Cooke v. United Dairy Farmers, Inc.

• Decision Date: 17 June 2003
• Docket Number: No. 02AP-781.,02AP-781.
• Citation: 2003 Ohio 3118
• Parties: Reginald A. Cooke, Plaintiff-Appellant, v. United Dairy Farmers, Inc. et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

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Reginald A. Cooke, Plaintiff-Appellant, v. United Dairy Farmers, Inc. et al., Defendants-Appellees.

No. 02AP-781.

Court of Appeals of Ohio, Tenth District.

Rendered on June 17, 2003.

APPEAL from the Franklin County Court of Common Pleas.

C.P.C. No. 99CVC-06-4512.

Moore, Yaklevich & Mauger, and John A. Yaklevich, for appellant.

Dinsmore & Shohl LLP, and Jerry S. Sallee, for appellees United Dairy Farmers, Inc. and Brian Gillan.

Vorys, Sater, Seymour and Pease, LLP, Gail C. Ford and Joseph R. Miller, for appellees Larry H. James and Crabbe, Brown & James.

OPINION

PER CURIAM.

{¶1} Plaintiff-appellant, Reginald A. Cooke, appeals from the June 18, 2002 judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Larry James ("James") and Crabbe, Brown, Jones, Potts & Schmidt ("Crabbe, Brown") on Cooke's defamation and civil conspiracy claims. Because genuine issues of material fact exist, we reverse.

{¶2} Cooke is an attorney-at-law engaged in private practice who maintains an office in Columbus, Ohio. In February 1996, Cooke was hired to represent Maude Williams and her son Michael Williams, both of whom are former employees of defendant United Dairy Farmers, Inc. ("UDF"). The Williamses are African-American and, in 1995, they filed race discrimination complaints with the Ohio Civil Rights Commission ("OCRC") claiming that they had been fired from their jobs at UDF due to their race. Prior to Cooke's involvement in the proceedings, attorney Daniel Klos represented the Williamses. At the time Cooke first met the Williamses and became involved in their cases, all testimony had been submitted to the OCRC, including the testimony of a former UDF assistant manager, Patty Munyan.

{¶3} In August and October 1996, Cooke filed civil actions in federal court on behalf of the Williamses and against UDF. One of the witnesses Cooke intended to call at trial to substantiate allegations of racially biased attitudes and actions of UDF supervisory personnel was Patty Munyan, who had worked at the same store as the Williamses.

{¶4} In 1997 or 1998, Munyan became involved with Warren Freeman, who at the time had been convicted of approximately one dozen criminal offenses since the age of 18. In March 1998, Freeman offered to sell to UDF a videotape of Munyan, which Freeman claimed to have surreptitiously recorded. The tape is approximately 10 minutes long, and according to Freeman's affidavit, Freeman recorded the tape without Munyan's knowledge by hiding a video camera under dirty laundry in a laundry basket in the bedroom of the apartment where Freeman and Munyan were staying. The tape is a full size VHS cassette, and if, as UDF indicated, that tape was the original, Cooke contends that a full size VHS camera necessarily recorded it. Upon viewing the tape, it appears the camera was level while the recording was made, the camera lens is not obscured by laundry or any part of the laundry basket, and the volume is not muffled. However, it is difficult to make out some of the dialog, because the camera was apparently near a television that was playing, and the tape picks up both the sound from the television and Munyan and Freeman's voices. It is not clear who turned the camera on or off to record the conversation, but a few seconds after the tape begins, Munyan assumes a position on a mattress where she is almost perfectly centered in the camera's field of view, and she remains centered for the duration of the tape.

{¶5} The following exchange occurred on the tape

{¶6} "Mr. Freeman What the hell happened anyway?

{¶7} "Ms. Munyan They was saying that a supervisor — some supervisors at work where I work on Frebis were discriminating. And they weren't really, you know. Maudie Williams just caused a bunch of trouble. And she talked to me and asked me to go on the Civil Rights Commission and said whatever she gets she'll split. I said Okay. All I had to do is do what her and her lawyer said, and that's what I did."

{¶8} Munyan continued

{¶9} "Well, at the time that I did it I thought I was doing the right thing and I thought a little lie wouldn't hurt. I didn't know it was going to be all this. Because when I talked to Reggie and them about it they said, Oh, they'll settle quick."

{¶10} She further explained

{¶11} "I worked for them for eight years and then I get shit on. I didn't get nothing out of it, that's for damn sure. When she asked me to go up there to Civil Rights, she told me she'd pay me if she got anything out of it and I did it."

