Fisher v. Ahmed

[Cite as Fisher v. Ahmed, 2020-Ohio-1196.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
HOLLY TRIVETT FISHER, et al. C.A. No. 29340
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KASSIM AHMED, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellees CASE No. CV-2018-07-2848
DECISION AND JOURNAL ENTRY
Dated: March 31, 2020
SCHAFER, Judge.
{¶1} Plaintiff-Appellant, Holly Trivett Fisher, appeals the judgment of the Summit
County Court of Common Pleas granting the motion of Defendant-Appellee, Summit County, for
judgment on the pleadings and granting the motion of Defendant-Appellee, Kassim Ahmed, to
dismiss for failure to state claim upon which relief can be granted. For the reasons that follow,
this Court reverses the judgment as to the two counts of defamation only.
I.
{¶2} Fisher and her husband filed a complaint against Ahmed and the Summit County
Prosecutor’s Office on July 10, 2018. The original complaint asserted causes of action for
defamation, intentional infliction of emotional distress, and loss of consortium. Ahmed and the
Prosecutor’s Office each filed a motion to dismiss the complaint.
{¶3} The Fishers filed an amended complaint on September 21, 2018. In the amended
complaint they named as defendants Ahmed and Summit County and dropped the Prosecutor’s
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Office as a defendant. The amended complaint asserted two counts of defamation per se, and one
count each of intentional infliction of emotional distress, loss of consortium, and civil liability for
violation of R.C. 2917.32. Ahmed filed a Civ.R. 12(B)(6) motion to dismiss the amended
complaint for failure to state a claim upon which relief can be granted. The County filed an answer
to the amended complaint and then moved, pursuant to Civ.R. 12(C), for judgment on the
pleadings. Fisher filed an omnibus response to the motions. Ahmed and the County each filed a
reply in support of their respective motions.
{¶4} The trial court issued its judgment entry on February 20, 2019. The trial court
granted the County’s motion for judgment on the pleadings as to all counts asserted in the amended
complaint and entered judgment in favor of the County. The trial court also granted Ahmed’s
motion and dismissed all claims asserted against Ahmed.
{¶5} Fisher timely appealed the trial court’s entry of judgment in favor of the County
and dismissal of her claims against Ahmed as to the two counts of defamation only. Fisher has
not appealed the trial court’s entry of judgment and dismissal of her claims for intentional infliction
of emotional distress, or civil liability for violation of R.C. 2917.32. Fisher’s husband has not
appealed the entry of judgment and dismissal of his loss of consortium claim. Fisher raises four
assignments of error for our review.
II.
{¶6} On appeal, Fisher presents four assignments of error contesting the trial court’s
decision dismissing the claims for defamation as to Ahmed and entering judgment on the
defamation claims in favor of the County. Fisher argues that the trial court failed to properly and
appropriately apply the standard for ruling on the motion to dismiss and motion for judgment on
the pleadings. Fisher contends that the trial court construed facts alleged in the complaint in the
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movant’s favor, ignored facts alleged in the complaint, and asserts that the decision contained
errors of law, and fact.
{¶7} Preliminarily, we will discuss topics germane to each of the assignments of error.
Ahmed’s and the County’s motions presented similar and overlapping arguments, and the trial
court did not distinguish between the motions as to the basis for its decision. Accordingly, we will
address the applicable standards of review for a Civ.R. 12(C) motion for judgment on the pleadings
and a Civ.R. 12(B)(6) motion to dismiss.
Civ.R. 12(B)(6) motion to dismiss
{¶8} A Civ.R. 12(B)(6) motion tests the sufficiency of the complaint, and dismissal is
appropriate where the complaint “fail[s] to state a claim upon which relief can be granted.”
Regarding sufficiency, notice pleading only requires that the complaint “shall contain * * * a short
and plain statement of the claim showing that the party is entitled to relief[.]” Civ.R. 8(A).
However, “the complaint must still set forth operative facts to give the opposing party ‘fair notice
of the nature of the action.’” Vagas v. City of Hudson, 9th Dist. Summit No. 24713, 2009-Ohio-
6794, ¶ 10, quoting Mogus v. Scottsdale Ins. Co., 9th Dist. Wayne Nos. 03CA0074, 04CA0002,
2004-Ohio-5177, ¶ 15. “‘[A] complaint must be more than ‘bare assertions of legal conclusions.’”
Id. quoting Copeland v. Summit Cty. Probate Court, 9th Dist. Summit No. 24648, 2009-Ohio-
4860, ¶ 10.
{¶9} When construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must
presume that all factual allegations of the complaint are true and make all reasonable inferences in
favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St. 3d 190, 192 (1988).
Before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove
no set of facts entitling her to recovery. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
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St.2d 242 (1975), syllabus. When considering a motion pursuant to Civ.R. 12(B)(6), the court
cannot rely on evidence or allegations outside of the complaint. State ex rel. Fuqua v. Alexander,
79 Ohio St. 3d 206, 207 (1997). However, “[m]aterial incorporated in a complaint may be
considered part of the complaint for purposes of determining a Civ.R. 12(B)(6) motion to dismiss.”
