Ann Fenley v. Athens County Genealogical Chapter

• Decision Date: 28 May 1998
• Docket Number: 97CA36,98-LW-2605
• Parties: Ann Fenley, Plaintiff-Appellant v. Athens County Genealogical Chapter, et al., Defendants-Appellees Case
• Court: Ohio Court of Appeals

Ann Fenley, Plaintiff-Appellant v. Athens County Genealogical Chapter, et al Defendants-Appellees

No. 97CA36.

98-LW-2605 (4th)

Court of Appeals of Ohio, Fourth District Athens

May 28, 1998

Ann Fenley, Dayton, Ohio, Appellant Pro Se.

Susan B. Gwinn, Gwinn & Wallace, Athens, Ohio, for Appellees.

DECISION

Harsha J.

Ann Fenley appeals a judgment entry dismissing her complaint which alleged that the Athens County Genealogical Chapter ("Chapter") and eleven of its members had defamed her. After appellant presented her case at a bench trial, the court granted the appellees, motion for a directed verdict. Appellant assigns the following errors:

I.

"THE TRIAL COURT ERRED IN GRANTING A MOTION FOR A DIRECTED VERDICT IN A NON-JURY TRIAL."

II.

"THE TRIAL COURT ERRED IN GRANTING A MOTION FOR A DIRECTED VERDICT WITHOUT FOLLOWING THE STANDARD FOR RENDERING A DIRECTED VERDICT: THAT THE EVIDENCE AND ALL INFERENCES THAT CAN BE DRAWN FROM IT ARE TO BE CONSTRUED MOST STRONGLY IN FAVOR OF THE NON-MOVING PARTY."

III.

"THE TRIAL COURT ERRED IN BASING PART OF THE RULING FOR A DIRECTED VERDICT ON A NON-DETERMINATIVE ISSUE - THE PRESENCE OF THE DEFENDANTS AT PLAINTIFF'S LECTURE IN MORGAN COUNTY."

IV.

"THE TRIAL COURT ERRED IN GRANTING A MOTION THAT WAS BASED LARGELY ON AN INCOMPLETE INTERPRETATION THAT OMITTED RELEVANT DETAILS FROM A 1965 OHIO SUPREME COURT DECISION."

V.

"THE TRIAL COURT ERRED IN DETERMINING DEFENDANTS' INTENTIONS WHEN THEY WERE NOT RELEVANT, THEN USING THIS ASSESSMENT AS A BASIS FOR THE DIRECTED VERDICT."

VI.

"THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED."

VII.

"THE TRIAL COURT ERRED IN USING AN INCORRECT ANALYSIS SUPPOSING THAT PLAINTIFF WAS REQUIRED TO SHOW SPECIAL DAMAGES EVEN THOUGH THE COURT NEVER RULED THAT THE ALLEGED DEFAMATION WAS NOT PER SE."

VIII.

"THE TRIAL COURT ERRED IN STATING IN THE WRITTEN DECISION THAT PLAINTIFF HAD NOT SHOWN ANY DAMAGES."'

IX.

"THE TRIAL COURT ERRED IN STATING IN THE WRITTEN DECISION THAT PLAINTIFF SHAD NOT PROVEN THAT IN FACT [THE ALLEGED `SLANDER'] WAS SLANDEROUS' WHEN THE ISSUE WAS NEITHER RAISED BY THE MOTION FOR DIRECTED VERDICT NOR ADDRESSED BY THE COURT."

X.

"THE TRIAL COURT ERRED IN DECIDING THAT THE PLAINTIFF `HAD NOT PROVED THAT THE ALLEGED SLANDER WAS REPUBLISHED.'"

Appellant sent a letter and campaign flier to the Athens County Genealogical Chapter in a bid to become president of the

Ohio Genealogical Society (FOGS.) Appellees' response, drafted on "Athens County Historical Society & Museum/Athens County

Genealogical Chapter, O.G.S." stationery and signed by members of the Chapter, stated:

We, members and officers of the Athens Chapter of OGS, have debated whether or not to respond to your letter of 8 January 1996 concerning your candidacy for OGS President. We finally decided that someone has to tell you that your unfounded accusations against OGS officers and Board members must come to an end: Enough is enough! We demand that you PROVE your horrible accusations or shut up. You call yourself a genealogist, but you never cite your sources and you never get the facts straight. You expect us to accept your word and when you don't present any evidence, and your "logic" makes it questionable whether you can distinguish primary evidence from hearsay, from bathroom gossip, or from plain old-fashioned lies.

Your actions are divisive and destructive. You have not made one positive suggestion, nor added anything constructive. We really are tired of your mouth. We don't want to hear anymore of your garbage! Quite honestly, as OGS members and OGS Chapter members, we urge you to remove yourself from OGS membership for the good of the organization. We'll vote for that!

At trial, the appellant testified that her business and profession, genealogy, has been adversely impacted by the letter.^[1] However, she admitted to sending out approximately twelve copies of the letter she received from appellee.

