Franks v. the Lima News , 109 Ohio App. 3d 408 ( 1996 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Plaintiffs-appellants, Nancy A. Franks and James Franks ("appellants"), appeal from the judgment entered in the Allen County Court of Common Pleas granting the motion of defendant-appellee, The Lima News ("appellee"), for summary judgment and dismissing the complaint.

Appellants brought suit against appellee alleging a claim of libel based upon the following article appearing in appellee's publication on June 26, 1994:

"8 arrested for rioting

"Lima police arrested eight people and sent more than 40 others packing after they found them rioting in the 100 block of East North Street Saturday morning.

"Approximately 50 people were squaring off for a fight around 2:20 a.m. just east of Main Street in the downtown area when Patrolman Michael Koening came upon the disturbance, police reports said.

"Police charged eight people with rioting, failure to disperse and intoxication.

"Arrested were: * * * Nancy A. Franks, 40, 4836 Willow St. * * *.

"All except Smith and Shurelds were charged with resisting arrest and the juvenile was charged with violating the city's curfew."

Appellee printed two separate corrections to this article on June 27, 1994 and July 3, 1994, explaining that Franks had not been arrested as previously reported and was "merely riding with a Lima police officer to learn about police work in the community" and that "[a] reporter from the paper copied her name in error as a suspect" from the police report.

Subsequent to the filing of appellants' complaint for libel, both parties filed motions for summary judgment. The trial court concluded that appellants had not presented any evidence of a genuine issue of material fact which could lead any reasonable person to conclude, "by clear and convincing evidence," that appellee had failed to act reasonably in discovering the truth or falsity of information contained in the June 26, 1994 article. Accordingly, on August 17, 1995, the trial court granted summary judgment to appellee and dismissed the complaint. On September 14, 1994, appellants filed a motion for reconsideration in the trial court.

Appellants also timely filed a notice of appeal from the August 17, 1995 decision and their appeal is now before this court, wherein they assert one assignment of error for our review:

"The trial court erred in sustaining defendant's Motion for Summary Judgment on plaintiffs' claim of libel pursuant to its reading of the protections afforded by the First Amendment to the United States Constitution to a private person victim of libel by a daily newspaper."

Before reaching the substantive issue raised in appellants' assignment of error, we must first address a procedural problem raised by the parties. In support of their argument in their appellate brief, appellants rely upon two affidavits which were attached to their motion for reconsideration. These affidavits will not be considered by this court. The Ohio Rules of Civil Procedure do not provide for motions for reconsideration after final judgment has been entered in the trial court. Pitts v.Dept. of Transp. (1981), 67 Ohio St. 2d 378, 21 O.O.3d 238,423 N.E.2d 1105, paragraph one of the syllabus. In effect, such motions are a nullity. Id. Moreover, we are guided by the well-established rule of appellate law that a reviewing court considers only the evidence that the trial court had before it.State v. Ishmail (1978), 54 Ohio St. 2d 402, 8 O.O.3d 405,377 N.E.2d 500. Therefore, we do not consider any part of appellants' motion for reconsideration.

Turning to the substantive issue raised by appellants' assignment of error, we first examine our standard of review upon a motion for summary judgment.

"Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (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 the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party." State ex rel. Howard v. Ferreri (1994), 70 Ohio St. 3d 587,589, 639 N.E.2d 1189, 1192.

Summary judgment is a procedure designed to terminate the normal litigation process when there is no issue for trial.Murray v. Murray (1993), 89 Ohio App. 3d 141, 144-145,623 N.E.2d 1236, 1238-1239. Therefore, courts must proceed cautiously and award summary judgment only when appropriate. Id. Any doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St. 3d 356,358-359, 604 N.E.2d 138, 139-140. However, the nonmoving party must present evidence on any issue for which it bears the burden of production at trial. Wing v. Anchor Media, Ltd. ofTexas (1991), 59 Ohio St. 3d 108, 111, 570 N.E.2d 1095, 1099. An appellate court reviews a trial court's grant or denial of summary judgment independently, applying the same standard as the trial court. Koos v. Cent. Ohio Cellular, Inc. (1994),94 Ohio App. 3d 579, 588, 641 N.E.2d 265, 271.

As stated, appellants set forth a claim for libel. To establish a claim for libel, appellants must demonstrate first, that the statement is false; second, that the statement is defamatory¹ towards the plaintiff; third, that the statement was written; fourth, that the statement was published; and, fifth, that the defendant is guilty of some degree of fault.Black v. Cleveland Police Dept. (1994), 96 Ohio App. 3d 84, 88,644 N.E.2d 682, 684. See, also, A B-Abell Elevator Co. v.Columbus/Cent. Ohio Bldg. Constr. Trades Council (1995),73 Ohio St. 3d 1, 651 N.E.2d 1283. Fault is established by determining whether "the defendant acted reasonably in attempting to discover the truth or falsity or defamatory character of the publication." Embers Supper Club v.Scripps-Howard Broadcasting Co. (1984), 9 Ohio St. 3d 22, 25, 9 OBR 115, 117, 457 N.E.2d 1164, 1167. If a private figure plaintiff has established a prima facie showing of defamation and the only issue remaining is fault, the plaintiff's burden is then to prove, by clear and convincing evidence, that the defendant did not act reasonably in attempting to discover the truth or falsity of the publication. Lansdowne v. Beacon JournalPub. Co. (1987), 32 Ohio St. 3d 176, 512 N.E.2d 979.

