Ra v. Ohio Atty. Gen.

[Cite as Ra v. Ohio Atty. Gen., 2020-Ohio-1346.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Kevin Ra et al., :

Plaintiffs-Appellants, :

No. 19AP-533

v. : (Ct. of Cl. No. 2019-00212JD)

Ohio Attorney General's Office, : (ACCELERATED CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on April 7, 2020

On brief: Wendy S. Rosett, for appellants Vista REO

Settlement Services, LLC, and Parcel Revenue Corporation;

Kevin Ra, pro se. Argued: Wendy S. Rosett and Kevin Ra.

On brief: Dave Yost, Attorney General, and Randall W.

Knutti, for appellee. Argued: Randall W. Knutti.

APPEAL from the Court of Claims of Ohio

PER CURIAM

{¶ 1} Plaintiffs-appellants, Kevin Ra ("Ra"), Vista REO Settlement Services, LLC

("Vista"), and Parcel Revenue Corporation ("PRC"), appeal the July 11, 2019 judgment of

the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee,

Ohio Attorney General's Office, on appellants' claims of negligence, tortious interference

with business relationships, and intentional infliction of emotional distress and dismissing

appellants' claims for breach of contract, breach of the implied covenant of good faith and

fair dealing, and declaratory judgment. For the following reasons, we affirm the trial court

judgment.

No. 19AP-533 2

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} The following facts are not in dispute unless otherwise indicated. On

November 16, 2017, appellee filed an action in the Cuyahoga County Court of Common

Pleas asserting various claims against Ra, Vista, Housing Court Assistance Program, Inc.

("HCAP"), and Greater Cleveland Housing Partnership, Inc. ("GCHP") involving the

operation of HCAP and GCHP as charities and Ra's use of charitable assets. The same day,

a news release entitled "Cleveland-Area Man Accused of Using Nonprofit for Personal

Gain" was posted on the "News Releases" page of appellee's website. (News Release at 1,

attached as Ex. B to Compl.)

{¶ 3} The news release announced the commencement of a lawsuit against Ra

accusing him of converting nonprofit funds for personal benefit, breaching his fiduciary

duties, failing to register charitable trusts with the Attorney General’s Office, and failing to

cooperate with an investigation, among other alleged violations. The news release specified

that Ra is accused of using his nonprofit entities—HCAP and GCHP—to benefit himself by

allegedly offering free assistance to homeowners facing violations in Ohio housing courts

but then using the nonprofits to buy and sell property rather than for charitable purposes.

The news release further stated the lawsuit includes "about $50,000 in questionable

expenditures" between 2012 and 2014 and four instances where the nonprofit "bought and

then quickly sold property in Cleveland but apparently never received the proceeds." (News

Release at 1.) The news release advised the reader that suspected charitable fraud should

be reported to appellee and provides contact information to do so.

{¶ 4} The parties settled the Cuyahoga County action on January 29, 2018.

Pursuant to the settlement agreement, Ra agreed to dissolve and wind down HCAP, never

incorporate or create an Ohio nonprofit organization in the future, not hold any position

within a charitable or nonprofit organization in Ohio, or otherwise participate in charitable

solicitations in Ohio. Ra, HCAP, GCHP, and Vista agreed to "waive and release any and all

claims and causes of action against [appellee], and any current or former employee or agent

of [appellee], relating to [appellee's] investigation of Defendants or the Pending litigation."

(Settlement Agreement at 3, attached as Ex. A to Compl.) The agreement expressly states

it does not preclude Ra, either individually or through another entity, from engaging in real

estate transactions or providing services to real property owners as a for-profit business,

No. 19AP-533 3

subject to certain restrictions. Once Ra's commitments were met, appellee agreed to

dismiss the pending Cuyahoga County litigation with prejudice. Under the miscellaneous

provisions, the parties agreed that the Cuyahoga County Court of Common Pleas retained

jurisdiction to enforce the settlement agreement. The agreement is silent regarding the

news release.

