Hartman v. Kerch

[Cite as Hartman v. Kerch, 2023-Ohio-1972.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

CRAIG HARTMAN, ET AL., :

Plaintiffs-Appellants, :

No. 111928

v. :

JANIS KERCH, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED

RELEASED AND JOURNALIZED: June 15, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-21-946506

Appearances:

Harvey + Abens Co., LPA, David L. Harvey III, and

Matthew B. Abens, for appellants.

Gallagher Sharp LLP, James T. Tyminski, Jr., and Liz R.

Phillips; Ritzler, Coughlin & Paglia, Ltd., and Thomas M.

Coughlin, Jr., for appellee.

MARY J. BOYLE, J.:

Plaintiffs-appellants, Craig Hartman (“Hartman”) and Marc Cashin

(“Cashin”) (collectively referred to as “Husbands”), have asked us to determine

whether (1) the written statement “[t]hey prey on older single women” is defamatory

per se and (2) defendant-appellee, Janis Kerch (“Declarant”), the older single

woman who made the statement, is liable as a matter of law. Husbands argue that

the trial court erred when it found this statement was not defamatory per se, granted

Declarant’s motion for summary judgment, and denied theirs. For the reasons set

forth below, we affirm the denial of Husbands’ motion for partial summary

judgment on the issue of liability only, reverse the granting of Declarant’s motion

for summary judgment, and remand to the trial court for further proceedings.

I. Facts and Procedural History

This appeal stems from a dispute amongst neighbors in the Olympia

Homeowners Association (“Olympia”), a 55 and over community in Strongsville,

Ohio. Husbands moved to Olympia in March 2017 and were involved in community

activities and committees beginning in May 2017.

Declarant is also a resident of Olympia. Initially, Husbands and

Declarant had a good relationship. However, their relationship changed when

Declarant served as Olympia’s board president:

DECLARANT: [Husbands] were friends of mine the first two years

they were there.

HUSBANDS’ COUNSEL: What made you become not friends with

them?

DECLARANT: They were very friendly with me, and they would offer

to do things. They came into my home and they put together a desk for

me. And then when I became president of the association in 2019, they

began to push back with different rules and regulations to do with, with

the homeowners’ association. And finally, I guess — I mean, we just

stopped being friends. I mean, we didn’t have any big falling out.

(Declarant Dep. 11/30/21, tr. 31.) Declarant further testified that the deterioration

of their friendship was related to Husbands disagreeing with the way she was

performing her duties as Olympia’s president. Hartman explained the decline in

Husbands relationship with Declarant as follows:

She didn’t like the way I; certain things that I did, she just thought that

that was not acceptable. * * * [W]hen I was the committee chair, she

had several issues about the way certain things were accomplished,

because she would hear some griping from some of the people, as well

as following the rules properly.

(Hartman Dep. 10/29/21, tr. 74.)

Beginning in March 2020, Declarant, the board, and other Olympia

residents, became “annoyed” by “nuisance things” that were happening in the

clubhouse for which Husbands were suspected of and seen doing. (Declarant Dep.

11/30/21, tr. 44.) During this time, Declarant had an advisory role on Olympia’s

board because she was president the year before. Fred Morey (“Board President”),

the then current board president, explained that Olympia’s governing documents

provide that a former board president’s role is extended for one year “to support the

new president coming in,” “to help,” and “to act as a consultant.” (Board President

Civ.R. 30(B)(5) Dep. 03/15/22, tr. 5-6.)

According to Declarant, on May 18, 2020, Board President asked her

“opinion” about the ongoing nuisance activities transpiring in the clubhouse: “He

was new to the president, fairly new to the clubhouse. And he was being made aware

of activities going on * * * and he was just asking my opinion of what was happening

there.” (Declarant Dep. 11/30/21, tr. 80.) Declarant claimed that she typed a letter

on May 26, 2020, to provide her “opinion” about “some of the activity” and “the

most recent issues that [she] was aware of.” (Declarant Dep. 11/30/21, tr. 78-79 and

91) Declarant testified:

I put it in writing because [Board President] asked me a question, and

I took the time to put some thoughts down. And I folded it and handed

it to him. I put my initials on it because it was the only copy of it. It

was never discussed again at a board meeting and there was no — it was

his information from me — my opinion.

(Declarant Dep. 11/30/21, tr. 81.)

Board President had a different recollection of his interaction with

Declarant:

[Declarant] called me telling that [Husbands] were there in the

clubhouse turning lights on and she mentioned something to them and

they got rude with her. And I said, “Well, why don’t you just send me

something,” because I had a lot of complaints at that time for the same

thing.

***

She called me with a complaint. And at that time I was getting

complaints, so I asked people to write to me because verbal didn’t do it

for me anymore. We had to start documenting those cases.

(Board President Dep. 03/15/22, tr. 22-23.) Board President testified that he was

“gathering [information]” on behalf of Olympia and the letter was for “informational

purposes.” (Board President Dep. 03/15/22, tr. 27).

Declarant testified, “[The letter] didn’t go to the board. It went to

[Board President]. * * * It was not presented to the board. I was at those meetings.

It never went beyond [Board President].” (Declarant Dep. 11/30/21, tr. 133.) Board

President confirmed that he put Declarant’s letter, along with other complaints he

received, in a separate personal folder and never submitted it to the Olympia board.

He stated, “The only people that saw this document was [Declarant] and myself.”

(Board President Dep. 03/15/22, tr. 29.) Board President further testified that

specifics about Declarant’s letter were not discussed with the Board, rather the

overall theme of everything he collected was.

At the end of May 2020, Husbands each received letters from the

Board President advising them that they had been removed from certain Olympia

committees and their positions were relinquished as of June 15, 2020. A reason for

Husbands removal was not provided in the letters. Hartman had a conversation

with Board President about the letters sometime in June. Board President did not

provide any specific details but told Hartman that Husbands were removed as a

result of some written complaints. Husbands also received a letter from Olympia’s

attorney that purportedly stated Husbands were (1) “a disruption,” (2) removed

from all committees they were involved in, and (3) prohibited from participating in

any Olympia committees. Again, no basis was provided.1

Husbands hired an attorney and communications were exchanged

with Olympia’s counsel and board. Olympia’s counsel subsequently issued a

“retraction letter” stating “that [Husbands] were not thrown off any committees.”

(Cashin Dep. 10/29/21, tr. 33-34.) In September 2020, Husbands, their attorney,

Olympia’s board, and its attorney attended a meeting to resolve the matter. At the

meeting, it was emphasized that Husbands were removed from Olympia committees

after 16 written complaints were received from residents. A discussion was also had

regarding problems that resulted from Hartman’s management of certain

committees and Husbands’ nonperformance of all duties. The meeting concluded

without resolution.

