Buck v. Reminderville , 2014 Ohio 1389 ( 2014 )

[Cite as Buck v. Reminderville, 2014-Ohio-1389.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
JEFFREY BUCK C.A. No. 27002
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
VILLAGE OF REMINDERVILLE, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellants CASE No. CV 2009-11-8465
DECISION AND JOURNAL ENTRY
Dated: March 31, 2014
HENSAL, Judge.
{¶1} Appellant, Michael Varga, appeals a judgment of the Summit County Court of
Common Pleas that denied his motion for summary judgment. For the following reasons, this
Court affirms.
I.
{¶2} According to Jeffrey Buck, chief of police for the Village of Reminderville, Mr.
Varga sent an email to a Village councilman that contained false and defamatory statements
about him. Mr. Buck also alleges that Mr. Varga made false and defamatory statements about
him during a Village human resources committee meeting. The subject email was read aloud
during the meeting and disseminated to the other committee members. The meeting was tape-
recorded and the tape was later transcribed. Both the email and the transcript were made
available as a public record to anyone who requested it.
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{¶3} Mr. Buck sued the Village and Mr. Varga for defamation. Mr. Varga moved for
summary judgment, which was denied by the trial court. He filed an interlocutory appeal and
raises one assignment of error for this Court’s review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
SUMMARY JUDGMENT.
{¶4} Mr. Varga argues that the trial court erred in denying his motion for summary
judgment as he is immune from liability for any statements he made in either the email or at the
human resources committee under the absolute privilege doctrine. This Court disagrees.
{¶5} The denial of a motion for summary judgment is not ordinarily a final, appealable
order. Sheperd v. Akron, 9th Dist. Summit No. 26266, 2012-Ohio-4695, ¶ 8. Under the Ohio
Constitution, Article IV, Section 3(B)(2), this Court only has jurisdiction to hear an appeal of a
judgment or final order. However, Revised Code Section 2744.02(C) provides that “[a]n order
that denies * * * an employee of a political subdivision the benefit of an alleged immunity from
liability as provided in this chapter or any other provision of the law is a final order.” (Emphasis
added.) The Ohio Supreme Court has recognized that this section applies to render the denial of
immunity under any state or federal law a final, appealable order. Summerville v. Forest Park,
128 Ohio St.3d 221, 2010-Ohio-6280, ¶ 15. This is because Section 2744.02(C) is to be
interpreted broadly in favor of an early appeal when there is a question about the availability of
an immunity as a defense. Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123,
2013-Ohio-4530, ¶ 19-20. “Failure to give effect to the language of R.C. 2744.02(C) by barring
immediate appeal of denials of * * * immunity * * * would defeat the purpose for which the
immunity exists.” Summerville at ¶ 40. Because the “determination of immunity could be made
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prior to investing the time, effort, and expense of the courts, attorneys, parties and witnesses,” a
plain reading of Section 2744.02(C) serves to further judicial economy. Id. at ¶ 39, quoting
Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, ¶ 26.
{¶6} There is no dispute that Mr. Varga was employed as a Village police officer at the
time he made the allegedly defamatory statements. Further, Ohio courts have characterized the
doctrine of absolute privilege as an “immunity” from liability on a defamation claim. See M.J.
DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 506 (1994). Accordingly, this Court concludes
that it has jurisdiction to consider his appeal as it is a final order as defined by Section
2744.02(C). See Marcum v. Rice, 10th Dist. Franklin Nos. 98AP-717, 98AP-718, 98AP-719,
and 98AP-721, 1998 WL 887051, * 5 (Nov. 3, 1998) (holding that an order denying a motion to
dismiss based on the doctrine of absolute privilege was a final order under Section 2744.02(C)).
{¶7} An appellate court reviews an award of summary judgment de novo. Grafton v.
Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,
viewing the facts in the case in the light most favorable to the non-moving party and resolving
any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427,
2011-Ohio-1519, ¶ 8. 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., 50 Ohio St.2d 317, 327 (1977). The movant must specifically
identify the portions of the record that demonstrate an absence of a genuine issue of material
fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). If the movant satisfies this initial burden,
the nonmoving party has a reciprocal burden to point to specific facts that show a genuine issue
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of material fact for trial. Id. The nonmoving party must identify some evidence that establishes
a genuine issue of material fact, and may not rely upon the allegations and denials in the
pleadings. Sheperd at ¶ 10.
{¶8} “[D]efamation occurs when a publication contains a false statement ‘made with
some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to
public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her
trade, business or profession.’” Morgan v. Community Health Partners, 9th Dist. Lorain No.
12CA010242, 2013-Ohio-2259, ¶ 8, quoting Sturdevant v. Likley, 9th Dist. Medina No.
12CA0024-M, 2013-Ohio-987, ¶ 7. Ohio law recognizes that certain communications that may
be defamatory are shielded from liability for defamation under the privilege doctrine. Costanzo
v. Gaul, 62 Ohio St.2d 106, 108 (1980). “A privileged communication is one which, except for
the occasion on which or the circumstances under which it is made, would be defamatory, and
actionable.” Id.{¶9} There are two classes of privileged communications: (1) absolutely privileged
and (2) qualified or conditionally privileged. Id. “The basic difference between the two as
generally stated is that complete protection is afforded by absolute privilege, whereas a qualified
or conditional privilege affords protection only in the absence of ill motive or malice in fact.” Id.at 108–109. Thus, if the statement is subject to an absolute privilege, the speaker is not held
liable for defamation regardless of his motives for making the statement. Morgan at ¶ 10, citing
M.J. DiCorpo, Inc., 69 Ohio St.3d at 505.
{¶10} “The application of an absolute privilege is to be found in only very limited areas
of activity in our society. It has been generally limited to legislative and judicial proceedings,
and other acts of state[.]” Costanzo at 109. The Ohio Supreme Court has recognized that
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statements made by members of local governmental bodies relating to a matter under
consideration, discussion or debate during official proceedings are absolutely privileged.
Costanzo at 110.
{¶11} In support of his motion for summary judgment, Mr. Varga submitted his
deposition along with the depositions of Mr. Buck, former Village councilman Steve Milano, and
Councilman Edward Walter. Mr. Walter, who served on the human resources committee,
testified that the committee was created by a council resolution as “an authorized extension of
council to receive information about complaints or concerns of [V]illage employees.” The
committee was comprised of three councilmembers and two Village citizens who were appointed
by the mayor. The committee discussed such topics as liability and medical insurance, vacation
and leave policy, employee manuals and policy and procedure manuals. According to Mr.
Walter, the committee was “just an information agency * * * not an investigative agency.” He
further testified that the purpose of forming the committee was “to create an open door so
employees could bring [forth] rumors and concerns * * *.”
{¶12} Mr. Milano testified that he was both council president and chairman of the
human resources committee. According to Mr. Milano, it was not the committee’s job “to do
anything [with a complaint] * * * except[ ] * * * hand it off to the appropriate authority to look
at and validate or invalidate.”
{¶13} How Mr. Varga’s contact with the committee was initiated is a matter of dispute.
Mr. Varga testified that, in September or October of 2009, Mr. Milano called him to inquire
whether he had any knowledge of alleged wrongdoing by either Mr. Buck or the Village’s
mayor. Mr. Varga had testified before Village council one month earlier in the disciplinary
appeal hearing of another police officer and he believed the committee wanted him to “give [his]
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knowledge of what [he] knew about what was going on in the police department” after hearing
his testimony. Mr. Varga further testified that, after his first telephone conversation with Mr.
Milano, he began to compile a list of what he perceived to be Mr. Buck’s alleged misconduct
both from his personal knowledge and from what other police officers had reported to him.
