The opinion
[Cite as Mills Van Lines, Inc. v. Prudential Real Estate & Relocation Servs., 2011-Ohio-3833.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95582 and 95819
MILLS VAN LINES INC.
PLAINTIFF-APPELLANT
vs.
PRUDENTIAL REAL ESTATE
AND RELOCATION SERVICES, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-554526
BEFORE: Rocco, J., Stewart, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: August 4, 2011
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ATTORNEY FOR APPELLANT
James A. Hofelich
James A. Hofelich, LPA
28180 Detroit Avenue C-1
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEES
Marquettes D. Robinson
Amanda J. Martinsek
Thacker Martinsek LPA
1375 East 9th Street
Suite 2330
Cleveland, Ohio 44114
KENNETH A. ROCCO, J.:
{¶ 1} Plaintiff-appellant, Mills Van Lines, Inc. (“appellant”), appeals
from the trial court order that granted summary judgment to
defendants-appellees, Prudential Real Estate and Relocation Services and
Hardy Jackson (referred to collectively as “Prudential” or “appellee”), on
causes of action for defamation and tortious interference with a business
relationship. Finding no merit to this appeal, we affirm.
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{¶ 2} Appellant is a trucking company that moves and stores household
goods within Ohio and provided moving services to several of appellee’s
clients. Appellee provides relocation management services to corporations
and governments worldwide. As is pertinent to this case, appellee
essentially acts as the middle-man between appellant and appellee’s clients
by managing the transportation and storage of household goods of its clients’
relocating employees, commonly referred to as “transferees.” Hardy
Jackson is the Vice President of Global Transportation Alliance for
Prudential.
{¶ 3} After working with appellant for sometime, appellee
recommended appellant to be the primary provider of moving services to the
transferees of Toyota Manufacturing North America, a large automobile
manufacturer which provides relocation benefits to its executives and
employees. Appellee had a contractual relationship with Toyota since 1996.
Toyota accepted appellee’s recommendation and in 2001, appellant began
transporting and storing all of Toyota transferees’ household goods.
Appellee’s contract with Toyota required it to audit all vendor invoices to
verify mathematical accuracy, compare invoices with initial estimates, and
verify that the services billed to Toyota were actually performed.
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{¶ 4} In early 2004, while performing its routine auditing obligations,
appellee began noticing on appellant’s invoices to Toyota an unusual
frequency in the occurrence of long carries, shuttle usage, unpacking services,
and stair carries without authorization. Concerned, appellee re-reviewed
several previous months of appellant’s invoices, almost all of which appellee
already paid on behalf of Toyota.
{¶ 5} After appellee’s search revealed unsatisfactory results, appellee
then contacted recent Toyota transferees to inquire whether there were
stairs, excessive distances, narrow streets, and unpacking services to justify
the extra charges. Of the transferees appellee successfully contacted, a large
number of them provided information indicating these were charges for
unnecessary services as well as services never performed.
{¶ 6} Appellee’s findings caused it to bring the billing discrepancies to
Toyota’s attention. Appellee and Toyota agreed to hire RIS Consulting
Group (“RIS”), an outside third-party, to review the recent invoices, contact
the transferees, and report its findings. The RIS investigation also found
instances of overcharging.
{¶ 7} Thereafter, appellee and Toyota afforded appellant the
opportunity to respond to the results of the investigations. Unsatisfied with
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their response, Toyota terminated its business relationship with appellant
three months later.
{¶ 8} On February 11, 2005, this lawsuit ensued. Appellant filed a
complaint alleging an account claim, as well as claims for defamation and
tortious interference with a business contract. 1 Appellant alleged it was
defamed by appellee’s statements to Toyota that appellant overcharged for
moving services. Appellant also claimed that these false statements caused
Toyota to terminate its business relationship with appellant. Following the
trial court’s denial of a number of appellee’s motions to dismiss, appellee
answered the complaint and asserted fraud and unjust enrichment
counterclaims.
{¶ 9} A lengthy discovery process then ensued that included numerous
extensions in the deadline. Also, during this process, without attempting to
cooperatively schedule the depositions of any of appellee’s witnesses,
appellant, on October 15, 2008, faxed appellee ten notices of depositions, nine
of which were for third-party witnesses. Appellee asked appellant to
withdraw the notices, and instead, issue subpoenas as many of the witnesses
resided out-of-state. Appellant refused and appellee filed a motion for
1
Appellant also made a claim that appellee violated Ohio’s intrastate
regulations of the moving of household goods but the trial court dismissed that
count on December 17, 2007.
