Silveous v. 5 Starr Salon & Spa, L.L.C.

[Cite as Silveous v. 5 Starr Salon & Spa, L.L.C., 2023-Ohio-841.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Abbey N. Silveous, :
Plaintiff-Appellant, :
No. 22AP-456
v. : (C.P.C. No. 18CV-10047)
5 Starr Salon and Spa, LLC et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on March 16, 2023
On brief: Guzzo Law Office, LLC, and Peggy S. Guzzo, for
appellant. Argued: Peggy S. Guzzo.
On brief: Koenig & Owen, LLC, and Charles A. Koenig;
Moore & Yaklevich, LLC, and John A. Yaklevich, for
appellees.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Abbey N. Silveous, appeals from a judgment of the
Franklin County Court of Common Pleas granting the motion for summary judgment filed
by defendants-appellees, Charles A. Koenig ("Koenig") and Koenig & Owen, LLC ("Koenig
& Owen") (together, where appropriate, "appellees"). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} At all times relevant to this appeal, Kirsten Bailey owned and operated 5 Starr
Salon and Spa, LLC ("5 Starr") in Grove City. On July 3, 2017, Bailey hired appellant as an
esthetician. Bailey provided appellant with a copy of 5 Starr's Team Member Handbook
("Handbook"), which sets forth the policies and procedures for employees of the salon. The
appendix to the Handbook includes the following language:
No. 22AP-456 2
5 STARR Salon and Spa Handbook is not a contract.
Accordingly, it should not be interpreted to create any
expressed or implied contractual rights between 5 STARR
Salon and Spa and any team member. The contents of this
Handbook do not constitute the terms of a contract of
employment, and do not create any promise or assurance of
continued employment in the future.
(Second Am. Compl., Ex. A-2, Handbook at 33.)
{¶ 3} In addition to the above, the appendix also includes the following language:
This appendix contains team members' copies of the
documents listed below that team members are required to
sign as a condition of employment by 5 STARR Salon and Spa.
Confidentiality And Non-Compete Agreement to follow
Acknowledgement of Receipt Of Team Member Handbook to
follow
(Emphasis omitted.) (Handbook at 33.)
{¶ 4} The two-page Confidentiality and Non-Compete Agreement ("Agreement")
states in part:
During the course of employment with the 5 STARR Salon and
Spa, team members may be given or have access too [sic]
confidential, trade secrets, and proprietary information
pertaining to the 5 STARR Salon and Spa and its operation.
That information incudes any technical, economic, financial,
client list, marketing or other information that is not generally
known or is not common knowledge among competitors or
other individuals or companies who may want to possess it or
would find it useful.
All confidential information is disclosed or revealed with the
understanding and agreement by team member that such
information is considered to be secret and proprietary to 5
STARR Salon and Spa and is a valuable commercial asset of 5
STARR Salon and Spa. As such, team member agrees that
during, and subsequent to, the time of employment, team
member will not make use whatsoever, directly or indirectly,
of the 5 STARR Salon and Spa's confidential information
except for the purposes specified by the 5 STARR Salon and
Spa or required to perform team member's job for the 5
STARR Salon and Spa.
No. 22AP-456 3
Team member also understands and agrees that no
solicitation of any current client or potential client of 5 Starr
Salon and Spa, during the course of employment or otherwise
divert or attempt to divert any existing business of 5 Starr
Salon and Spa. Team member will not either during
employment with 5 Starr Salon and Spa and after employment
with 5 Starr Salon for a period of 1 year thereafter, either
directly or indirectly, for any third party solicit, induce,
recruit, or cause another person in the employ of 5 Starr Salon
and Spa to terminate their employment for the purpose of
joining, associating or becoming employed with any business
or activity which is in competition with any services provided
by 5 Starr Salon and Spa. The geographical area to which this
applies is a ten (10) mile radius. Both parties agree that the
time and scope of this agreement is reasonable.
This obligation shall remain in effect at all times during team
member's employment with the 5 STARR Salon and Spa and
following termination of employment with the 5 STARR Salon
and Spa.1
(Handbook at 34-35.)
{¶ 5} Appellant acknowledged in writing that she had received a copy of the
Agreement and would adhere to the policies contained therein. Appellant also
acknowledged in writing that she had received a copy of the Handbook.
{¶ 6} Over the course of her employment with 5 Starr, appellant developed a
substantial clientele, predominately providing eyelash extension services. However, by late
2017, the employment relationship between appellant and Bailey deteriorated to the point
that appellant decided to leave her employment with 5 Starr. Before submitting her
resignation, appellant asked an attorney to review the Handbook and Agreement.
According to appellant, that attorney told appellant the Agreement was invalid, would not
hold up in court, and she was free to seek employment elsewhere. Appellant submitted her
resignation on Saturday, December 2, 2017. When Bailey reminded appellant about the
restrictions set forth in the Agreement, appellant responded that she had found "loopholes"
therein based on conversations she had with an attorney. (Bailey Depo. at 25.)
1Bailey drafted the Handbook and Confidentiality and Non-Compete Agreement without the aid of legal
counsel.
No. 22AP-456 4
{¶ 7} On Monday, December 4, 2017, Bailey discovered that several supplies and
products were missing from the room exclusively used by appellant during her
employment. Accordingly, she filed a police report documenting the thefts. On that same
day, 5 Starr began receiving calls from several of appellant's clients requesting cancellation
of their upcoming appointments and refunds of their prepaid treatment packages.
According to Bailey, these clients averred that they planned to follow appellant to her new
employer, Artistic Angle Hair Salon ("Artistic Angle"), a nearby competitor of 5 Starr. In
addition, many of these clients informed 5 Starr they had been directly solicited by
appellant. Bailey believed that appellant had begun soliciting these clients while still
employed at 5 Starr. Bailey also discovered that appellant was marketing herself on the
internet and social media as now providing esthetician services at Artistic Angle.
