Smith v. Ameriflora 1992, Inc.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This matter is before this court upon the appeal of Delbert Smith, appellant, from the June 1, 1993 decision and June 15, 1993 judgment entry of the Franklin County Court of Common Pleas which granted summary judgment in favor of appellees. On appeal, appellant sets forth the following assignments of error:

"1. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against L. Jack Ruscilli and Ruscilli Construction Company, Inc., for defamation.

"2. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against L. Jack Ruscilli and Ruscilli Construction Company, Inc., for tortious interference with a contractual relationship.

"3. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against L. Jack Ruscilli and Ruscilli Construction Company, Inc., for intentional infliction of serious emotional distress.

"4. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against the Sherman R. Smoot Company and Lewis Smoot, Sr., for defamation.

"5. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against the Sherman R. Smoot Company and Lewis Smoot, Sr., for tortious interference with a contractual relationship.

"6. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against the Sherman R. Smoot Company and Lewis Smoot, Sr., for intentional infliction of serious emotional distress."

The history of this case is as follows: appellant filed his initial complaint on November 4, 1991 and later amended his complaint. A number of the initial parties were dismissed either by the trial court or by appellant. The remaining parties involved in this appeal are: the Sherman R. Smoot Company, Lewis R. Smoot, Sr., Ruscilli Construction Company, Inc., L. Jack Ruscilli and Pat Reid. This court notes that Pat Reid was an employee of the Ruscilli Construction Company, however, none of the assignments of error pertains directly to any statements allegedly made by Pat Reid. Furthermore, the amended complaint raised three causes of action against E.J. Edminister, who was the President of Ruscilli Construction Company, Inc. However, it appears that E.J. Edminister was never served with a complaint or an amended complaint. When appellees moved for summary judgment in the trial court, they moved for summary judgment on the claims pertaining to E.J. Edminister and Pat Reid insofar as the amended complaint alleged that Ruscilli Construction Company was vicariously liable for the actions of Edminister and Pat Reid.

The trial court granted summary judgment in favor of Ruscilli Construction Company, Inc., L. Jack Ruscilli, Pat Reid, Lewis Smoot, Sr., and the Sherman R. Smoot Company of Ohio. Appellant then appealed to this court.

Ameriflora 1992, Inc. was a not-for-profit Ohio corporation organized to implement a floral exposition in Columbus. On March 16, 1989, appellant was hired by Ameriflora to serve, initially, as a construction coordinator for the exposition. One of appellant's many initial duties was to arrange hiring interviews for architects and engineers. In the fall of 1989, Ameriflora interviewed three construction companies, including a joint venture that was comprised of the Ruscilli Construction Company and the Sherman R. Smoot Company ("Ruscilli/Smoot"). Appellant recommended that Ruscilli/Smoot be selected as the construction management firm. The joint venture's responsibilities on the project were divided such that Ruscilli Construction handled the administrative aspects of the construction while the Smoot Company focused on the field work. Appellant acted as a liaison between the architects, landscape architects, engineers and the Ruscilli/Smoot personnel.

In February 1990, appellant entered into a romantic relationship with Pat Reid, who was a scheduler employed by the Ruscilli Construction Company. On November 5, 1990, appellant was arrested at the Ameriflora job site on charges of gross sexual imposition, rape and kidnapping. Appellant's arrest was precipitated by a series of events that had occurred during the previous weekend and which involved appellant and Pat Reid. These facts are in dispute and, in fact, the charges were later dismissed. However, as a result of his arrest, appellant was suspended with pay from his job at Ameriflora on November 6, 1990. At that time, Thomas E. Fontana, Ameriflora's general manager, instituted an investigation into appellant's job performance and the circumstances of his arrest. Fontana requested a meeting with E.J. Edminister and L. Jack Ruscilli and on November 13, 1990, conducted this meeting to discuss appellant's job performance and his recent arrest. Fontana asked Edminister and Ruscilli for their opinions as to appellant's involvement with Reid and his performance on the job. At the conclusion of the meeting, Fontana prepared a memorandum containing the comments of Edminister and Ruscilli.

