Hersh v. Grumer

[Cite as Hersh v. Grumer, 2021-Ohio-2582.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
AKIVA HERSH, :
Plaintiff-Appellant, :
No. 109430
v. :
RABBI YISRAEL GRUMER, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: July 29, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-918097
Appearances:
Triscaro & Associates, Ltd., and Joseph J. Triscaro, for
appellant.
Gallagher Sharp, L.L.P., and Markus E. Apelis, for
appellees Rabbi Yisrael Grumer, Congregation Shomre
Shabbos, Rabbi Yitzchok Margareten, Congregation
Green Road Synagogue, Rabbi Binyamin Blau,
Congregation Chabad House of Cleveland, Rabbi Sholom
Ber Chaikin, Congregation Zichron Chaim, Rabbi
Alexander Charlop, Rabbi Moshe Garfunkel,
Congregation Jewish Learning Connection Inc., and
Rabbi Ephraim Nisenbaum.
Gallagher Sharp, L.L.P., Mark A. Greer, and Liz R.
Phillips, for appellees Rabbi Mordechai Mendelson and
Congregation Zemach Zedek of Cleveland Heights.
Molly Steiber Harbaugh, for appellees Rabbi Raphael
Davidovich and The Heights Jewish Center, and The Beth
Hamidrosh Hagodol Ohave Emuno Anshe Grondo
Congretation.
Ulmer & Berne L.L.P., Robert E. Chudakoff, Joshua A.
Klarfeld, and Kenneth A. Zirm, for appellees Rabbi
Naphtali Burnstein, Rabbi Aharon Lebovics, and Young
Israel of Greater Cleveland.
Zagrans Law Firm and Eric H. Zagrans; The Schwartz Law
Firm and Fred P. Schwartz, for appellees Rabbi Avraham
Bensoussan, Beis Eliyahu Synagogue/Torah Center,
Congregation Bais Avrohom, Rabbi Nissim Abrin,
Aleksander Shul, Rabbi Shneur Zalman Denciger, Rabbi
Sholom Ber Chaikin, Chabad House of Cleveland, Rabbi
Moshe Einstadter, Congregation Torah Utefilah, Rabbi
Boruch Hirschfeld, Rabbi Yehuda Cahan, and Rabbi
Shmuel Spitz.
McNeal Schick Archibald & Biro Co., L.P.A., and Marilyn
J. Singer; The Schwartz Law Firm and Fred P. Schwartz;
Zagrans Law Firm and Eric H. Zagrans, for appellees
Rabbi Yehuda Blum and Congregation K’Hal Yereim.
Hannah Campbell & Powell, L.L.P., Kenneth A. Calderone
and Frank G. Mazgaj, for appellees Rabbi Ari Spiegler and
Beachwood Kehilla.
Reminger Co., L.P.A., and Brian D. Sullivan, for appellees
Rabbi Dovid Aaron Gross and Congregation Beis Doniel.
LISA B. FORBES, J.:
Akiva Hersh (“Hersh”) appeals the trial court’s order granting the
defendants’, who are individuals and religious entities in the Orthodox Jewish
community of the Cleveland area (“the Defendants”), motions to dismiss and
motions for judgment on the pleadings in this defamation-based action. Upon
review of the facts and pertinent law, we reverse the trial court’s judgment and
remand for proceedings consistent with this judgment.
I. Facts and Procedural History
According to Hersh’s complaint, in 2015, he moved to the Cleveland
area and began working within the Orthodox Jewish community, specifically “for
the son of Rabbi Mordechai Gifter.” Hersh “assisted Rabbi Zalman Gifter to oppose
certain wrongdoings within the Cleveland Orthodox Jewish community, and as a
consequence thereof received threats by certain influential members of the
community.” On August 13, 2018, the Defendants “read an announcement
concerning Hersh before all of their respective congregations, and a written form of
such announcement was also posted at each congregation.” This announcement
(“the Letter”) states as follow:
As Rabbonim in the community, we have a responsibility to protect all
our members.
We therefore must share with you that we have recently learned that
[Hersh] is alleged to have engaged in inappropriate behavior with
young men under the age of thirteen.
We have also learned that police reports have been filed detailing his
activities.
We understand that he is attempting to create a Boy Scout troop. We
are concerned that this is a potentially unhealthy and dangerous
situation.
We alert you to our concerns and warn you not to let young children be
in his care.
On August 29, 2018, “the Cleveland Jewish News published a news
article titled ‘Orthodox, Modern Orthodox synagogues warn members of suspicious
man.’” Also in August 2018, other “articles” were posted online on various websites
with headlines including, “Cleveland Rabbis: Don’t Give Akiva Meir Hersh Access
to Children” and “Akiva Hersh of Cleveland a Sexual Predator?”
On July 11, 2019, Hersh filed a complaint against the Defendants
alleging defamation per se, defamation per quod, false light, and
“intentional/negligent infliction of emotional distress.” According to Hersh’s
complaint, the Defendants wrote the Letter “to ruin Hersh’s reputation in the
community * * * without any reasonable basis for believing [the statements] to be
true.” On December 27, 2019, the trial court granted the Defendants’ motions to
dismiss and motions for judgment on the pleadings. Hersh appeals and presents
three assignments of error for our review, arguing that the trial court erred in
granting the Defendants’ motions:
1. The trial court erred in granting Defendants’ motions to
dismiss and motions for judgment on the pleadings concerning
Plaintiff’s defamation claims.
2. The trial court erred in granting Defendants’ motions to
dismiss and motions for judgment on the pleadings concerning
Plaintiff’s false light claim.
3. The trial court erred in granting Defendants’ motions to
dismiss and motions for judgment on the pleadings concerning
Plaintiff’s intentional infliction of emotional distress claim.
II. Standard of Review
We review rulings on Civ.R. 12(B)(6) motions to dismiss under a de
novo standard. “A motion to dismiss for failure to state a claim upon which relief
can be granted is procedural and tests the sufficiency of the complaint. * * * Under
a de novo analysis, we must accept all factual allegations of the complaint as true
and all reasonable inferences must be drawn in favor of the nonmoving party.”
NorthPoint Props. v. Petticord, 179 Ohio App.3d 342, 2008-Ohio-5996, 901 N.E.2d
869, ¶ 11 (8th Dist.). “For a trial court to grant a motion to dismiss for failure to state
a claim upon which relief can be granted, it must appear ‘beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling her to relief.’” Graham
v. Lakewood, 8th Dist. Cuyahoga No. 106094, 2018-Ohio-1850, ¶ 47, quoting Grey
v. Walgreen Co., 197 Ohio App.3d 418, 2018-Ohio-6167, 967 N.E.2d 1249, ¶ 3 (8th
Dist.).
We analyze a Civ.R. 12(C) motion for judgment on the pleadings
“under the same principles that this court would apply in analyzing a motion to
dismiss pursuant to Civ.R. 12(B)(6).” Jordan v. Giant Eagle Supermarket, 8th Dist.
Cuyahoga No. 109304, 2020-Ohio-5622, ¶ 21.
Prior to our analysis, however, we turn to the trial court’s 34-page
decision granting the Defendants’ motions, which focuses on “multiple,
independent arguments for dismissing the case at this stage” set forth by the
Defendants. The trial court’s analysis of these defenses is based on an improper
hybrid standard of review, which is not applicable to motions under Civ.R. 12(B)(6)
and (C). Of particular note is that the trial court improperly considered two police
reports that were attached to some of the Defendants’ answers and motions.
We find that the trial court erred by considering these police reports
for three reasons: 1) they are not relevant to whether Hersh stated a claim for
defamation; 2) they were not properly incorporated into the pleadings; and 3) the
trial court did not properly convert the Defendants’ motions to dismiss into motions
for summary judgment.