Appellant called several of the defendants to testify during the presentation of her case. Mary Stahl testified that at a regular meeting of the Athens County Genealogical Society, the letter was circulated so that members could sign it if they wished.^[2] Mary Birchfield testified that she was president of the Athens County Genealogical Society at the time the letter was sent, that she wrote the letter and that she sent the letter only to appellant. Birchfield made one copy of the letter, which she kept.

After appellant rested her case, the trial court granted appellees' motion for a directed verdict. Appellant's ten assignments of error assert that the trial court erred in doing so. We consider appellant's assignments of error out of order.

In her first assignment of error, the appellant argues that the trial court erred in granting a directed verdict because a motion for directed verdict is not appropriate in a non-jury trial. While we agree that it was error for the trial court to grant a directed verdict in this case, we find it to be harmless or nonprejudicial. R.C. 2501.02 and Civ.R. 61 require a reviewing court to disregard errors which do not affect the substantial rights of a party, i.e., harmless error.

When a case is tried before a judge, a motion for directed verdict is improper. In a bench trial, the proper procedure to accomplish the same objective is a motion for involuntary dismissal pursuant to Civ.R. 41(B)(2). Bamer v. Star Bank, NA (Feb. 18, 1997), Lawrence App. No. 96CA11, unreported. Dismissals under Civ.R. 41(B)(2) are similar in nature to directed verdicts under Civ.R. 50(A)(4) in jury actions, however, the standards for the two motions are not the same. See Civ.R. 41(B)(2) and Comment 3. When deciding a motion for a directed verdict under Civ.R. 50(A), a court construes the evidence most strongly in favor of the opposing party, and will deny the motion if reasonable minds could come to different conclusions. See Civ.R. 50(A)(4). Accordingly, a motion for a directed verdict tests the legal sufficiency of the evidence to go to the jury and therefore presents a question of law which we review independently, i.e., de novo, upon appeal. See Grau v. Kleinschmidt (1987), 31 Ohio St.3d 84, 90; Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App.3d 94.

A Civ.R. 41(B)(2) dismissal, on the other hand, is used in non-jury actions and requires the trial court and reviewing court to apply different tests. Central Motors Corp. v. Pepper Pike (1979), 63 Ohio App.2d 34, 48. The rule specifically provides that the court may consider both the law and the facts.^[3] Under Civ.R. 50(A), the trial judge must avoid usurping the role of the jury. However, under Civ.R. 41, the trial judge, as the trier of fact, does not view the evidence in a light most favorable to the plaintiff, but instead actually determines whether the plaintiff has proven the necessary facts by a preponderance of the evidence. See L.W. Shoemaker, M.D., Inc. v. Connor (1992), 81 Ohio App.3d 748; Harris v. Cincinnati (1992), 79 Ohio App.3d 163; Central Motors Corp., supra. Because the court is not required to view the evidence in a light most favorable to the plaintiff, even if plaintiff has presented a prima facie case, dismissal may still be appropriate. Thus, where the trial court weighs the evidence and determines that a preponderance of the evidence makes it clear that plaintiff will not prevail, the motion may be granted. See 3B Moore, Federal Practice (1990), Paragraph 41.13(4), at 41-177. However, in weighing the evidence, if the trial judge finds that the plaintiff has proven the relevant facts by the necessary quantum of proof, the motion must be denied and the defendant required to put on evidence. Central Motors Corp., supra.

On appellate review, to the extent that the trial court's determination rests on findings of fact, those findings will not be overturned, unless they are against the manifest weight of the evidence. However, application of legal standards to such findings are reviewable de novo as mixed questions of law and fact. Connor; 3B Moore, Federal Practice (1990), Paragraph 41.13(1), at 41-166; Johnson v. United States Postal Service (C.A.9, 1985), 756 F.2d 1461.

There is no prejudice if a trial court erroneously applies the Civ.R. 50(A) standard for directed verdict instead of the standard for involuntary dismissal under Civ.R. 41(B)(2) because the directed verdict standard is much more rigorous than the involuntary dismissal standard. First Natl. Bank of Cincinnati v. Cianelli (1991), 73 Ohio App.3d 781; Mills v. Saxton Real Estate (Apr. 27, 1995), Franklin App. No. 94APE09-1304, unreported. Satisfaction of the Civ.R. 50(A) standard implies satisfaction of the Civ.R. 41(B)(2) standard. Id. Accordingly, the trial courts error in this regard was harmless and we overrule appellant's first assignment of error.

In her second assignment of error, appellant argues that the trial court erred by not following the standard for granting a directed verdict. Specifically, the appellant contends that the trial court did not construe the evidence in her favor when deciding whether to grant appellees' motion. The trial court was not required to construe the evidence most favorably to appellant, rather it was entitled to weigh the evidence presented and determine whether she had proven her case because it was a nonjury trial; First Natl. Bank; Altimari v. Campbell (1978), 56 Ohio App.2d 253, 256. Accordingly, we overrule appellant's second assignment of error.

In her third assignment of error, the appellant argues that the trial court erred by basing its ruling on a "non-determinative issue." Appellant alleged in her complaint that in an attempt to harass her, three of the appellees attended a lecture given...