{¶ 8} Believing that appellant was bound by the terms of the Agreement, Bailey
sought to prevent appellant from providing services at Artistic Angle. As such, on
December 5, 2017, she retained Koenig to represent her and 5 Starr in enforcing their rights
against appellant. During their initial discussion, Bailey explained the circumstances of
appellant's employment history and departure, Bailey's understanding of the terms of the
Agreement, as well as appellant's alleged solicitation of 5 Starr clients, alleged employment
with a nearby competitor, and alleged theft of 5 Starr's proprietary confidential
information, including customer lists, pricing lists, and salon products. Following this
discussion, Koenig requested Bailey provide him with copies of all relevant documents and
materials. Koenig reviewed the Handbook and Agreement, reports of client cancellations,
e-mails and text messages exchanged between Bailey and appellant, the police report, and
interviews of 5 Starr employees Chaunte Gallagher and Heather Edgington. According to
Koenig, Gallagher and Edgington understood the Agreement to prohibit them from
soliciting 5 Starr clients or working for a competitor of 5 Starr within a ten-mile radius; in
addition, Gallagher and Edgington believed appellant was set to begin working at Artistic
Angle.
{¶ 9} Following this review, Bailey instructed Koenig to prepare a letter to
appellant demanding she cease and desist from violating the post-employment restrictive
covenants set forth in the Agreement and that she return 5 Starr's property. Bailey also
instructed Koenig to prepare a letter to Artistic Angle advising it of appellant's post-
No. 22AP-456 5
employment restrictive covenants and requesting it refrain from facilitating appellant's
violations thereof. Bailey instructed Koenig to deliver both letters to appellant and Artistic
Angle at Artistic Angle's place of business. In accordance with Bailey's directives, Koenig
prepared and delivered letters to appellant and Artistic Angle dated December 6 and 7,
2017, respectively.2
{¶ 10} In the December 6, 2017 letter to appellant, Koenig averred that he
represented 5 Starr and had been informed that she had resigned from 5 Starr on
December 2, 2017 and was now employed or had a contractor agreement with Artistic
Angle. Koenig reminded appellant of her on-going obligations to 5 Starr as set forth in the
Handbook and Agreement. In particular, Koenig noted the restrictions on appellant's post-
employment activities, including, but not limited to, refraining from soliciting or recruiting
5 Starr customers and employees and engaging in any competitive activities within 10 miles
of 5 Starr for a one-year period beginning on the date of her resignation, retaining or using
5 Starr confidential information, including customer and/or pricing lists, and failing to
return 5 Starr equipment, supplies, and materials. Koenig further averred that it was his
understanding that appellant had already engaged in prohibited activities including
soliciting 5 Starr clients for whom she provided services during her employment with 5
Starr, using 5 Starr proprietary, confidential, and trade secret information, and retaining
supplies and materials belonging to 5 Starr for use in her new employment. Koenig advised
appellant to cease all violations and demanded return of any 5 Starr property. In addition,
Koenig averred that a copy of the letter was being sent to Artistic Angle with the expectation
that Artistic Angle would provide 5 Starr with written assurances that it had directed
appellant to refrain from directly or indirectly engaging in any of the noted prohibited
activities.
{¶ 11} In the December 7, 2017 letter to Artistic Angle, Koenig averred he was the
attorney for 5 Starr and had been informed that appellant had recently begun working
there. Koenig noted that as a condition of her employment, appellant was, and remained,
subject to several on-going restrictions on her post-employment activities, including that
she refrain from soliciting 5 Starr customers or employees, using 5 Starr's proprietary,
2The letters are written on Koenig & Long, LLC letterhead. On December 19, 2018, Koenig & Long, LLC filed
an amendment with the Ohio Secretary of State changing its name to Koenig & Owen, LLC.
No. 22AP-456 6
confidential, and trade secret information, engaging in activities competitive with 5 Starr,
and using any of 5 Starr's supplies or materials. Koenig averred that appellant was not
prohibited from working at Artistic Angle; rather, she was only restricted from providing
services at Artistic Angle that competed with those provided by 5 Starr and from soliciting
5 Starr's clients and employees. Koenig requested written assurances that Artistic Angle
would direct appellant to refrain from directly or indirectly engaging in any of the foregoing
prohibited activities. Koenig also noted that appellant had been advised in writing that she
was in violation of the Agreement. He further advised that a copy of the December 6, 2017
letter to appellant was enclosed so as to provide Artistic Angle with a more complete
understating of the nature of appellant's post-employment obligations.
{¶ 12} On December 7, 2017, Koenig was contacted by an attorney who averred that
he was calling on behalf of Artistic Angle, but did not represent either Artistic Angle or
appellant. That attorney opined that the Agreement did not restrict appellant from working
at Artistic Angle. Koenig received no other response to the December 6 and 7, 2017 letters.
{¶ 13} During the remainder of December 2017, Bailey had several conversations
with Koenig about monetary losses suffered by 5 Starr resulting from client cancellations
of services and Bailey's suspicion that appellant was using 5 Starr proprietary and
confidential information. As a result, Bailey instructed Koenig to commence litigation on
behalf of 5 Starr to enforce its rights against appellant. To that end, on January 7, 2018,
Koenig, on behalf of 5 Starr, filed a complaint for preliminary and permanent injunctive
relief and damages against appellant, alleging, inter alia, that she had breached the
Agreement and misappropriated trade secrets by soliciting clients, while she was employed
at 5 Starr, to follow her to Artistic Angle immediately following the termination of her
employment with 5 Starr. In August or September 2018, Bailey instructed Koenig to
dismiss the lawsuit and terminate all litigation efforts against appellant. On October 16,
2018, 5 Starr voluntarily dismissed the complaint against appellant, without prejudice.
{¶ 14} Thereafter, on December 4, 2018, appellant filed a complaint against 5 Starr,
Bailey, and appellees. As to 5 Starr and Bailey, appellant's allegations involved non-
payment of a promised signing bonus, false claims of theft, filing a false police report,
causing Koenig to send the December 6 and 7, 2017 letters to appellant and Artistic Angle,
and filing the January 7, 2018 lawsuit. Appellant asserted eleven causes of action: (1) fraud
No. 22AP-456 7
by false statements, (2) breach of contract, (3) tortious interference with business
opportunity, (4) unjust enrichment, (5) violation of Ohio's statute on minimum wages and
hours, (6) violation of minimum wages and hours under Article II, Section 34a, of the Ohio
Constitution, (7) account, (8) retaliation, (9) defamation per se, (10) breach of fiduciary
duty, and (11) filing a false police report and abuse of process. As against appellees,
appellant asserted claims for defamation per se and tortious interference with business
opportunity arising from the preparation and delivery of the December 6 and 7, 2017 letters
to appellant and Artistic Angle. Appellant also asserted a claim for respondeat superior
against Koenig & Owen. In addition, appellant asserted a claim against 5 Starr and Koenig,
individually, for filing a frivolous lawsuit.
