682 N.E.2d 1006 | Ohio Ct. App. | 1996
Lead Opinion
Kremer was the chief surgeon at St. Thomas Hospital in Akron, Ohio. Cox also practiced at that facility, as the chief of pathology. Cox was also the Summit County Coroner. Cox testified that he had been subjected to pressure by Kremer and other medical and administrative personnel to (a) cease his investigation into the death of one of Kremer's patients and (b) implement a training program for pathology residents using the county coroner's facilities. Cox testified that he reported the pressures to the Summit County Prosecutor's Office. That office, which represented Cox only in his capacity as Summit County Coroner, conducted an investigation. Fred Zuch, a member of the prosecutorial staff, testified that, although he had a meeting with several hospital officials regarding Cox's concerns, no charges were ever filed.
Cox claimed that, when he refused to comply with the demands made by the administrative staff of the Summa Health Corporation, which employed him, he was subjected to harassment, increased working hours, decreased salary, threats, and termination. When St. Thomas Medical Center merged with Akron City Hospital (the combined entity was known as the Summa Health Corporation), Cox was removed as chief of pathology and, eventually, terminated from his hospital position altogether.
Prior to leaving the hospital, Cox, in his capacity as coroner, received a report from a St. Thomas physician1 that one of Kremer's patients had died after surgery. In addition, a television reporter provided Cox with a copy of a report from the SMBO that indicated that another patient of Kremer's had died of *49 excessive blood loss.2 After reviewing the SMBO's report, Cox changed that patient's death certificate, and notified the patient's next of kin that he believed Kremer had not accurately reported the cause of death.
Cox, still acting as coroner, also decided to have an outside expert review three other cases of Kremer patients who had died. Cox stated that this was standard procedure when he was personally acquainted with the primary physician. He announced these intentions in an article reported in the Akron newspaper. Only two of the three cases were actually sent out for review. In his letter to the reviewing physician, Cox indicated that he specifically was questioning anesthetic care, surgical technique, and postsurgery patient management. The outside examiner charged only $125 for the review of both cases, considered by other physicians to be a very low fee. The examiner could not determine that Kremer had committed any errors. The investigations by both Cox and the SMBO were the subject of significant media exposure.
Cox received a written notice from Summa indicating that he would be terminated from his position as a pathologist due to the consolidation of the two hospitals. Cox requested that Summa reconsider this decision; his request was denied. On June 28, 1993, Cox filed a civil suit against Summa, Kremer, and several other physicians and administrators. In the complaint, Cox alleged that Summa, and various Summa personnel including Kremer, had committed a number of offenses against him, and sought an injunction against his termination. Again, there was significant publicity. A temporary injunction was granted. Cox settled that lawsuit after thirty-eight days; although Kremer did not contribute to the settlement, the case against him was dismissed.3
After Cox had dismissed his suit, on November 23, 1993, Kremer filed suit against Cox, both individually and in his capacity as coroner. Kremer's complaint included counts of defamation, malicious prosecution, abuse of process, abuse of authority, negligent infliction of emotional distress, and intentional infliction of emotional distress. Generally, the complaint alleged that, as a result of Cox's actions, Kremer had suffered humiliation, damage to his reputation, the loss of his practice, and a loss of income.
Kremer attempted to subpoena the attorneys who had filed Cox's suit, as well as Fred Zuch, the assistant prosecutor who had testified at a hearing while that suit was pending regarding the steps taken by the prosecutor's office on behalf of *50 the coroner. Kremer also attempted to subpoena certain records and representatives from the SMBO. After a request by Cox and the Summit County Prosecutor's Office, the trial court quashed Kremer's subpoenas and granted protective orders to Zuch and Cox's civil attorneys, Paige Martin and A. William Zavarello.
Cox then moved for summary judgment on each count of the complaint. After responses from Kremer and other filings by the prosecutor's office and the SMBO, the trial court granted summary judgment to Cox on all counts except the alleged abuse of process. That charge proceeded to trial, where a jury awarded Kremer $10,000 in compensatory damages and $80,000 in punitive damages. Both Cox and Kremer now appeal; each presents three assignments of error. We first discuss the assignments of error presented by Cox and then move to a discussion of Kremer's assignments of error.
