M.J. DiCorpo, Inc. v. Sweeney

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M.J. DiCorpo, Inc., d.b.a. Gupta, DiCorpo & Dykman, et al.,

Appellees and Cross-Appellants, v. Sweeney et al., Appellants

and Cross-Appellees.

[Cite as M.J. DiCorpo, Inc. v. Sweeney (1994), Ohio

St.3d .]

---

An affidavit, statement or other information provided to a

prosecuting attorney, reporting the actual or possible

commission of a crime, is part of a judicial proceeding.

The informant is entitled to an absolute privilege against

civil liability for statements made which bear some

reasonable relation to the activity reported.

---

(No. 93-186 -- Submitted April 19, 1994 -- Decided June 29,

1994.)

Appeal and Cross-Appeal from the Court of Appeals for

Cuyahoga County, No. 61017.

Attorney Robert E. Sweeney, appellant and cross-appellee,

is the sole shareholder of appellant and cross-appellee Robert

E. Sweeney & Associates Co., L.P.A. ("RESCO"), an Ohio legal

professional association. Michael J. DiCorpo, appellee and

cross-appellant, is the sole owner of appellee and

cross-appellant M.J. DiCorpo, Inc., d.b.a. Gupta, DiCorpo &

Dykman ("Gupta-DiCorpo"), a professional consulting firm. In

January 1988, RESCO hired Gupta-DiCorpo to serve as consultant

to the law firm. From January 1988 to November 1989,

Gupta-DiCorpo and Michael J. DiCorpo performed services for

RESCO at agreed-upon hourly rates. Gupta-DiCorpo submitted

monthly invoices to RESCO for the services performed by the

consulting firm. All services were billed at the applicable

hourly rate. It appears RESCO paid the monthly billing

invoices through September 1989.

During the summer of 1989, RESCO and another Cleveland-area

law firm, Climaco, Climaco, Seminatore, Lefkowitz & Garofoli

Co., L.P.A. ("CCSL&G"), jointly retained Gupta-DiCorpo to

negotiate and arrange a merger of RESCO and CCSL&G. In October

1989, Michael J. DiCorpo, acting on behalf of Gupta-DiCorpo,

prepared a one and one-half page "letter of intent" (and,

later, a one page addendum) setting forth some of the basic

terms and conditions of the proposed merger. On or before

November 1, 1989, the letter of intent and addendum thereto

(with a few minor modifications) were signed and approved by

Robert E. Sweeney and Michael L. Climaco on behalf of RESCO and

CCSL&G, respectively. The letter of intent was dated November

1, 1989, and read, in part:

"This is a basic letter of intent to merge the practice of

Robert E. Sweeney & Associates Co., L.P.A. (RESCO) into the

practice of Climaco, Climaco, Seminatore, Lefkowitz & Garafoli

[sic Garofoli] (CCSL&G). The following items are the basic

terms and conditions:

"1) All necessary employees as determined by Robert E.

Sweeney (RES), John R. Climaco (JRC) and Michael J. DiCorpo

will be given a six month employment contract with CCSL&G.

"2) RES will be given a five year employment contract at

$250,000.00 per year plus expenses. RES can retire any time

after three years and forego the remainder of the contract.

This contract can be renewed by mutual agreement of the parties.

"3) [RES] will sell his practice and cases to CCSL&G for

$13,000,000.00 payable at $2,000,000.00 per year for the first

five years and $1,000,000.00 per year for the next three

years. * * *

"4) * * * The firms will look into the possible combination

of the pension plans.

"* * *

"7) If net fees collected fall below $5,500,000.00 during

either of the first 2 years, or below $5,000,000.00 during

either of the second 2 years, or below $4,000,000.00 during the

fifth year, or below $3,000,000.00 during any of the last 3

years, then the buyout in item 3) above will be reduced by the

percentage which the net fees are below the stated numbers in

this item 7).

"8) This deal must be completed by 11/1/89 with a

contemplated move to the Halle building on or before 2/1/90.

CCSL&G will pay all relocation costs.

"This letter is meant as an agreement to principles and

will be followed by a definitive agreement within 15 days of

signing."1 (Emphasis added.)

Beneath the signatures in the letter of intent is a

paragraph that reads: "The consulting firm of Gupta, Dicorpo

[sic DiCorpo] & Dykman will receive a fee of 2% upon completion

of this deal, one-half payable by each firm." (Emphasis added.)