According to Mr. Varga, the night before he was scheduled to attend the committee’s November
16, 2009, meeting, he sent an email to Mr. Milano that listed all the alleged instances of Mr.
Buck’s misconduct, which he intended to discuss at the next day’s committee meeting.
{¶14} Mr. Milano testified that Mr. Varga contacted him numerous times leading up to
the committee’s November 16, 2009, meeting. According to him, the substance of the
conversations was Mr. Varga’s complaints about the police department and, in particular, Mr.
Buck. Mr. Milano testified that he asked Mr. Varga to put his complaints in writing so that he
had something official on which to take action. He informed Mr. Varga that he could attend
either a Village council meeting or a meeting of the human resources committee. Mr. Milano
testified that he believed Mr. Varga intended to attend a Village council meeting to talk about his
complaints, but had to postpone doing so due to a death in his family. According to Mr. Milano,
he had no advance notice that Mr. Varga was going to send his November 15th email.
{¶15} Mr. Varga testified that he sent the email and attended the meeting at the
committee’s request. He maintains that he did not know what the committee intended to do with
the information he presented. According to Mr. Milano, Mr. Varga chose to send the email and
attend the meeting. He maintains that Mr. Varga was offered the opportunity to attend the
meeting because it was “a neutral place for him to come and lodge a complaint and * * * that the
* * * committee [would] * * * hear the complaint [and] try to figure out the most appropriate
venue to establish the validity or invalidity of those complaints and have [the] person [assigned
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to the complaints] do the investigation.” Mr. Milano further testified that he told Mr. Varga that
“this was his opportunity to come forward and be heard and we would look at it responsibly and
seriously and to the extent that we were allowed to per our resolution.”
{¶16} Mr. Milano testified that the November 16, 2009, meeting was a regularly
scheduled meeting of the committee, and that Mr. Varga’s matter was added to the agenda.
According to Mr. Milano, after the public portion of the meeting, the committee went into
executive session, which Mr. Varga attended. There was no evidence that Mr. Varga was sworn
under oath prior to speaking to the committee. A copy of Mr. Varga’s email to Mr. Milano was
provided to the committee members at the beginning of the executive session and collected at the
end of the session. Mr. Milano further testified that he tape-recorded the executive session due
to the severity of Mr. Varga’s complaints. According to Mr. Varga, he believed that the
information would not be disseminated outside of the committee, and that he did not intend his
allegations to trigger an investigation. Rather, his “intent was [to] come * * * and testify [to]
what [the committee] wanted to know.” He further testified that he “could care less what they
did with [the information]” as he was planning on leaving the department and was only there at
the committee’s request. Mr. Buck sued the Village and Mr. Varga for defamation four days
after the November 16, 2009, meeting when the email and transcript of the executive session was
made available as a public record. Mr. Walter testified that, as a result of the pending litigation,
the committee did not take any action on Mr. Varga’s allegations.
{¶17} In ruling on Mr. Varga’s motion for summary judgment, the trial court declined to
extend the Ohio Supreme Court’s holding in Costanzo to find that his alleged statements were
absolutely privileged. The trial court found that, since Mr. Varga was not a member of the
human resources committee, his alleged statements were not immune from liability for
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defamation under the absolute privilege doctrine. Mr. Varga argues that the trial court erred in
denying his motion for summary judgment as other districts have concluded that the absolute
privilege doctrine is available to shield from liability individuals who were not members of the
governmental body before which he or she appeared. He maintains that the privilege was created
to further “unfettered discussion and debate on matters of public concern,” and that to refuse to
allow nonmembers the privilege runs counter to the goals of the privilege in the first instance.