{¶ 5} On February 22, 2019, appellants filed a complaint against appellee

contending "[t]he [news] release falsely depicts Ra and his business operations as criminal

in nature and contains information couched as 'accusations' which [appellee] knows are

false and/or misleading and/or baseless." (Compl. at ¶ 21.) The complaint states appellants

became aware of the news release in February 2018 and, at that time, asked appellee to

remove it from its website, but appellee refused to do so. According to the complaint,

appellee then instituted a "policy" that it "used to destroy Ra's and Vista's reputation in

perpetuity with allegations [appellee] knew were without merit." (Compl. at ¶ 23.) The

complaint defines the policy as appellee's: "procedure, and/or custom wherein the

[November 16, 2017 news] release was allowed to remain published to [appellee's] website,

remain available to the public"; appellee's programming and/or manipulation of appellee's

website using Search Engine Optimization ("SEO")1 techniques to display the news release

each time a person types Ra's name or email address into Google; and appellee's use of

certain " 'snippets'2 to ensure that any Google search containing Ra's name displays

knowingly false allegations that Ra violated Ohio law." (Compl. at ¶ 23-24, 32.) The

complaint alleges the domain name associated with Ra's email address

(@parcelrevenue.com) was not purchased until March 23, 2018 and, therefore, could not

have existed at the time the settlement agreement was signed and its use by appellee in SEO

and snippets occurred post-settlement and in bad faith. Appellants contend this policy was

approved and implemented sometime in February 2018, after the settlement agreement

was signed and after Ra asked appellee to remove the news release from appellee's website.

1 The complaint describes "SEO" as "the use of keywords, written content, and metadata (hidden data which

sits in the background of a website unseen by the viewer but visible to Google) to ensure that a particular word

or phrase is displayed in Google search results." (Compl. at ¶ 25.)

2 "Snippets," again according to the complaint, are "a summary of the information contained on a website that

consist of only a few lines of text. Google users read snippets which convince said users that a website contains

the information they are seeking." (Compl. at ¶ 33.)

No. 19AP-533 4

{¶ 6} From these allegations, appellants asserted claims for: (1) breach of contract

and breach of the implied covenant of good faith and fair dealing in regard to the settlement

agreement; (2) negligence; (3) tortious interference with business relationships; (4)

declaratory judgment; and (5) intentional infliction of emotional distress. Regarding the

breach of contract claim, the complaint states appellee breached the settlement agreement

by "intentionally and/or maliciously and/or inadvertently" undermining Ra's ability to

receive the benefit of the parties' settlement agreement by essentially undermining Ra's for-

profit business. (Compl. at ¶ 70.) The claim for declaratory judgment also related to the

settlement agreement itself and, in particular, concerned the language of the waiver and

release clause and the implied duty of good faith and fair dealing.

{¶ 7} Regarding the negligence claim, appellants asserted in their complaint:

Post-settlement, [appellee] owed [appellants] a duty of care to

ensure any information published on [appellee's] website

about [appellants'] business affairs is true and accurate

and/or [appellee] owed [appellants] a duty of care to ensure

any information published on [appellee's] website about

[appellants'] business affairs is not false and/or misleading

and/or materially misleading. [Appellee] also owes

[appellants] a duty of care, once it issues a [news] release

about a business or individual and later learns that the

information set forth in said [news] release is false,

inaccurate, misleading, and/or offered in bad faith, to

immediately update or remove said [news] release so as not to

cause undue harm to others (e.g., [appellants]).

(Emphasis sic.) (Compl. at ¶ 74.) Appellants believed this duty of care was breached by

appellee's "implementation of the policy and/or other unlawful actions which will be

proven at trial" and, as a result of the breach, appellant suffered economic and non-

economic injuries. (Compl. at ¶ 75.)

{¶ 8} Regarding the tortious interference with business relationships claim,

appellants stated appellee had actual knowledge of appellants' potential business

relationships with owners of abandoned and blighted properties, real estate investors and

landlords, angel investors and venture capitalists, municipal governments, and real estate

agents, and, without privilege or justification, "acted intentionally, improperly, and

maliciously interfered with and caused the termination of [appellants'] business

relationships" as well as prevented appellants from acquiring and/or continuing

No. 19AP-533 5

established and/or prospective business relationships. (Compl. at ¶ 84.) As to intentional

infliction of emotional distress, appellants asserted that appellee's actions were intended to

cause Ra serious emotional distress by intentionally subjecting Ra to false allegations of

criminal behavior and conduct which appellee knew or should have known Ra did not

commit. Further, appellants contended the purpose of appellee's creation and

implementation of "the policy" was designed to annoy and harass Ra and to unjustly and

unfairly ridicule him in front of his community, family, and industry peers. (Compl. at ¶

96.) In addition to seeking the declaratory judgment on the settlement agreement,

appellants asked for damages in the amount of $1.6 billion for Counts One, Two and Three,

plus an additional amount to be determined at trial on Count Five, court costs and attorney

fees, and any additional relief deemed equitable by the trial court.

