Carr v. Educ. Theatre Ass'n

• Citation: 2023 Ohio 1681
• Decision Date: 19 May 2023
• Docket Number: C-220240
• Parties: DIANE M. CARR, Plaintiff-Appellant, v. EDUCATIONAL THEATRE ASSOCIATION, and JULIE C. THEOBALD, Defendants-Appellees.
• Court: United States Court of Appeals (Ohio)

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2023-Ohio-1681

DIANE M. CARR, Plaintiff-Appellant,
v.
EDUCATIONAL THEATRE ASSOCIATION, and JULIE C. THEOBALD, Defendants-Appellees.

No. C-220240

Court of Appeals of Ohio, First District, Hamilton

May 19, 2023

Civil Appeal From: Hamilton County Court of Common Pleas TRIAL NO. A-2101599

Freking Myers & Reul LLC and George M. Reul, Jr., for Plaintiff-Appellant,

Jackson Lewis P.C., Ryan M. Martin and Alessandro Botta Blondet, for Defendants-Appellees.

OPINION

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Bergeron, Judge.

{¶ 1} After pressing "send" on an email, defendants-appellees Educational Theatre Association ("EdTA") and then-executive director of EdTA, Julie Theobald (collectively "the EdTA defendants"), found themselves on the receiving end of a lawsuit. Although she was not explicitly named in the email, plaintiff-appellant Dr. Diane Carr claimed that the email defamed her. She maintained, throughout this litigation, that the email constituted defamation per se, but she also acknowledged that the defamatory effect could only be appreciated by implication or innuendo. Seeing nothing actionable in the email, the trial court eventually granted summary judgment in favor of the EdTA defendants. After careful review of the email and governing caselaw, we agree with the trial court's conclusion and affirm its judgment.

I.

{¶ 2} Dr. Carr joined EdTA, a nonprofit that promotes theatre education in schools, in 2004, and she eventually worked her way up to Executive Director in 2011. In 2013, Ms. Theobald asked Dr. Carr to oversee the International Thespian Officer ("ITO") program and the students who participated in that program. Several years later, in March 2019, Dr. Carr learned that EdTA would terminate her in May 2019 based on her job performance. Although Dr. Carr disagreed with the decision, she negotiated a separation agreement that released all claims she might possess against EdTA and its employees.

{¶3} In August 2019, EdTA received complaints from ITO student participants concerning Dr. Carr's conduct and, through outside counsel, notified her generally about the allegations-but EdTA declined to reveal the substance of

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the allegations other than to indicate that they did not involve physical abuse. EdTA also notified Dr. Carr that it would hire an independent firm to investigate the allegations, and it requested that she cooperate in the investigation. The record, however, fails to illuminate the results of any investigation.

{¶ 4} Nevertheless, according to the EdTA defendants, in June 2020, new information and complaints about the ITO program during Dr. Carr's tenure surfaced. Around the same time, Dr. Carr accepted a speaking engagement at a virtual student leadership event (i.e., a Zoom event) hosted by six EdTA state chapters. Upon discovering that Dr. Carr-and another ITO adult liaison also a subject of the complaints-would speak at the event, Ms. Theobold and the EdTA board of directors dispatched the following email, which we reproduce in full:

Dear Chapter Directors from Alabama, Georgia, Missouri, New Jersey, North Carolina, and Washington

Cc: All Chapter Directors, EdTA Board, Julie Theobald, Brian Monk, Hans Weichhart, Allison Dolan, Sarah Etheridge, Olivia Micer, Shaila Seth

In our Association, the well-being of our students is our highest priority. According to the EdTA Code of Professional Standards, as professional members of EdTA, we shall maintain a professional relationship with students both in and outside of the classroom and consider the well-being of students in all decisions and actions. It is with this in mind that we are compelled to communicate with urgency.

It has come to our attention that the chapters of Alabama, Georgia, Missouri, New Jersey, North Carolina, and Washington plan to host a virtual student leadership event this week for STOs from these chapters. Some of the past ITO adult liaisons from 2013-2019 are participating in this week's STO leadership event.

We urge you to postpone this event.

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As a reminder, in the summer of 2019 we conducted an ITO program review. One of the reasons for this review was that concerns were raised by former ITO members who served from 2013-2019 about the treatment of students by the adult ITO liaisons who served during that time period. These concerns include allegations of negligence and emotional abuse.

We took steps forward to ensure the safety of the 2019-2020 ITO and future ITOs and STOs. We are acknowledging there is more work to be done in the interest of the well-being of students.

We have received new information in the past couple of weeks that gives additional insight and severity to the 2019 program review. It is our duty to conduct a full investigation on all sides of these allegations, and we will need time to follow through and come to appropriate resolutions.

We urge you to postpone the leadership event while we take steps to fully address the situation. If you are unwilling to postpone this event, we will communicate to the members in your chapters that this event is not sanctioned by EdTA, that we have concerns about the event, and that we cannot assure the participants and parents that student safety will be protected.

Separately, we also have concerns about the secretive nature of this event, given the discussions held at Summit last year about the need for communication and transparency. We have heard from multiple sources that members were asked to keep it a secret.

Please confirm whether you will postpone the event. We commit to sharing further information in the future.

With respect,

EdTA Board of Directors

[List of Board of Directors]

Julie Theobald, Executive Director

CC: Scott Wilson and Erin Carr, recused due to Conflict of Interest

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In the aftermath of this email, Dr. Carr filed a complaint in May 2021 against the EdTA defendants for breach of contract-concerning the separation agreement referenced above-and defamation per se largely based on the email.

{¶5} Several months later, the EdTA defendants filed a motion for judgment on the pleadings, arguing that Dr. Carr purported to bring an impermissible implied defamation claim, without actually quoting or attaching the email, and that Ohio does not permit implied defamation claims. In response, Dr. Carr largely argued that the EdTA defendants knew there was no safety risk if she attended the Zoom event, yet the "clear impact" of the email was defamatory since it conveyed that her attendance would endanger student safety. She further maintained that referencing an "investigation" suggested that the EdTA defendants had first-hand knowledge that substantiated the alleged risk to the participants of the conference, and that no innocent meaning can arise from the statement "that [the EdTA defendants] cannot assure the participants and parents that student safety will be protected." During the briefing on this motion, the EdTA defendants attached the full text of the email to their reply-via an affidavit of Ms. Theobald-acknowledging that the court may wish to convert their motion into a motion for summary judgment in order to consider the email. See Daniely v. Accredited Home Lenders, 8th Dist. Cuyahoga No. 99208, 2013-Ohio-4373, ¶ 6, citing Peterson v. Teodosio, 34 Ohio St.2d 161, 165-166, 297 N.E.2d 113 (1973) ("Unlike a motion for summary judgment where the parties are permitted to submit certain evidentiary materials for the court's review, the determination of a motion for judgment on the pleadings is restricted solely to the allegations in the pleadings and any writings attached to the complaint.").

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{¶6} Dr. Carr did not object to this procedural maneuver. At the hearing on the motion, both parties stipulated to converting the motion for judgment on the pleadings into a motion for summary judgment. After entertaining the arguments, the trial court granted the EdTA defendants' summary judgment motion as to Dr. Carr's defamation claim, concluding that the email was not defamatory as a matter of law.

{¶7} Dr. Carr then filed a motion for reconsideration, challenging the procedure by which the trial court converted the motion for judgment on the pleadings into a...