As to relevancy, the police reports are mentioned only in paragraph
three of the Letter. Hersh is not alleging that paragraph three of the Letter is
defamatory, and he is not disputing that the police reports were filed. There is no
need to consider the police reports to determine whether his defamation claims
survive the Defendants’ motions to dismiss and motions for judgment on the
pleadings.
Though the police reports were attached to some of the Defendants’
answers, they were not properly incorporated into the pleadings. We first define
“pleadings.” Pursuant to “Civ.R. 7(A), only complaints, answers and replies
constitute pleadings.” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65
Ohio St.3d 545, 549, 605 N.E.2d 378 (1992). Under Civ.R. 10(C), a “written
instrument” attached to a pleading becomes part of the pleading. However, “not
every document attached to a pleading constitutes a Civ.R. 10(C) written
instrument.” State ex rel. Leneghan v. Husted, 154 Ohio St.3d 60, 2018-Ohio-3361,
110 N.E.3d 1275, ¶ 17. Rather, a written instrument “has primarily been interpreted
to include documents that evidence the parties’ rights and obligations, such as
negotiable instruments, ‘insurance policies, leases, deeds, promissory notes, and
contracts.’” (Citation omitted.) Id. The police reports are not “written instruments”
that were incorporated into the pleadings.
Further, the trial court did not follow the procedure outlined in
Civ.R. 12(B) to consider the police reports that were attached to some of the
Defendants’ motions to dismiss and motions for judgment on the pleadings.
Civ.R. 12(B) provides that “[w]hen a motion to dismiss for failure to state a claim
upon which relief can be granted presents matters outside the pleading and such
matters are not excluded by the court, the motion shall be treated as a motion for
summary judgment and disposed of as provided in Rule 56.” In other words,
“[d]ocuments that are attached to a motion to dismiss may not be considered, unless
[the trial] court properly converts the matter to a motion for summary judgment
pursuant to Civ.R. 56.” State ex rel. Rice v. Wolaver, 2d Dist. Greene No. 2015 CA
0031, 2016-Ohio-320, ¶ 5.
Civ.R. 12(B) limits consideration to “only such matters outside the
pleadings as are specifically enumerated in Rule 56.” Pursuant to Civ.R. 56(C), a
trial court may consider the following materials when ruling on a summary
judgment motion: “pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact * * *.
No evidence or stipulation may be considered except as stated in this rule.” The
police reports, standing alone, are not proper Civ.R. 56 evidence. See Muncy v. Am.
Select Ins. Co., 129 Ohio App.3d 1, 6, 716 N.E.2d 1171 (10th Dist.1998) (“a police
report may properly be considered on summary judgment if it is accompanied by an
appropriate affidavit”); Laughner v. Laughner, 8th Dist. Cuyahoga No. 56491, 1990
Ohio App. LEXIS 151 (Jan. 25, 1990).
Additionally, Civ.R. 12(B) requires that the parties be given
reasonable opportunity to present all materials made pertinent under Civ.R. 56
before the trial court converts the motions to dismiss into motions for summary
judgment. The parties were given no such opportunity in the case at hand.
As for the defendants’ motions filed pursuant to Civ.R. 12(C), “this
court can find no authority to support the beliefs of [the dissent] that a motion made
pursuant to Civ.R. 12(C) can be converted to a motion for summary judgment. This
theory is mistaken. The language of Civ.R. 12(C) does not provide for conversion.”
Piersant v. Bryngelson, 61 Ohio App.3d 359, 363, 572 N.E.2d 800 (8th Dist.1989).
Having established the proper standard of review for motions to
dismiss and motions for judgment on the pleadings, we analyze the Defendants’
arguments based on the assumption that all factual allegations of the complaint are
true.
III. Law and Analysis
A. Defamation
The elements of a defamation claim are: “(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.” Pollock v. Rashid, 117 Ohio App.3d 361, 368, 690 N.E.2d
903 (1st Dist.1996).
Defamation per se occurs when material is defamatory on its face;
defamation per quod occurs when material is defamatory through
interpretation or innuendo. Written matter is [defamatory] per se if,
on its face, it reflects upon a person’s character in a manner that will
cause him to be ridiculed, hated, or held in contempt; or in a manner
that will injure him in his trade or profession. When a writing is not
ambiguous, the question of whether it is [defamatory] per se is for the
court. A writing that accuses a person of committing a crime is
[defamatory] per se.
(Emphasis and citations omitted.) Gosden v. Louis, 116 Ohio App.3d 195, 206-207,
687 N.E.2d 481 (9th Dist.1996).
Hersh’s complaint alleges that the following statements from the
Letter are defamatory:
We therefore must share with you that we have recently learned that
[Hersh] is alleged to have engaged in inappropriate behavior with
young men under the age of thirteen.
We understand that he is attempting to create a Boy Scout troop. We
are concerned that this is a potentially unhealthy and dangerous
situation.
We alert you to our concerns and warn you not to let young children be
in his care.
Hersh also alleges that these statements “at the very least contained
innuendo that Hersh engaged in sexual and/or inappropriate relations with boys
under the age of thirteen, and that Hersh posed a risk of harm if provided access to
young children.” The complaint further alleges that the statements “are false and
defamatory,” that they were published, that he suffered injury including “hatred,
contempt, ridicule, and obloquy,” as well as “loss to his reputation, shame and
mortification,” and that the Defendants “acted with malice, oppression, and/or
fraud * * *.”
Considering these allegations in a light most favorable to Hersh, as
we must when reviewing motions to dismiss for failure to state a claim and motions
for judgment on the pleadings, we find that Hersh sufficiently pled causes of action
for defamation. See Wilson v. Wilson, 2d Dist. Montgomery No. 21443, 2007-Ohio-
178, ¶ 13 (the plaintiff’s “claim, if proven, constituted defamation per se because the
assertion of pedophilia involves a charge of moral turpitude and is an indictable
offense”); N.A.D. v. Cleveland Metro. School Dist., 8th Dist. Cuyahoga No. 97195,
2012-Ohio-4929, ¶ 18 (“At the motion to dismiss stage * * *, as opposed to the
summary judgment stage * * *, plaintiffs are only required to have a short and plain
statement of the claim showing that they are entitled to relief and our review is
confined to the four corners of the complaint. See Civ.R. 8 and Civ.R. 12(B)(6).”).
In the case at hand, our analysis does not stop here. In their motions,
the Defendants raised various defenses and arguments that the statements at issue
in the Letter are not actionable defamation because they are: 1) true; 2) opinion; 3)
not defamatory; 4) susceptible of an innocent construction; and 5) protected by the
common-interest privilege. In its decision, the trial court improperly found in favor
of the Defendants on all of these arguments.
1. Truth
“[T]ruth is an absolute defense to a defamation action * * *.” Krems
v. Univ. Hosps. of Cleveland, 133 Ohio App.3d 6, 12, 726 N.E.2d 1016 (8th
Dist.1999). “Whether a defamatory statement is substantially true is generally a
question of fact.” Sullins v. Raycom Media, Inc., 2013-Ohio-3530, 996 N.E.2d 553,
¶ 38-39 (8th Dist.).
In the case at hand, the trial court determined that some of the
statements in the Letter were true or substantially true. For example, the trial court
stated the following in its decision: “To the extent the Letter contains statements
that are material and factual in nature, the Court concludes that any factual
statements are also protected as they are substantially true * * *.”
