to WNIR 100 FM, et al., Appellees/Cross-Appellants.
Exceptions.
______________________________________ WILLIAM G. BATCHELDER
BAIRD, J. CONCURS.
CARR, J., CONCURS IN JUDGMENT ONLY