Lucas v. Perciak , 2012 Ohio 88 ( 2012 )


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  • [Cite as Lucas v. Perciak, 
    2012-Ohio-88
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96962
    KARLA LUCAS, ET AL.
    PLAINTIFFS-APPELLANTS
    vs.
    THOMAS P. PERCIAK, ET AL.
    DEFENDANTS-APPELLEES
    JUDGMENT:
    AFFIRMED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-724487
    BEFORE: Cooney, J., Blackmon, A.J., and S. Gallagher, J.
    RELEASED AND JOURNALIZED: January 12, 2012
    2
    ATTORNEY FOR APPELLANTS
    Eric W. Tayfel
    Tayfel and Associates
    1360 West 9th Street
    Suite 400
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEES
    For Thomas P. Perciak, et al.
    John T. McLandrich
    James A. Climer
    Frank H. Scialdone
    Mazanec, Raskin & Ryder Co., L.P.A.
    100 Franklin’s Row
    34305 Solon Road
    Solon, Ohio 44139
    Kenneth Kraus
    Law Director
    City of Strongsville
    16099 Foltz Industrial Parkway
    Strongsville, Ohio 44149
    For Gary Rowe, et al.
    Susan C. Hastings
    Squire, Sanders & Dempsey
    4900 Key Tower
    127 Public Square
    Cleveland, Ohio 44114-1304
    3
    COLLEEN CONWAY COONEY, J.:
    {¶ 1} Plaintiffs-appellants, Karla Lucas (“Karla”) and Tony Lucas (“Tony”),
    appeal the trial court’s grant of summary judgment in favor of defendants-appellees,
    Thomas P. Perciak (“Perciak”), Thomas O’Deens (“O’Deens”), Charles Ross (“Ross”),
    Ron Whitney (“Whitney”), and the city of Strongsville (collectively “the Strongsville
    defendants”). We find no merit to the appeal and affirm.
    {¶ 2} This case arises from Karla’s termination from employment at Southwest
    General Hospital. Karla was terminated after Perciak, the mayor of Strongsville, sent
    Gary L. Rowe (“Rowe”), the interim CEO of Southwest, a memorandum that Karla
    claims contained defamatory statements related to her employment as a nurse at
    Southwest. The facts, as set forth in affidavits and depositions in support of the motions
    for summary judgment, are as follows:
    {¶ 3} During the late night hours of May 5, 2007, Tony received a phone call
    from his niece, Ashley Snyder, requesting that he pick up her sister, Brandi Snyder
    (“Snyder”), after she was released from the Brunswick Police Department. Tony picked
    up Snyder, and she stayed overnight at the Lucas home.
    {¶ 4} The next morning, Tony called the Strongsville police and informed Sgt.
    Frank Nosal (“Nosal”) that he did not want to take Snyder home because he was
    concerned that her home was not safe. While Nosal was speaking with Tony, Snyder’s
    mother, Tammy Salopek (“Salopek”), also called the Strongsville police and informed
    4
    Nosal that she wanted to retrieve Snyder from the Lucas home. Nosal advised Tony that
    because there was no legal basis for him to keep Snyder, officers were on their way to
    pick her up and take her home to her mother.
    {¶ 5} Shortly thereafter, Strongsville police officers O’Deens and Whitney
    arrived at the Lucas home. When the officers entered the house, Karla told them that
    Snyder’s home was not safe and that she did not think Snyder should return home. The
    officers explained that because she was a minor, Snyder had to return home to her mother.
    It is undisputed that Karla became angry because she did not want the police to return
    Snyder to her mother. Snyder testified that Karla threatened O’Deens that if he were
    ever a patient at Southwest, she would not help him. Specifically, Snyder testified at
    deposition:
    “Then I remember my aunt Karla getting up and saying like you F’ing pig and —
    she said something about him. She said, if you ever come to my hospital where I
    work, I’ll leave you in the bed or something. * * * I’m not 100 percent sure what
    she said, again, I’m sorry, but she said something along those lines, like if you ever
    come to my hospital where I work, I won’t help you, or something like that.”
    {¶ 6} Southwest serves the Strongsville area and would likely be the hospital