On November 15, 1990, Terrie TerMeer, Ameriflora's director of affirmative action and equal employment opportunity, conducted a telephone conversation with Lewis Smoot, Sr. She asked Smoot for his opinion as to whether or not appellant would be effective in functioning on the Ameriflora project after his arrest. (Smoot Affidavit, paragraph 4.) The substance of this discussion was also summarized in a memorandum dated November 19, 1990. Subsequently, on December 3, 1990, Fontana terminated appellant from his position with Ameriflora.

In all six of his assignments of error, appellant argues that the trial court committed reversible error by granting summary judgment. Summary judgment is proper when reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in its favor. Civ.R. 56(C). See, also,Lytle v. Columbus (1990), 70 Ohio App.3d 99, 103,590 N.E.2d 421, 424. Subsequent to the Lytle decision, the Ohio Supreme Court held that "[a] motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. (Celotex v.Catrett [1986], 477 U.S. 317 [106 S.Ct. 2548, 91 L.Ed.2d 265], approved and followed.)" Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. This court has adopted the rationale in Wing and held that the duty of a party resisting a motion for summary judgment is more than resisting the allegations in the motion. Baughn v. Reynoldsburg (1992),78 Ohio App.3d 561, 563, 605 N.E.2d 478, 480. Therefore, appellant must affirmatively demonstrate the facts which would entitle him to relief. Id.

Appellant's first and fourth assignments of error argue that the trial court erred when it granted summary judgment in favor of L. Jack Ruscilli, Ruscilli Construction Company, Inc., Lewis Smoot, Sr., and the Sherman R. Smoot Company on appellant's defamation claims. In an action for defamation, a plaintiff must show that a publication to a third person was made for which the defendant is responsible, that the recipient understood the defamatory meaning, and that the defamatory statement is actionable. See Hahn v. Kotten (1975), 43 Ohio St.2d 237, 243, 72 O.O.2d 134, 138, 331 N.E.2d 713, 718. In Hahn, the Supreme Court of Ohio also noted that a qualified privilege is often recognized as a defense to a defamation action. The court explained that the essential elements of qualified privilege are good faith, an interest to be upheld, a statement that is limited in its scope for that purpose, a proper occasion, and publication in a proper manner and to the proper parties only. The Hahn court also noted that it is generally held that if a defendant publishes defamatory words to an interested partyat that party's request or solicitation, there is such a relationship between the parties to justify the communication.Id. at 246, 72 O.O.2d at 140, 331 N.E.2d at 720. See, also,Jacobs v. Frank (1991), 60 Ohio St.3d 111, 114, 573 N.E.2d 609,612-613.

In the instant action, Fontana initiated the meeting with Edminister and Jack Ruscilli, and, in that meeting, asked them to discuss the situation as they saw it surrounding appellant's involvement with Reid and his performance on the job. (Fontana Depo. at 38.) Ruscilli's affidavit states that Fontana approached Ruscilli and asked him for his opinion as to appellant's job performance, technical competence, and how the arrest might affect appellant's ability to function. A review of the record indicates that Ruscilli and Ruscilli Construction Company had a common interest with Fontana as the general manager of Ameriflora, in seeing that the project was handled in a professional and efficient manner. Thus, Ruscilli's and Edminister's comments clearly came within the scope of their common interest. As stated by the court in Hahn:

"A qualified privilege is recognized in many cases where the publisher and the recipient have a common interest, and the communication is of a kind reasonably calculated to protect or further it. Frequently, in such cases, there is a legal, as well as a moral, obligation to speak. * * *" Id.,43 Ohio St.2d at 244, 72 O.O.2d at 138, 331 N.E.2d at 718.

Furthermore, a review of the statements made by Ruscilli and Edminister demonstrates that the statements were all limited in their scope and were published to the proper parties only. Thus, the record reflects that the statements made by Edminister and Ruscilli were qualifiedly privileged. However, if appellant could demonstrate some evidence of actual malice, then Edminister and Ruscilli would lose the protection of a qualified privilege. In this regard, there must be evidence presented by appellant beyond the mere allegations contained in the complaint. See Wing, supra; Evely v. Carlon Co. (1983), 4 Ohio St.3d 163, 4 OBR 404, 447 N.E.2d 1290. Once qualified privilege is shown, it is imperative that appellant show the untruth of the statements and actual malice in order to defeat the privilege and justify a trial on the merits. Contadino v. Tilow (1990), 68 Ohio App.3d 463, 589 N.E.2d 48.