The truth of the statements is a matter of fact and is not properly
determined at the motion to dismiss stage, unless the truth is undisputed. Here, the
truth of the statements in the Letter is disputed. Under Civ.R. 12(B)(6) and (C), the
trial court should have presumed that the Defendants’ statements were false,
because that is what Hersh alleged in his complaint.
The trial court erred by granting the Defendants’ motions based on
truth as a defense.
2. Opinion
We note that the trial court concluded that all three statements in the
Letter that Hersh claims are defamatory are unactionable as constitutionally
protected opinion. However, the trial court also found that “any factual statements
* * * are substantially true.” Fact and opinion are mutually exclusive, and to
determine that a statement is both is error. Nonetheless, we analyze whether, on
the face of the pleadings, we can determine that the statements at issue are opinions.
A “totality of the circumstances test [is] to be used when determining whether a
statement is fact or opinion. Specifically, the court should consider: the specific
language at issue, whether the statement is verifiable, the general context of the
statement, and finally, the broader context in which the statement appeared.” Vail
v. Plain Dealer Publishing Co., 72 Ohio St.3d 279, 282, 649 N.E.2d 182 (1995).
a. Specific Language used
The specific language used bears repeating here:
We therefore must share with you that we have recently learned that
[Hersh] is alleged to have engaged in inappropriate behavior with
young men under the age of thirteen.
We understand that he is attempting to create a Boy Scout troop. We
are concerned that this is a potentially unhealthy and dangerous
situation.
We alert you to our concerns and warn you not to let young children be
in his care.
b. Verifiable
It is verifiable whether the Defendants’ “recently learned” of the
allegations against Hersh, particularly in light of Hersh’s allegation that the
Defendants acted with malice in publishing the Letter. It is also verifiable whether
the Defendants “understand that [Hersh] is attempting to create a Boy Scout troop.”
The speakers and authors of the Letter are leaders of the religious community to
which the statements were published, which adds a patina of credibility to their
words. What may be opinion within one circle becomes truth within another.
Subjective emotions are not verifiable. But, when the author indicates
the he has “private, first-hand knowledge which substantiates the
opinion he expresses, the opinion becomes as damaging as an assertion
of fact.”
“Liability for libel may attach when a negative characterization of a
person is coupled with a clear, but false implication that the author is
privy to facts about the person that are unknown to the general reader.”
What would otherwise likely be a nonverifiable opinion may be
considered a statement of fact due to the context of the statement and
the speaker-defamer’s position within a company or organization.
Dudee v. Philpot, 2019-Ohio-3939, 133 N.E.3d 590, ¶ 61-63, (1st Dist.), quoting
Stohlmann v. WJW TV, Inc., 8th Dist. Cuyahoga No. 86491, 2006-Ohio-6408 ¶ 27,
Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.1977), and Wayt v. DHSC,
L.L.C., 2017-Ohio-7734, 97 N.E.3d 903, ¶ 138 (5th Dist.)
c. General Context
Hersh alleges in the complaint that, reading the Letter as a whole as
we must, either: 1) the natural and ordinary meaning of the Letter is that Hersh is a
pedophile; or 2) the Letter by innuendo means that Hersh is a pedophile. In one of
the motions to dismiss, the respective defendants argue that “the only one who reads
any sort of sexual connotation into the letter is [Hersh].” This assertion is countered
by the various online articles posted as a result of the Letter with headlines such as
“Akiva Hersh of Cleveland a Sexual Predator?” As alleged in his complaint, Hersh
is not the only one who reads a sexual connotation into the Letter.
d. Broader Context
We find that the trial court erred by determining that the language
“attempting to create a Boy Scout troop” is “not material to the import of the letter.”
That statement includes assertions of verifiable facts that Hersh disputed in the
allegations in his complaint. Given the totality of the Letter, it appears potentially
to be designed to raise concerns about pedophilia, particularly in light of recent
widespread news coverage that the Boy Scouts of America “are covering up rampant
pedophilia within their ranks.” Zhao, Boy Scouts of America Are Covering Up a
‘Pedophilia Epidemic,’ 350 Alleged Abusers Have Been Named in Lawsuit,
Newsweek (Aug. 7, 2019). The connotation that the words “Boy Scouts” invokes in
the Letter is certainly material to Hersh’s claims.
Based on the pleadings, it was not proper for the trial court to
conclude as a matter of law that Hersh could not prevail on either of his defamation
claims based on opinion as a defense.
3. Not Defamatory
We recognize that actionable defamation falls into one of two
categories: defamation per se or defamation per quod. Hersh alleges both in his
complaint based on alternate theories of recovery. See Moore v. P.W. Publishing
Co., 3 Ohio St.2d 183, 187-188, 209 N.E.2d 412 (1965) (“It is apparent that the
validity of the plaintiff’s judgment depends upon two questions. One, are the words,
‘Uncle Tom,’ libel per se, and two, if such words are not libel per se are the words
libel per quod * * *.”).
The analysis of whether the statements were defamatory in nature
overlaps with our analysis of the general and broader context within which the Letter
was published. Although whether a statement is defamatory in nature may be
determined as a matter of law, “the trial court is directed to review the statement
under a totality of the circumstances. * * * [T]he statements at issue should be read
in the context of the entire article in determining whether a reader would interpret
them as defamatory.” Mendise v. Plain Dealer Publishing Co., 69 Ohio App.3d 721,
726, 591 N.E.2d 789 (8th Dist.1990).
Furthermore, it is long-standing law in Ohio that “in an action for libel
the question whether the publication complained of is libelous per se is primarily for
the court, and that it is error to submit to the jury the question whether the
publication is libelous per se, unless its meaning is so uncertain and ambiguous as
to require that the construction and meaning be submitted to a jury.” Becker v.
Toulmin, 165 Ohio St. 549, 554-555, 138 N.E.2d 391 (1956). The limited record in
this case is not developed enough to determine whether the Letter is defamatory per
se as a matter of law, and whether the Letter is defamatory per quod is a question
for the trier of fact.
The trial court erred by granting the Defendants’ motions based on
their defense that the statements were not defamatory.
4. Innocent Construction
The innocent construction rule provides that “if allegedly defamatory
words are susceptible to two meanings, one defamatory and one innocent, the
defamatory meaning should be rejected, and the innocent meaning adopted.”
Yeager v. Local Union 20, Teamsters, 6 Ohio St.3d 369, 372, 453 N.E.2d 666 (1983).
The innocent construction must be reasonable. Murray v. Knight-Ridder, Inc., 7th
Dist. Belmont No. 02BE45, 2004-Ohio-821.
In the case at hand, the trial court concluded that the “words in the
Letter, given their natural and obvious meaning, are reasonably interpreted to
import allegations of behavior that is nonsexual and lawful, but improper under the
circumstances.” That conclusion is not supported by the limited record we have
before us. The Letter imports allegations of “activities” that are unlawful, because
the police were alerted, and “potentially unhealthy and dangerous.” In the Letter,
the Defendants “warn you not to let young children be in [Hersh’s] care.” Assuming
these allegations are false, as we must when reviewing decisions made under
Civ.R. 12(B)(6) and (C), there is no innocent way to construe these statements.
The trial court erred by granting the Defendants’ motions based on
their defense of the innocent construction rule.
5. Qualified Privilege
The trial court also erred by determining that the qualified privilege
of common-interest applied.
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. This is
most obvious in the case of those who have entered upon or are
considering business dealings with one another.
Hahn v. Kotten, 43 Ohio St.2d 237, 244, 331 N.E.2d 713 (1975).