State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St. 3d 247, fn. 1 (1997).
{¶10} This Court reviews an order granting a Civ.R. 12(B)(6) motion to dismiss de novo.
Perrysburg Twp. v. City of Rossford, 103 Ohio St. 3d 79, 2004-Ohio-4362, ¶ 5. “A de novo review
requires an independent review of the trial court’s decision without any deference to the trial
court’s determination.” State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.
Civ.R. 12(C) motion for judgment on the pleadings
{¶11} Civ.R. 12(C) provides that, “[a]fter the pleadings are closed but within such time
as not to delay the trial, any party may move for judgment on the pleadings.” A motion for
judgment on the pleadings pursuant to Civ.R. 12(C) is properly characterized as a belated Civ.R.
12(B)(6) motion for failure to state a claim upon which relief may be granted; therefore, the same
standard applies to both motions. Business Data Sys., Inc. v. Figetakis, 9th Dist. Summit No.
22783, 2006-Ohio-1036, ¶ 7. Although similar to a Civ.R. 12(B)(6) motion, Civ.R. 12(C) motions
“are specifically for resolving questions of law[.]” (Internal citation omitted.) State ex rel. Midwest
Pride IV Inc. v. Pontious, 75 Ohio St. 3d 565, 570 (1996). “Civ.R. 12(C) presents an onerous
burden for litigants and consequently, a trial court must be circumspect in its analysis of Civ.R.
12(C) motions.” Figetakis at ¶ 10. The trial court must limit its inquiry to the material allegations
in the pleadings—accepting those allegations and all reasonable inferences as true—and, if it is
clear from the pleadings that plaintiff could prove no set of facts which would entitle him to relief,
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judgment on the pleadings is appropriate as a matter of law. Gawloski v. Miller Brewing Co., 96
Ohio App. 3d 160, 163 (9th Dist.1994).
{¶12} Because a Civ.R. 12(C) motion presents only questions of law, our review of the
decision is de novo. White v. King, 147 Ohio St. 3d 74, 2016-Ohio-2770, ¶ 13.
R.C. Chapter 2744 immunity
{¶13} Ohio’s Political Subdivision Tort Liability Act, which governs political subdivision
liability and immunity, is codified in Chapter 2744 of the Revised Code. In its judgment entry,
the trial court held that all defendants had immunity from this action pursuant to R.C. Chapter
2744. In support of this conclusion, the trial court briefly stated that the County “is a political
subdivision that is generally immune from tort liability under R.C. 2744.02(A)(1) for its own acts
and the acts of its employees[,]” and “[n]one of the five statutory exceptions of R.C. 2744.02(B)
immunity apply to abrogate the County’s comprehensive immunity[.]”
{¶14} The trial court flatly rejected Fisher’s position that, pursuant to R.C. 2744.09(B),
political subdivision immunity would not apply to the County in this action. The trial court found
that Fisher failed to “ple[a]d any facts to support the[] argument that [her] causes of action
necessarily arose out of her employment relationship with Summit County, such that R.C.
2744.09(B) would [apply].”
{¶15} Additionally, the trial court summarily stated that Fisher had not pleaded “any facts,
as distinguished from conclusory statements, to overcome Ahmed’s immunity as an employee of
the County under R.C. 2744.03(A). On this basis, and without discussion or analysis, the trial
court apparently concluded that Ahmed was immune from suit as an employee of a political
subdivision.
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{¶16} On the grounds of political subdivision immunity, the trial court dismissed all
counts of the action as to Ahmed and granted judgment on all counts in favor of the County. In
the first two assignments of error, Fisher contends that the trial court erred by entering judgment
on and dismissing the claims for slander and libel pursuant to R.C. Chapter 2744. We agree.
Assignment of Error I
The trial court erred in finding Fisher alleged no set of facts that could prove
Fisher’s slander and libel claims did not arise out of Fisher’s employment
relationship with Summit County under R.C. [] 2744.0(B).
{¶17} In her first assignment of error, Fisher asks this Court to reverse the trial court’s
decision to enter judgment in favor of the County, as it relates to her defamation claims, based on
political subdivision immunity. Fisher contends that the trial court erred when it found that she
failed to plead sufficient facts to support her claim that her causes of action necessarily arose out
of her employment relationship with the County, thereby implicating R.C. 2744.09(B).
{¶18} R.C. 2744.09(B) provides that R.C. Chapter 2744 “does not apply, and shall not be
construed to apply to, * * * [c]ivil actions by an employee * * * against [her] political subdivision
relative to any matter that arises out of the employment relationship between the employee and the
political subdivision[.]” The significance of R.C. 2744.09(B) is that it removes the immunity from
civil actions conferred upon a political subdivision by R.C. Chapter 2744. In its decision, the trial
court held that the County was immune from this action pursuant to R.C. 2744.02, and that no
exception applied to abrogate that immunity. In reaching that conclusion, the trial court rejected
Fisher’s argument that R.C. 2744.09(B) applied in this case and precluded the County’s claim to
political subdivision immunity. We agree that the trial court erred by concluding that the County
was immune and by granting judgment on the pleadings because, as discussed below, the trial
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court applied a pleading standard contrary to law and failed to properly analyze the pleadings
pursuant to the Civ.R. 12(C) standard.