{¶ 9} On March 25, 2019, appellee filed a motion to dismiss pursuant to Civ.R.

12(B)(1) and (6). Within it, appellee argued that Ra's, Vista's, and PRC's claims were

quintessential "disguised defamation" claims since they all "hinge on their contention that

the news release was false and caused them reputational harm." (Mot. to Dismiss at 1.) As

a result, appellee contended the claims fail both because appellee is immune from liability

for defamation relating to its work and because the one-year statute of limitations had

expired. Appellee additionally argued that regardless of whether the claims are classified

as disguised defamation, the claims are barred due to the waiver in the settlement

agreement, and the contract and emotional distress claims are baseless as a matter of law.

{¶ 10} The trial court converted appellee's motion to dismiss into a motion for

summary judgment, pursuant to Civ.R. 12(B), and allowed both parties time to submit

additional materials. Appellants filed a brief in opposition to appellee's converted motion

for summary judgment arguing against characterizing the claims as defamation, asserting

the waiver in the settlement agreement did not preclude the action, and contending

appellee's arguments regarding tortious interference should be rejected. Affidavits of Ra

and a board member of PRC were attached to the memorandum in opposition. Ra attests

"[a]t the time of the execution of the agreement, I had no way of knowing or anticipating

that [appellee] would disseminate the false, misleading, and/or prejudicially outdated

information and allegations contained in the [news] Release and allow the same to remain

accessible to the public without redactions, corrections, updates, modifications or

No. 19AP-533 6

otherwise." (Ra Aff. at ¶ 26.) Ra and PRC board member Ross Brankatelli also attest to the

news release being a "driving force" behind loss of business. (Brankatelli Aff. at ¶ 4.)

{¶ 11} On July 11, 2019, the trial court issued a decision and judgment in favor of

appellee. First, the trial court found that, under the express language of the settlement

agreement, the Cuyahoga County Court of Common Pleas retained jurisdiction to

adjudicate appellants' claims of breach of contract, breach of implied covenant of good faith

and fair dealing, and appellants' request for declaratory judgment. Therefore, the trial

court dismissed those claims. Next, the trial court found appellee is entitled to summary

judgment on appellants' tort claims—negligence, tortious interference with business

relationships, and intentional infliction of emotional distress—because those claims

essentially constitute "disguised defamation claims" and "the Ohio attorney general has an

absolute privilege to publish material that is defamatory" in the performance of official

duties. (Trial Ct. Decision at 7.) Therefore, the trial court found appellee was entitled to

judgment as a matter of law on the tort claims.

{¶ 12} Appellants filed a timely appeal.

II. ASSIGNMENTS OF ERROR

{¶ 13} Appellant assigns the following as trial court error:

1. Reviewing the matter de novo, the Court of Claims erred to

the prejudice of the Appellants-Plaintiffs by granting partial

summary judgment in favor of the Appellee-Defendant Ohio

Attorney General's Office erroneously holding that the

Appellants' tort claims were all "disguised defamation

claims[.]"

2. Reviewing the matter de novo, the Court of Claims erred to

the prejudice of the Appellants-Plaintiffs by granting partial

summary judgment in favor of the Appellee-Defendant Ohio

Attorney General's Office erroneously holding that the

Appellee was entitled to "absolute privilege" to publish

material that is defamatory.

III. STANDARD OF REVIEW

{¶ 14} Pursuant to Civ.R. 56(C), summary judgment is appropriate only under the

following circumstances: (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 most

strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion,

that conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing

No. 19AP-533 7

Co., 54 Ohio St.2d 64, 66 (1978). "When seeking summary judgment on grounds that the

non-moving party cannot prove its case, the moving party bears the initial burden of

informing the trial court of the basis for the motion and identifying those portions of the

record that demonstrate the absence of a genuine issue of material fact on an essential

element of the non-moving party's claims." Lundeen v. Graff, 10th Dist. No. 15AP-32,

2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107

(1996). "Once the moving party meets its initial burden, the nonmovant must set forth

specific facts demonstrating a genuine issue for trial." Dunlop v. Ohio Dept. of Job &

Family Servs., 10th Dist. No. 19AP-58, 2019-Ohio-3632, ¶ 6, citing Dresher at 293.