    where a Strongsville police officer would be taken for necessary treatment. O’Deens
    sent a memorandum to the chief of police, Charles Goss (“Chief Goss”), describing the
    incident. O’Deens stated that Karla made “threatening and vulgar remarks” to him. He
    claimed she told him that she works in the emergency room at Southwest and that she
    5
    “hoped to see him in one of her beds” so she could “take care of him.” In the concluding
    paragraph, O’Deens wrote:
    “I found this situation to be very disturbing. I feel this is a situation that needs to
    be addressed by our administration. I found Karla Lucas’ statements to be
    threatening and insulting in nature. I believe that her remarks have damaged the
    professional working relationship between SPD and the staff at Southwest General
    Hospital.”
    {¶ 7} Chief Goss forwarded the memorandum to Mayor Perciak, who forwarded
    the letter to Rowe at Southwest. Rowe immediately began an investigation. Robin
    Szeles (“Szeles”), director of emergency services at Southwest, received a corroborating
    statement from Officer Whitney, who was present at the Lucas home with O’Deens when
    Karla made the remarks.       Szeles also contacted Karla’s supervisor, Connie Klein
    (“Klein”), to inform her of the allegations. Klein testified that she was not surprised by
    the allegations because she had witnessed Karla “lose control of her mouth” on other
    occasions.   She had previously counseled Karla on managing her anger and verbal
    misconduct in public view.
    {¶ 8} Szeles also contacted Sue Schloss (“Schloss”) in human resources, and
    Southwest’s general counsel, Sue Scheutzow (“Scheutzow”). Schloss and Szeles met
    with Karla to hear her version of the incident.         When Szeles presented her with
    O’Deens’s version, Karla never denied she made inappropriate comments but simply
    disputed the verbatim account attributed to her. At the conclusion of the investigation, it
    6
    was determined that Karla threatened the police in violation of Southwest’s policy and
    Southwest discharged her.
    {¶ 9} The complaint alleges claims of: (1) defamation against O’Deens, Whitney,
    Goss, and Rowe; (2) wrongful termination against Southwest; (3) intentional infliction
    of emotional distress against Perciak, O’Deens, Goss, Whitney, and Rowe; and (4)
    negligent hiring, retention and training or supervision against Perciak, O’Deens, Whitney,
    and Goss. Tony Lucas asserted a claim for loss of consortium. The court granted
    summary judgment in favor of all defendants on all claims. The Lucases now appeal,
    raising six assignments of error.1
    Standard of Review
    {¶ 10} An appellate court reviews a trial court’s decision on a motion for summary
    judgment de novo. Grafton v. Ohio Edison Co. (1996), 
    77 Ohio St.3d 102
    , 105, 
    671 N.E.2d 241
    . Summary judgment is appropriate when, construing the evidence most
    strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2)
    the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can
    come to but one conclusion, that conclusion being adverse to the nonmoving party.
    Zivich v. Mentor Soccer Club, Inc. (1998), 
    82 Ohio St.3d 367
    , 369-370, 
    696 N.E.2d 201
    ,
    The Lucases have not appealed the summary judgment granted in favor of Rowe and
    1
    Southwest.
    7
    citing Horton v. Harwick Chem. Corp. (1995), 
    73 Ohio St.3d 679
    , 
    653 N.E.2d 1196
    ,
    paragraph three of the syllabus.
    Defamation
    {¶ 11} In the first assignment of error, Karla argues the trial court erred in granting
    summary judgment in favor of O’Deens and Whitney on her defamation claim. She
    claims there are genuine issues of material fact as to whether she ever made the vulgar
    and threatening statements attributed to her.
    {¶ 12} Defamation involves the publication of 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.’” Jackson v. Columbus, 
    117 Ohio St.3d 328
    ,
    