{¶ 15} In response to the complaint, appellees, on January 7, 2019, filed a Civ.R.
12(B)(6) motion to dismiss for failure to state a claim upon which relief could be granted
on the grounds of attorney immunity. Appellees based the motion on the rule set forth by
the Supreme Court of Ohio in Scholler v. Scholler, 10 Ohio St.3d 98 (1984), i.e., that an
attorney is immune from liability to third persons arising from the attorney's good-faith
performance on behalf of, and with the knowledge of the attorney's client, unless the third
person is in privity with the attorney's client or the attorney acts maliciously. In response
to the motion, appellant sought and received leave to amend her original complaint.
Appellant filed an amended complaint on January 4, 2019, asserting the same claims
against the same parties.
{¶ 16} On January 8, 2019, appellees filed a Civ.R. 12(B)(6) motion to dismiss the
amended complaint on the same grounds asserted in the original motion to dismiss, i.e.,
failure to state a claim upon which relief could be granted on the grounds of attorney
immunity. On April 4, 2019, the trial court, having already granted appellant leave to file
the amended complaint, filed a decision and entry rendering moot appellees' January 7
and 8, 2019 motions to dismiss.
{¶ 17} On February 6, 2019, appellant filed a motion for leave to file instanter her
second amended complaint. The trial court granted the motion, and appellant filed a
second amended complaint against 5 Starr, Bailey, and appellees on March 12, 2019.3
3 Appellant denominated her causes of action against appellees as "Against Defendant Charles A. Koenig,
individually and Member of Koenig & Long, LC [sic] NKA Koenig & Owen, LLC, and Koenig & Owen, LLC,
previously known as Koenig & Long, LLC (Collectively the 'Koenig Defendants')." (Second Am. Compl. At 21.)
No. 22AP-456 8
Against 5 Starr and Bailey, appellant asserted essentially the same causes of action raised
in her original and amended complaints, with some slight variations.4 Against appellees,
appellant asserted the same three causes of action raised in the original and amended
complaints, with some additional verbiage in the defamation per se and tortious
interference with economic relations claims. Specifically, appellant asserted that Koenig
acted in "bad faith" and with "actual malice" in preparing and delivering the December 6
and 7, 2017 letters to appellant and Artistic Angle. (Second Am. Compl. at ¶ 117-19, 127.)
Appellant claimed that Koenig maliciously made false and defamatory statements in the
December 6 and 7, 2017 letters as to the contents of the Agreement, appellant's violations
thereof, and appellant's retention of 5 Starr's property, and that Koenig's delivery of those
letters to Artistic Angle, a prospective employer, defamed her and caused her to lose the
benefits of her economic relationship with Artistic Angle.
{¶ 18} 5 Starr and Bailey filed an answer to appellant's second amended complaint,
and 5 Starr filed a counterclaim for breach of contract, misappropriation of trade secrets,
breach of fiduciary duty, tortious interference with business relationships, and conversion.
Appellees filed a combined motion to strike and Civ.R. 12(B)(6) motion to dismiss
appellant's second amended complaint. Specifically, appellees moved to strike the word
"malice" from the second amended complaint and to dismiss the claims against them on
grounds of attorney immunity. After the trial court denied the combined motion, appellees
filed an answer to the second amended complaint and asserted several affirmative defenses,
including that the complaint failed to state a claim upon which relief could be granted.
Appellant then filed a motion for leave to file a third amended complaint, which the trial
court denied.
{¶ 19} Koenig eventually withdrew as counsel for 5 Starr and Bailey; new counsel
appeared on their behalf and, with leave of court, filed an amended answer to appellant's
second amended complaint. Appellant, 5 Starr, and Bailey ultimately settled their claims.
On July 27, 2021, the trial court entered an "Agreed Stipulated Order and Judgment Entry
of Partial Dismissal," pursuant to which the trial court dismissed all asserted claims and
4Appellant renamed her claim for tortious inference with employment opportunity to tortious interference
with economic relations, abandoned the account and retaliation claims, and added claims for conversion and
unfair competition.
No. 22AP-456 9
counterclaims between those parties with prejudice. The order avers that appellant's claims
against appellees remained pending.
{¶ 20} Thereafter, on April 4, 2022, appellees5 filed a Civ.R. 56 motion for summary
judgment. Appellees asserted that the purpose of the motion for summary judgment was
not to determine whether appellant or 5 Starr and Bailey would prevail on their competing
claims against one another as to the enforceability of the Handbook and Agreement; rather,
the motion's purpose was to determine whether Koenig's actions in representing his clients
were made in good faith and not maliciously. To that end, appellees noted that appellant's
claims against them were based solely on Koenig's act of preparing and delivering the
December 6 and 7, 2017 letters at the direction and on behalf of his clients regarding
appellant's post-employment restrictions pursuant to the Agreement. Appellees argued
there were no disputed issues of material fact and that because Koenig's actions were taken
solely in his capacity as counsel for his (now former) clients, appellees were immune from
liability to appellant (a third-party plaintiff), as no evidence established that Koenig was in
privity with appellant or that his actions were taken in bad faith or with malice. Appellees
supported their motion for summary judgment with Koenig's own affidavit and the
depositions of appellant and Bailey.
{¶ 21} In particular, appellees noted Bailey's deposition testimony that she reviewed
and authorized the letters to appellant and Artistic Angle. Appellees further noted
appellant's deposition testimony admitting that she did not believe that Koenig fabricated
the statements made in the letters regarding the Agreement. Appellees also noted Koenig's
affidavit testimony that he prepared and delivered the letters at Bailey's direction and based
the content of the letters and the decision to deliver them on more than just Bailey's claims
and representations. In particular, appellees noted Koenig's averments that before sending
the letters, he reviewed the pertinent documents and verified with other 5 Starr employees
that their understanding of the Agreement was consistent with Bailey's understanding of
the Agreement.
{¶ 22} Appellees also noted Koenig's attestation that he had no knowledge of
appellant prior to his engagement by Bailey and 5 Starr on December 5, 2017 and had never
met appellant prior to Bailey's June 24, 2019 deposition. Appellees further noted
5 Koenig filed the motion for summary judgment pro se and as attorney for Koenig & Owen.
No. 22AP-456 10
appellant's admission that she had no relationship with Koenig, he had never represented
her, nor had she ever asked him to represent her. In addition, appellees noted Koenig's
testimony that he harbored no hatred, ill will, or spirit of revenge toward appellant and did
not write the December 6 and 7, 2017 letters in disregard of her rights; rather, he wrote the
letters to advance in good faith the rights and interests of his clients.