Thereafter, Husbands “ask[ed] for letters and things like that”

because “[Olympia’s board] said there were [written complaints] against [them]”

and Husbands wanted to know “what the [written complaints] were.” (Hartman

Dep. 10/29/21, tr. 48-49.) Husbands received a “packet of information” from

Olympia’s board in response. (Hartman Dep. 10/29/21, tr. 48). According to

Cashin, the packet included 15 letters. Hartman testified that the letters discussed

displeasure with decisions made by the committees from which Husbands were

removed. Cashin testified that the letters also reported disapproval of Hartman’s

1 The letters from Board President and Olympia’s counsel are not included in the

record. Therefore, our understanding of the letters’ contents is limited to Husbands’

testimony regarding said correspondence.

behavior in the community building. Declarant’s letter was among the written

complaints received by Husbands. The letter states:

To: Fred Morey

From: Janis Kerch

Date: 26 May, 2020

Subject: Ongoing aggressive activity at the Olympia Clubhouse

On Memorial Day at approx 2pm JoAnn Thomas was at the clubhouse

alone to use the fitness center. Marc Cashin came in and turned on

lights and fans. He then left and JoAnn turned off lights, etc.

I arrived at approx 3:30 and said Hello to JoAnn and she told me about

Marc coming in. JoAnn had signed in as had I and later Monika

Petrich. I was working in the library and Monika came in and we talked

for a while then went out to the lobby. Marc and Craig Hartman burst

in the door about 4:20, started turning on lights and Monika said what

are you doing? They both started ranting about it was their right. Craig

went to a great deal of trouble to crawl behind the puzzle desk to turn

on that light. He then realized there was no bulb and started yelling

“there is a thief in the clubhouse.” Something needs to be done.

Marc and Craig have become emboldened in their behavior and are

trying to create confrontation with anyone who watches what they are

doing. They are menacing and creating a terrible divide in both the

clubhouse and the neighborhood. They prey on older single women

telling them they will do whatever is needed and going in to homes and

pretending to be great helpers.

I said to Monika let’s go and as we were leaving they both said

sarcastically “Have a nice day.” They have said this before to me as if

to say “we have the last word” and “we can do whatever we want to do

to torment neighbors.”

I submit this to you and the Board as documentation of my personal

experience with M Cashin and C Hartman.

We note that the record before us only contains Declarant’s letter; no

other written complaints about Husbands were included or otherwise incorporated

therein. Board President, however, testified that “[p]eople were upset” and “there

was a letter that was sent in with 19 names on it” as well as other written complaints

“from other things also, it’s not just [Husbands’ behavior in the clubhouse.]” (Board

President Dep. 03/15/22, tr. 23-24.)

While Husbands disagreed with Declarant’s recounting of events in

the clubhouse, they ultimately contested Declarant’s letter because it included the

statement “[t]hey prey on older single women * * *.” (“Statement”). Husbands filed

a two-count complaint against Declarant in April 2021 raising claims of defamation

per se and defamation per quod. The first count alleged the Statement was

defamatory per se because it would tend to injure a person in their trade or

occupation or would tend to subject a person to public hatred, ridicule, or contempt.

In the alternative, the second count alleged the Statement was defamatory per quod

because readers could understand the defamatory nature and meaning of

Declarant’s comment.

Declarant filed an Answer in June 2021, asserting a number of

defenses including that Husbands were barred from recovery because the Statement

was one of opinion, subject to qualified privilege, and made in good faith. Discovery

commenced, and the depositions of Husbands, Declarant, and Board President,

both individually and in his capacity as a representative of Olympia, were obtained.

Declarant testified that “[Hartman] has had confrontations with [her]

on several occasions.” (Declarant Dep. 11/30/21, tr. 14.) Declarant described an

incident in 2019 where she and her sister were “shouted at” by Hartman. Declarant

also described another incident in May 2020 when both Husbands “started the same

shouting” at Declarant and another female resident. Declarant further testified that

she considered Husbands ongoing activity “aggressive” because Husbands were

“speaking sharply” to residents who asked what they were doing in the clubhouse:

[P]eople, when they’re being spoken to rudely and — or when someone

asks [Husbands] what they’re doing — it wasn’t just myself. Other

people were spoken to rudely by them. And just standing there and

staring at someone and saying something, I consider aggressive.

(Declarant Dep. 11/30/21, tr. 83.) Declarant claimed that Husbands were

“emboldened in their behavior” because they “used to just come in [to the

clubhouse] when nobody was there * * * [a]nd then * * * would just come in and

confront [residents].” (Declarant Dep. 11/30/21, tr. 92.) Declarant specifically

named two female residents who had experienced Husbands’ confrontational

behavior. Board President also testified that many Olympia residents were getting

into arguments with Husbands in the clubhouse, including one “80-some year[ ]

old,” “fragile” male resident (“Male Resident”) who “was fearful of dealing with

[Husbands].” (Board President Dep. 3/15/22, tr. 47.) Declarant further testified

that it was “menacing” when Husbands would say they could do whatever they

wanted to do because they paid their dues “because if you can do what you want to

do, what else do you want to do?” (Declarant Dep. 11/30/21, tr. 96.)

Testimony was also offered by Declarant and Board President

regarding Husbands’ behavior outside of the clubhouse. Declarant claimed that

“several days [she] found [her] newspaper at the end of [her] driveway.” (Declarant

Dep. 11/30/21, tr. 86.) Declarant testified that a neighbor observed Hartman

kicking a newspaper down to the end of the driveway after it was delivered to the

front of Declarant’s garage door. Declarant further testified:

[Husbands] were going around the neighborhood — [Hartman] was —

* * * asking people to sign a petition that he was a good neighbor.

Which why would you do that unless you thought someone thought you

weren’t being a good neighbor. That is being — that’s causing a divide

in the neighborhood. People then began to form opinions. And so it

was, it was just creating conflict that didn’t need to be happening.

(Declarant Dep. 11/30/21, tr. 95.)

Board President testified that he had a negative experience with

Cashin: “We were talking, and [Cashin] said, ‘If you poke me * * * I’m coming after

you,’ three times in a meeting in a conversation. I took that as a personal attack.”

(Board President Dep. 3/15/22, tr. 14.) Board President felt Cashin’s comment was

“menacing.” Board President mentioned that the Male Resident also complained

that he felt personally threatened by Husbands. Board President testified that the

Male Resident came to his house crying on two separate occasions because of

interactions with Husbands.

Board President further testified that Husbands “started screaming

about [how Board President] removed them [from committees]” in a meeting.

(Board President Dep. 3/15/22, tr. 48.) Hartman stood up and told Board President

to shut up. Board President “jumped up and got in [Hartman’s] face” because he

felt physically threatened. (Board President Dep. 3/15/22, tr. 48.) When asked if

anyone else felt physically threatened by Husbands, Board President testified that

Declarant, Male Resident, and two board members “were afraid of how they acted

all the time.” (Board President Dep. 3/15/22, tr. 48-49.)

Husbands readily admitted they were responsible for at least some of

the “nuisance things” in the clubhouse, which they believed benefited Olympia’s

elderly or handicapped members. Husbands claimed they were singled out and

Olympia’s rules were not fairly enforced or consistently followed. Cashin testified:

The way it works is kind of like a “Melrose Place” in Olympia, okay,

everybody knows everybody — you don’t know everybody, but you

know enough. There are pockets — there is a group of people that,

they believe they are — people make fun of them. They call them the

A-group. They are the ones that think they control everything and they

are in charge * * * and if you go against them or say something against

them, then, they make trouble for you.