    2008-Ohio-1041
    , 
    883 N.E.2d 1060
    , ¶9, quoting A & B-Abell Elevator Co. v.
    Columbus/Cent. Ohio Bldg. & Const. Trades Council (1995), 
    73 Ohio St.3d 1
    , 7, 
    651 N.E.2d 1283
    . To prove defamation, the injured party must show that: (1) a false and
    defamatory statement was made about plaintiff; (2) the statement was published without
    privilege to a third party; (3) it was made with fault of at least negligence on the part of
    the defendant; and (4) it was either defamatory per se or caused special harm to the
    plaintiff. Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc. (1992), 
    81 Ohio App.3d 591
    , 601, 
    611 N.E.2d 955
    .
    8
    {¶ 13} Karla contends there is a genuine issue of material fact as to whether she
    actually “uttered the words attributed to her” and denies having said them. In support of
    this assertion, Karla claims that Officer Whitney was not in a position to hear her words
    and, therefore, falsely corroborated O’Deens’s statement. She also relies on a sworn
    statement Snyder made before the complaint was filed in which she described the
    incident. Karla claims Snyder “specifically denied all the quotes attributed to Karla
    Lucas.” However, Snyder did not “specifically deny” any of the alleged remarks in her
    statement. On the contrary, Snyder’s statement corroborates the Strongsville defendants’
    version of the incident.
    {¶ 14} Although Snyder’s sworn statement does not include Karla’s exact words, it
    confirms that Karla made offensive comments to the Strongsville police. She stated that
    Karla called O’Deens a “pig,” that she was screaming, and that she attempted to strike
    him. Snyder stated, in part:
    “He (O’Deens) — he honestly didn’t say anything to offend anyone or to
    purposely get someone angry. All I remember is, he’s just, like, I’m just trying to
    do my job. And he put up his hands was just like, I’m just trying to do my job.
    And Uncle Guy didn’t start screaming. He was just handling it while — Aunt
    Carla [sic] is the one that started screaming, You’re a pig, don’t come back in here,
    and stuff.” (Emphasis added.)
    {¶ 15} Throughout the statement, Snyder confirmed that Karla was angry and
    screaming other “stuff.” Snyder did not explain what “other stuff” Karla said, but she
    never denied that Karla threatened O’Deens. Later in her statement, Snyder stated:
    9
    “All I remember is that she called him a pig and told him not to come back, and
    she was like — she was just screaming. You couldn’t even understand half the
    stuff she said because she was screaming, like at the top of her lungs. And my
    uncle was holding her back because she was, like, ready to attack him.”
    Snyder further explained that Officer Whitney, who was standing outside the house,
    approached the screen door to enter the house when the screaming started, which
    indicates he could hear the commotion inside.
    {¶ 16} Although Karla specifically denied making the alleged statements during
    her deposition, a nonmovant’s own self-serving assertions, whether made in an affidavit,
    deposition, or interrogatory responses, cannot defeat a well-supported summary judgment
    motion when not corroborated by any outside evidence.           N. Eagle, Inc. v. Kosas,
    Cuyahoga App. No. 92358, 
    2009-Ohio-4042
    , ¶26.              Karla failed to provide any
    corroborating evidence. Therefore, we find no genuine issue of material fact that would
    preclude summary judgment in favor of the Strongsville defendants on Karla’s
    defamation claim.
    {¶ 17} Accordingly, the first assignment of error is overruled.
    {¶ 18} In her second assigned error, Karla argues there are genuine issues of
    material fact as to whether Chief Goss and Mayor Perciak recklessly disseminated the
    defamatory statement. In her third assigned error, Karla argues there are genuine issues
    of material fact as to whether the Strongsville defendants are statutorily immune under
    R.C. Chapter 2744 because their creation and dissemination of defamatory statements
    “cannot be deemed anything other than bad faith or with malicious purpose.”    However,
    10
    because we have determined that Karla does not have an actionable claim for defamation
    and that the Strongsville defendants made no defamatory statements, we overrule the
    second and third assignments of error.
    Intentional Interference with Employment Relationship
    {¶ 19} In her fourth and fifth assignments of error, Karla argues the trial court
    erred in granting summary judgment in favor of the Strongsville defendants because she
    established actionable claims for intentional interference with her employment
    relationship and intentional infliction of emotional distress.         She contends the
    memorandum Perciak sent to her employer caused her termination of employment. She
    also contends the Strongsville defendants made defamatory statements to her employer
    for the purpose of causing her mental distress.
    {¶ 20} As previously explained, the Strongsville defendants did not make or
    publish any defamatory statements about Karla. However, we address her intentional
    interference with employment and intentional infliction of emotional distress claims
    because they are independent and distinct claims apart from defamation.
    {¶ 21} A defendant is liable for intentional infliction of emotional distress if his
    “extreme and outrageous conduct intentionally or recklessly causes serious emotional
    distress to another.” Yeager v. Loc. Union 20, Teamsters, Chauffeurs, Warehousemen &
    Helpers of Am. (1983), 
    6 Ohio St.3d 369
    , 
    453 N.E.2d 666
    , syllabus, abrogated on other
    grounds, Welling v. Weinfeld, 
    113 Ohio St.3d 464
    , 
    2007-Ohio-2451
    , 
    866 N.E.2d 1051
    .
    11
    “Serious emotional distress” goes beyond merely trifling disturbance, mere upset, or hurt
    feelings. Paugh v. Hanks (1983), 
    6 Ohio St.3d 72
    , 78, 
    451 N.E.2d 759
    . The emotional
    injury must be so severe and debilitating that “a reasonable person, normally constituted,
    would be unable to cope adequately with the mental distress engendered by the