{¶18} Viewing the evidence in a light most favorable to Mr. Buck, this Court concludes
that the trial court did not err in finding that Mr. Varga’s statements were not absolutely
privileged. The Ohio Supreme Court was clear that the absolute privilege doctrine is applicable
in only very limited circumstances, specifically, legislative and judicial proceedings. Costanzo,
62 Ohio St.2d at 109. Black’s Law Dictionary defines “legislative” as “[o]f or relating to
lawmaking or to the power to enact laws.” Black’s Law Dictionary 919 (8th Ed.2004). There is
no evidence that the human resources committee had either a legislative or a judicial function.
The deposition testimony of Mr. Milano and Mr. Walter established that its function was in part
to field concerns from Village employees and relay the information to the appropriate individual
or department for further investigation. Mr. Walter testified that the committee could vote to
recommend an issue before it to council, but could not make a binding decision. Accordingly,
the testimony revealed that the committee acted in an advisory or policy-making role to Village
council. This Court has previously refused to extend the absolute privilege doctrine to
statements made at a meeting of a policy-making board as it was not considered a “legislative
body of a sovereign state.” Long v. Brumbaugh, 9th Dist. Summit No. 19755, 2000 WL 530356,
*3 (May 3, 2000). See also Curry v. Blanchester, 12th Dist. Clinton Nos. CA2009-08-010 and
CA2009-08-012, 2010-Ohio-3368, ¶ 27-28 (holding that comment made by member of city
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council during executive session of village council meeting about how an employee dressed was
not entitled to absolute immunity because council was acting in administrative, rather than
legislative, role at the time).
{¶19} Mr. Varga cites to several cases from different districts, including the case of N.
Coast Cable L.P. v. Hanneman, 98 Ohio App.3d 434 (8th Dist.1994), in support of his argument
that other courts have found that statements made by nonmembers of a governmental committee
are absolutely privileged. In Hanneman, the plaintiff’s former business partner and employee
testified before a meeting of a municipal public utilities committee that the plaintiff’s original
minority investors were a “sham.” Id. at 438. The plaintiff sued him for, inter alia, defamation.
The Eighth District found that the statements Hanneman made at the committee meeting were
absolutely privileged because the committee sent him a letter requesting that he testify at the
meeting. Id. at 439-440. The court opined that Hanneman’s decision to testify was not entirely
voluntary since it came as a result of the committee’s letter. Id. at 439.
{¶20} In the instant case, the trial court explicitly declined to follow the Eighth District’s
holding in Hanneman. This Court agrees that the holding in Hanneman is inapplicable under the
facts of this case. We note that there is a genuine issue of material fact as to whether Mr. Varga
appeared at the meeting at the request of the committee or by his own volition as a means to
voice his concerns about Mr. Buck and the police department. As the holding in Hanneman
turns on the fact that the defendant appeared before the committee at its request, this Court
cannot say that the same circumstances are present in this case due to the conflicting deposition
testimony on the issue.
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{¶21} Given the fact that the doctrine of absolute privilege is only applied to limited
circumstances, this Court does not conclude that the trial court erred in denying Mr. Varga’s
motion for summary judgment. Mr. Varga’s assignment of error is overruled.
III.
{¶22} Mr. Varga’s assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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 to Appellant.
JENNIFER HENSAL
FOR THE COURT
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MOORE, P. J.
CONCURS.
BELFANCE, J.
DISSENTING.
{¶23} I respectfully dissent from the judgment of the majority because I would conclude
that the entry denying Mr. Varga’s motion for summary judgment is not a final, appealable order.
{¶24} The denial of a motion for summary judgment is not ordinarily a final, appealable
order. Rootstown Excavating, Inc. v. Smith, 9th Dist. Summit No. 25457, 2011-Ohio-6415, ¶ 20.
Thus, absent specific authority, the entry before us would not be appealable. The majority
asserts that the trial court’s ruling is appealable pursuant to R.C. 2744.02(C), reasoning that the
trial court’s determination concerning the applicability of absolute privilege in the context of a
defamation claim constitutes a denial of an immunity under “any other provision of the law[.]”