The Ohio Supreme Court has held that the qualified privilege is
designed to protect publications made in good faith; if a defamatory statement is
privileged, liability only attaches if actual malice is proven. Jacobs v. Frank, 60 Ohio
St.3d 111, 114, 573 N.E.2d 609 (1991). It is premature to make a determination
regarding the requisite degree of fault at this early stage of the proceedings. Hersh
alleged that the Defendants “acted with malice” and published the Letter in
retaliation against him for his opposition to certain “wrongdoings within the
Cleveland Orthodox Jewish community and assistance to Rabbi Zalman Gifter.” We
must accept these allegations as true when reviewing motions to dismiss and
motions for judgment on the pleadings.
In York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 145, 573
N.E.2d 1063 (1991), the court held that under Civ.R. 8,
a plaintiff is not required to prove his or her case at the pleading stage.
Very often, the evidence necessary for a plaintiff to prevail is not
obtained until the plaintiff is able to discover materials in the
defendant’s possession. If the plaintiff were required to prove his or
her case in the complaint, many valid claims would be dismissed
because of the plaintiff’s lack of access to relevant evidence.
Consequently, as long as there is a set of facts, consistent with the
plaintiff’s complaint, which would allow the plaintiff to recover, the
court may not grant a defendant’s motion to dismiss.
The trial court erred by applying the defense of qualified privilege to
bar Hersh’s defamation claims at this stage of the proceedings. Hersh’s first
assignment of error is sustained.
B. False Light
The Ohio Supreme Court has recognized false light as a cause of
action under the invasion-of-privacy umbrella. Welling v. Weinfeld, 113 Ohio St.3d
464, 2007-Ohio-2451, 866 N.E.2d 1051, ¶ 61.
In Ohio, one who gives publicity to a matter concerning another that
places the other before the public in a false light is subject to liability to
the other for invasion of his privacy if (a) the false light in which the
other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the other
would be placed.
Id.Based on our analysis of Hersh’s defamation claim, we conclude that
Hersh’s allegations, which we must accept as true at this stage of the proceedings,
support a claim for false light. Hersh’s complaint alleges that the Defendants made
the statements in question “to almost the entire Cleveland Orthodox Jewish
community,” that these statements “placed [him] * * * in a false light,” and that the
Defendants “acted with reckless disregard to the falsity of the publicized matter
* * *.” Falsely accusing someone of inappropriate conduct with children, let alone
being a pedophile, whether expressly or by innuendo, “would be highly offensive to
a reasonable person.” The court erred by granting the Defendants’ motions as to
Hersh’s false light claim, and his second assignment of error is sustained.
C. Intentional Infliction of Emotional Distress
In Lombardo v. Mahoney, 8th Dist. Cuyahoga No. 92608, 2009-
Ohio-5826, ¶ 6, this court held:
To establish a claim for intentional infliction of emotional distress, a
plaintiff must prove the following elements: (1) the defendant intended
to cause, or knew or should have known that his actions would result
in serious emotional distress; (2) the defendant’s conduct was so
extreme and outrageous that it went beyond all possible bounds of
decency and can be considered completely intolerable in a civilized
community; (3) the defendant’s actions proximately caused
psychological injury to the plaintiff; and (4) the plaintiff suffered
serious mental anguish of a nature no reasonable person could be
expected to endure.
In the instant case, Hersh alleged that Defendants, by writing and
publishing the Letter, intended “to ruin [his] reputation in the community * * *
without any reasonable basis for believing [the statements] to be true.” He also
alleged that the Defendants’ conduct was intentional, was “extreme and
outrageous,” and caused him “severe emotional distress.” As stated in our analysis
of Hersh’s defamation claim, falsely alleging that someone is a pedophile and
making this statement with a certain degree of fault regarding the truth of the
matter, is defamatory per se. Accepting all factual allegations in Hersh’s complaint
as true, as we must at this stage of the proceedings, we find that Hersh could prove
all of the elements of intentional infliction of emotional distress. Accordingly, the
trial court erred by granting Defendants’ motions on this claim, and Hersh’s third
assignment of error is sustained.
D. Negligent Infliction of Emotional Distress
While not challenged on appeal by Hersh, we note that the trial court
did not err in granting Defendants’ motions to dismiss and motions for judgment on
the pleadings regarding Hersh’s claim for negligent infliction of emotional distress.
IV. Conclusion
The trial court erred by granting the Defendants’ motions to dismiss
under Civ.R. 12(B)(6) and motions for judgment on the pleadings under Civ.R. 12(C)
on Hersh’s claims for defamation per se, defamation per quod, false light, and
intentional infliction of emotional distress. These rulings are reversed, because
Hersh successfully pled these four claims.
Judgment reversed. Case remanded to the trial court for proceedings
consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry out this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
SEAN C. GALLAGHER, P.J., DISSENTS WITH SEPARATE OPINION
SEAN C. GALLAGHER, P.J., DISSENTING:
Although I agree with the majority’s conclusion with respect to the
existence of error, I disagree with the majority’s approach of limiting the standard
of review to Civ.R. 12(B)(6). I, therefore, respectfully dissent.
I. Standard of Review
The procedural posture of this case goes beyond that standard of
review for a motion to dismiss. Based on the arguments advanced by the
defendants, the trial court concluded as a matter of law after considering evidence
beyond the pleadings that the defendants’ statements were ones of opinion and
factually true or that the defendants were entitled to a qualified privilege to
disseminate the disputed statements to the public at large. As detailed below, I
would find those conclusions to be legally erroneous because there are genuine
issues of material fact precluding the judgment entered by the trial court.
The standard of review in this case is derived from Civ.R. 56, not
Civ.R. 12. On this point, the majority concludes that because the motions filed by
the defendants that gave rise to the summary disposition were captioned as motions
to dismiss, and because the trial court cited Civ.R. 12(B) as its foundational
standard, then we are bound to solely view this case in a limited scope. Tellingly,
none of the parties have asked this court to limit our review so narrowly. “It is
essential for a reviewing court to ascertain the grounds upon which a judgment of a
lower court is founded, the reviewing court must examine the entire journal entry
and the proceedings.” (Emphasis added.) Joyce v. Gen. Motors Corp., 49 Ohio
St.3d 93, 95, 551 N.E.2d 172 (1990), citing A.B. Jac, Inc. v. Liquor Control Comm.,
29 Ohio St.2d 139, 280 N.E. 2d 371 (1972), paragraph two of the syllabus. A court
speaks through its “entire journal entry.” Id., citing A.B. Jac, Inc. at 142. In this
case, the trial court’s judgment entry was not based on the Civ.R. 12 standard.
In Joyce, for example, the defendants moved for dismissal of the
complaint under Civ.R. 12(B)(6), claiming that the plaintiffs failed to present any
cognizable claim. Id. at syllabus. The trial court overruled the preliminary motion,
but at trial upon a motion for directed verdict determined, after considering the
evidence presented, that no cause of action existed. Id. The appellate court
reversed, claiming that the complaint stated a claim for relief, construing the trial
court’s decision under Civ.R. 12(B)(6) instead of under the summary proceedings of
a directed verdict motion. Id. at 173. Joyce looked beyond the isolated statement of
the trial court and considered the totality of the proceedings to conclude that the
proper standard was under Civ.R. 50, the direct verdict standard, which incidentally
is identical to the standard under Civ.R. 56. Id. As the court noted, the difference
between a Rule 12(B)(6) motion and a directed verdict is procedural: the Rule 12
motion is a preliminary ruling before evidence is introduced while the directed
verdict motion is “made and decided on the evidence that has been admitted.” Id.In this case, the trial court reviewed the extraneous evidence and
entered judgment as a matter of law upon all claims — a conclusion reached through
Civ.R. 56. Although it is true the defendants captioned their motions as motions to
dismiss, courts in Ohio generally look to the substance of the pleading or motion,
not the captions. Briggs v. Wilcox, 2013-Ohio-1541, 991 N.E.2d 262, ¶ 37 (8th
Dist.); Engelhart v. Bluett, 1st Dist. Hamilton No. C-160189, 2016-Ohio-7237, ¶ 12;
Auer v. Paliath, 2d Dist. Montgomery No. 27004, 2016-Ohio-5353, ¶ 43; Shelton v.