In these assignments of error, Cox alleges that the trial court committed error in denying summary judgment. However, even if such an error was committed, it would be harmless in this instance. Errors in denying summary judgment are not reversible where the matter eventually proceeds to trial and is resolved in favor of the nonmoving party:
"We hold that any error by a trial court in denying a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same issues raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of the party against whom the motion was made." Continental Ins. Co. v. Whittington (1994),
Cox's first two assignments of error also allege that the trial court erred in failing to direct verdicts for Cox (1) on the claim itself and (2) with respect to the proximate cause of Kremer's damages. However, the record reveals that, *51
although Cox made these motions at the close of Kremer's case-in-chief,4 at which time they were denied, he failed to renew them at the close of all the evidence. Therefore, Cox waived his right to assert the denial of a directed verdict on appeal. Chem. Bank of New York v. Neman (1990),
Cox's third assignment of error alleges that the trial court erred in denying his motion for a new trial pursuant to Civ.R. 59(A)(6) and (7), which was premised upon the grounds that the jury's verdict was against the manifest weight of the evidence and contrary to law. We first consider the claim that the verdict was contrary to law.
The claim that proceeded to trial was one for alleged abuse of process by Cox. Abuse of process consists of three elements: (1) a legal proceeding has been set in motion in proper form and with probable cause, (2) the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed, and (3) direct damage has been incurred by a party as a result of the abuse. Yaklevich v. Kemp, Schaeffer Rowe Co.,L.P.A. (1994),
According to Kremer, Cox had included Kremer in Cox's suit against Summa for the "ulterior purpose" of causing him embarrassment and humiliation. Kremer claims that, as a result of Cox's suit and the statements made in Cox's complaint, his reputation and practice have been damaged.
Cox's suit was in existence for only thirty-eight days; Kremer, although included in the complaint as a defendant, was dismissed prior to the other defendants. In his complaint, Kremer is clear that the only act about which he is complaining is the filing of the Cox's complaint itself: "[Cox's] act in filing the civil lawsuit against the Plaintiff was a willful and improper use of process[.]"
It is clear, though, that Kremer, as a matter of law, was not entitled to relief for a claim of abuse of process:
"The tort of abuse of process arises when one maliciously misuses legal process to accomplish some purpose not warranted by law. The key to the tort is the purpose for which process is used once it is issued. Abuse of process does not lie for thewrongful bringing of an action, but for the improper use, or `abuse,' of process. *52
"* * * Thus, if one uses process properly, but with a malicious motive, there is no abuse of process, though a claim for malicious prosecution may lie. * * *
"`* * * The tortious character of the defendant's conduct consists of his attempts to employ a legitimate process for a legitimate purpose in an improper manner * * *.'" (Citations omitted, emphasis added.) Clermont Environmental Reclamation Co.v. Hancock (1984),
"Simply, abuse of process occurs where someone attempts to achieve through use of the court that which the court is itself powerless to order." Robb v. Chagrin Lagoons Yacht Club (1996),
Kremer contends that, by including Kremer in his lawsuit, Cox committed a tort. Kremer's claim was premised solely on the filing of Cox's complaint itself, which Kremer claims was done without probable cause and for nefarious purposes. Such a rationale may support a claim for malicious prosecution, but cannot provide a sufficient foundation for an abuse of process action. Yaklevich v. Kemp, Schaeffer Rowe Co., L.P.A.,
Moreover, Kremer does not contend that Cox used process properly initiated for an improper purpose. Rather, on the record before this court, it is clear that Kremer's argument is that Cox's suit was not properly initiated, at least with respect to Kremer.5 Even (perhaps especially) if we accept Kremer's claims as true, such allegations do not provide a sufficient legal foundation for a claim of *53 abuse of process; rather, they would provide support for, if anything, a malicious prosecution claim:
"Even though the tort of malicious prosecution and the tort of abuse of process have different elements, in some situations the same facts which may constitute an abuse of process may also support an action for malicious prosecution. In that case, a complaint could allege both causes of action, in separate counts. In such a situation, a consideration of whether probablecause was present to bring the underlying litigation would bethe key to determining under which tort theory the action shouldproceed." (Emphasis added.) Yaklevich v. Kemp, Schaeffer RoweCo., L.P.A.,
Accordingly, Cox's third assignment of error is sustained insofar as it pertains to the trial court's refusal to grant a new trial on the basis of Civ.R. 59(A)(7), since an action for abuse of process will not lie for the mere institution of proceedings. In light of that disposition, the remainder of Cox's third assignment of error is rendered moot.