In order to defeat a qualified privilege, one must demonstrate that the statements were made with actual malice, that is, "with knowledge that the statements are false or with reckless disregard of whether they were false or not. (New YorkTimes Co. v. Sullivan [1964], 376 U.S. 254 [84 S.Ct. 710,11 L.Ed.2d 686], followed.)" Hahn, paragraph two of the syllabus;Jacobs, supra. In the instant action, appellant has failed to demonstrate that Jack Ruscilli or Edminister made statements which they knew to be false, or alternatively, made with reckless disregard for the truth. As stated by the Supreme Court of Ohio:

"The cited cases and other appellate court decisions have caused some confusion regarding the applicable definition of ``actual malice' in a qualified privilege case. Therefore, we hold that when a defendant possesses a qualified privilege regarding statements contained in a published communication, that privilege can be defeated only by a clear and convincing showing that the communication was made with actual malice. In a qualified privilege case, ``actual malice' is defined as acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." Jacobs,60 Ohio St.3d at 115-116, 573 N.E.2d at 614.

Appellant has failed to show that Jack Ruscilli or Edminister made any statements that they knew to be false, or with reckless disregard as to their truth or falsity.

In Jacobs, supra, the Supreme Court of Ohio further articulated that actual malice could not be inferred from evidence of ill-will, personal spite, or ulterior motive.Id., 60 Ohio St.3d at 118, 573 N.E.2d at 616. Ruscilli's affidavit clearly states that he did not act with any ill-will and that he made the statements out of his concern for the Ameriflora project and his concern that its construction be handled in an efficient and professional manner. Appellant's assertion in his affidavit that he "believed" that appellees acted with actual malice is not evidence and is not sufficient to withstand a motion for summary judgment. See Wing, supra. Liability cannot be predicated simply upon the characterization of such conduct as being malicious. SeeFawcett v. G.C. Murphy Co. (1976), 46 Ohio St.2d 245, 250, 75 O.O.2d 291, 294, 348 N.E.2d 144, 148; Contadino, supra. Accordingly, appellant's first assignment of error is overruled.

For similar reasons, we overrule appellant's fourth assignment of error with regards to Lewis R. Smoot, Sr. and the Sherman R. Smoot Company. Smoot was contacted by Terrie TerMeer, director of affirmative action and equal employment opportunity. She approached Smoot and asked him for his opinion as to whether or not appellant could be effective in functioning on the Ameriflora project after his arrest. See Hahn and Jacobs, supra. Again, Smoot had a common interest and had a duty to discuss his opinion of appellant's effectiveness when approached by TerMeer. Thus, Smoot's comments were again qualifiedly privileged. Furthermore, appellant has failed to provide this court with any evidence to demonstrate that Smoot acted with actual malice as defined by the Ohio Supreme Court in Jacobs, supra. Accordingly, appellant's fourth assignment of error is overruled.

Appellant's second and fifth assignments of error argue that the trial court erred when it granted summary judgment as to appellant's claims against Ruscilli, Smoot, and their respective companies, for tortious interference with a contractual relationship. The tort of business interference occurs when a person, without a privilege, induces or otherwise purposely causes a third party not to enter into or continue a business relationship. Juhasz v. Quik Shops, Inc. (1977), 55 Ohio App.2d 51, 9 O.O.3d 216, 379 N.E.2d 235.¹

The applicability of a qualified privilege has been recognized by Ohio courts in both defamation and tortious interference cases. See Smith v. Klein (1985), 23 Ohio App.3d 146,148, 23 OBR 387, 390, 492 N.E.2d 852, 855-856; Donald G.Culp Co. v. Reliable Stores Corp. (1983), 14 Ohio App.3d 161, 14 OBR 178, 470 N.E.2d 193; Juhasz, supra; Pearse v. McDonald'sSys. of Ohio, Inc. (1975), 47 Ohio App.2d 20, 1 O.O.3d 164,351 N.E.2d 788. As stated before, appellees' statements to Fontana and TerMeer were privileged because of the business relationship which existed between Ameriflora and the Ruscilli/Smoot joint venture. Again, in order to overcome the defense of qualified privilege, appellant must demonstrate that appellees acted with actual malice. Ohio State Home Serv., Inc. v. Better BusinessBur. of Akron, Inc. (1993), 89 Ohio App.3d 732, 627 N.E.2d 602. As stated by the Summit County Court of Appeals:

"Similarly, summary judgment was appropriately granted as to the claim for tortious interference with business relationships.The qualified privilege and the requirement that the movant showactual malice are the same for business interference as thosediscussed in regard to defamation. Hahn." (Emphasis added.)Id. at 736, 627 N.E.2d at 605. See, also, Larson v. Mullett (Nov. 3, 1993), Knox App. No. 92-CA-26, unreported [1993 WL 472858].

The dissent discusses the statements made by Edminister, who stated that his company would not remain on the project if appellant was permitted to return to work. Essentially, Edminister made the statement that the female employees were scared, and that Ruscilli's employees were uncomfortable with appellant. Initially, we note that Edminister is not a party to this case, as he was never served with the complaint. Furthermore, appellant has failed to produce any evidence to demonstrate that Edminister's statements, that female employees were scared and/or uncomfortable, were false or were made with reckless disregard for the truth. Additionally, these statements were made to Fontana, who requested the meeting, after appellant's arrest. See Hahn; Jacobs, supra.

Appellant and the dissent also argue that Smoot's statements to Terrie TerMeer, that appellant would not be effective and could not do the job under the present circumstances, infers malice. It is clear from the record that the "circumstances" referred to was the fact that appellant had been arrested. Again, Smoot's statements were qualifiedly privileged, as TerMeer was the one to request the meeting, and asked Smoot his opinion on the matter.

Appellant and the dissent argue that the above statements are sufficient to infer malice, and that, therefore, summary judgment was improper as to appellant's tortious interference claims. This court agrees with the statement that actual malice, in the sense of ill-will, spite or hatred, on the part of the interferer, is not a necessary element of a tortious interference claim. See Reichman v. Drake (1951),89 Ohio App. 222, 45 O.O. 444, 100 N.E.2d 533. However, once aqualified privilege has been asserted, "actual malice," as defined in Jacobs, must be demonstrated in order to defeat the qualified privilege defense. See, also, Ohio State Home Serv.,Inc.; Larson, supra.

Appellant's claims of tortious interference with contract depend upon the same evidence as his defamation claims. For the same reasons as those articulated in the first and fourth assignments of error, we find that appellant has failed to demonstrate actual malice and has therefore failed to defeat appellees' qualified privilege defense.

A tortious interference action also requires a showing that appellees' actions induced or caused a third party to discontinue a business relationship with appellant.Contadino, supra. Fontana testified that the statements made by various employees were only one factor in his decision to terminate appellant. Fontana testified that, as his investigation continued, it became more and more apparent that there were performance problems with appellant through the course of his work history at Ameriflora. Fontana's affidavit specifically pointed to a written reprimand on April 24, 1990, wherein he gave appellant a reprimand for engaging in a physical altercation with another Ameriflora manager and told him that if there was another such physical altercation he would be terminated. Furthermore, liability may be avoided by showing that appellees had in mind some lawful objective or that they were merely exercising a legal right, even if the effort to secure the discharge is prompted by ill-will. Contadino, supra.

In order to withstand a motion for summary judgment, appellant must produce evidence for which he would have the burden of production at trial. Wing, supra. Appellant has failed to produce evidence that appellees acted without a privilege in inducing Fontana to terminate appellant's employment with Ameriflora. Appellant has further failed to produce evidence that the statements of appellees were made with actual malice. Furthermore, even if we were to assume that appellees' statements induced Fontana into making the decision to terminate appellant, clearly, appellees had in mind a lawful object,i.e., the successful completion of the Ameriflora project. SeeContadino, supra. For all of the above reasons, appellant's second and fifth assignments of error are overruled.