{¶ 23} As an alternative to their immunity argument, appellees maintained that
appellant could not prevail on the merits of her claims for defamation per se and
interference with economic relations and that appellant's settlement with Bailey and 5 Starr
terminated those claims. Lastly, appellees asserted that if Koenig was not liable to
appellant, Koenig & Owen could not be liable under the theory of respondeat superior.
{¶ 24} On April 26, 2022, appellant filed a corrected memorandum contra the
motion for summary judgment.6 Therein, appellant asserted that "[t]he entirety of
[appellees'] motion [for summary judgment] depends on whether or not there was a
contract between [appellant] and [5 Starr], and if so, if it was breached by [appellant]."
(Apr. 26, 2022 Memo Contra at 1-2.) Appellant argued that because that issue of fact was
disputed by the parties, summary judgment was inappropriate. Appellant further
maintained that disputed issues of fact precluded summary judgment as to whether Koenig
made factually incorrect statements in the December 6 and 7, 2017 letters regarding: (1) the
contents of the Agreement, (2) appellant's alleged violation of that Agreement, (3) the police
report filed by Bailey, and (4) appellant's alleged employment at Artistic Angle. Appellant
maintained that Koenig should have known that the Agreement was unenforceable and that
the police report was false. She further maintained that Koenig delivered the December 6
and 7, 2017 letters to Artistic Angle despite having been informed that appellant was not
employed there. Appellant asserted that Koenig's actions in this regard were made in bad
faith and with actual malice; thus, he was not entitled to attorney immunity. Appellant
supported her memorandum contra with her own affidavit and deposition, Koenig's
affidavit, and the depositions of Bailey and 5 Starr employees Leona Beck and Heather
Edgington. Appellant also attached to her memorandum contra expert reports from
attorneys Joseph W. Borchelt and John C. Camillus.
6 The corrected memorandum contra was accompanied by a motion for leave to file it instanter. The trial court
granted the motion for leave in its June 24, 2022 decision and entry granting appellees' motion for summary
judgment.
No. 22AP-456 11
{¶ 25} Appellant specifically noted in her memorandum contra her affidavit and
deposition testimony that she signed an acknowledgement that she had received a copy of
the Handbook but understood that the Handbook did not restrict her from competing with
5 Starr following her separation from employment. She further noted her deposition
testimony that she could not have violated the Agreement because it was not a contract.
Appellant also pointed to her affidavit and deposition testimony averring she was never
employed by Artistic Angle, as the receipt of Koenig's letter led the owner of Artistic Angle
to rescind her previous "oral agreement" regarding her employment. As to the police
report, appellant noted both her affidavit and deposition testimony that she did not steal
any items from 5 Starr as well as the deposition testimony of Beck and Edgington stating
that they personally had never seen appellant leave the salon with any of 5 Starr's products
or property.
{¶ 26} Appellant also noted in her memorandum contra her affidavit testimony that
the opinions of both experts confirmed her belief that "what Mr. Koenig did was willful with
actual malice because he had to know what he was stating in the letters [was] false and
defamatory and was without justification and intended to prevent me from working at
Artistic Angle Hair Salon." (Silveous Aff. at ¶ 17.) In his March 26, 2020 expert report,
Borchelt opined that neither the Handbook nor the Agreement prohibited an employee
from competing with 5 Starr or from soliciting 5 Starr's clients after the employee's
separation from employment. Borchelt further opined that because a reasonably competent
attorney would have concluded as such, Koenig knew that the statements he made to the
contrary in the letters to appellant and her prospective employer (Artistic Angle) were false,
yet he recommended his client disseminate the letters. Borchelt also opined that Koenig's
actions in sending false cease and desist letters to appellant and Artistic Angle constituted
bad-faith conduct for which third-party liability may apply. In his April 17, 2021 expert
report, Camillus opined that the Agreement does not prohibit post-employment
competitive activity and that no reasonable attorney could conclude otherwise. Camillus
further opined that Koenig's decision to send letters to appellant and Artistic Angle falsely
claiming that appellant was prohibited from engaging in competitive activities within ten
miles of 5 Starr for a period of one year constituted malice, as he had no legitimate interest
No. 22AP-456 12
to protect on behalf of 5 Starr and sent the letters either knowing that it would cause harm
to appellant or with total disregard of her rights.
{¶ 27} On May 2, 2022, appellees filed a reply to appellant's corrected memorandum
contra. Appellees maintained appellant had provided no evidence to demonstrate that
Koenig acted in bad faith or with malice in preparing and delivering the letters on behalf of
5 Starr and Bailey, and, as such, had failed to meet her reciprocal burden under Civ.R. 56.
{¶ 28} On June 24, 2022, the trial court issued a decision and entry granting
appellees' motion for summary judgment. Applying the rule governing attorney immunity
set forth in Scholler, 10 Ohio St.3d 98, and its progeny, the trial court found no claim of
privity between the parties and that appellant failed to demonstrate a genuine issue of
material fact as to whether Koenig, in preparing and disseminating the letters to appellant
and Artistic Angle, acted in good faith with 5 Starr's knowledge, or acted maliciously.
II. Assignments of Error
{¶ 29} Appellant appeals and assigns the following four assignments of error for our
review:
[I.] The court of common pleas erred by using the wrong
framework and failed to consider whether Attorney Koenig's
statements were defamatory as a matter of law.
[II.] The court of common pleas used the wrong standard to
determine that Defendants were immune from liability and
erred by finding that the litigation privilege applied.
[III.] The court of common pleas erred by applying the wrong
definition of malice and finding no material facts in dispute.
[IV.] The court of common pleas erred by failing to consider
that Attorney Koenig's law firms may be vicariously liable for
his defamatory statements.
III. Analysis
{¶ 30} Initially, we set forth the standard of review applicable to summary judgment
dispositions. An appellate court reviews a grant of summary judgment under a de novo
standard. Capella III L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th
Dist.), citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "[D]e novo
appellate review means that the court of appeals independently reviews the record and
No. 22AP-456 13
affords no deference to the trial court's decision." (Internal quotations and citations
omitted.) Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary judgment
is appropriate only when the moving party demonstrates: (1) no genuine issue of material
fact exists, (2) the moving party is entitled to judgment as a matter of law, and
(3) reasonable minds could come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made. Civ.R. 56(C); State ex
rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997). In ruling on a motion
for summary judgment, the court must resolve all doubts and construe the evidence in favor
of the non-moving party. Premier Radio Networks, Inc. v. Sandblast, L.P., 10th Dist. No.