{¶ 15} Appellate review of summary judgment is de novo. Gabriel v. Ohio State

Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E.

Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When an appellate

court reviews a trial court's disposition of a summary judgment motion, it applies the same

standard as the trial court and conducts an independent review, without deference to the

trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One

Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992). "We must affirm the trial

court's judgment if any of the grounds raised by the movant in the trial court are found to

support it, even if the trial court failed to consider those grounds." Eichenberger v.

Woodlands Assisted Living Residence, L.L.C., 10th Dist. No. 14AP-272, 2014-Ohio-5354,

¶ 10, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).

IV. LEGAL ANALYSIS

A. Appellants' First Assignment of Error

{¶ 16} Under the first assignment of error, appellants contend the trial court erred

to their prejudice by holding the tort claims were "disguised defamation claims" and, on

that basis, granting partial summary judgment to appellee. (Appellants' Brief at viii.) For

the following reasons, we disagree.

{¶ 17} 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 v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-

1041, ¶ 9, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades

No. 19AP-533 8

Council, 73 Ohio St.3d 1, 7 (1995). A trial court may characterize a claim presented by a

plaintiff as one for defamation if the grounds for bringing the action support such a

characterization. Singh v. ABA Publishing Am. Bar Assn., 10th Dist. No. 02AP-1125, 2003-

Ohio-2314, ¶ 25-27, citing Worpenberg v. The Kroger Co., 1st Dist. No. C-010381 (Mar. 2,

2002). Whether a plaintiff's claim is actually "disguised defamation" is determined on a

case-by-case basis. See Worpenberg; Breno v. Mentor, 8th Dist. No. 81861, 2003-Ohio-

4051, ¶ 10; Singh at ¶ 25-27.

{¶ 18} Where the "predominant subject matter" of a plaintiff's action is "the alleged

damage to the [plaintiff's] reputation caused by the circulation of allegedly false

information," a trial court does not err in determining the claim is actually one for

defamation rather than the claims listed in the complaint. Singh at ¶ 25-27, citing

Worpenberg. See also Breno at ¶ 12 ("where a claim is expressly premised upon a

'communication' of false information, it is properly characterized as a 'disguised

defamation' claim").

{¶ 19} However, where the plaintiff's stated claim is based on separate conduct or

conduct of a different nature than the publication of defamatory material, some courts have

found the claim should not be reclassified as a defamation claim. See Kienow v. Cincinnati

Children's Hosp. Med. Ctr., 1st Dist. No. C-140720, 2015-Ohio-4396, ¶ 13 (finding, on the

facts of that case, a tortious interference claim was distinguishable from a defamation claim

based on the conduct of the defendant); Breno at ¶ 13 (noting that "where a claim for

reputational harm sounds in defamation, some courts have allowed a negligence claim to

survive in spite of the communication if the complaint addresses other noncommunicative

negligent conduct by the defendant"); Hester v. Case W. Res. Univ., 8th Dist. No. 107492,

2019-Ohio-1991, ¶ 20 (determining whether the court's disposition of the plaintiff's

defamation claim governed its disposition of the tortious interference claim rested on

whether those claims were "predicated on the same conduct").

{¶ 20} In this case, appellants argue their three tort claims (negligence, tortious

interference with business relationships, and intentional infliction of emotional distress)

are based on appellee's post-settlement conduct and should not have been consolidated

into a defamation action. Appellants contend courts do not routinely characterize actions

as disguised defamation and generally only do so within the context of determining the

No. 19AP-533 9

proper application of the statute of limitations. Appellants believe the trial court

misapplied Worpenberg and Schaumleffel v. Muskingum Univ., S.D. Ohio No. 2:17-cv-463

(Mar. 6, 2018), and assert the facts of this case are distinguishable from cases that involved

claims based solely on a purportedly false communication and instead align with cases such

as Kienow that involve separate conduct. Specifically, appellants argue that, here:

The [news] Release, through the Appellee’s intentional acts of

failing to remove, amend or update it when asked to do so by

Appellant Ra and Appellant Vista, became associated with the

internet name used by Appellant PRC. Now a Google search

of Appellant Ra’s for-profit company’s email address (a

common investigatory tactic undertaken by individuals

looking to gain insight on another individual) reveals the

outdated, false, and incorrect [news] Release that contains

information that the Appellee knows is inaccurate, outdated,

misleading, and/or completely false. * * * Most notably, the

[news] Release states that the “investigation” and civil actions

against Appellant Ra and Appellant Vista are open and

ongoing, which they are no longer and did not end in any court

findings or judgment.3 Based thereon, reasonable minds can

only conclude that the Appellee’s motive in continuing to

maintain the [news] Release, especially without any updates,

is to interfere with the Appellants’ business relationships and

that the Appellee intended to inflict damages beyond that of a

typical breach.