On April 7, 1994, Kremer served a subpoena upon the SMBO, seeking any documents or testimony regarding complaints filed against him. In particular, Kremer sought records of any complaints made by Cox and Dr. Moss, an anesthesiologist at St. Thomas, which had resulted in the SMBO's investigation of Kremer. The SMBO refused to disclose this information and sought a protective order from the trial court. The trial court, in quashing the subpoena, held that the information was protected under the privilege conferred by R.C.
R.C.
The Supreme Court of Ohio has held that such records are to be considered privileged and that their confidentiality may not be breached in the course of a civil action such as the instant case. State Med. Bd. of Ohio v. Murray (1993),
Kremer also contends that whatever privilege may have attached to the documents was waived because, he claims, the SMBO disclosed one of those documents to Cox. At the outset, we note that, since the privilege which protects the documents belongs to the patients and persons who file reports with the SMBO, the SMBO may not waive the privilege. The privilege can only be waived by those who possess it. See In re Kralik (1995),
Moreover, the record does not support Kremer's contention that the SMBO disclosed any information at all, much less that the information was directly released to Cox. Rather, the record indicates that a local television reporter provided Cox with a copy of one document. According to the affidavit of the SMBO's assistant executive director, release of such documents was unauthorized, and the SMBO did not knowingly permit such disclosure. Nothing in the record indicates how the document came into the reporter's possession; moreover, the document itself was provided by Cox to Kremer pursuant to his discovery request. Furthermore, the record indicates that, when Cox attempted to follow up on the document and obtain additional information, the SMBO refused to disclose such information to him as well.
In his reply brief, Kremer urges this court to "[c]onsider the timeless question of whether a tree that falls in a desolate forest makes a noise. No one knows. In this case, the Board's action will forever prevent Dr. Kremer from discovering what Dr. Cox told the Board's investigators." We decline Kremer's invitation to philosophical reflection and shall instead follow the clear mandates of the Revised Code and the Supreme Court of Ohio, which require exactly such protections as Kremer apparently considers so vexatious.
The trial court did not err in quashing Kremer's subpoena to the SMBO. Accordingly, Kremer's first assignment of error is overruled. *55
Kremer also issued subpoenas to three attorneys, seeking to depose them and to obtain certain documentary evidence. The trial court quashed all three subpoenas, ruling that Kremer was not entitled to the information he sought.
Kremer sought to depose Zuch and compel production of the document to which he referred during his testimony. As support for his claim, Kremer cites Evid.R. 612, which permits an opposing party, under certain circumstances, to examine a document used to refresh a witness's recollection. However, in this case, the document sought was used to refresh a witness's memory in a separate lawsuit. Kremer provides nothing to support the contention that Evid.R. 612 pertains to such materials, nor did he request to examine the document when it was presented at the injunction hearing during Cox's lawsuit.
In addition, the state argues, documents prepared during the course of an investigation by the prosecutor's office are protected by the privilege delineated in R.C.
Zuch testified that the document to which he referred contained names of persons present at a meeting8 called to investigate allegations that one or more of those persons had attempted to coerce a public official into abusing his position by (1) ceasing an investigation into the death of one of Kremer's patients and (2) using county facilities to conduct a training program for hospital pathology residents. The trial court was asked to review the document in camera and concluded that the document was covered by the statutory privilege.
The trial court further found that any communications between Zuch and Cox (as coroner) were protected under the rubric of the attorney-client privilege. R.C.
We further note that, since Cox's statements were made in his capacity as coroner, they are protected by a qualified immunity codified in R.C.
Kremer argues that, since Cox defended against Kremer's lawsuit in part by relying on the defense of advice of counsel, Cox waived the privilege. An examination of the record indicates that when Cox filed his motion for summary judgment on May 12, 1994, he attached two affidavits. The first of these, which was Cox's own affidavit, stated the following:
"I sought the advice of Attorney A. William Zavarello concerning my legal rights against all of the Defendants in Civil Case No. CV 93-06-2139 [Cox's suit against Summa] for the June 30, 1993 termination from Summa. I discussed with Mr. Zavarello all the facts which were within my knowledge concerning all of the Defendants to that lawsuit. After Mr. Zavarello consulted with co-attorney, Paige Martin, I was advised that I had probable cause for filing a lawsuit against all of the Defendants in Case No. [CV] 93-06-2139. Based on counsel's advice, I decided to proceed with that claim. My sole purpose in filing that claim was to protect my legal rights. Once the purposes of that lawsuit were fulfilled, my attorney terminated the litigation. I was advised by counsel that we should voluntarily dismiss Dr. Kremer from that lawsuit, even though he refused to participate in settlement."