{¶19} A court engages in a three-tiered analysis to determine whether a political
subdivision is immune from liability for damages in a civil action. Moss v. Lorain Cty. Bd. of
Mental Retardation, 9th Dist. Lorain No. 13CA010335, 2014-Ohio-969, ¶ 10. The first tier
establishes generally that “a political subdivision is not liable in damages in a civil action for
injury, death, or loss to person or property allegedly caused by any act or omission of the political
subdivision * * * in connection with a governmental or proprietary function.” R.C. 2744.02(A)(1);
Moss at ¶ 10. In the second tier, the court must consider the applicability of any of the five
exceptions to immunity listed in R.C. 2744.02(B)(1)-(5). If any of those exceptions apply, the
court moves to the third tier to consider whether immunity can be restored based on the defenses
enumerated in R.C. 2744.03. Id.
{¶20} “Statutory immunity, including political-subdivision immunity, is an affirmative
defense,” which must be asserted in a responsive pleading. Supportive Solutions, L.L.C. v.
Electronic Classroom of Tomorrow, 137 Ohio St. 3d 23, 2013-Ohio-2410, ¶ 17, citing Turner v.
Cent. Local School Dist., 85 Ohio St. 3d 95, 98 (1999). While a political subdivision may utilize
Civ.R. 12(C) to seek judgment on the basis of statutory immunity, a motion for judgment on the
pleadings is only an appropriate means “to obtain an adjudication of the validity of the affirmative
defense [if] that validity can be determined solely from the allegations in the pleadings.” Epperly
v. Medina City Bd. of Edn., 64 Ohio App. 3d 74, 75-76, (9th Dist.1989). However, “the assertion
of an affirmative defense does not place a burden on the non-moving party to affirmatively
demonstrate or plead the absence of, or any exception to, immunity.” Ganzhorn v. R & T Fence
Co., 11th Dist. Portage No. 2010-P-0059, 2011-Ohio-6851, ¶ 13. Therefore, the absence of factual
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allegations in the complaint is not a proper basis for determining the validity of an affirmative
defense.
{¶21} A plaintiff is under no obligation to prove her own case in the initial pleadings and
certainly “‘need not affirmatively dispose of the immunity question altogether at the pleading
stage.’” Chunyo v. Gauntner, 9th Dist. Summit No. 28346, 2017-Ohio-5555, ¶ 10, quoting Scott
v. Columbus Dept. of Pub. Utils., 192 Ohio App. 3d 465, 2011-Ohio-677, ¶ 8 (10th Dist.)
(concluding that requiring a plaintiff to demonstrate an exception to immunity at the pleading stage
would be tantamount to “requiring a plaintiff to overcome a motion for summary judgment at the
pleading stage.”). A plaintiff does not have to “anticipate a political subdivision[’s] defenses and
plead specific facts to counteract a possible affirmative defense of sovereign immunity.”
Hitchcock v. Akron City Schools Bd. of Education, 9th Dist. Summit No. 23632, 2008-Ohio-2668,
¶ 13. Thus, there is no “heightened pleading requirement” that would require Fisher to allege
specific facts regarding exceptions to immunity when bringing suit against a political subdivision.
Rogers v. Akron City School Sys., 9th Dist. Summit No. 23416, 2008-Ohio-2962, ¶ 17.
{¶22} Upon review of the pleadings, this Court cannot discern a plausible foundation for
the trial court’s summary conclusion that the County was entitled to political subdivision immunity
without exception. Regardless, the trial court erred by faulting Fisher for failing to establish in her
complaint that R.C. 2744.09(B) “would exempt [her] claims from the operation of political
subdivision immunity altogether.” Fisher was not required to plead or prove the absence of the
County’s affirmative defense in order to avoid judgment on the pleadings1. See Chaffee
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Still, in her complaint Fisher did preemptively allege that political subdivision immunity
was unavailable to Ahmed and the County because of R.C. 2744.09(B). In her brief in opposition
to the County’s motion, Fisher argued to the trial court that she had pleaded “sufficient facts” to
create a question—material to the applicability of R.C. 2744.09(B) as a bar to the County’s
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Chiropractic Clinic, Inc. v. Stiffler, 9th Dist. Wayne No. 16AP0033, 2017-Ohio-7790, ¶ 13. The
trial court erred when it placed a burden on Fisher to plead facts to support an argument that R.C.
2744.09(B) would bar a potential affirmative defense of political subdivision immunity. “[W]hen
‘reviewing a motion for judgment on the pleadings, a complainant’s failure to allege specific facts
to disprove possible affirmative defenses of the defendant should not be fatal to the complaint[.]’”