* * * As it relates to the outdated, inaccurate, and misleading

[news] Release, reasonable minds can conclude that the

Appellee’s only purpose is to interfere with said relationships.

(Appellants' Brief at xx-xxi.)

{¶ 21} Appellee counters all appellants' claims rest on the alleged falsity of the new

release or the complaint it summarized, and when claims are based on a communication

that is alleged to be false, the "essential character of the underlying tort action" is

defamation, as stated in Breno at ¶ 10. Moreover, appellee states that this case does involve

a statute of limitations issue, as appellants filed their case more than one year after the news

release was posted. Appellee notes that under R.C. 2305.11 and case law from this court,

the one-year statute of limitations begins to run at the time the words are written or spoken,

not when the plaintiff becomes aware of them, and that under case law non-substantive

3We note the news release does not expressly state the investigations and civil actions are open, ongoing, or

pending.

No. 19AP-533 10

website updates and SEO efforts do not constitute a "republication" that would trigger a

new statute of limitations start date. (Appellee's Brief at 10.) In other words, appellee

contends this case does not include conduct independent of the news release to support

appellants' tort claims with longer statutes of limitations.

{¶ 22} We agree with appellee. The crux of this case is whether appellants cited

"post-settlement conduct" serves as grounds to support their claims for negligence, tortious

interference with business relationships, and intentional infliction of emotional distress, or

whether the trial court was correct in concluding appellants' claims essentially constitute

disguised defamation claims aimed at the news release. (Appellant's Brief at xii.) Having

reviewed the complaint and considered the arguments of the parties, we cannot say the trial

court erred.

{¶ 23} First, even assuming appellants' claim about post-settlement "policy" is true,4

we nevertheless find that each tort claim brought by appellants is inextricably premised on

appellee's communication of the allegedly false news release. Stated another way, absent

the allegedly false news release, there would be no basis for the negligence, tortious

interference with business relationships, and intentional infliction of emotional distress

claims asserted by appellants in this case. Consistent with Singh, Worpenberg, Breno, and

Hester, we find despite the form of the complaint, the predominant subject matter of

appellants' action is the alleged damage to appellants' reputation and adverse effects on

their business or profession caused by the circulation of allegedly false information in the

news release. These grounds sound in defamation.

{¶ 24} Second, appellants have not convinced this court that the post-settlement

conduct alleged here—failing to remove or update the news release and the SEO and

snippet activity—is so separate or different in nature from the defamation claim to support

the tort claims styled in the complaint. In Worpenberg, the First District Court of Appeals

found that a plaintiff's claim grounded in the defendant's failure to take remedial steps after

dissemination of a defamatory statement was properly characterized by the trial court as a

disguised defamation claim since the claim was premised on an alleged false

communication. Id. As provided above, like Worpenberg, we find the claims here to be

4 This court denied appellants' motion for this court to take judicial notice of three items that appellants

believed evidenced the allegations in their complaint regarding appellee's post-settlement "policy" but note it

is the nature of the claims that has determined the outcome of this appeal. (Compl. at ¶ 23.)

No. 19AP-533 11

premised on an alleged false communication and find appellants' attempt to distinguish

this case from Worpenberg based on the parties' contractual relationship to each other to

be of no consequence. Moreover, the cases cited by appellants, in particular Kienow, are

distinguishable. As provided by the Eighth District Court of Appeals in Smith v. Natl. W.

Life, 8th Dist. No. 104898, 2017-Ohio-4184, ¶ 17, in Kienow:

[T]he defamation and tortious interference in that case were

based on two different acts: the defamation claim consisted of

allegedly false information contained in Kienow's personnel

file; the tortious interference claim consisted of remarks made

to the hiring manager of a prospective employer more than

one year later. For this reason, the First District held that the

tortious interference claim was specifically intended to hinder

a prospective and known business relationship.