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protective order on October 17, 2008. Appellee inadvertently failed to serve
said motion upon appellant. Then, on November 3, 2008, the day of the final
discovery deadline, the trial court granted the motion for protective order.
Appellant moved to vacate the protective order on November 14, 2008, citing
failure of service. The trial court denied the motion on November 24, 2008,
apparently finding service irrelevant to the ultimate outcome of the motion.
{¶ 10} On January 5, 2009, appellee moved for summary judgment on
all of appellant’s claims. Appellant moved for an extension to respond to
appellee’s motion. In a status conference held on February 12, 2009, the
court granted the extension until February 17, 2009.
{¶ 11} Appellant never responded to the motion for summary judgment,
but rather, filed a number of motions concerning discovery. On February 17,
2009, appellant filed a motion to strike Exhibits 19 and 20 as well as a motion
in limine to exclude any offers to compromise from the motion for summary
judgment. Additionally, ten days later, appellant filed a motion to strike the
affidavits attached to appellee’s motion for summary judgment alleging a
violation of the hearsay rules. Appellant also moved for additional time to
conduct discovery and oppose the motion for summary judgment pursuant to
Civ.R. 56(F). Finally, in March of 2009, appellant filed a motion to compel
appellee to produce additional documents and to revise its response to an
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interrogatory that sought the identity of employees who participated in
appellant’s internal investigation into the overcharging.
{¶ 12} On March 31, 2009, the trial court denied appellant’s Civ.R. 56(F)
motion and motion to compel. A few days later, on April 2, 2009, the trial
court also denied appellant’s motions to strike Exhibits 19 and 20 and the
affidavits. The court, however, granted appellee’s motion for summary
judgment as to appellant’s claims for defamation and tortious interference
only. The court denied appellee summary judgment on appellant’s account
claim and appellee’s counterclaims for fraud and unjust enrichment.
{¶ 13} On November 20, 2009, appellant filed a motion for relief from
judgment pursuant to Civ.R. 60(B). On December 14, 2009, the trial court
denied this motion.
{¶ 14} For the remaining claims, the trial court scheduled the trial for
July 19, 2010. On the day of trial, the trial court granted appellant’s motion
in limine to exclude Exhibits 19 and 20 pursuant to Evid.R. 408. That same
day, the parties settled all remaining claims.
{¶ 15} In August of 2010, appellant filed a second Civ.R. 60(B) motion,
renewing its first motion, which the trial court again denied a month later.
Appellant now timely appeals and presents the following six assigned errors
for our review:
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“I. The trial court erred in its ruling on March 31, 2009
granting in part defendants’ motion for summary judgment that
the defendants are entitled to judgment on the claim of
defamation/tortious interference as a matter of law.
“II. The trial court erred and abused its discretion in ruling on
March 31, 2009 denying plaintiff Mills Van Lines, Inc., (1)
motion to strike exhibits 19 & 20 and in limine regarding offers
to compromise and (2) motion to strike affidavits attached to
defendants’ motion for summary judgment.
“III. The trial court erred and abused its discretion in ruling
on March 31, 2009 denying plaintiff Mills Van Lines, Inc., (1)
motion pursuant to Civ.R. 56(F), (2) motion to compel
defendants to completely and accurately answer plaintiff’s
interrogatory no. 1 and (3) motion to compel defendants to
produce requested documents in plaintiff’s second request for
production of documents pursuant to Civ.R. 37(A).
“IV. The trial court erred and abused its discretion in ruling
on November 24, 2008 denying plaintiff Mills Vans [sic] Lines,
Inc., motion to vacate protective order.
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“V. The trial court erred and abused its discretion in ruling on
December 14, 2009 denying plaintiff’s motion pursuant to Civ.R.
60(B)(1) and (5).
“VI. The trial court erred and abused its discretion in ruling
denying plaintiff’s motion pursuant to Civ.R. 60(B)(1) and (5)
filed August 27, 2010 entered on September 23, 2010.”
SUMMARY JUDGMENT
{¶ 16} First, appellant argues that the trial court erred in granting
appellee partial summary judgment as to appellant’s claims for defamation
and tortious interference. Even assuming appellee made a defamatory
statement that tortiously interfered with appellant’s business relationship
with Toyota, appellee, nevertheless, is immune from liability due to its
qualified privilege of a common business interest with Toyota. Thus, we
affirm the trial court’s grant of partial summary judgment.
{¶ 17} Where a plaintiff establishes a prima facie case of defamation or
tortious interference, the defendant may invoke a qualified privilege defense.
A & B-Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Constr.