Also attached to Cox's motion was another affidavit, signed by A. William Zavarello. In it, Zavarello stated:
"Dr. William Cox, the Summit County Coroner, consulted me concerning his legal rights. Dr. Cox fully disclosed the facts of his predicament with me. In addition, I questioned Dr. Cox concerning information which would be necessary before instituting a lawsuit. Based upon the facts obtained from Dr. Cox and consultation with co-counsel, Paige Martin, who routinely handles employment claims, we determined that there was probably [sic] cause to file Summit County Common Pleas Civil Case No. CV 93-06-2139. The purpose of filing that lawsuit was to obtain compensatory and injunctive relief. * * * Civil Case No. CV 93-06-2139 was not filed for an ulterior purpose or based on malicious feelings toward Dr. Kremer." *58
Nearly six months later, in October 1994, Kremer issued the subpoenas to Zavarello and Martin. He contends that, since Cox injected these statements into the case, he should have been entitled to depose Zavarello and Martin to ascertain the nature and extent of Cox's communications to them regarding Kremer; Kremer argues that such an inquisition may have enabled him to support his claims by providing evidence of malice on the part of Cox. After the trial court quashed the subpoenas, Cox invoked the advice of counsel in response to numerous questions in his deposition, repeatedly stating that, for an answer to his questions, Kremer's attorney would "have to ask Paige Martin and Bill Zavarello."
Generally, communications between a client and his attorney are privileged from discovery. R.C.
In considering a similar issue regarding privileged documents, the Supreme Court of Ohio, citing Handgards, has stated that such an argument "would have merit if it were addressed to the attorney-client privilege of R.C.
However, we note that the "advice of counsel" defense was raised only, if at all, with regard to Kremer's claims regarding the malicious filing of Cox's lawsuit and the defamatory statements made in the complaint and proceedings in that case. Therefore, even though the trial court erred in quashing the subpoenas, that error would only be relevant insofar as prejudice could be shown *59 regarding Kremer's claims for defamatory statements alleged to have been made in the course of the prior lawsuit.
The error would be harmless, since statements made in a judicial proceeding are privileged from claims of defamation:
"[U]nder the doctrine of absolute privilege in a judicial proceeding, a claim alleging that a defamatory statement was made in a written pleading does not state a cause of action where the allegedly defamatory statement bears some reasonable relation to the judicial proceeding in which it appears." Suracev. Wuliger (1986),
Kremer has made no suggestion or showing that the statements he claims were defamatory were made outside the proceedings or were unrelated to Cox's claims. In fact, Cox alleged, as part of his suit, that he was being pressured to cease his coroner's investigation into the death of Kremer's patients. Thus, statements made during the prior proceeding would be protected from Kremer's defamation claims.
Since the statements in question were made in a judicial proceeding and thus are insulated from defamation claims, it does not appear that Kremer suffered any prejudice to his defamation claim as a result of the trial court's quashing of the subpoenas. Moreover, Kremer has not demonstrated how a showing of malice on the part of Cox, even if discovered, would have altered the disposition of any other claim he has made.10 The error in quashing the subpoenas to Martin and Zavarello, therefore, was harmless given the nature of the claims made by Kremer.
Accordingly, Kremer's second assignment of error is overruled.
In his third assignment of error, Kremer challenges the trial court's grant of summary judgment to Cox on four other counts originally contained in Kremer's complaint. We have rearranged them to facilitate discussion. *60
In reviewing a trial court's entry of summary judgment, an appellate court applies the same standard used by the trial court. Perkins v. Lavin (1994),
Initially, we note that, with respect to the trial court's rulings on Kremer's claims for abuse of authority, intentional infliction of emotional distress, and negligent infliction of emotional distress, Kremer has failed to argue or support his claims in any way. Rather, Kremer states in his brief that "no discussion is presented" regarding those claims. Pursuant to App.R. 16(A) and Loc.R. 13, briefs are to contain a separate discussion of each error alleged, as well as argument and authority supporting the party's position. Pursuant to App.R. 12(A)(2), an appellate court may disregard errors not separately assigned and argued in an assignment of error. Akron v. Wendell
(1990),
With regard to these claims, Kremer's brief contains neither argument nor authority. It is not the function of this court to construct a foundation for a party's claims; failure to comply with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal. Moreover, even if we were to disregard the obvious flaw in the presentation of these claims, they would be found to be lacking in merit.
"It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."Id. at 374-375, 6 OBR at 426,
In Paugh v. Hanks (1983),
Kremer has not alleged that any emotional stress he has suffered rises to this level. To the contrary, he asserts that he is capable of coping and that it has not negatively affected his abilities as a physician; he testified that he was as *62 competent and capable as ever, and that his practice had declined, not as a result of his inability to deal with stress, but because other doctors stopped referring patients to him.
Kremer's third assignment of error is overruled insofar as it pertains to his claim of intentional infliction of emotional distress.
The letter from Cox to Patient A's family is presented by Kremer as being libelous. The statements made by Cox which were reported in the local media are alleged to be slanderous. We will consider each argument separately.
"Where the circumstances of the occasion for the alleged defamatory communications are not in dispute, the determination of whether the occasion gives the privilege is a question of law for the court.
"No single statement or formula can sufficiently describe when publication of defamatory matter should be conditionally or qualifiedly privileged. It is generally agreed, however, that * * * [a] publication is privileged when it is `fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.'
"`"`* * * 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. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits.'"' *63
"* * * [T]he privilege does not attach to the communication, but to the occasion on which it is made." (Citations omitted.)A B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. Constr.Trades Council (1995),
Cox has asserted that his statements were made in good faith and pursuant to his duties as coroner. If a privileged situation is found to exist, then once such an assertion of good faith is made, the burden falls to Kremer to establish that Cox acted with actual malice in order to overcome the privilege.
It therefore appears that Cox's letter was made pursuant to his duties as coroner, and an examination of the letter does not disclose that Cox exceeded the proper scope of those duties. Accordingly, we find that the trial court properly concluded that the letter was subject to the qualified privilege.
"`When a defendant possesses a qualified privilege regarding statements contained in a published communication, that privilege can be defeated only by a clear and convincing showing that the communication was made with actual malice. In a qualified privilege case, `actual malice' is defined as acting with knowledge that the statements were false or acting with reckless disregard as to their truth or falsity.'
"This standard carries the requirement that we conduct an independent review of the sufficiency of the evidence." A B-Abell,
Moreover, "Actual malice cannot `"be implied from the character and content of a publication. * * * It is not sufficient for a libel plaintiff to show that an interpretation of facts is false; rather, he must prove with convincing clarity that defendant was aware of the high probability of falsity."' * * *
"* * * `Mere negligence is not enough to establish actual malice.' `[R]eckless conduct is not measured by whether a reasonably prudent man * * * would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.'" (Citations omitted.)
A review of the record leads to the conclusion that Kremer has failed to carry his burden with regard to establishing actual malice. In his deposition, Kremer disputes Cox's conclusions regarding the cause of Patient A's death; he offers nothing, however, to establish that Cox believed his conclusions to be false or was recklessly ignorant of their veracity. Cox testified that he believed his conclusions were accurate, since the SMBO had launched an investigation of the case based upon indications that Patient A may have died from causes other than those listed by Kremer.12 Cox continued to adhere to this position throughout the proceedings below, and Kremer offered no evidence or testimony, other than his own vague disagreement, to challenge Cox's interpretation of the evidence.
Accordingly, we conclude that, with respect to the letter sent to the family of Patient A, Kremer failed to prove actual malice on the part of Cox. The trial court properly granted summary judgment to Cox on that issue, and Kremer's third assignment of error is overruled as to that ground.
It is apparent from a reading of the newspaper articles that Cox was interviewed regarding his decisions as, in his capacity as, and was speaking as, the Summit County Coroner. Cox was repeatedly described in his official capacity, and quotes were directly attributed to him as the Summit County Coroner. Kremer acknowledged as much in his own deposition testimony. *65
In addition to the qualified privilege discussed in the preceding section, R.C.