Apparently, within fifteen days of the signing of the

letter of intent, a "definitive agreement" to combine the law

practices was submitted by CCSL&G to Robert E. Sweeney for his

approval and acceptance. However, the proposed definitive

agreement differed dramatically from the letter of intent. The

definitive agreement exceeded forty pages in length, addressed

numerous matters not contemplated in the letter of intent,

sought to impose significant burdens and obligations upon

Robert E. Sweeney, and sought to limit Sweeney's power and

control in the proposed combined law practice. The definitive

agreement, like the letter of intent, contemplated a five-year

employment contract for Robert E. Sweeney at $250,000 per year,

and contained an eight-year schedule of "target net fee

amounts" to be used in determining the compensation (if any)

Sweeney was to be paid in connection with the merger. Sweeney

refused to sign the definitive agreement and, consequently,

RESCO and CCSL&G never merged.

In December 1989, Gupta-DiCorpo and Michael J. DiCorpo

(collectively "appellees") filed a complaint in the Court of

Common Pleas of Cuyahoga County against RESCO and Robert E.

Sweeney (collectively "appellants"), RESCO's business manager

and three members of the RESCO law firm. In the complaint,

appellees alleged that on August 23, 1989, Gupta-DiCorpo

entered into an oral "Compensation Agreement" with RESCO and

CCSL&G. Specifically, appellees alleged that RESCO, CCSL&G and

Gupta-DiCorpo had verbally agreed that compensation for

Gupta-DiCorpo's services in connection with the proposed merger

would amount to two percent of the "agreed upon merger price,"

with each firm (RESCO and CCSL&G) obligated to pay one-half of

the commission. Appellees further alleged that the November 1,

1989 letter of intent "confirmed, documented, and set forth the

Compensation Agreement" between Gupta-DiCorpo, RESCO and

CCSL&G. Appellees claimed that the letter of intent

constituted a binding and enforceable "[C]ontract of Merger,"

that Sweeney had reneged on the merger, and that, therefore,

appellants were obligated to pay appellees two percent of the

amount Sweeney would have been entitled to receive had the

merger occurred.

In the complaint, appellees sought recovery against

appellants in the amount of $285,000 for breach of the alleged

oral "Compensation Agreement" -- i.e., two percent of the

proposed $14.25 million Sweeney was to receive for the merger

under items 2 and 3 of the letter of intent. Appellees also

sought recovery against appellants in the amount of $285,000

for unjust enrichment. All remaining claims in the complaint

were directed against other named defendants and are not at

issue in this appeal.

Michael J. DiCorpo was deposed on July 24, 1990. In his

deposition, DiCorpo testified concerning the terms of the oral

"Compensation Agreement":

"Q On August 23, [1989,] you came back and met with Mr.

Sweeney?

"A Yes.

"Q Was that alone?

"A Yes.

"Q What transpired on August 23?

"A I explained to him [Sweeney] we [Gupta-DiCorpo] would

be doing the deal on a two-percent basis, two percent of

whatever I got for him on the deal against our hourly fees, and

that I had discussed that with * * * [John R. Climaco of

CCSL&G], and he had agreed to that.

"* * *

"Q You have used the phrase, two percent against our

hourly rate, and it would be based upon, I believe you said,

'whatever I got for him.'

"A Yes.

"Q Was there any further discussion as to what was meant

by 'whatever I got for him'?

"A No.

"Q What was your understanding as to what was meant by

your comment, 'whatever I got for him'?

"A That was a purchase deal. So, it was whatever Mr.

Sweeney was going to get paid to purchase his practice, because

he was the sole owner.

"Q Did you explain that to Mr. Sweeney at that time?

"A Yes.

"Q What did you explain to him?

"A I explained to him the same thing that I just told you

I explained to Mr. Climaco: That, because we were currently

working for both clients, when and if the merger did go

through, we would be losing one of our clients, and we would

like to do it on two percent of what we get for you, against

our hourly rate.

"Q Well, that is what I am asking you. When you say 'two

percent of whatever I get for you,' was the phrase, 'whatever I

get for you,' defined in terms of an employment contract or in

terms of lump sum payments, or how this would be calculated

over time?

"A No. I had no idea at that time of what the deal was

going to be.