    circumstances of the case.” 
    Id.
    {¶ 22} To recover on a claim for tortious interference with a contractual
    relationship, the plaintiff must prove: (1) the existence of a contract; (2) the wrongdoer’s
    knowledge of the contract; (3) the wrongdoer’s intentional procurement of the contract’s
    breach; (4) the lack of justification; and (5) resulting damages. Kenty v. Transamerica
    Premium Ins. Co., 
    72 Ohio St.3d 415
    , 
    1995-Ohio-61
    , 
    650 N.E.2d 863
    ; Fred Siegel Co.,
    L.P.A. v. Arter & Hadden, 
    85 Ohio St.3d 171
    , 176, 
    1999-Ohio-260
    , 
    707 N.E.2d 853
    .
    {¶ 23} The Strongsville defendants knew that Karla was employed by Southwest
    and that their communication to Southwest about Karla’s threats to O’Deens would likely
    result in some disciplinary action. However, Karla cannot establish a viable claim for
    tortious interference with her employment contract because she cannot prove the “lack of
    justification” element of the claim.       It is undisputed that Southwest serves the
    Strongsville area and that Strongsville police officers, including O’Deens, would most
    likely be taken to Southwest for treatment if injured. Mayor Perciak testified that he
    notified the interim president of Southwest that Karla had threatened O’Deens because
    some Strongsville police officers feared they may not receive proper treatment if Karla
    12
    were ever charged with their care. Perciak’s primary concern was the safety of the
    Strongsville police officers rather than a malicious scheme to have Karla fired. This
    does not constitute the “extreme and outrageous conduct” necessary to establish
    intentional infliction of emotional distress but does constitute a justifiable reason for the
    communication.        We therefore find no genuine issue of material fact that would require
    reversal of the summary judgment on Karla’s intentional interference with employment
    and intentional infliction of emotional distress claims.
    {¶ 24} Accordingly, we overrule the fourth and fifth assignments of error.
    Loss of Consortium
    {¶ 25} In the sixth assignment of error, Tony Lucas argues the trial court erred in
    granting summary judgment to the Strongsville defendants on his loss of consortium
    claim. However, a loss of consortium claim is derivative in that it is dependent upon the
    defendants’ having committed a legally cognizable tort upon Karla. Bowen v. Kil–Kare,
    Inc. (1992), 
    63 Ohio St.3d 84
    , 93, 
    585 N.E.2d 384
    . Since Karla failed to prove any of
    her tort claims against the Strongsville defendants, Tony’s loss of consortium claim fails
    as a matter of law.
    {¶ 26} Accordingly, the sixth assignment of error is overruled.
    Judgment affirmed.
    It is ordered that appellee recover of appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    13
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    14
    ______________________________________________
    COLLEEN CONWAY COONEY, JUDGE
    PATRICIA ANN BLACKMON, A.J., CONCURS;
    SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION ATTACHED).
    SEAN C. GALLAGHER, J., DISSENTING:
    {¶ 27} I respectfully dissent from the majority’s decision. In this case, the
    defamatory statement at issue is “[Karla] hoped to see [O’Deens] in one of her beds so
    she could take care of him.” There is no dispute that an altercation occurred when the
    police officers attempted to remove the minor from the Lucas home and that Karla angrily
    reacted to the police officers’ intervention. 2 The only issue before the trial court is
    whether there are genuine issues of material fact as to whether Karla actually threatened
    O’Deens’s life, not whether an altercation occurred.
    While I am cognizant that police officers responding to difficult situations must take threats
    2
    seriously for their own safety, I must note and question the medium that O’Deens used to “prosecute”
    Karla’s conduct. If the officer felt threatened or that Karla obstructed his official duty, citations
    could have been issued so that Karla received her right to due process through the court system. The
    officer’s response of sending a letter through a chain that would arrive at Karla’s employer arguably
    circumvents the legal process that should have been used to protect the officer’s safety.
    15
    {¶ 28} The majority relies on Kosas, 
    2009-Ohio-4042
    , for the proposition that trial
    courts can ignore a party’s unfavorable deposition testimony if the testimony is
    self-serving and is not corroborated by outside evidence.          Such an overreaching
    statement forecloses most, if not all, defamation claims and sets a dangerously broad
    precedent. Defamation cases largely depend on the parties’ testimony, the quintessential
    “he-said, she-said” cases.    Credibility is not an issue to be resolved on summary
    judgment.
    {¶ 29} In this case, Karla consistently maintained that she did not threaten
    O’Deens in the manner he described in the letter that ultimately cost Karla her job. That
    is the only issue on the defamation claim. If she yelled, screamed, and insulted the police
    officers, she still can maintain a defamation claim if she did not actually say that she
    would “take care of” O’Deens if she saw him in the emergency room, a fact she
    steadfastly denied.    Further, it does not matter how many people heard Karla say
    anything for the purposes of summary judgment. Her consistent deposition testimony
    presents a genuine issue of material fact as her credibility is not a factor to be weighed
    pursuant to Civ.R. 56. If this does not present an issue of fact to be resolved by the trier
    of fact, few plaintiffs will ever survive summary judgment for defamation claims. For
    this reason, there is also a genuine issue of material fact regarding the tortious
    interference claim. I would reverse the decision of the trial court and remand the case for
    further proceedings.
    

Document Info

Docket Number: 96962

Citation Numbers: 2012 Ohio 88

Judges: Cooney

Filed Date: 1/12/2012

Precedential Status: Precedential

Modified Date: 10/30/2014