"In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury * * * or loss to persons or property allegedly caused by any act or omission in connection with a governmental or proprietary function * * * [t]he employee is immune from liability unless * * * (a) [h]is acts or omissions were manifestly outside the scope of his employment or official responsibilities; [or] (b) [h]is acts or omissions were with malicious purpose, in bad faith, or in a wanton and reckless manner."
The quotations appearing in the article which are attributed to Cox directly relate to, and provide a more detailed and understandable explanation of, the conclusions expressed by Cox in the letter to Patient A's family. They are not, therefore, "manifestly outside the scope" of his duties as coroner, since they are directly relevant to matters determined in his capacity as coroner. Moreover, Kremer still has not offered any evidence of actual malice, bad faith, or reckless disregard beyond that described above. Accordingly, Kremer's third assignment of error is overruled insofar as it pertains to statements to the media regarding Patient A.
The reviewing pathologist determined that Patient B died as a result of post-operative abscess and infection. Cox stated that as the cause of death. The other expert was not conclusive as to the manner of death; he recognized that an infection had indeed occurred, but could not state from where or as a result of *66 which procedure the infection had originated. Cox publicly questioned why the infection and abscess were not diagnosed more quickly, but ruled the death accidental.13
Once again, Kremer provides no basis for his assertions that Cox's statements were false or made with reckless disregard for the truth. Kremer disagrees with the diagnosis of the cause and manner of death, but provides nothing to substantiate the notion that Cox harbored doubt as to the accuracy of his official conclusions. Cox's statements were made in the context of his official functions, and related to public records issued by his office. Accordingly, Kremer's third assignment of error is overruled insofar as it pertains to Cox's statements regarding Patient B.
Having considered each of Kremer's arguments regarding the award of summary judgment granted to Cox by the trial court, we conclude that summary judgment was proper in each instance and overrule Kremer's third assignment of error.
Accordingly, the judgment of the trial court is affirmed with respect to Kremer's assignments of error and Cox's first two assignments of error. The judgment of the trial court is reversed with respect to Cox's third assignment of error, and the matter is hereby remanded for further proceedings in accordance with this decision.
Judgment affirmed in part,reversed in partand cause remanded.
QUILLIN, P.J., concurs in part and dissents in part.
EDWARD J. MAHONEY, J., concurs in judgment only and dissents in part.
The parties' seemingly inconsistent postures and arguments notwithstanding, it is clear that probable cause is an element of a claim for abuse of process; the underlying action must be brought with probable cause in order to support a subsequent claim for abuse of process. The trial court properly instructed the jury that probable cause was an element of the claim, and the jury, in finding for Kremer, apparently determined that this element had been proven.
Dissenting Opinion
I would affirm the judgment in toto.
I agree with Judge Mahoney that Cox should not be permitted to agree to try the case under one theory, and then, after losing, assert an opposite theory on appeal. The judgment against Cox should be affirmed. I concur in the judgment as to Kremer's assignments of error. *67
Dissenting Opinion
I concur in the judgment that the trial court erred in not granting the motion for a new trial. However, I disagree that the new trial should be granted as contrary to law under Civ.R. 59(A)(7). This case was tried under the theory that Cox had probable cause to bring his action. Cox's attorney strongly argued and virtually conceded that issue. How can we then grant a new trial for failure to prove an issue that was really a nonissue and conceded? I believe that the error was on the weight of the evidence as to malice, damages, and proximate cause. See Civ.R. 59(A)(6).
My dissent is to the overruling of Kremer's assignment of error dealing with the quashing of subpoenas for Zuch, Martin, and Zavarello.
Cox claims privileges in several matters and raised the defense of advice of counsel. The error in denying the attempt to depose these attorneys was not harmless. It cut off a potential source of evidence, if any, as to malice and intent. The attorney-client privilege was definitely waived by raising the advice-of-counsel defense. Depositions of various counsel may also have produced sufficient evidence of malice to at least raise the issue of whether the coroner's privileges were also waived. Fairness requires that the court not permit the attorney-client privilege and/or coroner's privilege be used as weapons instead of shields.
EDWARD J. MAHONEY, J., retired, of the Ninth Appellate District, sitting by assignment.