"Q So, as far as you can recall, you left it with:

'Whatever I can get for you'?

"A That is correct." (Emphasis added.)

DiCorpo testified further that he had billed RESCO and

CCSL&G at his customary hourly rate for all services performed

in connection with the proposed merger to secure payment for

his services in the event that negotiations between RESCO and

CCSL&G did not result in a merger.

During the pendency of the case, the trial court granted a

motion by appellees for permission to file a supplemental

complaint against appellants. The events which gave rise to

the filing of the supplemental complaint concerned an affidavit

that was sent by Robert E. Sweeney to the Cuyahoga County

Prosecutor in February 1990. In the affidavit, Sweeney accused

Michael V. Kelley, a former associate of RESCO, of embezzling

funds from a joint account maintained by RESCO and CCSL&G (the

"Climaco-Sweeney Trust Account"). Sweeney averred that between

January 1, 1989 and November 15, 1989, Kelley, "abetted and

aided by one Michael DiCorpo," had "carried on a very close and

vigorous effort" to persuade Sweeney to merge RESCO with

CCSL&G, "as it was obvious to Mr. Kelley that the only way he

[Kelley] could fold in the taking of the money from the

Climaco-Sweeney Trust Account was to accomplish a merger

between the respective firms." A copy of the affidavit was

obtained by a Cleveland newspaper which, on February 11, 1990,

published an article detailing the allegations made against

Kelley in the affidavit.

In the supplemental complaint, appellees alleged that the

statements in Sweeney's affidavit concerning them were false,

defamatory and libelous. Appellees sought recovery against

appellants for defamation and negligent or intentional

infliction of emotional distress. Appellees also sought

recovery against appellants for invasion of privacy for

allegedly publishing (or causing to be published) false

information about appellees that placed them in a "false light

before the public."

Appellants filed motions for summary judgment on all claims

asserted against them in the original and supplemental

complaints. The trial court granted appellants' motions and

dismissed the entire case. The trial court held that the

two-percent consulting fee agreement was unenforceable as a

matter of law since the amount to which the percentage was to

be applied was uncertain, speculative and incapable of

determination. With respect to the claims of unjust

enrichment, the trial court concluded that appellees were not

entitled to a $285,000 windfall commission on a merger that

never occurred.2 The trial court held that none of the claims

set forth in the supplemental complaint was actionable, stating

that "any citizen is entitled to file an affidavit with the

County Prosecutor under a qualified privilege which can be

defeated only by a showing of malice." The trial court found

no evidence of malice and found further that the statements in

Sweeney's affidavit were not defamatory to appellees.

Additionally, with regard to appellees' claim for invasion of

privacy, the trial court held that "Ohio does not recognize a

claim for invasion of privacy under a false light theory."

On appeal, the court of appeals affirmed that portion of

the trial court's judgment granting summary judgment on the

claims set forth in the supplemental complaint, holding that

the alleged defamatory statements in the affidavit submitted to

the county prosecutor were protected by an absolute rather than

a qualified privilege. However, by a divided vote, the court

of appeals reversed that portion of the trial court's judgment

granting summary judgment in favor of appellants on the claims

for breach of the oral "Compensation Agreement." The court of

appeals' majority held that summary judgment on these claims

was improper since questions of fact remained unresolved

concerning the amount to which the two-percent commission was

to be applied.

The cause is now before this court pursuant to the

allowance of a motion and a cross-motion to certify the record.

Goodman, Weiss & Freedman, Robert A. Goodman and Steven J.

Miller, for appellees and cross-appellants.

Gallagher, Sharp, Fulton & Norman, Burt Fulton and Jay

Clinton Rice, for appellants and cross-appellees.

Douglas, J. Appellants appeal, urging that the alleged

oral "Compensation Agreement" is unenforceable as a matter of

law and that, therefore, the court of appeals erred in finding

that summary judgment was improper on appellees' claims for

breach of contract. Appellees cross-appeal from the judgment

of the court of appeals which affirmed the trial court's

decision granting summary judgment on the claims set forth in

the supplemental complaint. Given the procedural posture of

this case, all relevant evidence must be viewed in a light most

favorable to appellees who opposed the motions for summary

judgment at the trial court level. See Civ.R. 56(C).