{¶12} Munyan never states on the videotape that she agreed to testify falsely for Cooke and never states that she was to receive money that Cooke anticipated receiving from UDF. Rather, at the time Munyan made her statements to the Ohio Civil Rights Commission, a different attorney represented the Williamses.

{¶13} UDF purchased the videotape from Freeman for $10,000, and working with the public relations firm of Edward Howard & Co. ("Edward Howard"), held a press conference at the Hyatt on Capital Square Hotel on June 4, 1998. According to Edward Howard's billing records, James had several communications with Edward Howard, including a "news conference phone discussion" with Wayne Hill on June 3, 1998, the day before the press conference.

{¶14} Defendant, Brian Gillan, Chief Operating Officer and general counsel for UDF, was the chief presenter at the press conference. James, trial counsel for UDF in the race discrimination litigation, sat together with Gillan at the presenters' table. No other employee of Crabbe, Brown was present. During the press conference, Gillan delivered prepared remarks to the reporters, and following the prepared remarks, both Gillan and James responded to reporters' questions. The Freeman/Munyan videotape was played at the press conference, copies of the tape were distributed, a transcript of the tape was distributed, and reporters who attended were given press packets stating, among other things, that Cooke knew that the Williams' legal claims were false, that he was part of a fraudulent scheme to force money from the company, and that Munyan agreed on the tape to testify falsely for Cooke. The printed press packet materials distributed at the press conference stated that

{¶15} "Munyan admits on the tape that she agreed to testify falsely for Michael and Maudie Williams and Cooke. In exchange for her testimony, Munyan was to receive a percentage of the money that Williams' mother and Cook anticipated receiving in an out-of-court settlement by UDF."

{¶16} On the morning of the press conference, James had a motion for sanctions filed in federal court in the Williams v. UDF case. In his motion, James discussed the Munyan videotape and accused Cooke of "fraud on the court," the "grossest abuse of the judicial system," a "promise to pay a witness for false testimony," and of filing documents with the court with "knowledge that certain key allegations were false." However, during the press conference itself, James indicated that he was not accusing Cooke of anything. James did state, however, that he had an obligation to report Cooke to the disciplinary counsel.

{¶17} During discovery, James indicated that he played no part in developing the oral presentation Gillan made or the written materials UDF distributed at the press conference. James stated that he intended to attend the press conference as part of the audience, but Gillan asked him to join him at the front of the room. James stated that he did not know in advance of the press conference what Gillan intended to say, and that he only learned of the statements when he first heard them at the event on June 4, 1998.

{¶18} On June 3, 1999, Cooke filed a complaint for libel, slander, and conspiracy against UDF, Brian Gillan, Larry James, and Crabbe, Brown. After discovery, the defendants filed motions for summary judgment, and Cooke filed a motion for partial summary judgment.

{¶19} On June 18, 2002, the trial court found in favor of James and Crabbe, Brown on all claims. The trial court found that James' comment about a disciplinary referral was a statement of opinion and therefore protected by, and immune from a defamation claim. The trial court further found no evidence from which a jury might conclude James conspired with UDF or Gillan to defame Cooke or from which James or Crabbe, Brown could be held liable for the statements published by UDF and Gillan.

{¶20} This appeal followed, with Cooke assigning as error the following

{¶21} "1. The trial court erred in sustaining defendants-appellees' motion for summary judgment.

{¶22} "2. The trial court erred in ordering that portions of the record of this action be sealed from public disclosure."

{¶23} In his first assignment of error, Cooke argues that a genuine issue of material facts exists concerning James' level of involvement in the planning and execution of the June 4, 1998 press conference. Cooke contends that the trial court improperly weighed James' denial of any involvement with Cooke's circumstantial evidence of his involvement in the press conference, and erroneously concluded that James did not cause or participate in the publication of the defamatory material.

{¶24} Defamation, which includes both libel and slander, is a false publication causing injury to a person's reputation, exposing the person to public hatred, contempt, ridicule, shame, or disgrace, or affecting the person adversely in his or her trade or business. Knowles v. Ohio State Univ., Franklin App. No. 02AP-527, 2002-Ohio-6962; Sweitzer v. Outlet Communications, Inc. (1999), 133 Ohio App.3d 102, 108, citing Matalka v. Lagemann (1985), 21 Ohio App.3d 134, 136. Slander refers to spoken defamatory words, while libel refers to written or printed defamatory words. Mallory v. Ohio Univ. (Dec. 20, 2001), Franklin App. No. 01AP-278, citing Lawson v. AK Steel Corp. (1997), 121 Ohio App.3d 251, 256. To establish...