(Cashin Dep. 10/29/21, tr. 21-22). Cashin further claimed they were harassed and

discriminated against by Male Resident and other neighbors.

Regarding the Statement, Declarant testified:

I made that statement about preying on older women because I felt

like I was part of that. When I first got to know them they were very

friendly. They came into my home. They did things for me. And then

when I didn’t do what they thought I should be doing — which

happened with other people. When you didn’t go along with their

agenda, then they really weren’t your friend anymore. And then they

started to push back * * *.

(Declarant Dep. 11/30/21, tr. 90.) When asked about her definition of “prey,”

Declarant stated:

My, my definition was that they become friends and, and do things for

you. And they’re fine as long as you go along with their agenda. * * *

They prey on you by the way they are so friendly with you. And, and

that’s how they were. I mean, they came into my home. They put

together a desk for me. And then as — because I was the president and

they didn’t like the way I was being president, then that was when they

started pulling back. But they also had confrontation with another

neighbor, who they were helping. They were at her house all the time

helping her with her husband. And then when they disagreed with one

of her decisions — this is what I was told — then they stopped being

friends with her.

(Declarant Dep. 11/30/21, tr. 96.)

Husbands testified that they believe Olympia’s board and counsel

reviewed Declarant’s letter and, as a result of the Statement, decided to “take action”

and prohibit them from participating in the community. Husbands further testified

that they believe the Statement caused Olympia residents to treat them differently

and ruined Husbands’ reputation within the community. Hartman testified that

some Olympia residents had been “less friendly, less talkative, perhaps, standoff-

ish” and that his “reputation has been dragged through the mud by this. * * * It’s

been just unpleasant.” (Hartman Dep. 10/29/21, tr. 58 and 61.) Cashin testified:

[H]ow do you change five people who believe the letter that took action

against you, that thought you were a predator that — I would like to see

the people that say I menaced them, that I am confrontational with

them. I am loved by my neighbors and so is [Hartman]; we are loved.

When we came to that neighborhood, I think, some of the threat that

[Hartman] and I brought to that neighborhood was the fact that we

were two younger people that were willing to help out. What people

don’t understand is that you have a community that is about 85 years

old and about 50% of them are just single women.

That is what the Board, that’s what those five Board members took, that

letter, and then took action against Craig and I reading that letter,

saying we are predators. That’s when [Olympia’s attorney] read that

letter and sent us a letter saying we cannot participate in our

committee.

My embarrassment on that committee, where I was on the committee

and then thrown off and then brought back on * * * then, was told, “No

you can’t be part of it” with no reason; wouldn’t tell you why, until we

went to that September 11th meeting, where they told us that there were

sixteen letters.

I don’t know if you can put any kind of — how can you come to a

resolution? How do you change people’s perceptions? For the time I

lived there, people are going — at least those five people, who believe

that letter, who took action against us, they are always going to have

side action, they’re always going to be looking at us in a different way.

(Cashin Dep. 10/29/21, tr. 66-67.) Hartman testified that other than reputational

damage, he suffered no damage to his job, finances, or anything else. (Hartman

Dep. 10/29/21, tr. 62.) Cashin testified that he did not suffer any financial damage,

however, “sleepless nights” affected his “ability to go into work and not give 110%.”

(Cashin Dep. 10/19/21, tr. 47.) At the time of Hartman’s deposition, he was serving

a three-year term on Olympia’s Board of Trustees.

In May 2022, a mediation a was held without resolution and the case

was returned to the trial judge’s docket for further proceedings. On June 13, 2022,

Husbands voluntarily dismissed count two of their complaint, raising the claim of

defamation per quod. On June 15, 2022, the parties each filed motions for summary

judgment.

In her motion for summary judgment, Declarant argued that the

Statement did not constitute defamation per se as a matter of law because the

Statement (1) was substantially true; (2) used imprecise language that should be

interpreted as opinion; and (3) did not fall within any of the four classes of

statements required to establish defamation per se. Declarant further argued that

the Statement was protected by qualified privilege and subject to the innocent

construction rule. The following exhibits were attached to Declarant’s motion: an

affidavit of Declarant with Olympia’s resident handbook and an administrative

resolution regarding the consultant role of past presidents attached; cited portions

of the deposition transcripts of Declarant, Board President, as an individual, and

Board President as an Olympia representative; Declarant’s letter; and Husbands’

written responses to Declarant’s first set of interrogatories and request for

production of documents. In her affidavit Declarant attested to many issues

including:

− Her “understanding” that a complaint or concern about the community was

to be submitted in writing to Olympia’s board president per the guidelines in

the resident handbook.

− Her “opinion” that Husbands’ activities and behaviors “w[ere] meant to cause

confrontations with other residents.”

− Her “opinion” that Husbands’ helpfulness and friendship was conditioned

upon agreeing with them based on her own experience.

− Her “opinion” that Husbands were no longer willing to help or befriend her,

an unmarried older woman, based on Husbands’ disagreement with how she

conducted business as Olympia’s president, and therefore, Husbands’

friendship was insincere.

− That she typed a letter to Board President discussing the most recent events

she witnessed, which included “several personal opinions about [Husbands’]

behavior” and “an opinion based on her former friendship with [Husbands].”

− Her “opinion” that some of Husbands actions and behaviors were “menacing,

aggressive, and/or intimidating,” especially since Husbands are younger men

that are physically larger than she is.

− That Board President was the only person she gave a copy of her letter to and

she did not otherwise distribute the letter to anyone.

Husbands filed a motion for partial summary judgment as to the issue

of liability only. Husbands claimed the Statement was without basis or support and

constituted defamation per se as a matter of law because it was unambiguous and

“impugned [Husbands’] reputation by claiming they ‘commit violence or robbery or

fraud’ or ‘have an injurious, destructive, or wasting effect’ on older women.” They

further claimed that the Statement “accuses [Husbands] of crimes against the

elderly.” Husbands also argued that because of Declarant’s background, it was

“downright absurd” that she “feigned ignorance” and attributed any other meaning

to the word “prey.” They further argued that because the Statement amounted to

defamation per se, Husbands’ damages and Declarant’s degree of fault should be

presumed. Therefore, Husbands requested only the issue of damages be left to the

trier of fact. Husbands attached cited portions of the deposition of Husbands,

Declarant, and Board President, in his individual capacity, and Declarant’s letter.

The trial court struck Husbands’ voluntary dismissal of their

defamation per quod claim on June 15, 2022. On June 21, 2022, Declarant filed a

motion for leave to file a supplement to her motion for summary judgment instanter

in order to address Husbands’ defamation per quod claim. Declarant’s motion for

leave was granted on July 11, 2022.

On July 13, 2022, Husbands filed a brief in opposition to Declarant’s

motion for summary judgment. Therein, Husbands indicated that they would not

be filing a response to Declarant’s supplement seeking summary judgment on

Husbands’ defamation per quod claim. That same day, Declarant also filed a brief

in opposition to Husbands’ motion for partial summary judgment. The parties filed

replies in support of their own dispositive motions on July 20, 2022.