I

Appellants' Appeal

The "Compensation Agreement" which formed the basis for

appellees' original complaint consisted of an alleged verbal

agreement that appellees' fee for arranging the proposed merger

would be two percent of the ultimately agreed upon merger

price, with RESCO and CCSL&G each obligated to pay one-half of

that commission. The letter of intent executed by

representatives of RESCO and CCSL&G memorialized that oral

agreement and stated that appellees were entitled to a fee of

two percent "upon completion of this deal." In his deposition,

Michael J. DiCorpo testified that the "Compensation Agreement"

consisted of a promise or an understanding that Sweeney (or

RESCO) would be obligated to pay one-half of appellees'

commission, which was to be calculated based upon whatever

consideration for the merger appellees were able to obtain for

Sweeney -- i.e., whatever appellees "got for him" in connection

with a merger of RESCO and CCSL&G. Affidavits submitted by

DiCorpo and Michael L. Climaco substantiated appellees' claims

as to the existence and terms of the oral "Compensation

Agreement." However, the facts of this case are clear that

Sweeney never received anything for the merger because the

merger, in fact, never occurred. Thus, in our judgment,

appellees were not entitled to anything under the very terms of

the oral "Compensation Agreement."

Nevertheless, appellees claim a right to a two-percent

commission on a merger that never occurred based upon the

assumption that the November 1, 1989 letter of intent

constituted a binding "Merger Contract" which was breached by

appellants. Appellees urge that "[t]he Consulting Firm was not

responsible for Sweeney's repudiation of the merger. Nor was

it responsible for the failure of the Sweeney Firm to carry

through on its Merger Contract [i.e., the letter of intent].

It still is entitled to receive its compensation, even though

today the law firms are not merged." However, we find that the

letter of intent does not constitute a binding merger

agreement. Nor does it amount to a specific agreement to agree

to a merger in the future. As we stated in Normandy Place

Assoc. v. Beyer (1982), 2 Ohio St.3d 102, 105-106, 2 OBR 653,

656, 443 N.E.2d 161, 164, "[i]t is not the law that an

agreement to make an agreement is per se unenforceable. The

enforceability of such an agreement depends rather on whether

the parties have manifested an intention to be bound by its

terms and whether these intentions are sufficiently definite to

be specifically enforced." Here, the express terms of the

letter of intent clearly indicate that that document was

nothing more than an agreement to principles which were subject

to further negotiation and a detailed and definitive merger

agreement. While the letter may have provided the basic

framework for future negotiations, the letter itself did not

address all the essential terms of the merger. Thus, the

letter of intent is not a legally enforceable contract.

Moreover, even if we were to assume that the letter of

intent was a specific agreement to agree to a merger in the

future, the terms of the definitive agreement submitted to

Sweeney after the signing of the letter of intent were such

that Sweeney might have received nothing had the merger

occurred. The definitive agreement provided for certain

adjustments to the amounts Sweeney might have been entitled to

receive had the law firms combined, and contained a variety of

obligations and contingencies that might have further reduced

(or nullified) the amount Sweeney was to receive for the

merger. In this regard, we are in complete agreement with

Judge (now Justice) Francis E. Sweeney's dissent in the court

of appeals:

"At his deposition, Mr. DiCorpo repeatedly testified that

his only explanation to Mr. Sweeney of the amount of his

commission was 'two percent of whatever I got for him.' Since

the merger was never completed, and since Mr. Sweeney could

[might] have received nothing even if the merger had been

completed, I believe * * * [DiCorpo's] discussions of the terms

of his fee of two percent [were] so indefinite as to make any

alleged oral agreement illusory and unenforceable."

Therefore, we find that summary judgment was properly

granted on the claims for breach of the alleged oral

"Compensation Agreement." Thus, on this issue, we reverse the

judgment of the court of appeals and reinstate the judgment of

the trial court.

We note that the court of appeals did not determine whether

the trial court erred in granting summary judgment on

appellees' claims for unjust enrichment. Rather, the court of

appeals' majority found that this issue was moot given its

determination that summary judgment should not have been

granted on the claims for breach of the oral "Compensation

Agreement." However, we have found that appellants were

entitled to summary judgment on the claims for breach of

contract and, thus, it is appropriate for us to now consider

whether the trial court erred in granting summary judgment on

the claims for unjust enrichment. We find that the trial court

did not err in this regard. The record indicates that (1)

appellants were not unjustly enriched in connection with the

services performed by appellees on the proposed merger, and (2)

appellants contractually agreed to pay appellees at a

reasonable hourly rate for the consulting services rendered.3

Accordingly, we reverse the judgment of the court of

appeals on the issues raised in appellants' appeal, and

reinstate the judgment of the trial court granting summary

judgment in favor of appellants on the claims set forth in the

original complaint.