Harris Farms, LLC v. Madison Twp. Trustees, 4th Dist. Scioto No. 17CA3817, 2018-Ohio-4123,
¶ 17 quoting Mangelluzzi v. Morley, 8th Dist. Cuyahoga No. 102272, 2015-Ohio-3143, ¶ 13. The
pleadings in this matter simply do not provide the relevant factual allegations that would be
necessary to conclusively determine as a matter of law whether R.C. 2744.09(B) precludes
application of R.C. Chapter 2744 in this case and, if not, whether the County is entitled to R.C.
2744.02 immunity. See Clardy v. Medina Twp. Bd. of Trustees, 9th Dist. Medina No. 17CA0075-
M, 2018-Ohio-2545, ¶ 11.
{¶23} Because issues of material fact remain unresolved by the pleadings, we conclude
that the trial court erred by granting judgment as a matter of law on the issue of political subdivision
immunity. Fisher’s first assignment of error is sustained.
Assignment of Error II
The trial court erred in finding Fisher alleged no set of facts that could
overcome Ahmed’s immunity as a Summit County employee under RC. []
2744.03(A).
{¶24} In her second assignment of error, Fisher asks this Court to reverse the trial court’s
decision dismissing her defamation claims against Ahmed based on employee political subdivision
affirmative defense—as to whether this civil action arose from her employment relationship with
the County. Nevertheless, Fisher argued that it would be premature for the trial court to resolve
the factual questions on the issue of immunity at the pleading stage.
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immunity. Fisher contends that she pleaded sufficient facts to show that Ahmed’s defamatory
statements were made with malicious purpose, in bad faith, and in a wanton or reckless manner.
{¶25} Pursuant to R.C. 2744.03(A)(6), immunity extends to the individual employees of
a political subdivision. However, we do not apply the same three-tiered analysis used to determine
political subdivision immunity when considering an employee’s claim of immunity. Lambert v.
Clancy, 125 Ohio St. 3d 231, 2010-Ohio-1483, ¶ 10. “Instead, R.C. 2744.03(A)(6) provides that
an employee is personally immune from liability unless ‘(a) [t]he employee’s acts or omissions
were manifestly outside the scope of the employee’s employment or official responsibilities; (b)
[t]he employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or
reckless manner; [or] (c) [c]ivil liability is expressly imposed upon the employee by a section of
the Revised Code.’” Id., quoting R.C. 2744.03(A)(6).
{¶26} In its ruling, the trial court faulted Fisher for failing to plead “any facts, as opposed
to conclusory statements, to overcome Ahmed’s immunity as a County employee under R.C.
2744.03(A).” While Fisher directly challenges the veracity of the trial court’s finding, we need
not reach that issue in our review. Fisher was not required to plead facts to overcome immunity
in order to avoid dismissal for failure to state a claim upon which relief can be granted, and the
trial court erred by imposing such a standard. As we explained in the previous assignment of error,
Fisher was not required to anticipate a not-yet-raised affirmative defense of political subdivision
immunity, much less plead facts to establish an exception to immunity, in order for her claims to
survive a Civ.R. 12(B)(6) challenge. See Rogers, 2008-Ohio-2962 at ¶ 19. Fisher had no burden
to show the absence of immunity at the pleading stage—as she might be required to do in response
to a motion for summary judgment—by proactively disproving an immunity defense in the
complaint. Scott, 2011-Ohio-677 at ¶ 8.
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{¶27} “[A] Civ.R. 12(B)(6) motion to dismiss based upon an affirmative defense is only
properly granted where the defense is conclusively established from the face of the complaint.”
Brannon v. Edman, 9th Dist. Summit No. 28544, 2018-Ohio-70, ¶ 9, citing Jones v. Goodyear Tire
& Rubber Co., 9th Dist. Summit No. 21724, 2004-Ohio-2821, ¶ 12. Even assuming that the facts
and allegations of the complaint conclusively established that Ahmed is generally personally
immune from liability, the complaint does not conclusively establish the inapplicability of an
exception to immunity—such as the R.C. 2744.03(A)(6)(b) exception for an employee’s act or
omission taken with malicious purpose, in bad faith, or in a wanton or reckless manner—that
Fisher asserts is applicable here. Moreover, “we remain mindful that issues regarding whether an
actor’s conduct was malicious, wanton, reckless, or in bad faith are generally for the trier of fact
to decide,” and not an appropriate determination under Civ.R. 12(B)(6). Chunyo, 2017-Ohio-5555
at ¶ 10. It is not apparent on the face of the pleadings that there exists no set of facts upon which
Fisher could succeed on her defamation claims in light of the claimed defense of immunity.
Brannon, 2018-Ohio-70 at ¶ 9. The trial court erred by dismissing Fisher’s defamation claims
against Ahmed on the basis of political subdivision employee immunity. Fisher’s second
assignment of error is sustained.
Alternative grounds for judgment and dismissal.