On August 19, 2022, the trial court issued a journal entry granting

Declarant’s motion for summary judgment and denying Husbands’. Therein, the

trial court concluded that Husbands abandoned their defamation per quod claim

and dismissed count two of the complaint with prejudice. The trial court found that

Husbands were barred from arguing the Statement accused them of “crimes against

the elderly” because Husbands failed to identify that class of defamation per se in

the complaint. The trial court held that the Statement was not defamatory per se

because “no evidence was submitted that either [Husband] was injured in his trade

or occupation” and “[Husbands’] own behavior toward many members of the

community was the cause of any public hatred, ridicule, or contempt.” (Journal

Entry, 08/19/22.) The trial court further held that the Statement was one of opinion

and, thus, protected speech. In so holding, the trial court found that “[Declarant]

may have intended to use to use the word ingratiate or beguile” and, when taken as

a whole, the Statement “does not indicate that [Declarant] believes that [Husbands]

are criminals or engage in criminal behavior.” (Journal Entry, 08/19/22.)

Therefore, judgment was granted on behalf of Declarant and against Husbands on

all claims.

Husbands now appeal, raising the following two assignments of error

for review, which shall be addressed together because of their common basis in fact

and law:

Assignment of Error I: The trial court erred in granting

[Declarant’s] motion for summary judgment.

Assignment of Error II: The trial court erred in denying

[Husbands’] motion for summary judgment.

II. Law and Analysis

A. Standard of Review: Motions for Summary Judgment

An appellate court reviews the grant or denial of summary judgment

de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

In a de novo review, the appellate court affords no deference to the trial court’s

decision and independently reviews the record to determine whether summary

judgment is appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136,

912 N.E.2d 637, ¶ 12 (8th Dist.); Smathers v. Glass, Slip Opinion No. 2022-Ohio-

4595, ¶ 30.

Summary judgment is appropriate if (1) no genuine issue of any

material fact remains; (2) the moving party is entitled to judgment as a matter of

law; and (3) it appears from the evidence that reasonable minds can come to but one

conclusion and, construing the evidence most strongly in favor of the nonmoving

party, that conclusion is adverse to the nonmoving party. Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

The party moving for summary judgment bears the burden of

demonstrating that no genuine issues of material fact exist for trial. Dresher v. Burt,

75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The moving party has the

initial responsibility 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 the essential elements of the nonmoving party’s claims. Id.

“To accomplish this, the movant must be able to point to the evidentiary materials

of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary

judgment.” Id. These include “the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any.” Civ.R. 56(C). “These evidentiary materials must 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.” Dresher at 293.

After the moving party has satisfied this initial burden, the

nonmoving party has a reciprocal duty to set forth specific facts by the means listed

in Civ.R. 56(C) showing that there is a genuine issue of material fact. Id. “One of

the principal purposes of the summary judgment rule is to isolate and dispose of

factually unsupported claims or defenses.” Am. Dental Ctr. v. Wunderle, 8th Dist.

Cuyahoga No. 62548, 1993 Ohio App. LEXIS 4437, 4 (Sept. 16, 1993) citing Celotex

Corp. v. Catrett, 477 U.S. 317, 323-324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This

court has explained:

“[T]he plain language of the summary judgment rule mandates the

entry of summary judgment, after adequate time for discovery, and

upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at trial. In such a

situation, there can be no ‘genuine issue as to any material fact,’ since

a complete failure of proof concerning an essential element of a non-

moving party's case necessarily renders all other facts immaterial.”

(Citations omitted.) Corradi v. Soclof, 8th Dist. Cuyahoga No. 67586, 1995 Ohio

App. LEXIS 2162, *6 (May 25, 1995), quoting Toensing v. MK-Ferguson Co., 76

Ohio App.3d 826, 830, 603 N.E.2d 396 (1992), citing Celotex Corp. at 323-324.

With these principles in mind, we consider whether the trial court’s

judgment granting Declarant’s motion for summary judgment and denying

Husbands’ motion for partial summary judgment on the issue of liability was error.

B. Defamation

“Defamation is a false publication that injures a person’s reputation,

exposes him to public hatred, contempt, ridicule, shame or disgrace; or affects him

adversely in his trade or business.” Kanjuka v. MetroHealth Med. Ctr., 151 Ohio

App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920, ¶ 15 (8th Dist.). There are two forms

of defamation: slander, which refers to spoken defamatory words, and libel, which

refers to written defamatory words. Id.

To establish a claim for defamation, a plaintiff must show: (1) a false

statement of fact was made about the plaintiff, (2) the statement was defamatory,

(3) the statement was published, (4) the plaintiff suffered injury as a proximate

result of the publication, and (5) 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.

Here, Husbands claim Declarant’s Statement, “they prey on older

single women,” rises to the level of defamation and falls within the class of

defamatory statements known as defamation per se. In order for Husbands to be

entitled to judgment as a matter of law on their motion for partial summary

judgment, they must prove no genuine issues of material fact remain as to all

elements establishing Declarant’s liability. Conversely, Declarant must show that

either (1) no genuine issues of material fact remain that Husbands have not

sufficiently established any one of the essential elements of their defamation claim,

or (2) no genuine issues of material fact remain as to all elements of Declarant’s

defense.

To guide our analysis of each of the five elements of a defamation

claim, we note definitions of the verb “prey” include “to commit violence or robbery

or fraud,” “to have an injurious, destructive, or wasting effect,” and “to victimize

another or others.” See, e.g., Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/prey; Dictionary.com,

https://www.dictionary.com/ browse/prey.

1. The First Element: Whether a false statement of fact was

made about Husbands

i. True or False

A plaintiff must prove falsity as an essential element of a defamation

claim and, because falsity is an essential element, a true statement cannot provide

the basis for such an action. Natl. Medic Servs. Corp. v. E. W. Scripps Co., 61 Ohio

App.3d 752, 755, 573 N.E.2d 1148 (1st Dist.1989). Therefore, “[i]n Ohio, truth is a

complete defense to a claim for defamation.” Montgomery v. Greater Cleveland

Regional Transit Auth., 8th Dist. Cuyahoga No. 109559, 2021-Ohio-1198, ¶ 30,

citing Ed Schory & Sons v. Francis, 75 Ohio St.3d 433, 445, 662 N.E.2d 1074 (1996);

Swoope v. Osagie, 2016-Ohio-8046, 76 N.E.3d 686, ¶ 33 (8th Dist.) (noting that

while a plaintiff must prove falsity as an element of a defamation claim, a publisher

may also “completely defend” a defamation action by showing substantial truth).

“‘It is sufficient [in defending against a defamation action] to show 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.’” Krems v. University Hosps. of

Cleveland, 133 Ohio App. 3d 6, 9, 726 N.E.2d 1016 (8th Dist.1999), quoting Prosser,

The Law of Torts, 798-799 (4th Ed. 1971). Whether a defamatory statement is

substantially true is a question of fact and summary judgment may only be granted

if no genuine issue of material fact exists after the submission of evidence pursuant

to Civ.R. 56. Montgomery at ¶ 30-31 citing Sweitzer v. Outlet Communications,

Inc., 133 Ohio App.3d 102, 110, 726 N.E.2d 1084 (10th Dist.1999), and Roe v. Heap,

10th Dist. Franklin No. 03AP-586, 2004-Ohio-2504, ¶ 22.