II

Appellees' Cross-Appeal

Appellees cross-appeal, challenging the court of appeals'

determination that the allegedly defamatory statements made by

Sweeney in his affidavit to the county prosecutor were

protected by an absolute privilege.

In Bigelow v. Brumley (1941), 138 Ohio St. 574, 579-580, 21

O.O. 471, 474, 37 N.E.2d 584, 588, this court said:

"Upon certain privileged occasions where there is a great

enough public interest in encouraging uninhibited freedom of

expression to require the sacrifice of the right of the

individual to protect his reputation by civil suit, the law

recognizes that false, defamatory matter may be published

without civil liability. * * *

"Such privileged occasions have by long judicial history

been divided into two classes -- occasions absolutely

privileged and those upon which the privilege is only a

qualified one. The distinction between these two classes is

that the absolute privilege protects the publisher of a false,

defamatory statement even though it is made with actual malice,

in bad faith and with knowledge of its falsity; whereas the

presence of such circumstances will defeat the assertion of a

qualified privilege. * * *

"It has been said by many courts that the occasions of

absolute privilege are few and that the tendency is to limit

them rather strictly to the following types of occasions: (1)

The legislative proceedings of sovereign states; (2) judicial

proceedings in established courts of justice; (3) official acts

of the chief executive officers of state or nation; and (4)

acts done in the exercise of military or naval authority. * *

*"

We find that one of the established occasions of absolute

privilege is directly involved in this case -- the doctrine of

absolute privilege in a "judicial proceeding." We agree with

the court of appeals' conclusion that the doctrine of absolute

privilege for statements made in a judicial proceeding applies

in circumstances where, as here, an affidavit or statement is

submitted to a prosecutor for purposes of reporting the

commission of a crime. As a matter of public policy, extension

of an absolute privilege under such circumstances will

encourage the reporting of criminal activity by removing any

threat of reprisal in the form of civil liability. This, in

turn, will aid in the proper investigation of criminal activity

and the prosecution of those responsible for the crime.

Recently, in Hecht v. Levin (1993), 66 Ohio St.3d 458, 613

N.E.2d 585, paragraphs one and two of the syllabus, a majority

of this court held that:

"1. A complaint filed with the grievance committee of a

local bar association is part of a judicial proceeding.

"2. A statement made in the course of an attorney

disciplinary proceeding enjoys an absolute privilege against a

civil action based thereon as long as the statement bears some

reasonable relation to the proceeding. (Surace v. Wuliger

[1986], 25 Ohio St.3d 229, 25 OBR 288, 495 N.E.2d 939, approved

and followed.)"

Clearly, if the filing of a grievance with a local bar

association is part of a "judicial proceeding," the same must

also be true of an affidavit filed with a county prosecutor.

The filing of a grievance with the local bar association sets

the process in motion for the investigation of the grievance

and the possible initiation of a formal complaint. Similarly,

the filing of an affidavit, information or other statement with

a prosecuting attorney may potentially set the process in

motion for the investigation of a crime and the possible

prosecution of those suspected of criminal activity. In our

judgment, it would be anomalous to recognize an absolute

privilege against civil liability for statements made in a

complaint filed with a local bar association, while denying the

protections of that privilege to one who files an affidavit

with the prosecutor's office reporting that a crime has been

committed. Granting an absolute privilege under the

circumstances of this case is merely a logical extension of

this court's holding in Hecht, supra.

Sweeney's affidavit was sent to the county prosecutor to

report the alleged criminal activity of Michael V. Kelley. At

that time, it appears no criminal investigation of Kelley was

ongoing, and no formal criminal proceedings against Kelley had

been initiated. Sweeney's affidavit initiated the process of

investigation and possible prosecution of Kelley. The absolute

privilege or "immunity" for statements made in a judicial

proceeding extends to every step in the proceeding, from

beginning to end. See Prosser & Keeton, Law of Torts (5 Ed.