{¶28} Having sustained the first two assignments of error we conclude that the trial court
erred by entering judgment and dismissing the defamation claims based on political subdivision
immunity. However, after dismissing and entering judgment as to all of Fisher’s claims on
immunity grounds, the trial court proceeded to enter judgment and dismiss the claims based on the
alternative arguments Ahmed presented in his motion to dismiss and the County presented in its
motion for judgment on the pleadings. Prior to addressing Fisher’s third and fourth assignments
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of error, we will preliminarily discuss the trial court’s additional consideration of Fisher’s claims,
as well as the elements of a defamation claim. Here again, the topics are germane to these
assignments of error, both of which involve a de novo review of the County’s Civ.R. 12(C) motion
for judgment on the pleadings and Ahmed’s Civ.R. 12(B)(6) motion to dismiss. King, 2016-Ohio-
2770 at ¶ 13; Perrysburg, 2004-Ohio-4362 at ¶ 5.
{¶29} Regarding the claims for defamation, the trial court found that Fisher’s claims failed
for several reasons. First, the trial court stated that Fisher’s failure to specifically allege in the
complaint that Ahmed’s statements were made “without privilege” was fatal to the defamation
claims. The trial court also concluded that “the written statements by Ahmed about which [are the
subject of the second count of Fisher’s complaint] were absolutely privileged because they were
statements made to law enforcement officials or to members of management pursuant to Summit
County Codified Ordinances Section 169.19.” Additionally, the trial court further implied “that
Ahmed’s oral statements were qualifiedly privileged,” because Fisher had “not ple[aded] facts, as
opposed to conclusory statements, to support her argument that they were made with actual malice
* * *.”
{¶30} The trial court also stated that, to be actionable, a defamatory statement must be
untrue. The trial court apparently concluded that “Ahmed’s statements were about a matter of
public concern” and, therefore, “the First Amendment required [] Fisher to plead facts showing
that they were untrue.” Focusing only on a portion of “Ahmed’s statements—that [] Fisher saw
him in the Courthouse hallway, and nevertheless collided with him—”the trial court found that
Fisher’s complaint “does not aver facts showing that the gist of [those statements] are untrue” and
disregarded the remainder of Ahmed’s statements alleged in the complaint as “exaggeration”
constituting “opinion or hyperbole, which is not actionable as a matter of law.”
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{¶31} The trial court concluded that, because Fisher did not plead facts to support each of
the elements of defamation, the first and second counts of her complaint failed as a matter of law.
The trial court entered judgment on those claims in favor of the County and dismissed those claims
as to Ahmed.
Elements of a defamation claim.
{¶32} “Defamation is a false publication that injures a person’s reputation.” Gosden v.
Louis, 116 Ohio App. 3d 195, 206 (9th Dist.1996). “Written defamation is known as libel; spoken
defamation is known as slander.” Id. To prevail in a defamation case, a plaintiff must demonstrate
five elements:
(1) that a false statement of fact was made, (2) that the statement was defamatory,
(3) that the statement was published, (4) that the plaintiff suffered injury as a
proximate result of the publication, and (5) that the defendant acted with the
requisite degree of fault in publishing the statement.
Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St. 3d 366, 2012-Ohio-4193 ¶ 77. To establish the
requisite degree of fault, the plaintiff must show fault of at least negligence on the part of the
defendant, though stricter burdens of proof apply in certain circumstances. Northeast Ohio Elite
Gymnastics Training Ctr., Inc. v. Osborne, 183 Ohio App. 3d 104, 2009-Ohio-2612, ¶ 7 (9th Dist.).
{¶33} There are two kinds of defamation; defamation per se occurs when material is
defamatory on its face; defamation per quod occurs when material is defamatory through
interpretation or innuendo. Gosden, at 206. Fisher asserted one count of slander per se and one
count of libel per se. An allegedly slanderous or libelous statement is actionable as defamation
per se if it: (1) alleges an indictable criminal offense involving moral turpitude; (2) imputes a
loathsome or contagious disease that would exclude a person from society; (3) tends to injure a
person in his trade or occupation; and, additionally, (4) written matter is libelous per se if it tends
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to subject a person to public hatred, ridicule, or contempt. Dunnigan v. City of Lorain, 9th Dist.
Lorain No. 02CA008010, 2002-Ohio-5548, ¶ 35; Gosden, at 207.
Assignment of Error III
The trial court erred in finding Fisher alleged no set of facts that could prove
Ahmed’s slanderous and libelous statements were made without privilege.
{¶34} In her third assignment of error, Fisher argues that, “[s]ince absolute and qualified
privileges are a defense and not prima facie elements, the trial court erred in dismissing Fisher’s
slander and libel claims for failing to aver Ahmed’s slanderous and libelous statements were
published without privilege.”
{¶35} We recognize that the description of the elements of defamation may vary from
case to case. Relevant to this case, and as the County and Ahmed have emphasized, the publication
element is sometimes described as a statement that is “‘published without privilege to a third
party[.]’” (Emphasis added.) Osborne, 2009-Ohio-2612 at ¶ 7, quoting Gosden at 206. Other
cases omit the phrase “without privilege” when stating the publication element. See, e.g.,
Leadscope, 2012-Ohio-4193 at ¶ 77; Grubb & Assoc. LPA v. Brown, 9th Dist. Lorain No.