Appellant's third and sixth assignments of error argue that the trial court erred in granting summary judgment on his emotional distress claims. However, a review of the record makes it clear that appellant has not met the test set forth inYeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666, wherein the Supreme Court of Ohio recognized the tort of intentional infliction of emotional distress and defined it as follows:

"``One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.' * * *" (Emphasis added.) Id. at 374, 6 OBR at 426, 453 N.E.2d at 671, quoting from the Restatement of the Law 2d, Torts (1965) 71, Section 46(1).

The Supreme Court utilized the definition of "extreme and outrageous conduct" found in Comment d, Section 46 of the Restatement of the Law 2d, Torts, which states:

"``* * * It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. * * *'" Yeager, supra, at 374-375, 6 OBR at 426, 453 N.E.2d at 671, quoting from the Restatement.

In addition, Ohio courts have recognized that the qualified privilege defense is applicable to actions for intentional infliction of emotional distress. See Foster v. McDevitt (1986),31 Ohio App.3d 237, 239, 31 OBR 520, 523, 511 N.E.2d 403, 406. As stated previously, the statements made by Ruscilli, Edminister and Smoot were qualifiedly privileged. Furthermore, the distress identified by appellant does not constitute severe emotional distress. Severe emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with a mental distress engendered by the circumstances of the case. Paugh v. Hanks (1983), 6 Ohio St.3d 72,78, 6 OBR 114, 119, 451 N.E.2d 759, 765. The emotional distress alleged must be serious. Yeager, supra. Appellant's deposition testimony indicated that he felt a lack of self-esteem and that he did not sleep well. (Smith Depo. at 707-711, 783.) However, appellant did not seek any medical or psychological treatment. (Smith Depo. at 710-711.) A review of the relevant case law makes it clear that appellant failed to produce evidence sufficient to withstand a motion for summary judgment on his claim for intentional infliction of emotional distress. See Kurtz v. Harcourt Brace Jovanovich, Inc. (1990),69 Ohio App.3d 267, 273, 590 N.E.2d 772, 776; Sheets v. RockwellInternatl. Corp. (1990), 68 Ohio App.3d 345, 354,588 N.E.2d 271, 276-277. Accordingly, appellant's third and sixth assignments of error are hereby overruled.

For the foregoing reasons, appellant's first, second, third, fourth, fifth and sixth assignments of error are hereby overruled and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.

Judgment affirmed.

DESHLER, J., concurs.

WHITESIDE, P.J., dissents.

¹ The dissent argues that the case of Walter v. Murphy (1988), 61 Ohio App.3d 553, 573 N.E.2d 678, from the Court of Appeals for Wayne County, modified the "privilege" standard ofJuhasz, supra, and replaced it with the test of whether or not one's interference is "improper" according to 4 Restatement of the Law 2d, Torts (1979) 20, Section 766B. The dissent also cites A B-Abell Elevator Co. v. Columbus/Central Ohio Bldg. Constr. Trades Council (Sept. 30, 1993), Franklin App. No. 92AP-1540, unreported, 1993 WL 387179, appeal pending, case No. 93-2415. This court notes that the Supreme Court of Ohio has not yet adopted this approach, nor has it adopted Section 766 of the 1979 version of the Restatement, and, in fact, continues to citeJuhasz, supra, as the leading case on tortious interference with a business relationship or contract. See Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 16, 552 N.E.2d 207, 212-213. See, also, Schultz v. Elm Beverage Shoppe (1988), 40 Ohio St.3d 326,327, 533 N.E.2d 349, 351, wherein the court quoted from the 1979 version of the Restatement, and stated in pertinent part:

"A person ``who otherwise would be liable for a tort is not liable if he acts in pursuance of and within the limits of aprivilege * * *.' 4 Restatement of the Law 2d, Torts (1979) 355, Section 890. The term ``privilege' denotes the existence ofcircumstances that justify, or excuse, conduct that wouldordinarily subject the actor to liability. See 1 Restatement of the Law 2d, Torts (1965) 17, Section 10(1) * * *." (Emphasis added.)

This court has also consistently applied Juhasz, supra, in cases such as the case at hand. See Wolf v. McCullough-Hyde Mem.Hosp. (1990), 67 Ohio App.3d 349, 355, 586 N.E.2d 1204,1208-1209; James v. Big Bear Stores Co. (Jan. 27, 1994), Franklin App. No. 93AP-325, unreported, 1994 WL 21751.