Burkes v. Stidham

• Decision Date: 13 November 1995
• Docket Number: No. 68560,68560
• Citation: 668 N.E.2d 982,107 Ohio App.3d 363
• Parties: BURKES et al., Appellants, v. STIDHAM et al., Appellees.
• Court: Ohio Court of Appeals

Page 363

107 Ohio App.3d 363

668 N.E.2d 982

BURKES et al., Appellants, v. STIDHAM et al., Appellees.

No. 68560.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided Nov. 13, 1995.

Harold Pollock Co., L.P.A., Harold Pollock and Blake Dickson, Cleveland, for appellants.

Walter & Haverfield and Carl E. Anderson, Cleveland, for appellee Ronald B. Adrine.

Ronald Adrine, Cleveland, for appellees R.J. Stidham et al.

SPELLACY, Presiding Judge.

Plaintiffs-appellants Caesar D. Burkes and C.B. Management Company, Inc. ("appellants") appeal the grant of summary judgment in favor of defendants-appellees R.J. Stidham and Ronald B. Adrine. Appellants' complaint stated claims for defamation and intentional infliction of emotional distress.

Appellants assign the following errors for review:

"I. The trial court erred in granting appellee Adrine's motion for summary judgment when the record was replete with numerous genuine issues of material fact.

"II. The trial court erred in granting appellee Adrine's motion for summary judgment because appellee Adrine failed to establish the defense of qualified privilege.

"III. The trial court erred in granting appellee Adrine's motion for summary judgment because it was alleged that appellee acted with actual malice, and the determination of whether appellee Adrine's statements were published with actual malice was a jury issue.

"IV. Appellee Adrine was not entitled to summary judgment on appellant Burkes' claim for intentional infliction of emotional distress because a material issue of fact exists as to whether appellees' conduct was so outrageous as to justify a claim for intentional infliction of emotional distress.

"V. The trial court erred in granting appellee Adrine's motion for summary judgment because appellants produced evidence of falsehood sufficient to meet the standards set out in Wing v. Anchor Media, Ltd. of Texas.

"VI. The trial court erred in granting summary judgment in favor of appellee Stidham because appellee Stidham never filed a motion for summary judgment with the trial court, but merely requested leave to do so, and to adopt as his own the arguments of appellee Adrine via a 'short form' proposed motion for summary judgment attached to his request for leave, and the court granted such leave on December 28, 1994, and proceeded to treat appellee Stidham's proposed motion as a filed motion without the motion ever having been filed, and without affording appellants the opportunity to file a response brief to such motion within thirty (30) days as permitted by Local Rule 56."

Finding the assignments of error to lack merit, the judgment of the trial court is affirmed.

I

This case had its genesis in the proposed sale of two Cleveland radio stations, WJMO-AM and WJMO-FM, to Zebra Broadcasting Corporation ("Zebra"). Zebra was formed in order to effect the purchase. Zebra's majority shareholders were Orrin Tolliver and Otis Rush, the program director and music director of WZAK-FM, respectively. The minority shareholder was Xenophon Zapis, the owner of WZAK. Funding for the purchase was provided in part by a $250,000 loan from Zapis to Tolliver and Rush.

The proposed sale raised concerns in the Cleveland African-American community. The terms of the loan led to a belief among some that there was a high probability Tolliver and Rush would default, thereby giving Zapis control of the WJMO stations as well as WZAK. The stations are oriented toward African-American listeners and control a large share of that audience. Zapis's common ownership of the radio stations would give him a virtual monopoly over the dissemination of news, community affairs information, and music programming to the African-American community.

A petition objecting to the sale was filed with the Federal Communications Commission ("FCC") by the Southern Christian Leadership Conference and individual leaders of Cleveland's African-American community. Neither the Cleveland chapter of the NAACP nor Burkes was a signatory.

In an effort to resolve the dispute, George Forbes, the President of the Cleveland chapter of the NAACP, asked Ronald Adrine, the First Vice President of the Cleveland NAACP chapter, and Burkes to investigate the objections raised by the petitioners. A meeting was held at Burkes's office between some of the petitioners and the proposed buyers of the radio station. Toward the end of the meeting, Burkes told the buyers, Tolliver and Rush, that if they got into trouble with the loan, they should come to see him before defaulting. Another meeting was scheduled for the parties and the NAACP and representatives.