LTC Mgt. Servs., 4th Dist. Highland No. 03CA10, 2004-Ohio-507, ¶ 7; Davis v.
Johnson, 6th Dist. Lucas No. L-19-1268, 2021-Ohio-85, ¶ 25. Despite the fact that
the defendants captioned their motions as ones to dismiss under Civ.R. 12, the trial
court considered the evidence and rendered judgment as a matter of law. There is a
stark difference between a dismissal and entering a summary judgment.
A “‘motion to dismiss for failure to state a claim upon which relief can
be granted is procedural and tests the sufficiency of the complaint.’” State ex rel.
Belle Tire Distribs. v. Indus. Comm. of Ohio, 154 Ohio St.3d 488, 2018-Ohio-2122,
116 N.E.3d 102, ¶ 17, quoting State ex rel. Hanson, 65 Ohio St.3d at 548, 605 N.E.2d
378. A court may grant a Civ.R. 12(B)(6) motion to dismiss “only when the
complaint, when construed in the light most favorable to the plaintiff and presuming
all the factual allegations in the complaint are true, demonstrates that the plaintiff
can prove no set of facts entitling him to relief.” Id., citing Mitchell v. Lawson Milk
Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). That standard is
straightforward and stands in contrast to the standard of review under Civ.R. 56 in
which a judgment shall be rendered if the defendants “show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” (Emphasis added.) Id.; see majority opinion ¶ 29 (recognizing the
trial court’s disposition in which it was concluded that the defendants were entitled
to judgment as a matter of law).
Throughout this appeal, the defendants seek an affirmance of the trial
court’s conclusion that they are entitled to judgment as a matter of law based on the
consideration of evidence outside the pleadings. State ex rel. V Cos. v. Marshall, 81
Ohio St.3d 467, 471, 1998-Ohio-329, 692 N.E.2d 198 (parties may not take
advantage of the procedural errors they induced the court to take, and it was not
reversible error for the trial court to treat the motions to dismiss as ones for
summary judgment without providing the parties notice since the summary
judgment was induced by the plaintiff seeking to overturn the summary
disposition). The trial court unambiguously granted judgment as a matter of law in
favor of the defendants upon all claims after expressly considering the extraneous
evidence. See generally Civ.R. 56. The trial court’s judgment is the typical
disposition under Civ.R. 56, highlighting the need to review the substance of the trial
court’s decision instead of limiting our appellate analysis solely based on the
captioning of the defendants’ motions. Joyce, 49 Ohio St.3d, 551 N.E.2d 172, at
paragraph one of the syllabus. This point is further punctuated by the fact that the
trial court’s citations in support of its lengthy judgment entry primarily focused on
cases resolving motions for summary judgment, highlighting the standard under
which the court was actually operating: Jackson v. Columbus, 117 Ohio St.3d 328,
2008-Ohio-1041, 883 N.E.2d 1060, ¶ 11; Cooper School of Art v. Plain Dealer
Publishing Co., 8th Dist. Cuyahoga No. 50569, 1986 Ohio App. LEXIS 6698, at 14
(May 8, 1986); Krems, 133 Ohio App.3d at 10, 726 N.E.2d 1016; Stohlmann, 8th
Dist. Cuyahoga No. 86491, 2006-Ohio-6408, at ¶ 1; Wampler v. Higgins, 93 Ohio
St.3d 111, 113, 2001-Ohio-1293, 752 N.E.2d 962; Sikora v. Plain Dealer Publishing
Co., 8th Dist. Cuyahoga No. 81465, 2003-Ohio-3218, ¶ 13; Murray v. Chagrin
Valley Publishing Co., 2014-Ohio-5442, 25 N.E.3d 1111, ¶ 5 (8th Dist.); and Sabino
v. WOIO, L.L.C., 2016-Ohio-491, 56 N.E.3d 368, ¶ 1 (8th Dist.).
At best, the trial court muddled the standard as between the motion
to dismiss and the motion for summary judgment, but that confusion should not
impact our review after consideration of the totality of the judgment entry and the
proceedings. Joyce, 49 Ohio St.3d at 95, 551 N.E.2d 172. And although it is error to
consider extraneous evidence under Civ.R. 12(B)(6), the mere fact that extraneous
evidence was submitted does not end or bind the appellate analysis. See, e.g., Mang
Hung Wong v. CCH Dev. Corp., 8th Dist. Cuyahoga No. 109472, 2021-Ohio-1099,
¶ 13 (although the extraneous evidence was presented in the motion to dismiss, the
trial court did not consider the evidence and therefore the standard of review was
derived from Civ.R. 12(B)(6)).
More important, the fact that the trial court considered the evidence
outside the pleadings or acted upon a motion to dismiss under Civ.R. 12 is not the
error Hersh is asking us to correct. In Hersh’s assigned errors, he claims the trial
court erred in granting judgment as a matter of law because, even if we construe the
evidence outside the pleadings, the defendants are not entitled to truth as a defense
to the defamation claims, the publication is not constitutionally protected opinion,
the publication is defamatory per se and per quod, and the publication is not a
privileged communication. None of those substantive conclusions can occur under
Civ.R. 12(B)(6), which is solely limited to determining whether a claim was
sufficiently pleaded. And this distinction has ramifications for the future of this
case.
The defendants universally sought a quick exit to this litigation by
filing documentary evidence for the trial court’s consideration under the guise of
Civ.R. 12. Upon the defendants’ requests, the trial court considered the evidence
and granted summary judgment, and in the process made several legal and factual
conclusions not addressed by the majority’s limited review. The majority’s approach
of limiting the analysis to the motion to dismiss standard permits the defendants to
correct the procedural deficiency, recaption their motions, and attempt a second
summary attack on the proceeding, advancing the same arguments squarely before
this court. The trial court has already ruled on those issues in their favor, so it defies
credulity to believe a different result will occur upon remand. These same issues will
arise again necessitating a second appeal at the expense of time and judicial
resources. It is not an appellate court’s responsibility to save defendants from their
all-or-nothing trial tactics. We review the issues as presented and considered by the
trial court. We must look beyond the captions of the motions.
It is well settled under Ohio law that when a motion to dismiss for
failure to state a claim for relief relies on matters outside the pleadings, the motion
must be treated as a motion for summary judgment. Soliel Tans, L.L.C. v. Timber
Bentley Coe, L.L.C., 8th Dist. Cuyahoga No. 108125, 2019-Ohio-4889, ¶ 22, citing
Sciko v. Cleveland Elec. Illum. Co., 83 Ohio App.3d 660, 663, 615 N.E.2d 674 (8th
Dist.1992), Park v. Acierno, 160 Ohio App.3d 117, 2005-Ohio-1332, 826 N.E.2d 324(7th Dist.), and Petrey v. Simon, 4 Ohio St.3d 154, 156, 447 N.E.2d 1285 (1983).
Summary judgment under Civ.R. 56(C) is appropriate only when “[1] no genuine
issue of material fact remains to be litigated, [2] the moving party is entitled to
judgment as a matter of law, and [3] viewing the evidence in the light most favorable
to the nonmoving party, reasonable minds can reach a conclusion only in favor of
the moving party.” Id., citing M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-
Ohio-5336, 979 N.E.2d 1261, ¶ 12. Once the moving party has satisfied its initial
burden of identifying specific facts in the record that demonstrate an entitlement to
summary judgment under Civ.R. 56, the nonmoving party has a reciprocal burden
to set forth specific facts showing there is a genuine issue for trial. Crenshaw v.