R.C. 2744.02(C) provides that “[a]n order that denies a political subdivision or an employee of a
political subdivision the benefit of an alleged immunity from liability as provided in this chapter
or any other provision of the law is a final order.” See also Summerville v. Forest Park, 128
Ohio St.3d 221, 2010-Ohio-6280, ¶ 13-14. This appeal does not involve the statutory immunity
provisions within Chapter 2744 itself; instead, it involves interpretation of the phrase “any other
provision of the law” within R.C. 2744.02(C). R.C. 2744.01(D) provides that, as used in Chapter
2744, “‘Law’ means any provision of the constitution, statutes, or rules of the United States or of
this state; provisions of charters, ordinances, resolutions, and rules of political subdivisions; and
written policies adopted by boards of education. When used in connection with the ‘common
law,’ this definition does not apply.” (Emphasis added.). Thus, applying this definition to the
phrase “any other provision of the law[,]” “law” would include provisions of constitutions,
statutes and rules, but would not include “common law.” See, e.g., Summerville at ¶ 15, 41
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(applying the definition contained in R.C. 2744.01(D) to conclude that denial of immunity
afforded under a federal statute constituted a final order under R.C. 2744.02(C)). At a minimum,
it appears that the legislature has recognized that the phrase “common law” is a term of art.
“Common law” has been defined as “[t]he body of law derived from judicial decisions, rather
than from statutes or constitutions[.]” Black’s Law Dictionary 293 (8th Ed.2004).
{¶25} The Tenth District has determined, in part, that, because the definition of “State”
in R.C. 2744.01(I) is defined as the State of Ohio including the Supreme Court and other
instrumentalities of the State of Ohio, the “rules” referred to in R.C. 2744.01(D) must also
include doctrines created via case law. See Marcum v. Rice, 10th Dist. Franklin Nos. 98AP-717,
98AP-718, 98AP-719, and 98AP-721, 1998 WL 887051, *2 (Nov. 3, 1998). However, I am not
persuaded by the Marcum Court’s reasoning. I cannot conclude that the word “rules” is intended
to include case law, particularly since R.C. 2744.01(D) itself acknowledges there is a distinction
between “common law”/case law and other forms of law. It would seem logical that using the
word “rules” would implicate the various bodies of law commonly known as rules, such as the
civil rules, rules of superintendence, rules of evidence, or criminal rules.
{¶26} While I do not dispute that R.C. 2744.02(C) includes the ability to appeal denials
of immunity other than those based in that chapter,1 see R.C. 2744.02(C); R.C. 2744.01(D), I
cannot conclude that the denial of the benefit of the absolute privilege pertaining to defamation is
1
For example, R.C. 2151.421(G)(1)(a) provides immunity to certain individuals and
entities who report suspected child abuse in good faith and in compliance with the statute. See
R.C. 2151.421(G)(1)(a) (“Except as provided in division (H)(3) of this section, anyone or any
hospital, institution, school, health department, or agency participating in the making of reports
under division (A) of this section, anyone or any hospital, institution, school, health department,
or agency participating in good faith in the making of reports under division (B) of this section,
and anyone participating in good faith in a judicial proceeding resulting from the reports, shall be
immune from any civil or criminal liability for injury, death, or loss to person or property that
otherwise might be incurred or imposed as a result of the making of the reports or the
participation in the judicial proceeding.”).
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appealable. The parties have not pointed to anything which would even suggest that the absolute
privilege as expressed in Ohio case law precedent constitutes any provision of the constitution,
any statute, any rule, or anything else that is included within the term “[l]aw” as defined by R.C.
2744.01(D). Accordingly, because I would conclude we are without jurisdiction to hear this
appeal, I respectfully dissent.
APPEARANCES:
KENNETH A. CALDERONE and JOHN R. CHLYSTA, Attorneys at Law, for Appellant.
KENNETH D. MYERS, Attorney at Law, for Appellee.