17CA011201, 2018-Ohio-3526, ¶ 9; Anderson v. WBNS-TV, Inc., Slip Opinion, 2019-Ohio-5196,
¶ 9. This distinction aside, a plaintiff is not required to plead facts to show the absence of a
privilege because lack of privilege is not an essential element of defamation. See Hahn v. Kotten,
43 Ohio St. 2d 237, 243 (1975).
{¶36} However, privilege is a defense asserting that an alleged defamatory statement,
“except for the occasion on which or the circumstances under which it [wa]s made, would be
defamatory, and actionable.” Costanzo v. Gaul, 62 Ohio St. 2d 106, 108 (1980). Otherwise stated,
even where each of the essential elements of a defamation claim are established, the defendant can
assert privilege to defend against liability for a defamatory statement. Consequently, we conclude
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that the trial court erred when it held that Fisher’s failure to plead that Ahmed’s statements were
made without privilege was fatal to her claims for libel and slander.
{¶37} We next consider the trial court’s conclusion that Ahmed’s written statements were
absolutely privileged as a matter of law, and that “to the extent” that Ahmed’s oral statements were
qualifiedly privileged, Fisher failed to plead facts to show that they were made with actual malice.
{¶38} Privileged communications may be either absolutely or qualifiedly privileged.
Morgan v. Community Health Partners, 9th Dist. Lorain No. 12CA010242, 2013-Ohio-2259, ¶ 9.
A qualified or conditional privilege “does not change the actionable quality of the words published,
but merely rebuts the inference of malice that is imputed in the absence of privilege, and makes a
showing of falsity and actual malice essential to the right of recovery.” Hahn, 43 Ohio St. 2d 237
at 244. On the other hand, “absolute privilege protects the publisher of a false, defamatory
statement even though it is made with actual malice, in bad faith and with knowledge of its falsity.”
M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St. 3d 497, 505 (1994).
{¶39} “‘Affirmative defenses such as privilege (see Civ.R. 8[C] ) generally are not
properly raised in a Civ.R. 12(B)(6) motion because they usually require reference to materials
outside the complaint.’” Gall v. Dye, 9th Dist. Lorain No. 98CA007183, 1999 WL 692440, *3
(Sept. 8, 1999), quoting Bell v. Horton, 107 Ohio App. 3d 824, 826 (4th Dist.1995). However, if
the existence of an affirmative defense is obvious from the face of the complaint, it may be raised
in a Civ.R. 12(B)(6) motion. Id. The assertion of privilege as a justification for defamation is set
forth as a defense “because usually the plaintiff’s action is based upon defamatory language, and
no allusion is made in his pleading to any defense which the defendant may interpose. But when
the plaintiff in his own pleading in an action for libel sets forth a complete justification of the
defendant by way of an absolute privilege, as fully as the defendant might have done, then it cannot
16
be said that the plaintiff has set forth a cause of action which justifies recovery.” Buehrer v.
Provident Mut. Life Ins. Co., 123 Ohio St. 264, 273-74 (1931).
{¶40} “Absolute privilege is applied narrowly and ‘has been generally limited to
legislative and judicial proceedings, and other acts of state[.]’” Morgan v. Community Health
Partners, 9th Dist. Lorain No. 12CA010242, 2013-Ohio-2259, ¶ 10, quoting Costanzo, **** at
109. Fisher alleged in her complaint that Ahmed made multiple libelous statements, including an
incident report “sent to the [Summit County] Sheriff’s Department whereby he accused her of
criminal assault.” As a matter of public policy, an absolute privilege protects statements that report
a possible crime, because a privilege under such circumstances encourages “‘the reporting of
criminal activity by removing any threat of reprisal in the form of civil liability.’” Lasater v.
Vidahl, 9th Dist. Summit No. 26242, 2012-Ohio-4918, ¶ 7, quoting Sweeney at 505. In her brief
on appeal, Fisher does not contest the trial court’s conclusion that this incident report is covered
by absolute privilege as statements made to law enforcement officials.
{¶41} Still, the incident report was not the only basis for Fisher’s libel claim. Fisher also
specifically alleged in the complaint that “Ahmed made multiple libelous statements in a letter
written on [Summit County] Prosecutor’s Office letterhead sent to Fisher’s supervisor, co-workers,
judges and employees within the Courthouse accusing her of assault, being boorish, rude, and
unprofessional.” The trial court held that statements in Ahmed’s letter were absolutely privileged
as statements made to “management pursuant to Summit County Codified Ordinances Section
169.19.” Fisher contends that there is no absolute privilege for internal workplace reports and that
the letter is not subject to absolute privilege. This Court is unaware of any authority for the
application of absolute immunity for a letter sent to “management,” among others, in or associated
with one’s workplace. Moreover, insofar as the trial court found that Ahmed made the statements
17
in the letter pursuant to a local ordinance, the pleadings do not support such a conclusion. Thus,
we conclude that the trial court erred by finding that statements, other than those contained in the
incident report to the Sheriff, were absolutely privileged.