Cleveland Law Dept., 8th Dist. Cuyahoga No. 108519, 2020-Ohio-921, ¶ 33, citing
Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.
I would sustain Hersh’s assigned errors as presented and conclude
that the trial court erred because the evidence presented does not demonstrate that
the defendants are entitled to a judgment as a matter of law based on the undisputed
facts presented in their respective motions.
II. Analysis
Defamation is the publication of a false statement “made with some
degree of fault, reflecting injuriously on a person’s reputation, or exposing a person
to public hatred, contempt, ridicule, shame or disgrace, or affecting a person
adversely in his or her trade, business or profession.” Jackson, 117 Ohio St.3d 328,
2008-Ohio-1041, 883 N.E.2d 1060, at ¶ 9, citing A & B-Abell Elevator Co. v.
Columbus/Cent. Ohio Bldg. & Const. Trades Council, 73 Ohio St.3d 1, 7, 651 N.E.2d
1283 (1995); and Hahn v. Kotten, 43 Ohio St.2d 237, 243, 331 N.E.2d 713 (1975). In
order to establish a prima facie claim for defamation, “‘the plaintiff must show (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, 978 N.E.2d 832, ¶ 77, quoting Pollock, 117 Ohio App.3d
at 368, 690 N.E.2d 903. “‘In determining whether a statement is defamatory as a
matter of law, a court must review the totality of the circumstances’ and by ‘reading
the statement in the context of the entire publication to determine whether a
reasonable reader would interpret it as defamatory.’” Id., quoting Mann v.
Cincinnati Enquirer, 1st Dist. Hamilton No. C-09074, 2010-Ohio-3963, ¶ 12, citing
Scott v. News-Herald, 25 Ohio St.3d 243, 253, 496 N.E.2d 699 (1986), and Mendise,
69 Ohio App.3d at 726, 591 N.E.2d 789. Importantly, the individual statements
within the publication “‘should not be considered in isolation, but rather within the
context of the entire publication and the thoughts that the publication through its
structural implications and connotations is calculated to convey to the reader to
whom it is addressed.’” Id., quoting Connaughton v. Harte Hanks
Communications, Inc., 842 F.2d 825, 840 (6th Cir.1988), aff'd, 491 U.S. 657, 109
S.Ct. 2678, 105 L.Ed.2d 562 (1989); Stohlmann, 8th Dist. Cuyahoga No. 86491,
2006-Ohio-6408, at ¶ 4, fn. 1.
a. Truth as a Defense
In this case, the defendants claim that the individual statements
within the publication are substantially true, negating the first element of
defamation, the falsity of the statement issued. In reaching this conclusion,
however, the defendants separate the individual statements instead of seeking
review of the totality of the statements within the publication. The publication
contains several statements:
As Rabbonim in the community, we have a responsibility to protect all
our members.
We therefore must share with you that we have recently learned that
[Hersh], is alleged to have engaged in inappropriate behavior with
young men under the age of thirteen.
We have also learned that police reports have been filed detailing his
activities.
We understand that he is attempting to create a Boy Scout troop. We
are concerned that this is a potentially unhealthy and dangerous
situation.
We alert you to our concerns and warn you not to let young children be
in his care.
According to the defendants, the second two statements are substantially true
because two police reports supposedly detailing “inappropriate behavior with young
men under the age of thirteen” were filed and the defendants merely reported that
fact. The defendants then claim that their conclusion as to Hersh being a danger to
the health and safety of children under the age of thirteen is constitutionally
protected opinion.
Those individual statements within the publication cannot be read in
isolation. Each statement within the publication builds upon the former to convey
to the reader that Hersh has engaged in inappropriate behavior with “young men”
under the age of thirteen of such an illegal or illicit manner as to support the
defendants’ conclusion that Hersh posed a danger to the health and safety of
children in general.
Further of importance, the defendants presume that their statement
regarding Hersh engaging in inappropriate conduct with young men under the age
of thirteen is factually true based on the content of the police reports. Even if the
hearsay within the police reports was considered, those reports themselves do not
support the statement that Hersh was alleged to have engaged in inappropriate
behavior with “young men” under the age of thirteen to the objective observer,
especially in consideration of the defendants’ claim that Hersh’s danger to the
children is predicated on the “inappropriate behavior” detailed in the police reports.
It is true that “[w]hile a plaintiff must prove falsity, a publisher may defend the
allegedly defamatory statement by showing that ‘the imputation is substantially
true, or as it is often put, to justify the “gist,” the “sting,” or the substantial truth of
the defamation.’” Stohlmann, 8th Dist. Cuyahoga No. 86491, 2006-Ohio-6408, at
¶ 12, quoting Natl. Medic Servs. Corp. v. E.W. Scripps Co., 61 Ohio App.3d 752, 755,
573 N.E.2d 1148 (1st Dist.1989), and Prosser, Law of Torts (4 Ed. 1971) 798-799.
Neither of the reports, however, contained allegations setting forth
any behavior supporting the statement that “Hersh is alleged to have engaged in
inappropriate behavior with young men under the age of thirteen,” to the extent that
such a claim would support the conclusion that Hersh poses a danger to children.
In the first police report, the complainant claimed that an unidentified person told
him that Hersh was seen “suspiciously” holding the complainant’s child’s hand and
that the complainant suspected that Hersh had provided the child a cell phone that
was inoperable at the time it was discovered and had been disposed of before the
police report was filed. Both incidents occurred sometime over the previous “couple
of years.” The second police report contained an allegation that Hersh spoke with
that complainant’s child approximately a month before the police report was filed.
Hersh had been watching the complainant’s children at the time and offered to take
one of the children to see the Alamo and other historic sites without his parents.
Hersh is alleged to have told the child that he would ask the child’s parents for
permission for such a trip and provide the funding. It was also claimed that Hersh
showed the child firearms while the child was in Hersh’s home at some undisclosed
point in time. From the general tenor of the reporting, the complainant was on good
terms with Hersh and allowed her children to be under his care until the Alamo
conversation. The second complainant was urged by one of the defendants to file
the police report but declined to make the child available to the authorities for
further investigation.
Both police reports contained statements to the effect that the
complainants heard through their respective communities that there were concerns
with Hersh’s behavior toward children, although such comments remain largely
speculative and the underlying factual bases unverified. Importantly, none of the
allegations set forth in the police reports appear to be criminal or sexually motivated
in nature. Thus, the allegations in the police reports, one being based on conduct
that allegedly occurred two years earlier, detail rather benign stories in relative
terms and nothing criminally actionable. Those details do not support the
defendants’ conclusion that Hersh poses a danger to the health and safety of
children as a matter of law for the purposes of demonstrating the absence of genuine
issues of material fact as to the falsity of the publication.
Inasmuch as the defendants claim that “inappropriate behavior” does
not necessarily mean sexually or criminally inappropriate behavior and therefore
the publication was capable of being innocently construed, the defendants ensured
that deviant connotation by referencing Hersh’s alleged desire to create a Boy Scout
troop, which the defendants claim to be an “unhealthy and dangerous situation” and
by continuing to warn the community of the danger that Hersh poses to children.
Such a loaded claim is neither innocuous nor innocent in common usage.