18AP-736, 2019-Ohio-4015, ¶ 6, citing Pilz v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
04AP-240, 2004-Ohio-4040, ¶ 8.
{¶ 31} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and of identifying those portions of the
record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). If the moving party fails to satisfy the initial burden, the court
must deny the motion for summary judgment; however, if the moving party satisfies its
initial burden, summary judgment is appropriate unless the non-moving party responds,
by affidavit or otherwise as provided under Civ.R. 56, with specific facts demonstrating a
genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of Humanities, 10th Dist.
No. 11AP-1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732, 735
(12th Dist.1991).
{¶ 32} Appellant contends in her first assignment of error the trial court utilized the
wrong framework in considering appellees' motion for summary judgment and in failing to
consider whether Koenig's statements were defamatory as a matter of law. In essence,
appellant contends the trial court was required to address her defamation claim before it
could consider whether appellees were entitled to attorney immunity.
{¶ 33} Preliminarily, we note that appellant did not move for summary judgment on
any of the claims she asserted against appellees. Thus, the merits of her defamation claim
were not before the trial court. The only issue before the trial court was raised in appellees'
No. 22AP-456 14
motion for summary judgment, i.e., whether appellees were entitled to summary judgment
on appellant's tort claims pursuant to the attorney-immunity rule set forth in Scholler.7
{¶ 34} The case appellant cites as authority for her contention that a trial court must
first consider the merits of a plaintiff's underlying claim before it can determine whether an
attorney is immune from liability for that claim does not establish such a framework. That
case, Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohi0-4193, involved,
inter alia, a defamation action against a non-profit corporation for statements made in an
internal memorandum and statements subsequently made by its attorney in a newspaper.
Following a detailed discussion of the law governing defamation, the Supreme Court
concluded that the corporation was not liable for the statements made in its internal
memorandum or the statements published in the newspaper because the statements were
not defamatory as a matter of law. As no claims were asserted against any attorney, the
issue of attorney immunity was not considered. The only link between Am. Chem. Soc. and
attorney liability was the court's inquiry into whether a client could be held liable for
statements made by its counsel to the media. Id. at ¶ 87. As to that issue, the Supreme
Court held that a client is vicariously liable for its attorney's defamatory statements only if
the client authorized or ratified the statements. Id. at ¶ 89.
{¶ 35} Further, neither of the other cases appellant cites, i.e., Hersh v. Grumer, 8th
Dist. No. 109430, 2021-Ohio-2582, and Horenstein, Nicholson & Blumenthal, L.P.A. v.
Hilgeman, 2d Dist. No. 28581, 2021-Ohio-3049, support her argument that a trial court
must first consider the merits of a plaintiff's claims before it can determine whether the
defendant-attorney is immune from liability for those claims. Although both cases involved
defamation claims, attorney immunity was not at issue, as the defamation claims were not
asserted against counsel. Indeed, the Hilgeman court noted, "[a]s in Am. Chem. Soc., the
defamation claim here has been asserted only against the client (HNB), not against * * *
HNB's outside counsel." Id. at ¶ 130.
{¶ 36} Appellant has thus failed to establish the trial court utilized the wrong
framework in considering appellees' motion for summary judgment and in failing to
7Appellees' motion for summary judgment alternatively argued that in the event the trial court ruled against
them on their attorney-immunity argument, they were entitled to judgment on the merits of appellant's
claims. The trial court granted summary judgment to appellees on attorney-immunity grounds and dismissed
all three of appellant's claims.
No. 22AP-456 15
consider whether Koenig's statements were defamatory as a matter of law. As such,
appellant's first assignment of error is overruled.
{¶ 37} Appellant's second and third assignments of error are interrelated and will be
considered together. In her second assignment of error, appellant contends the trial court
applied the wrong standard in determining that appellees were immune from liability and
erred by finding that the litigation privilege8 applied. In her third assignment of error,
appellant contends the trial court erred in applying the wrong definition of malice and in
finding that no material facts were in dispute. Appellant's arguments are somewhat
derivative of her first assignment of error, as she essentially contends that once the court
determines that she has set forth a meritorious defamation claim, the court must then
analyze whether appellees avoid liability under the standards applicable to defamation
claims. However, as noted under our discussion of the first assignment of error, appellant's
defamation claim was not at issue before the trial court, and, in any event, the case law cited
by appellant in support of her first assignment of error does not require a court to address
the merits of her defamation claim.
{¶ 38} In their motion for summary judgment, appellees argued they were immune
from liability for the claims appellant asserted against them under the attorney-immunity
rule set forth in Scholler. In Scholler, the Supreme Court considered whether a mother on
behalf of her son may maintain an action against the mother's former attorney in
malpractice even though the son was a third party to the attorney-client relationship that
existed between the mother's former attorney and the mother. The court held that "an
8 In its decision and entry, the trial court averred that "Koenig and his law firm are immune from liability and
summary judgment is proper." (June 24, 2022 Decision & Entry at 5.) Later in the decision, the trial court
stated that "[appellant] is entitled to immunity from liability to [appellant] under well-settled Ohio law, and
thus, summary judgment is warranted." Three sentences after that statement, the court asserted that
"[appellant's] claims against [appellees] are barred by the litigation privilege set forth in Ohio case law."
(June 24, 2022 Decision & Entry at 11.) "The litigation privilege provides absolute immunity to parties,
witnesses, lawyers, and judges from future lawsuits for statements made during and relevant to judicial
proceedings." (Emphasis sic.) Reister v. Gardner, 164 Ohio St.3d 546, 2020-Ohio-5484, ¶ 14, citing Erie Cty.
Farmers' Ins. Co. v. Crecelius, 122 Ohio St. 210 (1930); Willitzer v. McCloud, 6 Ohio St.3d 447-48 (1983). As
discussed in this decision, appellees moved for summary judgment on grounds of attorney immunity from
third-party lawsuits under Scholler and its progeny. The trial court analyzed appellees' motion under the
standards set forth in those cases and concluded that appellees were immune from liability from appellant's
third-party lawsuit. The court did not address or even mention the litigation privilege until the last paragraph
of its decision. As such, we conclude it appears the reference to the litigation privilege was inadvertent. As the
court's grant of summary judgment was based on attorney immunity from third-party lawsuits, it is not
necessary for us to address the litigation privilege.
