Carr v. Educational Theatre Assn. , 2023 Ohio 1681 ( 2023 )

[Cite as Carr v. Educational Theatre Assn., 2023-Ohio-1681.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
DIANE M. CARR, : APPEAL NO. C-220240
TRIAL NO. A-2101599
Plaintiff-Appellant, :
:
VS. O P I N I O N.
:
EDUCATIONAL THEATRE :
ASSOCIATION,
:
and
:
JULIE C. THEOBALD,
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 19, 2023
Freking Myers & Reul LLC and George M. Reul, Jr., for Plaintiff-Appellant,
Jackson Lewis P.C., Ryan M. Martin and Alessandro Botta Blondet, for Defendants-
Appellees.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} After pressing “send” on an email, defendants-appellees Educational
Theatre Association (“EdTA”) and then-executive director of EdTA, Julie Theobald
(collectively “the EdTA defendants”), found themselves on the receiving end of a
lawsuit. Although she was not explicitly named in the email, plaintiff-appellant Dr.
Diane Carr claimed that the email defamed her. She maintained, throughout this
litigation, that the email constituted defamation per se, but she also acknowledged
that the defamatory effect could only be appreciated by implication or innuendo.
Seeing nothing actionable in the email, the trial court eventually granted summary
judgment in favor of the EdTA defendants. After careful review of the email and
governing caselaw, we agree with the trial court’s conclusion and affirm its
judgment.
I.
{¶2} Dr. Carr joined EdTA, a nonprofit that promotes theatre education in
schools, in 2004, and she eventually worked her way up to Executive Director in
2011. In 2013, Ms. Theobald asked Dr. Carr to oversee the International Thespian
Officer (“ITO”) program and the students who participated in that program.
Several years later, in March 2019, Dr. Carr learned that EdTA would terminate her
in May 2019 based on her job performance. Although Dr. Carr disagreed with the
decision, she negotiated a separation agreement that released all claims she might
possess against EdTA and its employees.
{¶3} In August 2019, EdTA received complaints from ITO student
participants concerning Dr. Carr’s conduct and, through outside counsel, notified
her generally about the allegations—but EdTA declined to reveal the substance of
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the allegations other than to indicate that they did not involve physical abuse. EdTA
also notified Dr. Carr that it would hire an independent firm to investigate the
allegations, and it requested that she cooperate in the investigation. The record,
however, fails to illuminate the results of any investigation.
{¶4} Nevertheless, according to the EdTA defendants, in June 2020, new
information and complaints about the ITO program during Dr. Carr’s tenure
surfaced. Around the same time, Dr. Carr accepted a speaking engagement at a
virtual student leadership event (i.e., a Zoom event) hosted by six EdTA state
chapters. Upon discovering that Dr. Carr—and another ITO adult liaison also a
subject of the complaints—would speak at the event, Ms. Theobold and the EdTA
board of directors dispatched the following email, which we reproduce in full:
Dear Chapter Directors from Alabama, Georgia, Missouri, New
Jersey, North Carolina, and Washington,
Cc: All Chapter Directors, EdTA Board, Julie Theobald, Brian
Monk, Hans Weichhart, Allison Dolan, Sarah Etheridge, Olivia
Micer, Shaila Seth
In our Association, the well-being of our students is our highest
priority. According to the EdTA Code of Professional Standards, as
professional members of EdTA, we shall maintain a professional
relationship with students both in and outside of the classroom and
consider the well-being of students in all decisions and actions. It
is with this in mind that we are compelled to communicate with
urgency.
It has come to our attention that the chapters of Alabama, Georgia,
Missouri, New Jersey, North Carolina, and Washington plan to
host a virtual student leadership event this week for STOs from
these chapters. Some of the past ITO adult liaisons from 2013-2019
are participating in this week’s STO leadership event.
We urge you to postpone this event.
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OHIO FIRST DISTRICT COURT OF APPEALS
As a reminder, in the summer of 2019 we conducted an ITO
program review. One of the reasons for this review was that
concerns were raised by former ITO members who served from
2013-2019 about the treatment of students by the adult ITO
liaisons who served during that time period. These concerns
include allegations of negligence and emotional abuse.