The defendants have made no attempt to prove the veracity of their
claim regarding the creation of the organization; however, that statement cannot be
deemed irrelevant to the publication in its entirety. As the majority alludes to, it is
widely known that the Boy Scout organization has faced damning criticism for
widespread allegations of sexual abuse. Mike Baker, Sex-Abuse Claims Against Boy
Scouts Now Surpass 82,000, Nov. 15, 2020, New York Times, available at
https://web.archive.org/web/20210104114933/https://www.nytimes.com/2020/
11/15/us/boy-scouts-abuse-claims-bankruptcy.html (accessed June 7, 2021). The
defendants’ statement regarding Hersh’s alleged desire to start a Boy Scout troop
cannot be brushed aside as irrelevant in light of the context within which the
publication in its entirety was made — to fulfill the defendants’ obligation to protect
the community from the dangers that Hersh allegedly posed to children.
In order to prove the truth of the alleged defamatory statement in this
case, the defendants would need evidence demonstrating to the objective listener or
reader that their statement that Hersh engaged in inappropriate conduct with
“young men” under the age of thirteen was conduct that actually posed a danger or
was otherwise unhealthy to children. It is not enough to claim that the police reports
were filed. Had the defendants limited their statement to the solitary fact of the
police reports being filed, this would be a different matter. The fact that the
defendants coupled the police reports and the alleged intention to commission a Boy
Scout troop with their conclusion that Hersh poses a danger to the health and safety
of children alters the overall connotation of the publication such that the defendants
are implying knowledge of deviant facts to support their conclusion as to Hersh’s
propensity to commit inappropriate acts that pose a danger to children.
In order to prove that the statements within the publication are
substantially true, the defendants must demonstrate facts upon which it could be
concluded that Hersh poses a danger to the health and safety of children, not just
that two police reports detailing noncriminal and nonsexually related conduct were
filed detailing what the defendants subjectively claim to be “inappropriate behavior
with young men under the age of 13.” This is especially evident given the “echo
chamber” created by one of the defendants urging the second complainant to file the
police report upon which the truth-of-publication defense is based.
As a result, I would conclude that the defendants have not
demonstrated the truth of the publication as a matter of law that would entitle them
to judgment upon all claims in the summary proceedings. Accordingly, I would
conclude that there are genuine issues of material fact as to whether the statements
within the publication are false.
b. Fact or Opinion
In determining whether an alleged defamatory statement is fact or
opinion, courts review the totality of the circumstances in which the publication
occurs considering four factors: the specific language used; whether the statement
is verifiable; the general context of the statement; and the broader context in which
the statement appeared. Vail, 72 Ohio St.3d at 282, 1995-Ohio-187, 649 N.E.2d 182.
All four factors are objective in nature. Wampler, 93 Ohio St.3d 111, 131, 2001-Ohio-
1293, 752 N.E.2d 962. “Each of the four factors should be addressed, but the weight
given to any one will conceivably vary depending on the circumstances presented.”
Vail at 282. If the publication implies that the defendant has “first-hand knowledge
that substantiates the opinions he asserts,” it is more likely that the statement is one
of fact and not opinion. Id. at 283. “[W]hether a statement is fact or opinion is a
question of law to be determined by the court.” Sikora, 8th Dist. Cuyahoga No.
81465, 2003-Ohio-3218, ¶ 16, citing Wampler at 126, and Scott, 25 Ohio St.3d 243,
496 N.E.2d 699 (1986).
The defendants in this case implied firsthand knowledge of facts
substantiating the asserted opinion. The publication was issued from leaders within
the religious community for the express purpose of fulfilling their obligation “to
protect all our members.” The very purpose of the publication was to inform the
community of a specific danger; in other words, the publication implied knowledge
of facts that substantiated the opinion that Hersh represented a danger to the health
and safety of the young children in the community. That statement is verifiable but
not with the allegations advanced in the police reports. See, e.g., Stohlmann, 8th
Dist. Cuyahoga No. 86491, 2006-Ohio-6408, at ¶ 12. In Stohlmann, a five-month-
old child had died under the care of a plaintiff’s at-home daycare. Id. at ¶ 2. The
cause of death was unknown, but the plaintiff was nonetheless indicted with
multiple counts of child endangerment, tampering with evidence, and falsification.
Id. Given the subject matter, the events gave rise to news coverage in which one
organization claimed that the plaintiff had admitted her role in the child’s death,
that prosecutors claimed the plaintiff had abused two other children, and
interviewed parents involved who voiced their extreme, and justifiable, displeasure
with the plaintiff’s conduct. Id. The news reported several objective facts regarding
the underlying incident and guilty plea, and then provided a podium upon which the
parents of the deceased child could speak. Id. The panel found relevant the fact that
the news organizations limited their statements to facts gleaned from the police
reporting and the ensuing criminal action, and the publication of the parents’
statements were opinions, in large part based on the fact that the parents’
statements were tempered with opinionated prefixes such as “I think” or “I feel” but
related to verifiable facts, but that the objective reporting of what had occurred was
based on the factual foundation. Id. at ¶ 29-33.
In this case, the defendants prefaced the publication with an express
statement of fulfilling their duty to protect the community but did not limit
themselves to reporting the fact of the allegations in the police report. The facts
underlying the claim that Hersh poses a danger to children are verifiable, and any
warning was expressed in the context of moral and institutional leaders taking
action to prevent harm. Dudee, 2019-Ohio-3939, 133 N.E.3d 590, at ¶ 62, quoting
Hotchner, 551 F.2d at 913 (2d Cir.1977), and Wayt, 2017-Ohio-7734, 97 N.E.3d 903,
at ¶ 138 (5th Dist.) (defamation may be proven through a negative characterization
of a person coupled with a distinct but false implication that the author is privy to
facts about the person that are unknown to the reader, especially the speaker’s
position of authority). The police reports themselves do not provide undisputed
evidence that Hersh poses a danger to anyone. The publication in this case is not
merely offered as an opinion, one that can be taken or left alone, but rather is a call
to action to actively avoid Hersh based on the defendants’ implied knowledge of a
verifiable fact — that the allegations of Hersh engaging in inappropriate behaviors
with young men under the age of thirteen posed a danger to the children.
I would conclude that the publication as a whole does not constitute
constitutionally protected opinion, but instead implies knowledge of verifiable facts
that support the defendants’ conclusion that Hersh poses a danger to children.1
c. Qualified Privilege as Affirmative Defense
In Ohio, if a plaintiff establishes a prima facie case of defamation, the
defendant may invoke a qualified privilege. Jackson, 117 Ohio St.3d 328, 2008-
Ohio-1041, 883 N.E.2d 1060, at ¶ 9, citing A & B-Abell Elevator Co., 73 Ohio St.3d
at 1, 7, 651 N.E.2d 1283, and Hahn, 43 Ohio St.2d at 246, 331 N.E.2d 713. In order
to demonstrate the qualified privilege to utter a defamatory statement, the
defendant must demonstrate “‘good faith, an interest to be upheld, a statement
limited in its scope to this purpose, a proper occasion, and publication in a proper
manner and to proper parties only.’” (Emphasis added.) Id., quoting Hahn at 246.
If a qualified privilege is established, the plaintiff must demonstrate actual malice.
Id., citing Jacobs, 60 Ohio St.3d 111, 573 N.E.2d 609, at paragraph two of the
1Hersh included a claim for defamation per se and per quod. In the former,
damages are presumed while the latter requires allegations of special damages. Rosado-
Rodriquez v. Nemenz Lincoln Knolls Mkt., 7th Dist. Mahoning No. 19 MA 0098, 2020-
Ohio-4814, ¶ 20, quoting Hampton v. Dispatch Printing Co., 10th Dist. Franklin No.