Husbands argue that the Statement is “without any basis” and,

therefore, “cannot be substantially true.” Husbands claim that “a fractured

friendship between the parties and some petty HOA politics concerning [Husbands’]

behavior” does not amount to “preying on older single women.” Husbands further

point to the plural form of the word “women” used in the Statement and argue that

Declarant “fail[ed] to proffer any evidence of alleged predatory behavior beyond her

own failed friendship.” On the other hand, Declarant claims the Statement is

substantially true and “that due to the power dynamics of age, strength, and gender,

as well as [Husbands’] insincere presentation of friendship, they can be said to have

‘preyed’ upon the good nature of [Declarant].” Therefore, Declarant claims the “gist”

or “sting” of her statement is accurate and any error in terminology does not prevent

the Statement from being substantially true.

Our review of the record and Civ.R. 56 evidence reveals significant

deposition testimony was offered by Declarant and Board President regarding

Husbands’ behavior toward others in the community. Declarant testified that

Husbands were confrontational and would shout and speak sharply and rudely to

her as well as other Olympia residents. Declarant recounted an incident where

Hartman kicked a newspaper down her driveway and testified that Husbands’

behaviors were aggressive and menacing. Declarant further testified that Husbands

were creating conflict within Olympia.

Board President testified that he received a number of written

complaints from Olympia residents regarding Husbands. Board President further

testified that many Olympia residents were getting into arguments with Husbands

and some residents felt physically threatened. Board President advised that Male

Resident was fearful of dealing with Husbands and claimed that both he and Male

Resident had encounters with Husbands where they felt personally attacked and

physically threatened.

An affidavit was also submitted by Declarant in support of her motion

for summary judgment. In her Affidavit, Declarant attested that Husbands

friendship and helpfulness was insincere and premised upon agreeing with them.

Declarant further attested that she found Husbands’ behaviors to be

confrontational, menacing, aggressive, and intimidating. This evidence suggests the

Statement may be substantially true.

However, we find neither the record nor the Civ.R. 56 evidence clearly

establish whether the Statement was false or substantially true. Reasonable minds

could come to two different conclusions: (1) Husbands’ actions and behaviors were

“predatory” or (2) Husbands actions and behaviors did not rise to the level of

“preying on older single women.” Therefore, we find that a genuine issue of material

fact remains and summary judgment cannot be granted to either party on this basis.

Accordingly, Husbands’ second assignment of error is overruled.

Because reasonable minds could come to different conclusions as to an essential

element of Husbands’ defamation claim, Husbands’ motion for partial summary

judgment was properly denied by the trial court. We continue our analysis to

determine whether the court erred in granting Declarant’s motion for summary

judgment.

ii. Fact or Opinion

The first element of a defamation claim also requires the alleged

defamatory statement be one of fact rather than opinion. The expression of an

opinion is generally immune from liability under the Ohio and United States

Constitutions. Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279, 280, 649

N.E.2d 182 (1995). “‘This is because ‘there is no such thing as a false idea.’”

Lograsso v. Frey, 2014-Ohio-2054, 10 N.E.3d 1176, ¶ 30 (8th Dist.), quoting Gertz

v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Whether allegedly defamatory language is opinion or fact is a

question of law to be decided by the court. Scott v. News-Herald, 25 Ohio St.3d 243,

250, 496 N.E.2d 699 (1986). To answer this question, a court must determine

whether a reasonable reader or hearer will perceive the statement as a fact or

opinion. McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 144, 729 N.E.2d

364 (2000). “The meaning of a communication is that which the recipient correctly,

or mistakenly but reasonably, understands that it was intended to express.” Id. at

145.

When determining whether speech is protected opinion, Ohio courts

apply a totality-of-the-circumstances analysis and consider the following four

factors: (1) the specific language at issue, (2) whether the statement is verifiable, (3)

the general context of the statement, and (4) the broader context in which the

statement appeared. Scott at 250. The application of this test is “fluid,” and the

weight given to any one factor will necessarily vary depending on the circumstances

of each case. Id.

Husbands argue that “the trial court made an erroneous factual

determination that [Declarant] did not intend to call [Husbands] predators, thereby

making her statement one of opinion.” Husbands further argue that the trial court’s

ruling contained no analysis of the totality-of-the-circumstances factors, which

weigh in favor of finding the Statement is actually one of fact. Conversely, Declarant

argues that the trial court properly determined the Statement was opinion because

it was imprecise and subjective. Declarant further argues that application of the

totality-of-the-circumstances test indicates that the Statement is one of opinion. We

proceed by conducting an independent assessment of the Statement utilizing the

totality-of-the-circumstances analysis.

a. Specific Language Used

The assessment of the totality of the circumstances begins with an

analysis of “‘the common usage or meaning of the allegedly defamatory words

themselves * * * to determine whether the allegedly defamatory statement has a

precise meaning and thus is likely to give rise to clear factual implications.’”

Wampler v. Higgins, 93 Ohio St.3d 111, 128, 752 N.E.2d 962 (2001), quoting Ollman

v. Evans, 242 U.S.App.D.C. 301, 750 F.2d 970, 979-980 (1984). The Ohio Supreme

Court explained:

“A classic example of a statement with a well-defined meaning is an

accusation of a crime” whereas “statements that are ‘loosely definable’

or ‘variously interpretable’ cannot in most contexts support an action

for defamation.” “Readers are * * * considerably less likely to infer facts

from an indefinite or ambiguous statement than one with a commonly

understood meaning.”

(Citations omitted.) Id., quoting id. The Wampler Court ultimately determined that

statements like “ruthless speculator,” “self-centered greed,” and “exorbitant rent”

are “inherently imprecise and subject to a myriad of subjective interpretations”

despite their “plainly pejorative” tone. Id. These statements can be compared to the

specific language used in Lennon v. Cuyahoga Cty. Juvenile Court, 8th Dist.

Cuyahoga No. 86651, 2006-Ohio-2587, where this court found the term “racist” to

be unambiguous and pejorative, weighing heavily in favor of actionability. Id. at ¶

30. As discussed by Husbands, the same conclusion was reached in Niotti-Soltesz

v. Piotrowski, 2017-Ohio-711, 86 N.E.3d 1 (11th Dist.), where the specific language

complained of was “you are simply a con artist.” Id. at ¶ 22. There, the court found:

The commonly understood meaning of “con artist,” regardless of the

context, is pejorative and refers to a person who deceives others by

cheating, tricking, lying, etc. * * * Standing alone, this specific language

is definite and unambiguous. Thus it weighs in favor of finding the

statement a fact, not an opinion.

Id.

We find that the common usage or meaning of the word “prey,”

implies that Husbands were victimizing older single women for their own benefit.