In this case, appellants do not allege appellee communicated to prospective business

partners aside from posting the news release on its public website. Instead, the tort claims

here are all premised on appellee's continued publication of the allegedly false news release

on appellee's public website and appellee's manipulation of SEO and snippets of that same

exact news release. As a result, we do not believe Kienow controls the outcome here.

{¶ 25} Third, appellants' argument that disguised defamation cases are usually

reserved for cases that implicate the avoidance of a statute of limitations supports, rather

than detracts, from our conclusion. The statute of limitations is implicated in this case. In

their complaint, appellants did not attempt to directly bring a defamation claim based on

the November 16, 2017 publication of the news release itself. As argued by appellee, had

they tried to do so, their claim would have been deemed untimely under the one-year

statute of limitations for defamation and precedent of this court. Singh, 2003-Ohio-2314,

at ¶ 22 (finding one-year statute of limitations for bringing a libel action based on allegedly

defamatory materials is triggered on the initial date of publication); Bell v. Ohio State Bd.

of Trustees, 10th Dist. No. 06AP-1174, 2007-Ohio-2790, ¶ 21. See also T.S. v. Plain Dealer,

194 Ohio App.3d 30, 2011-Ohio-2935, ¶ 8-12 (8th Dist.) (finding that increasing the

circulation of a publication already available on the internet, without changing the original

content or singling it out for republication, does not provide a basis in Ohio law to depart

from the initial date of publication as that trigger for the statute of limitations for causes of

action based on allegedly defamatory materials); Smith at ¶ 9, fn. 1 ("Ohio has not adopted

a continuing publication rule for defamation; instead, it is the first publication that controls

No. 19AP-533 12

for purposes of the statute of limitations."); Spitzer v. Knapp, 5th Dist. No. 19 CAE 01 0006,

2019-Ohio-2701, ¶ 26, quoting Friedler v. Equitable Life Assur. Soc. of the United States,

86 F.Appx. 50 (6th Cir.2003) (" 'Ohio courts have consistently rejected efforts to restart the

statute of limitations in a defamation action where allegedly defamatory information, which

has already been published or spoken, is republished or retransmitted to new

consumers.' ").

{¶ 26} Because appellants filed their complaint beyond the one-year statute of

limitations for defamation based on appellee's November 16, 2017 publication of the

allegedly false news release and there is no allegation that the news release was changed or

republished, a defamation claim based on the news release is untimely. Appellants, instead

of filing a timely defamation claim, filed a complaint premised on appellee's conduct in

connection with the allegedly false news release but with claims defined in terms of torts

with statute of limitations that would theoretically allow the lawsuit to proceed. These

circumstances support the trial court's conclusion that appellants' tort claims essentially

constitute a claim for defamation. Therefore, considering all the above, we find the trial

court did not err by holding the tort claims were "disguised defamation claims" and, on that

basis, granting summary judgment to appellee on the tort claims. (Trial Ct. Decision at 7.)

{¶ 27} Accordingly, appellants' first assignment of error is overruled.

B. Appellants' Second Assignment of Error

{¶ 28} Under the second assignment of error, appellants contend the trial court

erred to their prejudice by holding appellee was entitled to "absolute privilege" to publish

material that is defamatory. (Appellants' Brief at ix.) Finding no prejudice to appellants on

this issue, we disagree.

{¶ 29} In the first assignment of error, we held the trial court did not err by holding

the tort claims were "disguised defamation claims." (Trial Ct. Decision at 7.) In doing so,

we addressed the parties' arguments regarding the statute of limitations and concluded this

case did implicate a statute of limitations issue. We determined the disguised defamation

claim is untimely because, under Ohio law, the one-year statute of limitations for bringing

an action based on allegedly defamatory material is triggered on the initial date of

publication, and merely increasing the circulation of a publication already publicly available

on the internet, without changing the original content or singling it out for republication,

No. 19AP-533 13

does not provide a basis to depart from this general rule. Singh at ¶ 22; T.S. at ¶ 8-12; Smith

at ¶ 9, fn. 1; Spitzer at ¶ 26.