1984) 819, Section 114. In this regard, Dean Prosser has noted

that, "[a]lthough there is some authority to the contrary, the

better view seems to be that an informal complaint to a

prosecuting attorney or a magistrate is to be regarded as an

initial step in a judicial proceeding, and so entitled to an

absolute, rather than a qualified immunity." (Footnotes

omitted.) Id. at 819-820. We agree with this assessment of

the issue.

Appellees contend that the references in Sweeney's

affidavit concerning DiCorpo did not bear some reasonable

relation to the reporting of Kelley's alleged criminal

activity. Since the purpose of Sweeney's affidavit was to

inform the proper authorities of Kelley's conduct, appellees

suggest that the statements concerning DiCorpo were irrelevant

and immaterial and, thus, were not protected by an absolute

privilege. As we indicated in Hecht, supra, the absolute

privilege against civil action for statements made in a

judicial proceeding extends to those statements which "bear

some reasonable relation to the proceeding." Id. at paragraph

two of the syllabus. See, also, Surace, supra, syllabus. We

find that the statements in Sweeney's affidavit concerning

DiCorpo did bear a substantial relation to the reporting of

Kelley's alleged criminal activities. The statements at issue

showed the means by which Kelley sought to conceal the alleged

embezzlement of funds. Thus, we reject appellees' arguments

that such statements were irrelevant, immaterial and

impertinent.

Finally, appellees suggest that Sweeney's affidavit

impugned DiCorpo by linking DiCorpo with Kelley, thereby

placing DiCorpo in a false light before the public. According

to appellees, this case provides us with an opportunity to

recognize a cause of action in Ohio for invasion of privacy

under a "false light" theory of recovery. In Yeager v. Local

Union 20 (1983), 6 Ohio St.3d 369, 372, 6 OBR 421, 424, 453

N.E.2d 666, 669-670, we said, "[t]his court has recognized a

cause of action for invasion of privacy in Housh v. Peth

(1956), 165 Ohio St. 35 [59 O.O. 60, 133 N.E.2d 340]. However,

this court has not recognized a cause of action for invasion of

privacy under a 'false light' theory of recovery. Under the

facts of the instant case, we find no rationale which compels

us to adopt the 'false light' theory of recovery in Ohio at

this time." Given our determination that the statements

contained in Sweeney's affidavit cannot form the basis for

civil liability, this case (like Yeager) is obviously not the

appropriate case to consider adopting, or rejecting, the false

light theory of recovery.

Accordingly, we affirm the judgment of the court of appeals

that appellants were entitled to summary judgment on the claims

set forth in the supplemental complaint. We hold that an

affidavit, statement or other information provided to a

prosecuting attorney, reporting the actual or possible

commission of a crime, is part of a judicial proceeding. The

informant is entitled to an absolute privilege against civil

liability for statements made which bear some reasonable

relation to the activity reported.4

III

Conclusion

For the foregoing reasons, we affirm the judgment of the

court of appeals in part, and we reverse it in part. We

reinstate the trial court's judgment in favor of appellants on

the claims set forth in the original complaint.

Judgment affirmed in part

and reversed in part.

Moyer, C.J., A.W. Sweeney, Wright, Resnick, Donofrio and

Pfeifer, JJ., concur.

Gene Donofrio, J., of the Seventh Appellate District,

sitting for F.E. Sweeney, J.

FOOTNOTES:

1 The signed addendum to the letter of intent specifically

modified item 7 of the letter to read:

"If net fees collected fall below $5,500,000.00 during

either of the first two years, or below $4,250,000.00 during

either of the second two years, or below $3,750,000.00 during

the fifth, or below $2,000,000.00 during the last three years,

then the buyout in item 3) above will be reduced by 75% which

the net fees are below the stated number in this new item 7)."

2 The trial court also noted that appellants had paid

appellees at an agreed hourly rate for at least part of the

consulting services performed in connection with the proposed

merger.

3 Apparently, appellees have yet to be paid for the

consulting services performed in October and November 1989,

which services were billed to appellants at the applicable

hourly rates. However, appellees have not sought payment of

the hourly fees in this case.

4 Appellees have also raised an issue in their cross-appeal

concerning the trial court's denial of a motion to compel

production of certain documents appellees sought to obtain in

connection with the claims for defamation. Appellees'

arguments are not well taken since the defamation claims are

not actionable under the doctrine of absolute privilege.