We took steps forward to ensure the safety of the 2019-2020 ITO
and future ITOs and STOs. We are acknowledging there is more
work to be done in the interest of the well-being of students.
We have received new information in the past couple of weeks that
gives additional insight and severity to the 2019 program review. It
is our duty to conduct a full investigation on all sides of these
allegations, and we will need time to follow through and come to
appropriate resolutions.
We urge you to postpone the leadership event while we take steps
to fully address the situation. If you are unwilling to postpone this
event, we will communicate to the members in your chapters that
this event is not sanctioned by EdTA, that we have concerns about
the event, and that we cannot assure the participants and parents
that student safety will be protected.
Separately, we also have concerns about the secretive nature of this
event, given the discussions held at Summit last year about the
need for communication and transparency. We have heard from
multiple sources that members were asked to keep it a secret.
Please confirm whether you will postpone the event. We commit to
sharing further information in the future.
With respect,
EdTA Board of Directors
[List of Board of Directors]
Julie Theobald, Executive Director
CC: Scott Wilson and Erin Carr, recused due to Conflict of Interest
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OHIO FIRST DISTRICT COURT OF APPEALS
In the aftermath of this email, Dr. Carr filed a complaint in May 2021 against the
EdTA defendants for breach of contract—concerning the separation agreement
referenced above—and defamation per se largely based on the email.
{¶5} Several months later, the EdTA defendants filed a motion for
judgment on the pleadings, arguing that Dr. Carr purported to bring an
impermissible implied defamation claim, without actually quoting or attaching the
email, and that Ohio does not permit implied defamation claims. In response, Dr.
Carr largely argued that the EdTA defendants knew there was no safety risk if she
attended the Zoom event, yet the “clear impact” of the email was defamatory since
it conveyed that her attendance would endanger student safety. She further
maintained that referencing an “investigation” suggested that the EdTA defendants
had first-hand knowledge that substantiated the alleged risk to the participants of
the conference, and that no innocent meaning can arise from the statement “that
[the EdTA defendants] cannot assure the participants and parents that student
safety will be protected.” During the briefing on this motion, the EdTA defendants
attached the full text of the email to their reply—via an affidavit of Ms. Theobald—
acknowledging that the court may wish to convert their motion into a motion for
summary judgment in order to consider the email. See Daniely v. Accredited Home
Lenders, 8th Dist. Cuyahoga No. 99208, 2013-Ohio-4373, ¶ 6, citing Peterson v.
Teodosio, 34 Ohio St.2d 161, 165-166, 297 N.E.2d 113 (1973) (“Unlike a motion for
summary judgment where the parties are permitted to submit certain evidentiary
materials for the court’s review, the determination of a motion for judgment on the
pleadings is restricted solely to the allegations in the pleadings and any writings
attached to the complaint.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Dr. Carr did not object to this procedural maneuver. At the hearing
on the motion, both parties stipulated to converting the motion for judgment on the
pleadings into a motion for summary judgment. After entertaining the arguments,
the trial court granted the EdTA defendants’ summary judgment motion as to Dr.
Carr’s defamation claim, concluding that the email was not defamatory as a matter
of law.
{¶7} Dr. Carr then filed a motion for reconsideration, challenging the
procedure by which the trial court converted the motion for judgment on the
pleadings into a summary judgment motion. Opting for a belt and suspenders
approach, the EdTA defendants responded by filing a subsequent motion for
summary judgment—along with an opposition to the motion for reconsideration—
to remedy any potential procedural error, while likewise insisting that the court had
already appropriately resolved the case. Sifting through these filings, the trial court
pointed to the parties’ stipulation in open court to covert the motion, and it
accordingly denied Dr. Carr’s motion for reconsideration, and it also denied the
EdTA defendants’ subsequent motion for summary judgment as moot.
{¶8} In her appeal, Dr. Carr presents a single assignment of error, arguing
that the trial court should not have granted summary judgment because the email was
defamatory per se.
II.