Indeed, definitions of the verb “prey” include “to commit violence or robbery or

fraud,” “to have an injurious, destructive, or wasting effect,” and “to victimize

another or others.” Like “racist” and “con artist,” the term’s implications are

unambiguous, precise, and plainly pejorative. Therefore, the specific language used

in the Statement weighs in favor of actionability.

b. Verifiability

The next totality-of-the-circumstances factor seeks “to determine

whether the allegedly defamatory statements are objectively capable of proof or

disproof” because “‘a reader cannot rationally view an unverifiable statement as

conveying actual facts.’” Wampler at 129 quoting Ollman at 981. “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.” Hersh

v. Grumer, 2021-Ohio-2582, 176 N.E.3d 1135, ¶ 72 (8th Dist.), quoting Vail, 72 Ohio

St.3d 279 at 283, 649 N.E.2d 182.

We find that the Statement is objectively capable of proof or disproof.

Certainly, residents of Olympia are capable of confirming or denying whether

Husbands “prey” on older members of the community and examples of Husbands

allegedly predatory behavior were provided throughout the depositions of Declarant

and Board President. Moreover, Declarant wrote that her letter was

“documentation of [her] personal experience with [Husbands].” Therefore, we find

that the Statement is verifiable, weighing in favor of actionability.

c. General Context

We now turn to the first “contextual” assessment of the totality-of-

the-circumstances inquiry, which seeks to consider the “immediate context” in

which the allegedly defamatory statement appears. Wampler at 130 quoting Ollman

at 983. The Ohio Supreme Court explained:

We examine more than simply the alleged defamatory statements in

isolation, because the language surrounding the averred defamatory

remarks may place the reasonable reader on notice that what is being

read is the opinion of the writer. Put another way, * * * courts should

assess “the entire article or column” because “unchallenged language

surrounding the allegedly defamatory statement will influence the

average reader’s readiness to infer that a particular statement has

factual content.”

(Citations omitted.) Id., citing Scott, 25 Ohio St.3d 243 at 252, 496 N.E.2d 699, and

quoting Ollman at 979.

Considering the Statement in the context of Declarant’s entire letter,

we find that the average reader would be likely to infer that the Statement was

factual. Declarant wrote the letter in order to document the “ongoing aggressive

activity at the Olympia Clubhouse” for Board President. The majority of the letter is

dedicated to Declarant’s factual recounting of the most recent clubhouse

confrontation that occurred between her, Husbands, and another female resident.

Declarant also provides information regarding Husbands’ behavior and its effect on

the Olympia community. Declarant concludes the letter by noting that it is

“documentation of [her] personal experience with [Husbands].” While the

adjectives used to describe Husbands’ behavior are charged, a reasonable reader

would likely infer that the Statement was factual based on the letter’s immediate

context. Therefore, this factor weighs in favor of actionability.

d. Broad Context

Lastly, we examine the allegedly defamatory statement in “‘the

broader social context into which the statement fits.’” Wampler at 131 quoting

Ollman at 983. The Wampler Court stated:

“Some types of writing or speech by custom or convention signal to

readers or listeners that what is being read or heard is likely to be

opinion, not fact.” This fourth factor focuses, then, not merely on the

internal context within which a particular written statement appears,

but on the unmistakable influence that certain “well established genres

of writing will have on the average reader.”

(Citations omitted and emphasis sic.) Id., quoting id. at 983-984. For example,

opinion pages of the newspaper are “traditionally linked to vigorous expressions of

opinion regarding matters of public concern.” Id. (finding that letters to the editor

qualify as a “well established genre” of opinionated speech), citing Vail, 72 Ohio

St.3d 279 at 282, 649 N.E.2d 182 and Ollman at 984; Scott at 253 (finding that the

sports page was a “traditional haven for cajoling, invective, and hyperbole”).

In this case, the Statement was made in the Declarant’s letter, which

was requested from and provided to Olympia’s board president in order to

document ongoing incidents in the clubhouse. This is not a forum within which the

average reader would expect that most statements would be statements of opinion

rather than fact. Thus, this fact also weighs in favor of actionability.

Because all four of the totality-of-circumstances factors indicate the

Statement was one of fact, we find that the trial court erred in concluding the

Statement was one of opinion. Accordingly, we proceed to the next element of

defamation in order to determine whether the granting of Declarant’s motion for

summary judgment was appropriate on another basis.

2. The Second Element: Whether the Statement was

defamatory

A defamatory statement is either per se or per quod. When a

statement “‘with an apparently innocent meaning becomes defamatory through

interpretation or innuendo,’” it falls into the category of defamation per quod and

the plaintiff must plead and prove special damages. Kanjuka, 151 Ohio App.3d 183,

2002-Ohio-6803, 783 N.E.2d 920 at ¶ 16, quoting McCartney v. Oblates of St.

Francis De Sales, 80 Ohio App.3d 345, 609 N.E.2d 216 (6th Dist.1992). On the

other hand, defamation per se occurs when a statement is defamatory on its face:

Defamation per se means that the defamation “is accomplished by the

very words spoken.” * * * In order for a statement to be defamatory per

se, it must “consist of words which import an indictable criminal

offense involving moral turpitude or infamous punishment, imputes

some loathsome or contagious disease which excludes one from society

or tends to injure one in his trade or occupation.”

Id., quoting id. In cases of libel, this court has also held that “[a] statement is

defamatory per se, if, on its face, ‘it reflects upon a person’s character in a manner

that will cause [the person] to be ridiculed, hated, or held in contempt.’” Sullins v.

Raycom Media, Inc., 2013-Ohio-3530, 996 N.E.2d 553, ¶ 17 (8th Dist.), quoting

Gosden v. Louis, 116 Ohio App.3d 195, 206-207, 687 N.E.2d 481 (9th Dist.1996). “If

an alleged defamatory statement is unambiguous, whether it is defamatory per se is

a question of law for the court to determine.” Id. at ¶ 17, citing id. at 207, citing

Becker v. Toulmin, 165 Ohio St. 549, 555, 138 N.E.2d 391 (1956) (“[W]here words of

a publication are not uncertain and ambiguous as to their definition, it is a question

for the court whether they constitute libel per se.”).

“‘Ohio follows the innocent construction rule in adjudging

defamatory statements.’” Boulger v. Woods, 917 F.3d 471, 483 (6th Cir.2019),

quoting Olde Vill. Jewelers, Inc. v. Outlet Comm., Inc., 202 F.3d 269 (6th Cir.

2000). The “innocent construction rule” provides, “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, 6 Ohio St.3d 369, 372, 453 N.E.2d 666 (1983); see also Van Deusen v.

Baldwin, 99 Ohio App.3d 416, 419, 650 N.E.2d 963 (9th Dist.1994). “‘It matters not

that the defamatory meaning is the more obvious one. So long as the statement may

reasonably be read to have an innocent meaning, the innocent construction rule

commands that the statement be deemed non-defamatory.’” Boulger at 483,

quoting Olde Vill. Jewelers, Inc. If a statement is reasonably susceptible to an

innocent construction, the statement cannot be defamatory per se, and, likewise, if

a statement is defamatory per se, the innocent construction rule cannot be applied:

If a statement has more than one interpretation, it cannot be

defamatory per se. * * * Instead, a statement that has more than one

possible meaning is defamatory per quod, as it will require

interpretation or innuendo to derive the defamatory meaning, or the

non-innocent construction. Thus, it follows that if a statement is

defamatory per se, the innocent construction rule cannot be applied,

for the thrust of the innocent construction rule is that the statement has

more than one interpretation.

