Ferreri v. Plain Dealer Publishing Co. , 142 Ohio App. 3d 629 ( 2001 )

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JOURNAL ENTRY AND OPINION This appeal arises out of media coverage and commentary by The Plain Dealer regarding Robert A. Ferreri, a Cuyahoga County Juvenile Court judge.

A. FACTS AND PROCEDURAL HISTORY

On August 13, 1999, Ferreri and his wife, Diane, filed a defamation complaint against The Plain Dealer Publishing Company, the owner and publisher of The Plain Dealer newspaper; Plain Dealer reporter James Ewinger; Plain Dealer editorial writer Jean DuBail; Brent Larkin, the director of The Plain Dealer's editorial page; David Hall, former editor of The Plain Dealer; and Plain Dealer cartoonist Jeff Darcy.

In his complaint, appellant¹ alleged that seven publications in The Plain Dealer newspaper (four editorials, a political cartoon and two articles) were defamatory, cast him in a false light, caused him to suffer emotional distress and caused his wife to suffer a loss of consortium. Copies of the editorials, cartoon and articles were attached as exhibits to appellant's complaint and are reproduced as an Appendix to this opinion.

The first of the editorials — Judging the judge — was published on the editorial page of The Plain Dealer on August 18, 1998. In that editorial, The Plain Dealer commented on disciplinary proceedings involving appellant, opined that Ferreri's actions were an affront to the honor of the justice system and concluded that [t]he proper punishment, then, is to remove Ferreri from the bench, permanently. In his complaint, appellant alleged that the editorial falsely accused him of being a reckless, arrogant, publicity-hungry bully and defamed him by stating:

He has not and never will have the self-control, the evenness of temperament, the strict sense of fairness, the willingness to listen, the innate sense of dignity — indeed, any of the qualities that make a mere lawyer into a good jurist.

* * *

The judge has forgotten beyond hope of recall that the honor paid when he enters or leaves the courtroom is not just for him, but for the law, too. It is an honor he is no longer due.

The second editorial, entitled A close call at Juvenile Court, was published in The Plain Dealer on November 22, 1998. In this editorial, The Plain Dealer commented on the selection of the new administrative judge of the Juvenile Court, and applauded the selection of Judge John Gallagher over two other judges, one of whom was appellant. Appellant's complaint alleged that the characterization in the editorial of his conduct of late as scandalous was false and defamatory.

The third editorial at issue was published on December 14, 1998. In that editorial, entitled Bickering jurists, The Plain Dealer opined that it was good that appellant had not been selected as administrative judge for the Juvenile Court. The editorial stated, Ferreri, however, still hopes to claim the prize, insisting that Gallagher's selection was illegal and the job should be his by right of seniority. It continued, Ferreri appears to be beyond the call of reason at this point, so we will waste no effort appealing to his better nature to stop maneuvering to obtain the position of administrative judge. In his complaint, appellant alleged that the accusation that he was beyond the call of reason was false and defamatory.

The final editorial at issue, entitled Poor judges of judicial conduct, was published on December 20, 1998. The editorial was sharply critical of what it perceived as a lenient sentence for appellant from the disciplinary board. The editorial stated:

[I]n reviewing the evidence against Ferreri, the board allowed itself to be swayed by the judge's claims that he always had the best interest of children at heart. We, too, believe that Ferreri cares about children, but the evidence is clear that he cares a good deal more about himself and his image, and that his good intentions are regularly overwhelmed by his foul temper and massive ego.

Appellant's complaint alleged that the statement that he cares more about himself and his image, and that his good intentions are regularly overwhelmed by his foul temper and massive ego was false and defamatory.

On June 11, 1999, The Plain Dealer published a political cartoon on the editorial page. The cartoon depicted appellant sitting behind bars in Juvenile Detention with a child in an adjacent cell saying, Yeah . . . I know, we're all innocent in here, pal! Got any bubble gum? In his complaint, appellant alleged that the cartoon placed him in a false light because it conveyed the false and defamatory idea that [he] had been sent to jail for alleged misconduct when, in fact, he was only suspended by the Supreme Court of Ohio from acting as a judge and from practicing law.

The first of the two allegedly defamatory articles was published in the Metro section of The Plain Dealer on August 13, 1998. The article, captioned Hearing begins on outspoken judge, reported on appellant's disciplinary proceeding before a panel of the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court. The article reported generally about the nature of the hearing and the various witnesses at the hearing. The article contrasted appellant's restrained demeanor at the hearing with his less-restrained conduct in a prior proceeding before the administrative judge of the Cuyahoga Court of Common Pleas in which, the article reported, appellant was generally combative, telling a court official to shut up and asking another judge if he knew how to read. Appellant's complaint alleged that the statement in the article that appellant appeared before the administrative judge to argue about why he should hold onto several high-profile cases that belonged on another judge's docket was false and defamatory.