No. 22AP-456 16
attorney is immune from liability to third persons arising from his performance as an
attorney in good faith on behalf of, and with the knowledge of his client, unless such third
person is in privity with the client or the attorney acts maliciously." Scholler at paragraph
one of the syllabus. See also Simon v. Zipperstein, 32 Ohio St.3d 74, 77 (1987), quoting
Scholler ("[w]e reiterate our holding in the first paragraph of the syllabus of Scholler that
'[a]n att0rney is immune from liability to third persons arising from his performance as an
attorney in good faith on behalf of, and with the knowledge of his client, unless such third
person is in privity with the client or the attorney acts maliciously' "). The Simon court
explained the reasoning underlying the Scholler holding:
The rationale for this posture is clear: the obligation of an
attorney is to direct his attention to the needs of the client, not
to the needs of a third party not in privity with the client. As
was stated by the court in W.D.G., Inc. [v. Mut. Mfg. & Supply
Co., (Franklin App. 1976), 5 O.O.3d 397]:
"* * * Some immunity from being sued by third persons must
be afforded an attorney so that he may properly represent his
client. To allow indiscriminate third-party actions against
attorneys of necessity would create a conflict of interest at all
times, so that the attorney might well be reluctant to offer
proper representation to his client in fear of some third-party
action against the attorney himself." Id. at 399-400.
Id. at 76.
{¶ 39} The Supreme Court did not limit its holdings in Scholler or Simon to a
particular genre of third-party tort claim. Further, none of the cases we found applying the
Scholler/Simon attorney-immunity rule, including those from this court, have held that the
rule is to be applied differently depending upon the nature of the third-party's claim. See,
e.g., Hahn v. Satullo, 156 Ohio App.3d 412, 2004-Ohio-1057 (10th Dist.); Kim v. Randal A.
Lowry Assocs., 9th Dist. No. 29680, 2021-Ohio-51; Hall v. GMS Mgt. Co., Inc., 9th Dist.
No. 29920, 2021-Ohio-2392; Fabec v. Frederick & Berler, L.L.C., 8th Dist. No. 110562,
2022-Ohio-376; Omega Riggers & Erectors, Inc. v. Koverman, 2d Dist. No. 26590, 2016-
Ohio-2961.
{¶ 40} Rather, these cases have extended the application of Scholler to various types
of third-party tort claims. As noted by the court in Kim:
No. 22AP-456 17
"A claim against an attorney for actions taken in his
professional capacity is a claim sounding in legal malpractice
no matter how artfully the pleadings attempt to raise some
other claim." Omega Riggers & Erectors, Inc. v. Koverman,
2d Dist. Montgomery No. 26590, 2016-Ohio-2961, ¶ 22, 65
N.E.3d 210. Accordingly, Ohio courts have consistently
applied the qualified immunity recognized in Scholler and
Simon to third party claims of tortious conduct directly
related to an attorney's representation of a client even when
the cause of action asserted is not "legal malpractice." See
Hahn at ¶ 55-69 (applying rule to invasion of privacy claim
against third party attorney); Omega Riggers at ¶ 22-44
(analyzing claims for negligence and violation of a fiduciary
duty in the context of legal malpractice); Moffit v. Litteral, 2d
Dist. Montgomery No. 19154, 2002-Ohio-4973, ¶ 75-82
(applying rule to claim for conversion against third party
attorney); Lisboa v. Lisboa, 8th Dist. Cuyahoga No. 95673,
2011-Ohio-351, ¶ 24-28 (analyzing claims for third party
malpractice, fraud, conspiracy, civil aiding and abetting, and
intentional infliction of emotional distress together); FV-I,
Inc., In Trust for Morgan Stanley Mtge. Capital Holdings,
L.L.C. v. Townsend-Young, 8th Dist. Cuyahoga No. 109191,
2020-Ohio-5184, ¶ 64-66 (applying rule to claim of fraud
against a third-party attorney). See also Andrews v.
Carmody, 145 Ohio App.3d 27, 34, 761 N.E.2d 1076 (11th
Dist.2001) (tortious interference with a contract).
Id. at ¶ 14.
{¶ 41} Thus, it is clear that the nature of the third-party's tort claim is immaterial to
the application of the Scholler/Simon attorney-immunity rule. Here, appellant's allegations
against appellees for defamation and tortious interference with economic relations arise
out of appellees' representation of 5 Starr and Bailey. Appellant presents a quintessential
third-party tort claim, and the trial court correctly applied the Scholler/Simon attorney-
immunity rule applicable to third-party tort claims. Thus, appellant's arguments regarding
the trial court's alleged errors in failing to apply the standards applicable to defamation
claims are unavailing.
{¶ 42} Applying the Scholler/Simon attorney-immunity rule applicable to third-
party claims, the trial court concluded appellant had failed to set forth genuine issues of
No. 22AP-456 18
material fact as to whether Koenig, in preparing and delivering the December 6 and 7, 2017
letters, acted without malice and in good faith with his clients' knowledge.9
{¶ 43} The trial court based its finding that there is no genuine issue of material fact
as to whether Koenig acted in good faith on Koenig's affidavit testimony that prior to
preparing and sending the letters, he engaged in a due diligence review of Bailey's
allegations against appellant, which included review of the Agreement, interviews with 5
Starr employees, and review of the police report Bailey filed after appellant resigned. The
court found that Koenig's actions in this regard demonstrate that the statements made by
Koenig in the letters were not uninformed; rather, they were founded on his investigation
of the facts and circumstances surrounding the dispute. Noting appellant's argument that
Koenig acted in bad faith because an experienced attorney could not have concluded that
the Handbook subjected appellant to any contractual obligations, the court pointed out that
the letters relied on language included in both the Handbook and the Agreement. The court
further averred that the primary question was whether Koenig acted in good faith in
advocating for his clients, not which party would prevail on their respective interpretations
of the Handbook and Agreement. The court specifically stated, "[t]he Employee Handbook
and Confidentiality and Non-Compete Agreement may be inartful and imprecise when read
together, but that issue is not before this Court. The question here is whether a lawyer acts
in bad faith and maliciously when advocating for his client's preferred outcome in the face
of such ambiguity." (June 24, 2022 Decision & Entry at 9.) The court found that appellant
had failed to present evidence rebutting Koenig's evidence establishing that he acted in
good faith.