{¶9} We, of course, review a trial court’s decision granting or denying
summary judgment de novo. Burdge v. Subvest 4, LLC, 1st Dist. Hamilton No. C-
060354, 2007-Ohio-1488, ¶ 12, citing City of Sharonville v. Am. Emps. Ins. Co., 109
Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 833, ¶ 5. “Summary judgment is
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OHIO FIRST DISTRICT COURT OF APPEALS
appropriate when the trial court, viewing the evidence in the light most favorable to
the nonmoving party, determines that no genuine issue of material fact remains to be
litigated, and that the evidence demonstrates that reasonable minds can only come to
a conclusion that is adverse to the party opposing the motion.” Id., citing Temple v.
Wean United, Inc., 50 Ohio St.2d, 317, 327, 364 N.E.2d 267 (1977), and Civ.R. 56(C).
{¶10} The elements of a defamation cause of action are well-settled in Ohio:
“A private person who brings a defamation claim must plead and prove: (1) a false and
defamatory statement, (2) about the plaintiff, (3) published without privilege to a third
party, (4) with fault or at least negligence on the part of the defendant, and (5) that
was either defamatory per se or caused special harm to the plaintiff.” Martin v.
Wegman, 1st Dist. Hamilton Nos. C-180268 and C-180308, 2019-Ohio-2935, ¶ 9,
quoting Thomas v. Cohr, Inc., 197 Ohio App.3d 145, 2011-Ohio-5916, 966 N.E.2d 915,
¶ 24 (1st Dist.).
{¶11} With respect to the first element of defamation, “Ohio courts ‘ha[ve]
defined a false statement as a statement that sets forth matters which are not true or
statements without grounds in truth or fact. A statement is not a “false statement” if,
even though it is misleading and fails to disclose all relevant facts, the statement has
some truth in it. Moreover, a statement that is subject to different interpretations is
not “false.” ’ ” Drone Consultants, LLC v. Armstrong, 12th Dist. Warren Nos. CA2015-
11-107 and CA2015-11-108, 2016-Ohio-3222, ¶ 33, quoting SEIU Dist. 1199 v. Ohio
Elections Comm., 158 Ohio App.3d 769, 2004-Ohio-5662, 822 N.E.2d 424, ¶ 18 (10th
Dist.).
{¶12} A statement can be either defamatory per se or defamatory per quod,
and this distinction matters in defining the plaintiff’s burden. For a statement to
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constitute defamation per se, “it must be defamatory upon the face of the statement,”
Martin at ¶ 10, citing Becker v. Toulmin, 165 Ohio St. 549, 556, 138 N.E.2d 391 (1956),
which occurs when a statement “on its face * * * reflects upon [plaintiff’s] character in
such a manner that would cause him to be ridiculed, hated, or held in contempt, or in
a manner that will injure him in his trade or profession.” Spitzer v. Knapp, 5th Dist.
Delaware No. 19 CAE 01 0006, 2019-Ohio-2701, ¶ 51, citing A&B-Abell Elevator Co.
v. Columbus/Cent. Ohio Bldg. & Contr. Trades Council, 73 Ohio St.3d 1, 651 N.E.2d
1283 (1995). A statement constitutes defamation per se “by the very meaning of the
words used.” Heidel v. Amburgy, 12th Dist. Warren No. CA2002-09-092, 2003-Ohio-
3073, ¶ 30, citing Moore v. P.W. Pub. Co., 3 Ohio St.2d 183, 188, 209 N.E.2d 412(1965).
{¶13} By contrast, a statement becomes defamatory per quod “through
interpretation, innuendo, or consideration of extrinsic evidence.” Martin, 1st Dist.
Hamilton Nos. C-180268 and C-180308, 2019-Ohio-2935, at ¶ 10. “Defamation per
quod refer[s] to a communication that is capable of being interpreted as defamatory,
i.e., it must be determined by the interpretation of the listener, through innuendo, as
being either innocent or damaging.” (Emphasis added.) Spitzer at ¶ 51, citing
Northeast Ohio Elite Gymnastics Training Ctr. v. Osborne, 183 Ohio App.3d 104,
2009-Ohio-2612, 916 N.E.2d 484 (9th Dist.). “ ‘[I]f a statement is defamatory per
quod, the plaintiff must plead and prove special damages,’ though no such
requirement exists for defamation per se.” Martin at ¶ 10, quoting Murray v. Knight-
Ridder, Inc., 7th Dist. Belmont No. 02 BE 45, 2004-Ohio-821, ¶ 16.