The second allegedly defamatory article regarding appellant was published in The Plain Dealer on November 4, 1998. This article, entitled 8 incumbents keep Common Pleas seats reported on the judges in the Cuyahoga County Court of Common Pleas who were re-elected in November 1998. After reporting the election results for the Juvenile Division judges, the article stated:

The election was considered crucial because the county's six Juvenile Court judges have been locked into a pattern of internal strife and bickering that many believe interferes with the administration of justice.

Those remaining and the new judges will have to deal with controversial Judge Robert A.

Ferreri, who is widely viewed as the center of many of the disputes. Ferreri was not up for re-election this year.

A branch of the Ohio Supreme Court has recommended that he be suspended as a judge because of numerous false statements he is accused of making about other judges and court officials.

In spite of his problems, many expect Ferreri to ask his fellow judges to install him as the court's next administrative judge. That would give him control of that division and all of the patronage there.

The election gives the Democrats four judgeships, while Ferreri and Gallagher are the only Republicans.

Appellant's complaint alleged that the accusation that he was at the center of many disputes which had locked the Juvenile Court in Cuyahoga County into a pattern of internal strife and bickering that many believe interferes with the administration of justice was false and defamatory.

On November 1, 1999, appellees moved to dismiss appellant's claims pursuant to Civ.R. 12(B)(6), or, in the alternative, to strike certain paragraphs of the complaint. Appellant failed to respond to appellees' motion within the time permitted by Civ.R. 6(E) and Cuyahoga County Common Pleas Local R. 11(C)(i.e., ten days later, or by November 11, 1999). On November 17, 1999, the parties entered into a stipulation providing that appellant could have until December 17, 1999 to respond to appellees' motion to dismiss. The stipulation was filed the same day.

On November 18, 1999, the trial court granted appellees' motion and dismissed appellant's claims in [their] entirety, for failure to state a claim upon which relief may be granted.

Eight days later, on November 26, 1999, appellant sought relief from judgment from the trial court. Appellees opposed appellant's motion. On December 17, 1999, the trial court granted appellant's motion to filed a reply brief instanter. Before the trial court ruled on appellant's motion for relief from judgment, however, appellant filed his notice of appeal, asserting two assignments of error for our review.

B. FIRST ASSIGNMENT OF ERROR

Appellant's first assignment of error states:

I. THE TRIAL COURT FAILED TO GIVE PLAINTIFFS SUFFICIENT TIME TO RESPOND TO DEFENDANTS' PROLIX MOTION TO DISMISS AND THEREBY DEPRIVED THEM OF DUE PROCESS OF LAW.

In his first assignment of error, appellant contends that the trial court failed to give him sufficient time to respond to appellees' motion to dismiss and thereby deprived him of due process of law. Appellant contends that he filed a stipulation on November 17, 1999 giving him until December 17, 1999 in which to respond to appellees' motion. Accordingly, appellant asserts, by granting appellees' motion on November 18, 1999 without the benefit of his arguments in opposition and notwithstanding the stipulation, the trial court denied him due process of law. Appellant's argument is unpersuasive.

Appellees filed their motion to dismiss on November 1, 1999 and served it by mail. Pursuant to Loc.R. 11(C) of the Court of Common Pleas of Cuyahoga County, a party opposing a motion shall serve and file its brief in opposition within seven days after service of the motion. Civ.R. 6(E) further provides that a party receives three additional days to file its brief in opposition when a motion is served by mail. Accordingly, absent an enlargement of time, appellant's response to appellees' motion was due by November 11, 1999.

Appellant failed to respond to appellees' motion, however, by November 11, 1999. Instead, on November 17, 1999, appellant obtained a stipulation from appellees in which appellees agreed that appellant could have until December 17, 1999 in which to respond to appellees' motion. Appellant filed the stipulation with the court on the same day. On November 18, 1999, however, before receiving appellant's brief in opposition, the trial court granted appellees' motion to dismiss.

Civ.R. 6(B) provides the procedure for obtaining an extension after expiration of a deadline. It provides:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion * * * upon motion made after the expiration of the specific period permit the act to be done where the failure to act was the result of excusable neglect * * *. (Emphasis added).