The day before that meeting was to be held, R.J. Stidham telephoned Adrine. Stidham, an attorney, was assisting Rush and Tolliver in resolving the dispute with the petitioners. Stidham related that he had been informed that Burkes was telephoning the advertising manager of WZAK and offering to make the petition go away in return for stock and a reduced advertising rate for his corporation. Adrine considered the allegations to be serious. He called Pauline Tarver, the Executive Director of Cleveland's NAACP chapter, and repeated to her the information received from Stidham. Adrine also contacted Forbes regarding Burkes's alleged statements.

Tarver contacted Burkes and related the statements attributed to him by Stidham. Burkes denied ever making the statements. WZAK's advertising manager confirmed that Burkes had not made the statements. Tarver informed Adrine and Stidham that Burkes denied making the statements.

The meeting scheduled for the day following Stidham's initial conversation with Adrine never took place. It was cancelled on the advice of David Honig, an attorney representing the NAACP on FCC legal issues. Tarver had contacted Honig. He was concerned that the alleged statements might lead to liability on the part of the NAACP. Honig advised Tarver to send a letter on behalf of the NAACP disavowing any involvement with the alleged statements.

An executive meeting was held not long after. Appellants produced a transcript which they aver is of the executive meeting. According to the transcript, Adrine addressed the issue of the proposed radio station sale. Adrine stated that he wished that Burkes were present and that he did not want to make any allegations he could not back up before hearing Burkes's side of the situation. When pressed regarding the allegations, Adrine stated:

"The upshot of this is that there were some allegations that Caesar was trying to negotiate some 'tit for tat' to be an advocate for his McDonald's business, and, um, he said, he said that he didn't do it. You know I would just like to hear his explanation. The point is that the other side, being Zapis, it is now alleged that some improper influence being exercised by some of us in the branch or through the branch, as officers, to try to influence an FCC, uh, situation. And that as a result of that, and because of that alleged interference with their deal that those who had a meeting with Tolliver and Rush could be subject to some sort of civil liability. And, uh, we had had the first meeting, I thought went very well, we were talking about what we thought needed to happen to protect the community and to protect Rush and these people from being, you know, straw men, and that those were the two things we were most concerned about, and that they should come forward with some kind of a rearrangement of the package that would address those concerns that certainly, you know, we would be in favor of black owners having themselves a majority ownership position in a radio station here in Cleveland. So they were then going to bring Zapis back into the deal so we could address those concerns directly with him, and the day before that happened I got the call from R.J. telling me that the word that he had gotten from Zapis was that there had been these side conversations, and so at that point I told R.J. that, uh, you know, I need to talk to some other folks. I talked to Pauline; Pauline in turn talked to Honig. Honig called me that night and told me what his concerns were as to how that could play back on him as the ____ and could ultimately fall back on the branch. I in turn hooked him up with George. We had conversations. I called Pauline back and told her to cancel the meeting. And then that was the end of that. And now, in the last week, all kinds of stuff has been swirling around because I have been contacted by R.J. Somebody has been trying to get through to me or to me from Zapis through my Dad, you know, about sitting down and continuing the meeting, and (inaudible). I am now very insecure with that, and now the only way for that to happen is if the lawyers from both sides are present so that we can have a full and open discussion and everyone can have their piece on the table. The key seems to be that FCC you know, is talking about a full hearing, is talking about making a ruling with regard to that within the next fourteen days, and Honig is in Hawaii for the majority of that period of time because of the fact that his father is very sick and we can't even get a sit-down until he gets back. So apparently their answer on the other side * * *."

Burkes and his corporation, C.B. Management Company, Inc., filed a complaint against Stidham and Adrine for slander and intentional infliction of mental distress. The claims were based on conversations Stidham had with Adrine and Adrine's repetition of that information to Tarver, Forbes, and at the Executive Committee meeting. The trial court granted summary judgment for the defendants on both claims.

II

Appellants' first, second, third, and fifth assignments of error will be addressed together as similar issues of law and fact are involved. In the assignments of error, appellants dispute the entry of summary judgment for Adrine on the claim of defamation.

Civ.R. 56(C) provides that summary judgment is proper if the trial...