{¶14} In this appeal, Dr. Carr pursues only a defamation per se claim, rather
than defamation per quod. In fact, we do not see any defamation per quod claim
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presented in the complaint, nor any allegation of special damages either. And the
email that we quoted above represents the only basis that Dr. Carr relies upon in order
to establish defamation per se.
{¶15} To prevail on appeal, Dr. Carr seeks to convince us that defamation by
implication represents a subset of defamation per se. Rather than arguing that the
relevant language is defamatory on its face, she emphasizes that the language is
“defamatory by implication” or by “insinuation.” But we have difficulty distinguishing
this approach from defamation per quod, and indeed extant Ohio authority seems to
reject Dr. Carr’s legal position: “Ohio does not recognize defamation by implication,”
Woods v. Sharkin, 2022-Ohio-1949, 192 N.E.3d 1174, ¶ 52 (8th Dist.); Krems v. Univ.
Hosps. of Cleveland, 133 Ohio App.3d 6, 12, 726 N.E.2d 1016 (8th Dist.1999), at least
independent of a defamation per quod claim.
{¶16} While Dr. Carr does point in her appellate brief to a handful of cases that
seem to discuss defamation by implication, closer inspection of these authorities
indicates that they align such a claim with defamation per quod (albeit not always with
precision). See Cogent Solutions Group, LLC v. Brown, S.D.Ohio No. 2:12-CV-665,
2013 U.S. Dist. LEXIS 165265, ¶ 40 (Nov. 20, 2013) (noting that defamation claim was
nearly frivolous but declining to award sanctions because “Ohio law does allow for a
defamation claim based on implication, or ‘innuendo’ ”); Osborne, 183 Ohio App.3d
104, 2009-Ohio-2612, 916 N.E.2d 484, at ¶ 10 (discussing defamation per quod and
per se distinction and noting “that both parties fail to support a substantial portion of
their respective arguments with citations to case law”); Mucci v. Dayton Newspapers,
71 Ohio Misc.2d 71, 77, 654 N.E.2d 1068 (C.P.1995) (“[I]t is legally possible for
individual, nondefamatory, even true facts to be positioned or laid out in such a
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fashion that, by implication or innuendo, they become [defamatory] either per se or
per quod.”) (Emphasis sic.). Indeed, if defamation by implication fell within the
purview of defamation per se, it would effectively obliterate the distinction between
per se and per quod.
{¶17} Although we could potentially imagine a scenario where the only
implication from a statement was a defamatory one, we fail to see the distinction
between defamation by “implication” or “insinuation” as presented by Dr. Carr in this
appeal, and how Ohio typically treats defamation per quod: “When a statement is only
defamatory through interpretation, innuendo, or consideration of extrinsic evidence,
then it is defamatory per quod and not defamatory per se.” Dundee v. Philpot, 1st Dist.
Hamilton No. C-180280, 2019-Ohio-3939, ¶ 68.
{¶18} Bolstering this conclusion, the only specific aspect of the email that Dr.
Carr challenges on appeal involves the following language: “we have concerns about the
event, and that we cannot assure the participants and parents that student safety will be
protected.”1 Needless to say, that language does not state that Dr. Carr did anything
wrong or harmful (nor does it even identify her). Rather, it expresses defendants’
subjective “concerns” about the event and indicates that they will not take certain
measures in the future. See Murray v. Chagrin Valley Publishing Co., 2014-Ohio-
5442, 25 N.E.3d 1111, ¶ 23 (8th Dist.), quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d
1222, 1227 (7th Cir.1993) (“ ‘[I]f it is plain that the speaker is expressing a subjective
1We must also point out that the email nowhere identifies Dr. Carr by name. But “[a] plaintiff need
not have been specifically named in a libelous statement to have been defamed.” Gosden v. Louis,
116 Ohio App.3d 195, 218, 687 N.E.2d 481 (9th Dist.1996), citing Shimola v. Cleveland, 65 Ohio
App.3d 457, 462, 584 N.E.2d 774 (8th Dist.1989). As a result, courts must consider “whether
recipients of the communication understood it to refer to that person.” Id. We assume, without
deciding, that the email sufficiently references Dr. Carr for defamation purposes.