{¶ 44} Appellant challenges this finding,10 arguing the trial court ignored the
evidence she presented establishing that Koenig "lacked good faith in investigating the
truthfulness of his statements before he sent the letters." (Appellant's Brief at 30.)
Specifically, citing Edgington's deposition testimony, appellant argues that "if Mr. Koenig
9 The trial court found "there is no claim of privity between [appellant] and [appellee]." (June 24, 2022
Decision & Entry at 6.) "Privity," in the context of Scholler and Simon, refers to privity between the third-party
(appellant) and the attorney's client (5 Starr and Bailey). It appears the trial court may have misconstrued the
term "privity" to refer to privity between appellant and appellees. However, appellant did not assert in her
memorandum contra that she was in privity with 5 Starr and Bailey, and she does not challenge the trial court's
finding regarding privity on appeal.
10 We note that appellant does not challenge the trial court's finding that Koenig sent the letters with his clients'
knowledge.
No. 22AP-456 19
had interviewed 5 Starr employees[,] * * * then Mr. Koenig would have known that 5 Starr's
decline in clients was self-induced, as 5 Starr called clients themselves to cancel
appointments because 5 Starr did not hire another esthetician to provide eye-lash
extensions after [appellant's] employment." (Appellant's Brief at 30-31.) Appellant also
cites the deposition testimony of Beck and Edgington in arguing that "5 Starr employees
testified that [appellant] was never known to take anything of 5 Starr's property during her
employment." (Appellant's Brief at 31.)
{¶ 45} The minimal testimony cited by appellant does not establish a genuine issue
of material fact as to whether Koenig acted in good faith in performing services on behalf
of his clients, 5 Starr and Bailey. We first note that Koenig testified that he interviewed
Edgington as part of his investigation. Moreover, his interviews of 5 Starr employees
comprised only a portion of his investigation into Bailey's assertions about appellant.
Indeed, as we have previously discussed, Koenig's investigation included discussions with
Bailey, as well as reviews of the Handbook, the Agreement, and the police report.
{¶ 46} The court further found there was no genuine issue of material fact as to
whether Koenig's performance in his representation of his clients was conducted with
malice. In so finding, the trial court cited the definition of malice set forth in Preston v.
Murty, 32 Ohio St.3d 334 (1987). There, the Supreme Court explained that malice means
"(1) that state of mind under which a person's conduct is characterized by hatred, ill will or
a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons
that has a great probability of causing substantial harm." Id. at 336. The trial court noted
Koenig's affidavit testimony that he did not know appellant prior to his engagement by
Bailey and 5 Starr, had spoken to her only during legal proceedings in the instant case,
harbored no feelings of hatred, ill will, or spirit of revenge against appellant, and wrote the
letters only to advance his clients' rights and interests. The court concluded that "aside
from mere speculation, [appellant] presented no evidence of malice on the part of Mr.
Koenig." (June 24, 2022 Decision & Entry at 11.)
{¶ 47} Appellant first contends the trial court erred in applying the Preston
definition of malice rather than the definition of "actual malice" set forth in Jacobs v.
Frank, 60 Ohio St.3d 111 (1991). Jacobs, a defamation case not involving attorney
immunity, held that actual malice is demonstrated when the publisher of a statement is
No. 22AP-456 20
"acting with knowledge that the statements are false or acting with reckless disregard as to
their truth or falsity." Id. at 116. Appellant contends this definition should be applied to
her case because she claimed she is a victim of defamatory statements made by appellees
in the December 6 and 7, 2017 letters. Appellant's contention is based on the assumption
that she has established her defamation claim. However, as previously discussed,
appellant's defamation claim was never properly before the trial court. As such, the trial
court properly applied the Preston definition of malice rather than the definition of actual
malice set forth in Jacobs.
{¶ 48} In the context of third-party liability cases, Ohio courts have defined malice
in a number of ways. In Simon, the Supreme Court suggested that an attorney acts
maliciously when special circumstances such as "fraud, bad faith, [or] collusion" are
present. Id. at 76. This court has defined malice to include actions taken by the attorney
with an ulterior motive separate and apart from the good-faith representation of the client's
interests. Ryan v. Wright, 10th Dist. No. 06AP-962, 2007-Ohio-942, ¶ 19, citing Hahn at
¶ 67, citing Thompson v. R & R Serv. Sys., Inc., 10th Dist. No. 96APE10-1277 (June 19,
1997). In Ryan, we further noted that "[m]alice has also been defined in this context to
imply ' "[a] condition of mind which prompts a person to do a wrongful act willfully, that
is, on purpose, to the injury of another without justification or excuse." ' " Ryan at ¶ 19,
quoting Moffit v. Litteral, 2d Dist. No. 19154, 2002-Ohio-4973, ¶ 82, quoting Black's Law
Dictionary 956 (6th Ed.1990). In Omega Riggers at ¶ 35, the court averred:
"[M]alice, as a substitute for an attorney-client relationship,
cannot be predicated on actions by the attorney that the
attorney is permitted to take, or even negligently may take, as
part of the representation of plaintiffs' adversarial client. To
constitute malice, the actions of the attorney must include a
disregard of rights that the attorney, not the client, is required
to protect and must include harm beyond that which legal
action necessarily may inflict. In most circumstances, an
attorney is not obligated to protect the rights of an adversary.
* * * Therefore, in our view, to constitute malice as a conscious
disregard for the rights of others causing substantial harm
that will suffice to substitute for an attorney-client
relationship, facts must exist that demonstrate extra-legal
activity."
No. 22AP-456 21
{¶ 49} Appellant argues that a genuine issue of material fact exists as to whether
Koenig acted with malice in preparing and sending the letters. Appellant argues that
Koenig intentionally misrepresented the contents of the Handbook and Agreement in the
letters. Specifically, appellant argues that "Koenig admitted to reading the [H]andbook and
had actual knowledge of its contents but purposely altered the language to say something
it did not say" and that "Koenig changed the language and meaning of the terms of the
[H]andbook in his publication to Artistic Angle to falsely convey that [appellant] was
prohibited from renting space to pursue her business opportunities." (Appellant's Brief at
28, 32.) For these assertions, appellant cites paragraph three of Koenig's affidavit. That
paragraph simply sets forth the circumstances surrounding Koenig's representation of 5
Starr and Bailey. It does not discuss, or even mention, either the Handbook or Agreement.