Appellants made a prima facie showing of defamation, and the only issue before the court upon review of appellee's motion for summary judgment is whether there exists a genuine issue of material fact of whether the reporter of the article in question, Michael Noe ("Noe"), acted reasonably in attempting to discover the truth or falsity of the publication.

Appellee argues that the trial court properly granted its motion for summary judgment because appellants did not present any evidence that Noe did not act reasonably in attempting to discover the truth or falsity of the publication. To support its motion for summary judgment, appellee submitted the affidavit of Noe, which states in pertinent part:

"5. I carefully sourced or researched the [June 26, 1994] article the same way that I have always reported the contents of Lima Police Department arrest records. I read the arrest record * * * correctly noting that the first seven names on the report were those arrested by the Lima Police Department on June 25, 1994 for rioting, failure to disperse and intoxication. I also incorrectly noted Nancy Franks as a suspect on the same charges as the other seven suspects. This was an honest mistake due to Nancy Franks' name having been listed in the same place in the arrest report as the suspects. The report listed her height, weight, hair and eye color which is normally done for suspects. Only a bubble blackened [next to the term] ``wit' indicated [that] Nancy Franks had not been arrested.

"6. My mistake in reporting Nancy Franks as a suspect in the article was reasonable under the circumstances. As a daily newspaper reporter reporting on [a] deadline, I was unable to verify the arrest report with Nancy Franks prior to the publication of the article."

In its August 17, 1995 judgment entry, the trial court determined that no genuine issue of material fact remained for the trier of fact because a reasonable person could not conclude, "by clear and convincing evidence," that appellee acted unreasonably in attempting to discover the truth or falsity of the June 26, 1994 article.

Our review shows that the trial court used an incorrect analysis in reaching its decision to grant appellee's motion for summary judgment. As noted above, before summary judgment can be granted, Civ.R. 56(C) requires that no genuine issue of material fact exists. The burden of proof required in a particular civil case is of no consequence when a court reviews a motion for summary judgment. The sole issue for a court when it reviews a motion for summary judgment, along with all relevant evidentiary materials and pleadings is whether any genuine issue of material fact exists. Thus, the trial court's standard for review in this case was incorrect because it effectually weighed the evidence to determine whether appellants had presented clear and convincing evidence of the reasonableness of the reporter's attempt to discover the truth or falsity of the June 26, 1994 article. Applying the correct standard set forth in Civ.R. 56(C), this court concludes that the Lima police report presents a genuine issue of material fact sufficient to defeat appellee's motion for summary judgment.

For clarity, we have attached to this opinion a copy of the Lima police report of the June 25, 1994 incident. An inspection of that document reveals that it has a place for the police officer to write in such vital information as the offense, the name of the victim, and names of witnesses and suspects. Appellant Nancy Franks's name appears as the eighth and very last name on the report. Next to each person's name, other than the victim information box, is a place for the officer to designate in a box each listed person as either "sus" (suspect) or "wit" (witness) and to provide vital statistical information (age, weight, etc.). The "sus" or "wit" box was filled in for each of the eight persons listed on the report. The "sus" box was blackened for the first seven names and the "wit" box was blackened next to Nancy Franks's name.² With the exception of the seventh listed name, which fairly and accurately indicated that the person was in custody and a suspect (see report and footnote 2), and contrary to the assertion of the trial court and appellee, the "sus" and "wit" boxes are in the same place for each person. Even if it could be said that the "sus" and "wit" boxes are not in the same place for each listed suspect or witness, this may be reason for a reporter to examine the report more carefully than normal to check the accuracy of the information he is reporting. Moreover, the boxes designating whether or not each of the eight listed persons was a suspect or witness, including Nancy Franks, arelocated directly next to the person's name. Even a cursory review of the Lima police report reveals that such report is used for both suspects' and witnesses' names, requiring, at a minimum, of one reporting from such document, to check the "sus" or the "wit" box; especially, for a reporter like Noe, who indicates in his affidavit that he has gathered information from Lima police reports on prior occasions. Moreover, the "custody" box to the left of each name was blackened, except for the boxnext to Nancy Franks's name.

Viewing the evidence most strongly in favor of the nonmoving party as required by Civ.R. 56(C), the Lima police report attached hereto is itself sufficient evidence to indicate that a genuine issue of material fact exists as to whether appellee acted in a reasonable manner. Thus, for the reasons stated, a reasonable person could conclude that Noe failed to act reasonably in attempting to discover the truth or falsity of his June 26, 1994 report. Whether Noe's "honest mistake" was reasonable under the circumstances is a genuine issue of material fact for the trier of fact to decide. Hence the trial court erred by granting appellee's motion for summary judgment.

Appellants' sole assignment of error is sustained. The judgment of the Allen County Court of Common Pleas is reversed, and the cause is remanded for proceedings in accordance with this opinion.

Judgment reversed and cause remanded.

EVANS and THOMAS F. BRYANT, JJ., concur.

¹ "``Defamation is a false publication causing injury to a person's reputation, or exposing him to public hatred, contempt, ridicule, shame or disgrace, or affecting him adversely in his trade or business.'" Rogers v. Buckel (1992), 83 Ohio App. 3d 653,659, 615 N.E.2d 669, 672-673.

² The name listed just prior to Nancy Franks's box was written in a victim box; however, the officer marked out "victim," and wrote "custody" next to the box and blackened in a square indicating the person was a suspect.