Murray v. Knight-Ridder, Inc., 7th Dist. Belmont No. 02 BE 45, 2004-Ohio-821, ¶

31, citing Sullivan v. Tucci, 69 Ohio App.3d 20, 590 N.E.2d 13 (10th Dist.1990).

Here, Husbands defamation per quod claim was dismissed.

Therefore, in order for Husbands to overcome summary judgment, the Statement

must be defamatory per se. Husbands argue that the trial court applied the incorrect

standard in analyzing whether the Statement was defamatory per se. Husbands

assert that the trial court’s conclusion, that the Statement was not defamatory per

se, was improperly based on an erroneous factual determination that Husbands had

not suffered any damages or reputational harm. Husbands further argue that the

Statement does not have an innocent construction to the reasonable reader.

Declarant argues that the Statement, which could have any number of meanings,

can be reasonably read as having an innocent construction. Declarant asserts that

this is evidenced by the significant disagreement as to the meaning of the Statement

amongst the parties.

We agree with Husbands and find that the trial court did not employ

the proper analysis when it determined the Statement was not defamatory per se.

As discussed above, the trial court should have looked to “the very words spoken” in

its analysis of whether the Statement was defamatory per se; harm is contemplated

by the fourth element of defamation, not the second.

Based on our prior analysis of the term “prey,” we also find that the

Statement cannot be reasonably read to have an innocent meaning and reflects upon

Husbands’ character in a manner causing ridicule, hatred, or contempt. Therefore,

we conclude that the Statement is defamatory per se. We continue our analysis to

determine whether summary judgment can be granted in Declarant’s favor on

another basis.

3. The Third Element: Whether the Statement was published

“Publication of a defamatory matter is its communication

intentionally or by a negligent act to one other that the person defamed.” Hecht v.

Levin, 66 Ohio St.3d 458, 460, 613 N.E.2d 585 (1993), quoting 3 Restatement of the

Law 2d, Torts (1965), Section 577(1). Publication is accomplished by any act

communicating the defamatory matter to a third party; communication to only one

person is sufficient. Id. (finding confidential grievance complaint to a local bar

association constituted a publication), citing id. at Comments a-b. Thus,

“publication” does not require widespread dissemination for the purposes of

defamation. Id.; Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451, 866

N.E.2d 1051, ¶ 53, (“publication” for defamation purposes is a word of art, which

includes any communication by the defendant to a third person).

The parties do not discuss the issue of whether publication occurred

in their motions for summary judgement or appellate briefs and it is unclear whether

publication is conceded in the record. Nonetheless, Declarant testified that she

drafted the letter and hand delivered it to Board President. Therefore, we find that

publication was accomplished when Declarant provided the letter containing the

Statement to Board President, a single third party; whether Declarant’s letter was

shared with or provided to others beyond Board President is irrelevant to the issue

of publication. We continue our analysis in order to determine whether the fourth

and fifth elements allow Declarant to prevail on summary judgment.

4. The Fourth Element: Whether Husbands suffered injury as

a result of publication

“With defamation per se, damages and actual malice are presumed.”

Kanjuka, 151 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920, at ¶ 16, quoting

McCartney, 80 Ohio App.3d 345, 609 N.E.2d 216. “However, ‘the presumptions are

rebuttable.’” Shury v. Cusato, 2022-Ohio-4401, 203 N.E.3d 175, ¶ 34 (8th Dist.),

citing Concrete Creations & Landscape Design L.L.C. v. Wilkinson, 7th Dist. Carroll

No. 20 CA 0946, 2021-Ohio-2508, ¶ 28, and Sayavich v. Creatore, 7th Dist.

Mahoning No. 07-MA 217, 2009-Ohio-5270, ¶ 93-94 (presumption of damages in a

defamation per se claim is rebuttable); Wilson v. Wilson, 2d Dist. Montgomery No.

21443, 2007-Ohio-178, ¶ 14 (defendant rebutted the presumption of compensatory

damages in her motion for summary judgment and plaintiff failed to meet his

reciprocal burden and show a genuine issue of material fact remained for trial).

Husbands argue that because the Statement was defamatory per se,

damages are presumed. Husbands further argue that contrary to the trial court’s

findings, the Statement did damage their reputations within the Olympia

community and caused them to be removed from committees. Husbands concede

that they suffered no financial harm or damage to their careers. Declarant argues

that “[Husbands’] reputation could not possibly be harmed by a letter only seen and

read by one person.” Declarant further argues that her letter was not the first or only

written complaint given to Board President about Husbands and other Olympia

residents were fearful of or intimidated by Husbands. Therefore, “[w]hatever their

reputation at present, it is the result of their actions, and their actions alone.”

Declarant also claims that “[w]hatever reputation [Husbands] have at present, it is

not sufficiently damaged such that [Hartman] could not marshal sufficient

community support for his election to the governing body of the Olympia

community.”

We find that the Husbands, Declarant, and the trial court all seem to

agree that Husbands’ reputation within the community is damaged. However, a

genuine issue of material fact remains as to the cause and extent of that damage.

Therefore, we proceed to the final element of defamation to determine whether

Declarant’s motion for summary judgment can be granted on that basis.

5. The Fifth Element: Whether Declarant acted with the

requisite degree of fault in publishing the Statement

As established above, actual malice is presumed when a statement is

defamatory per se. However, that presumption is rebuttable and “[a] person alleged

to have published defamatory material may invoke the defense of qualified privilege

in order to avoid liability.” Bell v. Horton, 4th Dist. Ross No. 02CA2651, 2002-Ohio-

7260, ¶ 9.

A claim of a qualified privilege is an affirmative defense that must be

pleaded and proved. Civ. R. 8(C). “A publication is privileged when it is ‘fairly made

by a person in the discharge of some public or private duty, whether legal or moral,

or in the conduct of his own affairs, in matters where his interest is concerned.’” A

& B-Abell Elevator Co., 73 Ohio St.3d at 7, 651 N.E.2d 1283. The Ohio Supreme

Court explained:

The defense of qualified privilege is deeply rooted in public policy. It

applies in a variety of situations where society’s interest in

compensating a person for loss of reputation is outweighed by a

competing interest that demands protection. Accordingly, the privilege

does not attach to the communication, but to the occasion on which it

is made. It does not change the actionable quality of the publication,

but heightens the required degree of fault. This affords some latitude

for error, thereby promoting the free flow of information on an

occasion worthy of protection.

Id. at 8-9.

If a statement is protected by qualified privilege, the plaintiff’s burden

of proof for establishing the requisite degree of fault is heightened; the plaintiff must

prove by clear and convincing evidence that the defendant acted with actual malice

when publishing the privileged statement once qualified privilege attaches.