{¶ 50} Appellant offers no other evidence to support her claim that Koenig falsely
and intentionally misrepresented the contents of the Handbook and Agreement in the
letters. At best, Koenig may have misconstrued those documents; however, incorrectly
interpreting the documents does not evidence malice as defined in the case law cited above.
{¶ 51} Appellant also points to the expert reports she attached to her response to
appellees' motion for summary judgment wherein the experts opined that Koenig's actions
demonstrated bad-faith conduct for which third-party liability may apply and that because
no reasonable attorney would believe that the Handbook prohibited post-employment
competitive activity, no reasonable attorney would have sent the letters.
{¶ 52} Civ.R. 56(C) limits the types of materials that may be considered in summary
judgment proceedings to "pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact." The rule
expressly states that "[n]o evidence or stipulation may be considered except as stated in this
rule." In Gabriel v. Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661,
this court held that pursuant to Civ.R. 56(C), " ' "documents submitted in opposition to a
motion for summary judgment must be sworn, certified or authenticated by affidavit to be
considered by the trial court in determining whether a genuine issue of material fact exists
for trial." ' " Id. at ¶ 23, quoting Rilley v. Brimfield Twp., 11th Dist. No. 2009-P-0036, 2010-
Ohio-5181, ¶ 66, quoting Sintic v. Cvelbar, 11th Dist. No. 95-L-133 (July 5, 1996). We
further stated that "[t]he proper procedure for introducing evidentiary matter of a type not
No. 22AP-456 22
listed in Civ.R. 56(C) is to incorporate the material by reference into a properly framed
affidavit." Id., citing Martin v. Cent. Ohio Transit Auth., 70 Ohio App.3d 83, 89 (10th
Dist.1990), citing Biskupich v. Westbay Manor Nursing Home, 33 Ohio App.3d 220 (8th
Dist.1986). The expert reports were not authenticated by affidavit. Accordingly, those
reports may not be considered under Civ.R. 56(C).11
{¶ 53} In short, appellant does not point to any evidence of fraud, bad faith,
collusion, willful wrongful acts, extralegal activity or other malicious behavior or actions on
Koenig's part that would allow a reasonable inference that the preparation and
dissemination of the December 6 and 7, 2017 letters was done with an ulterior motive
separate and apart from the good-faith representation of 5 Starr and Bailey.
{¶ 54} "Although issues regarding malice are generally questions left to the jury,
summary judgment is appropriate under certain circumstances, such as when a plaintiff
fails to present sufficient facts to rebut a presumption of immunity." Kim at ¶ 16, citing
Leonhardt v. Akron, 9th Dist. No. 29049, 2019-Ohio-5223, ¶ 15, citing Shadoan v. Summit
Cty. Children Servs. Bd., 9th Dist. No. 21486, 2003-Ohio-5775, ¶ 14-15.
{¶ 55} In this case, appellees presented sufficient evidence establishing Koenig acted
without malice and in good faith with his clients' knowledge when preparing and
disseminating the December 6 and 7, 2017 letters to appellant and Artistic Angle,
respectively. Appellant failed to carry her reciprocal burden under Civ.R. 56(C) to present
evidence sufficient to create a genuine issue of material fact as to those issues. We thus
overrule appellant's second and third assignments of error.
{¶ 56} In her fourth assignment of error, appellant contends the trial court erred in
failing to consider her claim that Koenig's law firm, Koenig & Owen, is vicariously liable for
Koenig's liability under the theory of respondeat superior.
{¶ 57} Appellant's assertion that the trial court did not consider appellant's
respondeat superior claim is not accurate. The trial court stated that "the evidence before
the Court conclusively establishes that [appellees] are entitled to judgment as a matter of
law on [appellant's] claims." (Emphasis added.) (June 24, 2022 Decision & Entry at 11.)
The court further stated that "[appellant's] claims against [appellees] Charles A. Koenig
11We note that the trial court did not consider the experts' reports in ruling on the motion for summary
judgment.
No. 22AP-456 23
and Koenig & Owen, LLC are hereby DISMISSED WITH PREJUDICE." (Emphasis
added; emphasis sic.) (June 24, 20222 Decision & Entry at 11.) The trial court's utilization
of the plural term "claims" indicates that it considered all three of the claims raised in
appellant's complaint, including the claim for respondeat superior.
{¶ 58} Further, appellant's reliance on State ex rel. Sawicki v. Lucas Cty. Court of
Common Pleas, 126 Ohio St.3d 198, 2010-Ohio-3299, is misplaced. Sawicki concerned a
patient's right to assert a malpractice claim against a medical corporation based on the
conduct of a physician who had been employed by both the medical corporation and the
state medical college hospital. Id. at ¶ 2-3. The trial court dismissed the claim against the
physician on the ground that he was a state employee. The court stayed the patient's
respondeat superior claim against the medical corporation pursuant to R.C. 2743.02(F)
pending a determination by the Ohio Court of Claims as to whether the physician acted
within the scope of his state employment at the time of the alleged malpractice and was
thus entitled to personal immunity.
{¶ 59} The matter was before the Supreme Court through an appeal of the Sixth
District Court of Appeals' issuance of a writ of procedendo to compel the trial judge to
vacate the stay. Id. at ¶ 1. The Supreme Court rejected the medical corporation's argument
that it could not be vicariously liable if the physician-employee were personally immune
from liability based on his co-employment with the state. Id. at ¶ 28. The court concluded
that the physician-employee's potential immunity as a state employee was "immaterial" to
his private employer's vicarious liability, because "[a]n employee's immunity from liability
is no shield to the employer's liability for acts under the doctrine of respondeat superior."
Id. at ¶ 21, 28, citing Adams v. Peoples, 18 Ohio St.3d 140, 142-43 (1985).
{¶ 60} The instant case is distinguishable from Sawicki. The issue in Sawicki was
whether the physician-employee acted within the scope of his state employment at the time
of the alleged malpractice and was thus entitled to personal immunity under R.C.
2743.02(F). Here, the issue was whether Koenig, an attorney, was immune from liability
under common law, i.e., Scholler and its progeny, for claims asserted against him by a third-
party plaintiff. We decline to extend the holding in Sawicki to the facts of the instant case.
Appellant's fourth assignment of error is overruled.
No. 22AP-456 24
IV. Conclusion
{¶ 61} Having overruled appellant's four assignments of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas granting summary judgment to
appellees.
Judgment affirmed.
MENTEL and JAMISON, JJ., concur.