87AP-1084, 1988 Ohio App. LEXIS 3757, 2 (Sept. 13, 1988); Dudee at ¶ 72. The trial court,
conceding the issue was not raised by the defendants in their motions, sua sponte
concluded that Hersh failed to plead special damages as it pertains to the defamation per
quod claim. No court should decide cases on the basis of an unbriefed issue without
providing the party opposing the motion notice of the court’s intention and an
opportunity to brief the issue first identified by the trial court. See, e.g., State v. Tate, 140
Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21, quoting State v. 1981 Dodge Ram
Van, 36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988). As is relevant to this appeal, the
defendants have not provided any arguments in support of the trial court’s conclusion
with respect to the specificity of the pleadings. App.R. 16(A)(7). We accordingly should
not consider the special-damages issues in this appeal.
syllabus. “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.” Id., citing Jacobs at paragraph two of the syllabus.
The defendants failed to produce any evidence demonstrating the
essential elements of the affirmative defense of qualified privilege. The defendants
claimed in their motions to dismiss to have had a good faith belief in uttering the
defamatory statement regarding a common interest to be upheld that was limited in
its scope and issued only on a proper occasion. There is no evidence in the record
substantiating the defendants’ belief in light of the procedural posture of this case.
But more important, the publication was widely disseminated to all members of the
religious community, including being posted in communal spaces, sent to a news
organization, and used in publicly accessible blogs postings. Mosley v. Evans, 90
Ohio App.3d 633, 637, 630 N.E.2d 75 (11th Dist.1993) (at trial defendants
demonstrated the applicability of qualified privilege affirmative defense and in
particular demonstrated that the statements were published exclusively to other
members of the church).
Although the defendants’ stature and position of authority in the
religious community may be a basis to assert qualified privilege, the defense is not
so broad as to permit wholesale dissemination of defamatory statements to those
that do not share the common interest. For example, in McCartney v. Oblates of
St. Francis deSales, 80 Ohio App.3d 345, 356, 609 N.E.2d 216 (6th Dist.1992), it
was concluded that an educator’s statements to parents of a child who had been
interacting with the plaintiff fell under qualified privilege in light of the educator’s
and parents’ shared interest in “the training, morality and well-being of the children
in their care.” The important distinction is that the privilege was limited as between
the specific parents of the child who interacted with the plaintiff and the educator.
The facts of McCartney are distinguishable from the allegations
advanced in this case in which the defendants widely distributed the publication
regardless of any shared interest between the religious leader and the parents of the
affected children. There is no factual basis to conclude that the publication was
made available only to those with a common interest to protect children. As the trial
court concluded, the publication “was read aloud during faith services and made
viewable in written form at synagogues” irrespective of whether the entire
congregation had children under the age of thirteen in their homes. Further, the
posting of the publication on a bulletin board left the publication open to inspection
and public dissemination. Since it was widely disseminated to several congregations
regardless of whether the recipient of the information had children under the age of
thirteen, or even knew Hersh, and was disseminated to the public beyond the
congregations, it cannot be concluded that the defendants are entitled to judgment
as a matter of law. At the least, I would conclude that there are genuine issues of
material fact in need of resolution with respect to the applicability of the qualified
privilege defense.
d. False Light and Infliction of Emotional Distress Claims
The trial court further granted judgment upon the false light and
intentional or negligent infliction of emotional distress claims that must briefly be
addressed. As the trial court concluded,
To establish false light invasion of privacy, a plaintiff must show: (1) the
defendant gave publicity to a private matter concerning the plaintiff (2)
the publicity placed the plaintiff in a false light; (3) the false light would
be highly offensive to a reasonable person; and (4) the defendant had
knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the plaintiff would be
placed. See Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451,
866N.E.2d 1051, syllabus.
To be actionable false light, “the statement made must be untrue.” Id.
at 471; see also Murray v. Chagrin Valley Publishing Co., 2014-Ohio-
5442, 25 N.E.3d 1111, 51 38 (8th Dist.) (finding there must be
untruthful statements commenting on private matters to be actionable
false light); see also Restatement of the Law 2d, Torts, Section 652E,
Comment c.
The defendants argue that the false light claims fail as a matter of law based on the
truth of the publication or, in the alternative, because the publication is a
constitutionally protected opinion. The judgment entered in favor of the defendants
should be declared to be in error in light of my earlier analysis.
III. Conclusion
Finally, it must be noted that the majority’s conclusion that the police
reports should not be considered as being outside the scope of Civ.R. 56(C) or that
the plaintiff was deprived of an opportunity to present his own evidence are not
issues preserved for our review and should not guide it. App.R. 16(A)(7). Even if
the court treated the defendants’ motions as ones for summary judgment, the
defendants were provided the opportunity to present the factual backgrounds of
their respective positions, and Hersh did not object to the failure of the defendants
to properly submit the police reports considered as extraneous evidence by the trial
court. LTF 55 Properties v. Charter Oak Fire Ins. Co., 8th Dist. Cuyahoga No.
108956, 2020-Ohio-4294, ¶ 34 (the failure to otherwise object to improperly
admitted evidence submitted by a party in consideration of a motion for summary
judgment waives any error in considering that evidence under Civ.R. 56(C)), quoting
Citizens Bank, N.A. v. Richer, 8th Dist. Cuyahoga No. 107744, 2019-Ohio-2740,
¶ 32, and Stegawski v. Cleveland Anesthesia Group, Inc., 37 Ohio App.3d 78, 83,
523 N.E.2d 902 (8th Dist.1987). In fact, Hersh has never contended that he was
deprived of the opportunity to present evidence that would have defeated the
defendants’ motions. Instead, Hersh presented legal arguments demonstrating the
viability of his claims as a matter of law even when construing the extraneous
evidence presented by the defendants.
Since the trial court considered evidence outside of what was properly
attached to the pleadings and primarily relied on cases resolving defamation claims
upon summary judgment, the trial court’s decision must be construed under the
Civ.R. 56 evidentiary standards. Civ.R. 12(B); Soliel Tans, 8th Dist.
Cuyahoga No. 108125, 2019-Ohio-4889, at ¶ 22. The trial court entered final
judgment in favor of the defendants upon all claims as a matter of law after expressly
considering the pleadings and evidentiary materials supplied by the defendants.
Civ.R. 56(C). Had the defendants thought the trial court overstepped the bounds of
review, they could have sought an alternative ruling by asking this court to review
the matter only under Civ.R. 12(B)(6) and have the case remanded to fix their
procedural deficiencies — although such a claim should be overruled as harmless
error in light of the fact that the defendants induced the court into considering
evidence outside the pleadings in rendering its legal conclusions. Marshall, 81 Ohio
St.3d at 471, 1998-Ohio-329, 692 N.E.2d 198.
This distinction in the standard of review weighs heavy on the case.
The majority claims that the trial court erred by considering the extraneous
evidence, and essentially ends its analysis there providing relief to the parties not
actually sought, but remanding without rendering any decisions on the legal
conclusions that are reviewed as a matter of law. In essence, the defendants will get
a second bite at the same apple of claiming entitlement to a judgment as a matter of
law after fixing the procedural deficiencies identified by the majority — potentially
delaying resolution of the matter squarely before us for a considerable period of time
based on the very error that the defendants induced the trial court into making in
the first place.
I would address the arguments as presented under Civ.R 56 as the
trial court resolved the matter and the parties framed the issue and conclude that
the defendants are not entitled to judgment as a matter of law. Such a ruling would
not only enable Hersh to conduct discovery but it would grant Hersh the relief
requested: that the defendants’ defenses at this point require resolution by the trier
of fact and not through a summary disposition. For the foregoing reasons, I
respectfully dissent.