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OHIO FIRST DISTRICT COURT OF APPEALS
view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in
possession of objectively verifiable facts, the statement is not actionable.’ ”); see also
Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, 97 N.E.3d
458, ¶ 63, citing Block v. Block, 165 Ohio St. 365, 377, 135 N.E.2d 857 (1956) (“[A]
party cannot predicate fraud on predictions or projections relating to future
performance; rather we have long recognized that to be actionable, a
misrepresentation must involve a matter of fact that relates to the past or present.”).
That is why Dr. Carr necessarily resorts to “implication” and “insinuation” to posit that
the language should be translated to mean that she is a threat to child safety.
{¶19} Beyond the points above, we see two additional problems with this
theory. First, we cannot consider a statement myopically; rather, we must evaluate
whether the statement is defamatory based on the totality of the email. See Am. Chem.
Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 79,
citing Mann v. Cincinnati Enquirer, 1st Dist. Hamilton No. C-090747, 2010-Ohio-
3963, ¶ 12 (“ ‘In determining whether a statement is defamatory as a matter of law, a
court must review * * * the totality of the circumstances’ and by ‘read[ing] the
statement[] * * * in the context of the entire [publication] to determine whether a
[reasonable] reader would interpret [it] as defamatory.’ ”). Reading through the entire
email, the EdTA defendants convey that they have received certain information that
they are investigating, and because they want time to complete the investigation, they
will not condone the upcoming event.
{¶20} Second, and relatedly, when we consider the entirety of the email, we
perceive an innocent construction of it: “Under the innocent construction rule, if a
statement is capable of both a defamatory and innocent meaning, the innocent
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meaning must be adopted and the defamatory one rejected. * * * If a statement has
more than one interpretation, it cannot be defamatory per se.” See Murray, 7th Dist.
Belmont No. 02 BE 45, 2004-Ohio-821, at ¶ 32, citing Sethi v. WFMJ Television, Inc.,
134 Ohio App.3d 796, 804, 732 N.E.2d 451 (7th Dist.1999), and Sullivan v. Tucci, 69
Ohio App.3d 20, 22-23, 590 N.E.2d 13 (10th Dist.1990). Here, we see at least two
interpretations of the featured statement in the email: (1) the EdTA defendants need
additional time to complete their investigation and they will take no responsibility for
a conference arising mid-investigation; and (2) Dr. Carr represents a threat to child
safety based on her prior conduct. The first construction represents an innocent
interpretation of the email, which defeats any claim of defamation per se.
{¶21} By resorting to “implication” and “insinuation,” Dr. Carr effectively
acknowledges that the statement is not defamatory “by the very meaning of the words
used,” so this email, given its overall context, cannot constitute defamation per se. See
Heidel, 12th Dist. Warren No. CA2002-09-092, 2003-Ohio-3073, at ¶ 30, citing
Moore, 3 Ohio St.2d at 188, 209 N.E.2d 412.
{¶22} We certainly appreciate Dr. Carr’s angst when she saw this email, and
the EdTA defendants should have been more judicious and thoughtful in their
correspondence. But the standard for defamation is a high one, lest every slight or
offensive remark be rendered actionable. Under the governing standards for Ohio
defamation law described above, we conclude that Dr. Carr failed to establish a viable
defamation per se claim on the state of this record. We express no opinion as to
whether the email may have constituted defamation per quod because no such theory
was pursued in this appeal.
* * *
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{¶23} In light of the foregoing analysis, we overrule Dr. Carr’s assignment of
error, and affirm the judgment of the trial court.
Judgment affirmed.
WINKLER, J., concurs.
ZAYAS, P.J., concurs in judgment only.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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