{¶42} The Supreme Court of Ohio has stated that the essential elements of a conditionally
or qualifiedly privileged communication include (1) good faith, (2) an interest to be upheld, (3) a
statement limited in its scope to this purpose, and (4) a proper occasion, and publication in a proper
manner and to proper parties only. Jackson v. Columbus, 117 Ohio St. 3d 328, 2008-Ohio-1041, ¶
9, quoting Hahn, 43 Ohio St. 2d at 244. “The defense of qualified privilege applies to those
situations where ‘society’s interest in compensating a person for loss of reputation is outweighed
by a competing interest that demands protection.’” Jones v. White, 9th Dist. Summit No. 18109,
1997 WL 669737, *6, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr.
Trades Council, 73 Ohio St. 3d 1, 8 (1995). Once established, a qualified privilege can be defeated
by a clear and convincing showing that the communication was made with actual malice. A & B-
Abell at 11.
{¶43} In its judgment entry, the trial court assumed that “to the extent” that they were
privileged, Fisher failed to plead facts, rather than conclusory statements, to show that the
statements were made with actual malice. Thus, it does not appear that the trial court ever resolved
the issue of whether Ahmed’s oral statements were qualifiedly privileged. This is significant
because “[t]he issue of malice is consigned to the question of abuse of privilege. It does not arise
unless a privilege is first found to exist.” Id. Without a determination that a qualified privilege
existed, the trial court had no cause to consider whether Fisher could demonstrate actual malice.
{¶44} Moreover, even if the pleadings could establish the existence of a qualified
privilege, Fisher was not required to state facts to prove actual malice in the complaint. We again
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stress that a plaintiff is not required to prove her case at the pleading stage, let alone plead facts to
negate a potential affirmative defense such as privilege. See Molnar v. City of Green, 9th Dist.
Summit No. 29072, 2019-Ohio-3083, ¶ 13. Judgment or dismissal at the pleading stage is not
appropriate unless an affirmative defense is obviously and conclusively demonstrated on the
pleadings. Brannon, 2018-Ohio-70 at ¶ 9. A mere failure to plead specific facts showing actual
malice, on its own, would not permit the conclusion that Fisher could prove no set of facts to entitle
her to relief. Consequently, the trial court did not state a proper basis for granting a motion to
dismiss or motion for judgment on the pleadings upon a qualified privilege.
{¶45} The trial court erred, as a matter of law, when it held Fisher to a standard requiring
her to plead facts in anticipation of an affirmative defense to show that she could overcome a
qualified privilege to recover on her defamation claims. This error is compounded by the trial
court’s failure to determine in the first instance whether the complaint could conclusively show
that Ahmed’s statements met the elements necessary to establish the defense of qualified privilege.
Dye, 1999 WL 692440 at *4. Therefore, we conclude the trial court erred by dismissing and
entering judgment on Fisher’s claims based on absolute and qualified privilege. Fisher’s third
assignment of error is sustained.
Assignment of Error IV
The trial court erred in finding Fisher alleged no set of facts that could prove
Ahmed’s slanderous and libelous statements were false.
{¶46} Fisher argues that the trial court erred in holding that Ahmed’s statements were
about a matter of public concern and, consequently, imposing a heightened standard of proof.
Fisher further contends that the trial court erred by concluding that Fisher failed to plead facts to
show that Ahmed’s statements were untrue, and that any exaggeration by Ahmed was not
actionable as a matter of law.
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{¶47} In Ohio, when a private person alleges that she was defamed by a statement, the
substance of which is a matter of public concern, she bears the burden of proving the falsity of the
statement, and proving by clear and convincing evidence that the defendant was at least negligent
in publishing it. Anderson, 2019-Ohio-5196 at ¶ 8, quoting Dale v. Ohio Civil Serv. Emps. Assn.,
57 Ohio St. 3d 112, 114 (1991); citing Lansdowne v. Beacon Journal Pub. Co., 32 Ohio St. 3d 176,
180 (1987) and, Oney v. Allen, 39 Ohio St. 3d 103, 106 (1988), fn. 2. To determine whether a
statement is a matter of public concern, the court must consider the “content, form, and context [of
the statement] as revealed by the whole record.” Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., 472 U.S. 749, 761 (1985), quoting Connick v. Myers, 461 U.S. 138, 147-148 (1983).
“‘[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of
general interest and of value and concern to the public at the time of publication.’” Woods v.
Capital Univ., 10th Dist. Franklin No. 09AP-166, 2009-Ohio-5672, ¶ 38 (considering a newspaper
publication of statements involving a matter of public concern), quoting San Diego v. Roe, 543
U.S. 77, 83-84, (2004).
{¶48} In its judgment entry, the trial court stated that
[t]o be actionable in Ohio, a defamatory statement must also be untrue, and because
Defendant Ahmed’s statements were about a matter of public concern, the First
Amendment required Mrs. Fisher to plead facts showing that they were untrue.
Even if it could be determined from the complaint that Ahmed’s statements were a matter of public
concern, we question the trial court’s holding that plaintiff was required to “plead facts showing
that [Ahmed’s statements] were untrue.” While a statement involving a matter of public concern
would enhance Fisher’s burden of proof, here the trial court enhanced Fisher’s burden of pleading:
in addition to alleging that Ahmed’s allegedly defamatory statements were false, the trial court
would require Fisher to demonstrate facts to prove falsity of the statements within the complaint.