Accordingly, when appellant missed his response date of November 11, 1999, he was required by Civ.R. 6(B) to file a motion with the court, requesting leave to file his response after the deadline. Instead, appellant attempted to avoid the requirements of Civ.R. 6(B) by obtaining a stipulation from appellees for extra time. Once the deadline had passed, however, appellees had no authority to extend the deadline and, accordingly, appellees' agreement after expiration of the deadline to any extra time was irrelevant. Once the deadline had passed, only the trial court could extend it. See Ronald Markowitz Real Estate, Inc. v. Sherwin-Williams Co. (Aug. 5, 1993), Cuyahoga App. No. 63379, unreported.

Moreover, even if appellant had filed the required motion pursuant to Civ.R. 6(B) motion, it is unlikely the trial court would have granted it. As the Tenth District Court of Appeals explained in Barnett v. Carquest Auto Parts of Whitehall (Dec. 8, 1998), Franklin App. No. 98AP-372, unreported:

Civ.R. 6(B) permits the trial court to extend the time for filing a responsive motion after the prescribed time for filing has expired, upon a showing that the failure to timely file was the result of excusable neglect. However, it does not mandate that the court grant the extension of time to file, especially where the appellant has given no indication that the failure to timely file was the result of excusable neglect.

Here, appellant argued in his motion for relief from judgment that because he had obtained a stipulation from appellees for extra time, his failure to timely file a response constituted excusable neglect. This court has previously found, however, that obtaining a stipulation from the opposing party in lieu of filing the proper motion for additional time does not constitute excusable neglect. Ronald Markowitz, supra.

Furthermore, as discussed in detail below, appellant's claims fail to state a claim upon which relief can be granted and thus are insufficient as a matter of law. Therefore, even if the trial court had considered appellant's brief in opposition, it would have reached the same result; i.e., dismissal of appellant's claims. Thus, we find no denial of due process under these circumstances.

Appellant's first assignment of error is overruled.

C. SECOND ASSIGNMENT OF ERROR

Appellant's second assignment of error states:

II. THE TRIAL COURT IMPROPERLY DISMISSED PLAINTIFF'S COMPLAINT.

In his second assignment of error, appellant asserts that the trial court improperly granted appellees' motion to dismiss.

1. STANDARD OF REVIEW

When an appellate court reviews a judgment granting a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim, it must independently review the complaint to determine whether the dismissal was appropriate. Greeley v. Miami Valley Maintenance Contractors, Inc. (1990),49 Ohio St. 3d 228, overruled in part on other grounds, Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St. 3d 541; Guess v. Wilkinson (1997),123 Ohio App. 3d 430, 433. The factual allegations of the complaint and items properly incorporated therein must be accepted as true. Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St. 3d 279, 281, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St. 3d 190, 192. Furthermore, the plaintiff must be afforded all reasonable inferences possibly derived therefrom. Id. In order for a judge to grant a motion to dismiss for failure to state a claim, it must appear ``beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Byrd v. Faber (1991), 57 Ohio St. 3d 56, 60, citing O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242, 245.

2. THE EDITORIALS

Under Ohio law, expressions of opinion are generally protected under Section 11, Article I, of the Ohio Constitution as a valid exercise of freedom of the press. Vail, supra at 281; Scott v. News-Herald (1986),25 Ohio St. 3d 243, 244-245.

Whether a statement constitutes fact or opinion is a question of law to be determined by the court. Vail, supra. In determining whether an allegedly defamatory statement is fact or opinion, a court must consider the totality of the circumstances. Id. at the syllabus; Scott, supra at 250. Specifically, the court should consider: the specific language used, whether the statement is verifiable, the general context of the statement, and finally, the broader context in which the statement appeared. Vail, supra. The standard is fluid, however. Id. Every case will present facts that must be analyzed in the context of the general test. Each of the four factors should be addressed, but the weight given to any one will conceivably vary depending on the circumstances presented. Id.

Based on our independent review of the totality of the circumstances, we conclude that the alleged false and defamatory statements in the editorials were expressions of opinion subject to constitutional protection.

First, the language used in the editorials makes it clear that an ordinary reader would interpret the statements to be expressions of the newspaper's opinion, rather than factual reports. For example, the November 22, 1998 editorial opens with a sarcastic remark about [a]n outburst of sanity in the Cuyahoga County Juvenile Court. The August 18, 1998 editorial uses equally vivid rhetoric by characterizing appellant as a reckless, arrogant, publicity-hungry bully. Use of such sarcasm, editorial hyperbole and epithets has long been recognized as constitutionally protected speech, regardless of whether the statements are classified as opinion or rhetorical hyperbole. See Milkovich v. Lorain Journal Co., (1990), 497 U.S. 1, Vail, supra at 282-283; Stepien v. Franklin (1988), 39 Ohio App. 3d 47, 51; Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369, 372; Matalka v. Lagemann (1985),21 Ohio App. 3d 134, 137.