Kanjuka, 151 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920, at ¶ 43; Bell at ¶

10. Thus, qualified privilege “‘rebuts the inference of malice that is imputed in the

absence of privilege, and makes a showing of falsity and actual malice essential to

the right of recovery.’” (Emphasis deleted.) Schacht v. Ameritrust Co. N.A., 8th

Dist. Cuyahoga No. 64782, 1994 Ohio App. LEXIS 1125 (Mar. 17, 1994), quoting

Hahn at 244. Actual malice is defined as acting with knowledge that the statements

are false or acting with reckless disregard as to their truth or falsity. Bell at ¶ 10,

citing Jacobs v. Frank, 60 Ohio St.3d 111, 573 N.E.2d 609 (1991), paragraph two of

the syllabus.

A defendant’s motion for summary judgment on the grounds of

qualified privilege is adjudicated in the following manner:

A defendant moving for summary judgment on the basis of qualified

privilege must present sufficient evidence to demonstrate that no

genuine issue of material fact exists as to each of the elements of the

affirmative defense. * * * If the defendant can establish that there is

no genuine issue of material fact on each element, then the plaintiff

can only overcome qualified privilege by establishing with convincing

clarity that defendant acted with actual malice. In a summary

judgment motion claiming an affirmative defense, however, the

nonmoving plaintiff does not have to present any evidence unless the

defendant first satisfies her burden.

McCoy v. Maxwell, 11th Dist. Portage No. 2001-P-0132, 2002-Ohio-7157, ¶ 30,

citing Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). Therefore,

we must first assess whether Declarant presented sufficient evidence on each

element of qualified privilege to demonstrate that no genuine issue of material fact

exists.

The essential elements to establish qualified 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.’” Hahn v.

Kotten, 43 Ohio St.2d 237, 246, 331 N.E.2d 713 (1975), quoting 33 American

Jurisprudence, Libel and Slander, Section 126, at 124-125 (1941). “The issue of

‘good faith’ necessary to establish the privilege should not be confused with the issue

of ‘state of mind’ necessary to defeat it.” A & B-Abell Elevator Co. at 11. “[W]hen

determining whether an occasion is privileged, courts are not concerned with a

particular motive. Rather, courts are concerned with the circumstances of the

communication, i.e., where and to whom the communication was made.” Bell at ¶

13 (finding “even if a prior dispute * * * motivated the * * * defamatory statements,

the law would still protect them under the defense of qualified privilege”).

Moreover, the Ohio Supreme Court has held:

“‘All that is necessary to entitle such communications to be regarded as

privileged is, that the relation of the parties should be such as to afford

reasonable ground for supposing an innocent motive for giving

information, and to deprive the act of an appearance of officious

intermeddling with the affairs of others. It is generally held that if the

defendant publishes the defamatory words to the person interested at

the latter’s request or solicitation, there is such a relationship between

the parties to justify the communication.’”

Hahn at 246 quoting West v. Peoples Banking & Trust Co., 14 Ohio App.2d 69, 236

N.E.2d 679 (4th Dist.1967), and 1 Harper and James, The Law of Torts, page 445,

Section 5.26. As noted by Declarant, “A fraternal or social organization generally

retains a qualified privilege in a defamation action based on its duty to report

internal problems or conflicts within the organization to its members.” McPeek v.

Leetonia Italian-Am. Club, 172 Ohio App.3d 380, 2007-Ohio-7218, 882 N.E.2d 450,

¶ 10 (7th Dist.), citing Putka v. First Catholic Slovak Union, 75 Ohio App.3d 741,

752, 600 N.E.2d 797 (8th Dist.1991) and Creps v. Waltz, 5 Ohio App.3d 213, 214,

450 N.E.2d 716 (6th Dist.1982).

Here, Husbands argue that Declarant failed to produce evidence that

the Statement was limited in scope and made in good faith. Husbands assert that

the Statement had nothing to do with Husbands’ activities in the clubhouse and

“reasonable minds could conclude that [Declarant] improperly used the occasion to

advance her disappointment with the parties’ failed friendship when she went

beyond tattling on [Husbands] for opening doors, changing thermostats, and

turning on lights and called them predators.” Lastly, Husbands argue the issue of

whether Declarant was motivated by malice presents a genuine issue of material fact

and should be left for the trier of fact.

Declarant argues that her letter is subject to qualified privilege

because she had a duty to report internal problems or conflicts within Olympia due

to her role on Olympia’s board. Declarant further argues that her letter met the

guidelines for registering a complaint or issue based on Olympia’s resident

handbook. Moreover, Declarant asserts that Board President requested she reduce

her complaint to writing in furtherance of Olympia board objectives. Finally,

Declarant claims Husbands have “not even begun to make a showing by clear and

convincing evidence that [Declarant] acted with actual malice, supporting this

notion by conclusory statement about [Declarant’s] background and intentions.”

Our review of the evidence reveals that Declarant was not only a

resident of Olympia; she was also a member of the board. Therefore, Declarant’s

letter and the Statement made therein were fairly made in matters of community

interest and in the discharge of Declarant’s duties. Certainly, ongoing nuisance

activities and confrontational behaviors of certain residents are within a community

association’s interest, especially when such matters create internal conflict.

Moreover, Board President specifically requested Declarant provide him with a

written record of the ongoing activities in the clubhouse because many complaints

were made by other Olympia residents about Husbands. Declarant provided the

letter to Board President in accordance with Olympia’s resident handbook and did

not otherwise share or distribute the letter. Therefore, we find that Declarant

submitted the letter on a proper occasion and published the letter in a proper

manner and to only the proper parties.

However, we find that there are genuine issues of material fact

regarding whether the Statement within Declarant’s letter was made in good faith

and sufficiently limited to the public interest to be upheld. The Statement exceeded

the scope of Board President’s request for information regarding ongoing nuisance

activities within the clubhouse and reasonable minds could conclude that the

Statement involves a private matter rather than a public interest. Because issues of

fact remain as to one element of Declarant’s qualified privilege defense, we need not

consider whether Husbands demonstrated actual malice by clear and convincing

evidence. See, e.g., Sullins, 2013-Ohio-3530, 996 N.E.2d 553, ¶ 32.

Accordingly, we find that the trial court erred in granting Declarant’s

motion for summary and sustain Husbands’ first assignment of error.

III. Conclusion

After reviewing the record and evidence presented in support of each

of the parties’ motions for summary judgment, we conclude that genuine issues of

material fact remain as to three of the five elements of defamation and neither party

is entitled to summary judgment as a matter of law. While we find that the

Statement was a statement of fact, defamatory per se, and published as a matter of

law, reasonable minds could differ as to (1) whether the Statement was false or

substantially true; (2) whether the Husbands suffered injury as a result of the

Statement’s publication; and (3) whether The Statement was protected by qualified

privilege and Declarant acted with the requisite degree of fault.

Accordingly, judgment granting Declarant’s motion for summary

judgment is reversed and judgment denying Husbands’ motion for partial summary

judgment as to the issue of liability is affirmed.

It is ordered that costs herein taxed are to be split amongst the parties.

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. Case remanded to the trial court for further proceedings.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________

MARY J. BOYLE, JUDGE

EILEEN A. GALLAGHER, P.J., and

SEAN C. GALLAGHER, J., CONCUR