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This heightened pleading standard is not substantiated by the legal authority cited by the trial court
or the parties, nor is this Court aware of any such authority. Therefore, we conclude that the trial
court erred by dismissing and entering judgment on Fisher’s defamation claims for failing to plead
facts to show that Ahmed’s allegedly defamatory statements are “untrue.”
{¶49} The trial court found that Fisher, in her complaint, “does not aver facts showing
that the gist of Ahmed’s statements * * * are untrue.” The trial court went on to state that, insofar
as Fisher alleged that “Ahmed exaggerated the import of her conduct, his exaggeration constitutes
opinion or hyperbole, which is not actionable as a matter of law in Ohio.”
{¶50} Whether certain allegedly defamatory statements are actionable is a question for
the court to determine as a matter of law. Leadscope, 2012-Ohio-4193 at ¶ 78, quoting Yeager v.
Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of America, 6 Ohio St. 3d 369,
372 (1983), abrogated on other grounds. To make that determination, the court must consider the
defamatory statement in the totality of the circumstances, which entails reading an alleged
defamatory statement in the context of the entire publication to determine whether a reasonable
reader would deem the statement defamatory. Id. at ¶ 79 quoting Mann v. Cincinnati Enquirer,
1st Dist. Hamilton No. C-090747, 2010-Ohio-3963, ¶ 12.
{¶51} To determine whether a statement is actionable as a statement of fact, or not
actionable as a statement of opinion, courts apply the four-part Scott/Vail test to consider: (1) “the
specific language used,” (2) “whether the statement is verifiable,” (3) “the general context of the
statement,” and (4) “the broader context in which the statement appeared.” Vail v. The Plain
Dealer Publishing Co., 72 Ohio St. 3d 279, 282 (1995), citing Scott v. News-Herald, 25 Ohio St. 3d
243, 250 (1986). “The weight given to any one factor under this inquiry will vary depending on
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the circumstances of each case.” Wampler v. Higgins, 93 Ohio St. 3d 111, 126 (2001), citing Vail
at 282.
{¶52} In its analysis, the trial court seems to have conflated an assessment of the falsity
of defamatory statements with the Scott/Vail test to determine whether protected speech is
actionable as defamation: i.e. whether the defamatory statement consists of fact or opinion.
Nevertheless, we need not untangle the trial court’s analysis to resolve this assignment of error.
In reaching its conclusion, the trial court selectively focused on certain allegations in the
complaint, while ignoring others, to hold that Ahmed’s statements were not actionable as a matter
of law. Specifically, the trial court concluded that, because Fisher’s allegations did not dispel the
possibility that there may be some element of truth to the portion of Ahmed’s statements accusing
Fisher of purposefully bumping into him, Fisher could prove no set of facts to demonstrate falsity.
The trial court then concluded—based solely on the pleadings and without discussion of the four
factors of the Scott/Vail test—that any allegations of exaggeration were necessarily opinion and,
therefore, not actionable.
{¶53} The trial court went beyond a determination of whether, after construing all material
factual allegations in the complaint and all reasonable inferences therefrom in her favor, Fisher
could “prove no set of facts warranting the requested relief.” Contrary to the dictates of a Civ.R.
12(B)(6) and Civ.R. 12(C) review, the trial court’s decision construed the allegations of the
complaint in a light most unfavorable to Fisher and improperly accepted it as proof that Fisher
would be unable to prove any set of facts to show that she is entitled to relief on her claims of
defamation. Fisher was not required to allege detailed facts to prove each element of her claim
within the pleadings, but merely to set forth “a short and plain statement of the claim” to show that
she was entitled to relief. Civ.R. 8(A). We conclude that the trial court erred by dismissing and
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entering judgment on Fisher’s defamation claims on these bases. Fisher’s fourth assignment of
error is sustained.
III.
{¶54} Based on the foregoing, and upon our review of the pleadings and our consideration
of the limited substance offered in support of the array of arguments asserted in the motions for
dismissal and for judgment on the pleadings, we conclude the trial court erred by determining that
Fisher did not plead facts to support her claims of defamation and by dismissing counts one and
two of the complaint. Accordingly, all four of Fisher’s assignments of error are sustained. The
judgment of the Summit County Court of Common Pleas entering judgment in favor of the County,
and dismissing as to Ahmed, Fisher’s claims of defamation is reversed. As Fisher has not asserted
any error in the remainder of the trial court’s judgment, it is affirmed. This matter is remanded to
the trial court for further proceedings consistent with this decision.
Judgment reversed in part,
and affirmed in part,
and cause remanded.
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
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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 equally to both parties.
JULIE A. SCHAFER
FOR THE COURT
CARR, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
WARNER MENDENDALL and LOGAN TROMBLEY, Attorneys at Law, for Appellants.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JAQUENETTE S. CORGAN and
MARVIN EVANS, Assistasnt Prosecuting Attorneys, for Appellee.
JUSTIN S. GREENFELDER, JUDE B. STREB, and PETER T. CAHOON, Attorneys at Law, for
Appellee.