This court has previously acknowledged that the language of the entire column may be a signal that a specific statement which, sitting alone, would appear to be factual is in actuality a statement of opinion. DeVito v. Gollinger (1999), 133 Ohio App. 3d 51, 55, citing Logan v. Fairfield (Oct. 26, 1989), Cuyahoga App. Nos. 56052, 56055, unreported. Here, the editorials characterize their statements as reflections, argument, thinking, hopes, belief and our view. Such characterizations make it clear that an ordinary reader would interpret the statements to be opinion, rather than fact.

The second factor in the totality of circumstances test is whether the statements are objectively verifiable. Where the statement lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content. Scott, supra at 251. In other words, a statement lacking a plausible method of verification is an opinion.

Here, taken as a whole, the statements made in the editorials are expressions of opinion because they cannot be objectively proved or disproved. There are no objective tests to establish whether someone's conduct is scandalous, whether an individual is beyond the call of reason, has the qualities that make a mere lawyer into a good jurist or cares a good deal more about himself and his image than children. Any such determinations would necessarily be based only on an individual's opinion, not objectively verifiable facts.

The third and fourth factors of the totality of circumstances test require an examination of the general and broad contexts of the statements. Here, all of the editorials at issue were published on the editorial page of The Plain Dealer, where people know that they are reading opinions and not news stories. Furthermore, the editorials were published shortly after the conclusion of disciplinary proceedings against appellant. Any official disciplinary proceeding against a judge is a matter of keen public interest and concern. The editorials at issue criticized the disciplinary proceedings and the appropriateness of appellant's punishment. They questioned whether the disciplinary system lived up to its ideal of upholding the standards and integrity of the judiciary or whether appellant got off too easy. In this context, it should be apparent to an ordinary reader that the newspaper was stating its opinion regarding appellant and his fitness to remain in office.

Thus, based on our independent review of the totality of the circumstances test, we conclude that the alleged defamatory statements in the editorials constituted opinions and, therefore, are not actionable as a matter of law. Accordingly, the trial court properly dismissed appellant's defamation claims regarding the editorials.

3. THE CARTOON

The political cartoon similarly constitutes an editorial opinion and not an assertion of fact.

In order to be defamatory, a publication must contain an assertion of fact. Celebrezze v. Dayton Newspaper (1988), 41 Ohio App. 3d 343, 346. There is no such assertion in the cartoon at issue here. Contrary to appellant's assertion, no reasonable person could conclude from viewing the cartoon that appellant had actually been jailed in Juvenile Detention and was falsely proclaiming his innocence to a child in an adjacent cell. The scene depicted was exaggeration and hyperbole, not reasonably capable of being interpreted as factual or defamatory. Id. Thus, as an expression of opinion rather than a statement of fact, it is not actionable as a matter of law and the trial court properly dismissed appellant's defamation claim regarding the cartoon.

4. THE ARTICLES

Defamation is a false and malicious publication against an individual made with an intent to injure his reputation or to expose him to public hatred, contempt, ridicule, shame, or disgrace or to affect him injuriously in his trade, business or profession. Robb v. Lincoln Publishing (Ohio), Inc. (1996), 114 Ohio App. 3d 595, 616.

Whether or not a statement is defamatory is an issue of law for the court. Yeager, supra; Mendise v. Plain Dealer Publishing Co. (1990),69 Ohio App. 3d 721, 726. When considering whether a statement is defamatory, the trial court is directed to review the statement under the totality of the circumstances. Scott, supra at 253. Words should be given their plain and ordinary meaning when evaluating them and should be read in context of the whole in which they were reported, rather than in isolation. Celebrezze v. Netzley (Aug. 4, 1988), Cuyahoga App. Nos. 53864, 53865, unreported.

In addition, in evaluating whether words are defamatory, the court is to apply the innocent construction rule, which provides that if allegedly defamatory words are susceptible to two meanings, one defamatory and one innocent, the defamatory meaning should be rejected and the innocent meaning adopted. Yeager, supra at 372.