Trades Council, 73 Ohio St.3d 1, 15, 1995-Ohio-66, 651 N.E.2d 1283;
Daubenmire v. Sommers, 156 Ohio App.3d 322, 2004-Ohio-914, 805 N.E.2d
571, ¶118. Statements between parties concerning a common business
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interest may be protected by a qualified privilege. Evely v. Carlon Co., Div.
of Indian Head, Inc. (1983), 4 Ohio St.3d 163, 165, 447 N.E.2d 1290.
Generally, a communication is qualifiedly privileged when it is “‘made in good
faith on any subject matter in which the person communicating has an
interest, or in reference to which he has a duty * * * if made to a person
having a corresponding interest or duty, even though it contains matter
which, without this privilege, would be actionable [.]’” Hahn v. Kotten
(1975), 43 Ohio St.2d 237, 246, 331 N.E.2d 713. The elements needed to
prove a privilege are “‘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.’” Id.
{¶ 18} Assuming without deciding that appellant is able to demonstrate
a claim for defamation or tortious interference, we nevertheless affirm the
judgment of the trial court granting appellee’s partial summary judgment,
because the evidence indisputably establishes that appellee’s communications
to Toyota are qualifiedly privileged. The statements to Toyota that an
investigation revealed appellant overcharged Toyota for moving services were
made in good faith. Toyota contracted with appellee to audit the moving
services provided to Toyota transferees. During its routine examinations of
the billing of appellant’s services, appellee noticed some unusual frequency in
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the occurrence of long carries, shuttle usage, unpackaging charges, and stair
carries without authorization. In response, it conducted its own
investigation, which entailed contacting a number of Toyota’s transferees to
inquire about the charges. This investigation revealed a pattern of
overcharging. Next, appellee, at the behest of Toyota and in an effort to be
thorough and impartial, hired an outside consulting firm, RIS, to review its
findings. RIS’s independent review also indicated appellant was
overcharging Toyota. There can be no dispute that appellee, during the
proper occasion, made the limited-in-scope publication to Toyota on a subject
matter that it had interest, right and duty to speak. Appellee had a
contractual relationship with both appellant and Toyota and was hired by
Toyota for the specific purpose to verify these charges. Accordingly, appellee
possessed a qualified privilege to make this statement to Toyota.
{¶ 19} Once a defendant demonstrates the existence of the qualified
privilege, a plaintiff can only prevail upon a showing of actual malice.
Hanley v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, 81, 603
N.E.2d 1126. A statement is made with actual malice if the speaker knew it
was false or acted with reckless disregard to whether it was false. Kremer v.
Cox (1996), 114 Ohio App.3d 41, 682 N.E.2d 1006. Reckless disregard for the
truth is more than mere negligence. Kremer, supra. The plaintiff must
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demonstrate that the defendant was highly aware of the probability of falsity.
Jacobs v. Frank (1991), 60 Ohio St.3d 111, 115, 573 N.E.2d 609. The
subjective belief of the speaker must be considered in determining whether a
statement was made with actual malice. Lakota Loc. School Dist. Bd. of
Edn. v. Brickner (1996), 108 Ohio App.3d 637, 649, 671 N.E.2d 578.
{¶ 20} In this case, the record is void of any evidence indicating actual
malice by appellee. Appellant continually argues that it did not overcharge
Toyota. The relevant inquiry, however, is not whether appellant
overcharged Toyota, but the subjective intent of appellee, i.e., whether
appellee told Toyota that appellant was overcharging Toyota when it knew, as
a matter of fact, that overcharging was not occurring.
{¶ 21} Here, the evidence demonstrates that at all times, both prior to
and after making the statement to Toyota, appellee reasonably believed
appellant was overcharging Toyota. Appellee conducted its own review of
the charges, contacted transferees, and hired an independent third-party,
RIS, to investigate whether appellant overcharged Toyota. Such actions do
not indicate a knowledge that the statement was false. Nor do these actions
indicate a reckless disregard for the truth. In fact, appellee went to great
lengths to verify its findings and did so in a strategic and careful manner.
Accordingly, we find no actual malice. The trial court did not err in
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granting appellee summary judgment as to appellant’s claims for defamation
and tortious interference.
DISCOVERY
{¶ 22} In its second, third, and fourth assignments of error, appellant
makes a number of arguments concerning discovery issues. First, appellant
asserts that Exhibits 19 and 20, a spreadsheet and cover letter prepared by
Robert Mills in response to the overcharging allegations, are inadmissible
pursuant to Evid.R. 408 as offers to compromise. Appellee presented these
documents in its motion for summary judgment to establish that appellant
admitted to overcharging Toyota for the moving services, thereby establishing
the defense of truth to the defamation action. Such information is irrelevant.