{¶ 30} Having done so, assuming for sake of argument, but not deciding, that the

trial court's holding as to appellee's privilege to publish the alleged defamatory material was

in error, such a holding did not prejudice appellants since the untimeliness of the claim

supports the trial court judgment. See Smith at ¶ 18 (finding that, where all claims were

based on the same conduct underlying a claim for defamation and the claims were untimely

filed, summary judgment in favor of the defendant was appropriate even where the trial

court did not discuss the statute of limitations issue); Singh at ¶ 22-28 (affirming summary

judgment in favor of defendant where plaintiff's action was untimely under the statute of

limitations for defamation). We note appellee raised the statute of limitations issue to the

trial court as an alternative means to grant summary judgment on the tort claims.

Considering the legitimate alternative basis from which to grant summary judgment in

appellee's favor here, appellants' argument they were prejudiced by the trial court's finding

regarding privilege lacks merit.

{¶ 31} Accordingly, appellants' second assignment of error is overruled.

C. Appellee's Cross-Assignments of Error

{¶ 32} Appellee presents three cross-assignments of error. First, appellee argues

Vista and Ra waived their right to bring this suit based on language in the settlement

agreement. Second, appellee argues that neither appellee's filing of its lawsuit in Cuyahoga

County nor its settlement of that case give rise to tortious interference claims as a matter of

law. Third, appellee argues the implied duty of good faith in contracts applies only to

matters that could not have been contemplated at the time of drafting.

{¶ 33} As a preliminary issue, we must determine whether we may consider the

cross-assignments of error. App.R. 3(C)(1) provides, in part, that "[a] person who intends

to defend a judgment or order against an appeal taken by an appellant and who also seeks

to change the judgment or order * * * shall file a notice of cross appeal within the time

allowed by App.R. 4." App.R. 4(A)(1) provides that "a party who wishes to appeal from an

order that is final upon its entry shall file the notice of appeal * * * within 30 days of that

entry." If a notice of appeal "is timely filed by a party, another party may file a notice of

No. 19AP-533 14

appeal within the appeal time period otherwise prescribed by this rule or within ten days of

the filing of the first notice of appeal." App.R. 4(B)(1).

{¶ 34} "The time requirements for filing a cross-appeal pursuant to App.R. 4(A) are

mandatory and jurisdictional." Kaplysh v. Takieddine, 35 Ohio St.3d 170 (1988),

paragraph one of the syllabus. "Without an effective notice of appeal this court lacks

jurisdiction to address the alleged errors raised by plaintiffs." Thompson v. Knobeloch,

10th Dist. No. 16AP-809, 2017-Ohio-66, ¶ 3, citing Boulware v. Chrysler Group, L.L.C.,

10th Dist. No. 13AP-1061, 2014-Ohio-3398, ¶ 11. "Accordingly, when a party fails to comply

with the time requirements of App.R. 4 in filing their notice of cross-appeal, an appellate

court is without jurisdiction to consider the merits of the cross-assignment of error." One

Energy Ents., LLC v. Ohio Dept. of Transp., 10th Dist. No. 17AP-829, 2019-Ohio-359, ¶ 81,

citing Tod v. Cincinnati State Technical & Community College, 10th Dist. No. 10AP-656,

2011-Ohio-2743, ¶ 94. Thompson at ¶ 3. Here, appellee never filed a notice of cross-appeal.

Therefore, this court lacks jurisdiction to consider the merits of appellee's cross-

assignments of error to the extent they seek to change the trial court judgment. One Energy

Ents. at ¶ 82; App.R. 3(C)(1).

{¶ 35} To the extent appellee's cross-assignments of error do not seek to change the

trial court judgment but, rather, offer arguments in support of alternative reasons to affirm

the trial court's judgment under App.R. 3(C)(2), we find such arguments to be moot

considering our resolution of appellants' first and second assignments of error.

Accordingly, we need not pass on the propriety or merits of appellees' three cross-

assignment of error in this regard. Fowler v. Ohio Dept. of Pub. Safety, 10th Dist. No.

16AP-867, 2017-Ohio-7038, ¶ 4, 23. See also App.R. 12(A)(1)(c); Sourial v. Nationwide

Mut. Ins. Co., 10th Dist. No. 17AP-731, 2018-Ohio-2528, ¶ 61.

V. CONCLUSION

{¶ 36} Having overruled appellants' first and second assignments of error and

determined appellee's three cross-assignments of error to be moot, we affirm the judgment

of the Court of Claims of Ohio.

Judgment affirmed.

SADLER, P.J., BROWN and LUPER SCHUSTER, JJ., concur.

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