The allegedly defamatory remark in the August 13, 1998 article consists of the statement that appellant appeared before the administrative judge of the Court of Common Pleas of Cuyahoga County and argued about why he should hold onto several high-profile cases that belonged on another judge's docket. Appellant contends that this falsely implied that he had acted improperly when, in fact, he did not.

With respect to the November 4, 1998 article, appellant objects to the statement that he was at the center of disputes in the Juvenile Court which had locked the Court into a pattern of internal strife and bickering that * * * interferes with the administration of justice.

We find these statements not defamatory as a matter of law. The statement that appellant appeared before the Cuyahoga County County Common Pleas Court administrative judge and argued about why he should hold onto several high-profile cases that belonged on another judge's docket does not make any slanderous assertion of unethical, criminal or immoral conduct by appellant. It merely states what appellant did, without making any corresponding judgment regarding appellant's actions. Thus, the statement is not so definite as to be defamatory. Gruenspan v. Seitz (1997), 124 Ohio App. 3d 197, 210.

The statements at issue in the second article are also not defamatory. Our review of the article, as a whole, indicates that the statements simply convey information regarding the functioning of the Juvenile Court. Moreover, a statement that appellant is at the center of the disputes is not defamatory in itself. Rather, it is the reader's perception of appellant's conduct as good or bad, not the statement itself, that could potentially affect appellant's reputation. The statement itself makes no defamatory assertion regarding appellant's conduct.

Furthermore, the allegedly defamatory statements in the articles are non-defamatory under the incremental harm doctrine.

This doctrine measures the incremental reputational harm inflicted by the challenged statements beyond the harm imposed by the nonactionable remainder of the publication; if that incremental harm is determined to be nominal or nonexistent, the statements are dismissed as not actionable. Brite Metal Treating, Inc. v. Schuler (May 13, 1993), Cuyahoga App. No. 62360, unreported, quoting Masson v. New Yorker Magazine, Inc. (C.A.9, 1989), 881 F.2d 1452, 1457-1458.

The August 13, 1998 article reported that appellant was accused of publicly making false statements about judges and other court officials; had been accused of judicial misconduct and a violation of the Code of Professional Responsibility; had asserted on tape that the wife of a lawyer in an adoption case he was handling worked as a law clerk for an appellate court judge and had written an opinion favorable to her husband, when appellant knew the accusation to be false; and that when appellant had previously appeared before the administrative judge of Cuyahoga County Common Pleas Court in May, he had been generally combative, telling a court official to shut-up and asking another judge if he knew how to read. Against this backdrop, the statement at issue — that appellant appeared before the administrative judge to argue about why he should hold on to several high-profile cases that belonged on another judge's docket — could not harm appellant's reputation in any way beyond the harm already caused by the other non-actionable statements in the article.

Similarly, the statement that appellant complains of in the second article — that he was widely viewed as the center of many of the disputes in Juvenile Court that had locked [the court] into a pattern of internal strife and bickering that many believe interferes with the administration of justice — could not harm appellant's reputation more than the harm already caused by the other statements in the article that appellant had been recommended for suspension as a judge because he had made numerous false statements about other judges and court officials. Accordingly, the statements are not actionable as a matter of law and, therefore, the trial court properly dismissed appellant's defamation claims based on the articles.

5. REMAINING CLAIMS

Appellant's complaint also asserted a claim for invasion of privacy under a false light theory of recovery. The Ohio Supreme Court has never recognized a cause of action for false light invasion of privacy, however. The Court has again recently declined to recognize this tort. M.J. DiCorpo, Inc. v. Sweeney (1994), 69 Ohio St. 3d 497, 507, citing Yeager, supra. Absent an authoritative pronouncement from the Ohio Supreme Court, we likewise decline to recognize this tort, and, accordingly, affirm the judgment of the trial court dismissing this claim.

Likewise, we affirm the trial court judgment dismissing appellant's emotional distress claim. As set forth above, appellant has failed to state a claim for defamation on any of the allegedly defamatory statements. As a result, his emotional distress claim, which is predicated upon the allegedly defamatory statements, is also insufficient and fails to state a claim upon which relief can be granted. Mrs. Ferreri's loss of consortium claim is similarly derivative of appellant's defamation claims and, therefore, also fails.

Appellant's second assignment of error is therefore overruled.

It is ordered that appellees recover of appellant their costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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.

___________________________ TIMOTHY E. McMONAGLE, P.J.:

ANNE L. KILBANE, J., CONCURS; ANN DYKE, J., CONCURS IN JUDGMENT ONLY.

¹ Appellants will hereinafter be referred to in the singular because Diane Ferreri's claim is derivative of her husband's claims.