It goes to the falsity element in a defamation action or the intentional
interference element of tortious interference claim. We have already
determined that appellee possesses a qualified privilege rebutting any prima
facie case of defamation or tortious interference.
{¶ 23} The same holds true for the remaining discovery issues presented
in appellant’s second, third, and fourth assignments of error. In each of
these assigned errors, appellant argues that, had the decision of the trial
court been different concerning the discovery issues, appellant would have
had evidence either excluded or admitted demonstrating that appellant did
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not overcharge Toyota. Again, because we find that appellee possessed the
qualified “common business interest” privilege, we find any such arguments
irrelevant to the outcome of summary judgment.
MOTIONS FOR RELIEF FROM JUDGMENT
{¶ 24} In its last two assignments of error, appellant argues that the
trial court erred in denying its two Civ.R. 60(B) motions to vacate the
summary judgment award. Appellant argues it is entitled to relief under
Civ.R. 60(B)(1) and (5). A review of the record indicates the contrary.
{¶ 25} We review the trial court’s decision on a motion to vacate for
abuse of discretion. See, e.g., Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio
St.3d 17, 20, 520 N.E.2d 564. To prevail on a motion for relief from judgment
pursuant to Civ.R. 60(B), the movant must demonstrate: (1) a meritorious
claim or defense; (2) entitlement to relief under one of the grounds stated in
Civ.R. 60(B)(1) through (5); and (3) timeliness of the motion. GTE Automatic
Elec., Inc. v. ARC Indus., Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113,
paragraph two of the syllabus.
{¶ 26} Assuming arguendo that appellant has a meritorious claim, we
nevertheless find appellant is not entitled to relief pursuant to either Civ.R.
60(B)(1) or (5). First, appellant asserts that it is entitled to relief from the
partial summary judgment award pursuant to Civ.R. 60(B)(1) because the
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trial court rendered excusable neglect when it issued its judgment entry on
February 13, 2009 granting appellant only four days to respond to appellee’s
summary judgment motion. Appellant also argues that the entry mistakenly
identifies appellant as “Defendant” and appellee as “Plaintiff.” Appellant
maintains it was confused and believed it had until February 27, 2009 to file
its brief in opposition.
{¶ 27} The record reflects that appellant was present at a pretrial when
the court made clear that it extended appellant’s deadline to respond to
appellee’s summary judgment until February 17, 2009. Additionally, the
order reads in its entirety:
{¶ 28} “Mills Van Lines Inc. motion for extension of time to respond to
motion for summary judgment James A. Hofelich 0033009, filed 02/05/2009,
is granted. Defendant shall file brief on or before 2/17/09. No extensions
shall be granted for any reason.
{¶ 29} Plaintiff has until 2/27/09 to file a reply brief.”
{¶ 30} Admittedly, the entry mistakenly refers to appellant as
“Defendant” and appellee as “Plaintiff.” After reading the entire entry,
however, such mistake is minimal. Appellant’s attendance at the pretrial
would have clarified any misunderstanding. Nonetheless, appellant never
filed any response to the motion for summary judgment by February 27, 2009.
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Thus, we are uncertain as to whether any such error was not harmless. We
find no excusable neglect warranting relief from judgment.
{¶ 31} Second, appellant argues that it is entitled to relief under the
“‘catch-all’ provision” of 60(B)(5), which “reflects the inherent power of a court
to relieve a person from the unjust operation of a judgment.” Caruso-Ciresi,
Inc. v. Lohman (1983), 5 Ohio St.3d 64, 448 N.E.2d 1365, paragraph one of
the syllabus. Appellant asserts that it was not afforded access to a “dearth of
evidence” needed to respond to appellee’s summary judgment motion. We
find the exact opposite.
{¶ 32} This case was filed in February of 2005. The trial court granted
the parties’ discovery deadlines on numerous occasions, ultimately extending
the deadline until November 3, 2008. As this last deadline approached,
appellant made no attempts to extend the discovery deadline. Then, on
February 27, 2009, four years after the initiation of the lawsuit and more
than three months after the discovery deadline lapsed, appellant filed a
Civ.R. 56(F) motion for additional discovery following the filing of a motion
for summary judgment. In light of appellant’s laxadaisical approach to the
discovery deadlines, any decision by the trial court to deny appellant’s motion
is completely within its purview and again relief from judgment is not
appropriate.
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{¶ 33} Appellant’s final two assignments of error are overruled and the
judgment of the trial court granting appellee’s partial summary judgment as
to appellant’s defamation and tortious interference claims are affirmed.
It is ordered that appellees recover from appellant 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 this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR