Cooper v. Grace Baptist Church of Columbus, Ohio, Inc.

• Citation: 81 Ohio App.3d 728,612 N.E.2d 357
• Decision Date: 09 July 1992
• Docket Number: No. 91AP-1196,91AP-1196
• Parties: COOPER, Appellant, v. GRACE BAPTIST CHURCH OF COLUMBUS, OHIO, INC. et al., Appellees.
• Court: United States Court of Appeals (Ohio)

Page 728

81 Ohio App.3d 728

612 N.E.2d 357

COOPER, Appellant, v. GRACE BAPTIST CHURCH OF COLUMBUS, OHIO, INC. et al., Appellees.

No. 91AP-1196.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided July 9, 1992.

Steve J. Edwards, Grove City, for appellant.

Lyman & Lyman and Webster S. Lyman, Columbus, for appellee Grace Baptist Church of Columbus, Ohio, Inc.

Winkfield & Brooks Co., L.P.A., and Walter G. Brooks, Columbus, for appellee Ernest Calloway.

WILLIAM J. MARTIN, Judge.

Plaintiff-appellant, Kristol Cooper, timely appeals from the September 20, 1991 judgment of the Franklin County Common Pleas Court which entered directed verdicts in favor of both defendants-appellees, the Grace Baptist Church of Columbus, Ohio, Inc. and Reverend Ernest Calloway.

Plaintiff commenced this defamation action on May 1, 1989, alleging slander per se on the part of defendants church and Calloway, individually and in his capacity as pastor. The complaint further alleged that the remarks attributed to Calloway were made with actual malice and occurred within the scope of his employment. Compensatory and punitive damages both were sought.

Reverend Calloway filed his answer to the complaint on June 13, 1989 in the form of a general denial only. A separate answer was filed by the church on June 14, 1989, which included, inter alia, a general denial, a Civ.R. 12(B)(6) defense of failure to state a claim, and a defense of lack of an agency relationship with Calloway. Neither defendant asserted any Civ.R. 8(C) affirmative defenses.

A jury trial commenced on July 29, 1991, and at the conclusion of plaintiff's case-in-chief, the trial court orally granted the separate defendants' motions for directed verdicts in their favor. Civ.R. 50(A). These judgments were subsequently journalized on September 20, 1991. Plaintiff's appeal from that order was filed on October 18, 1991. Plaintiff's posttrial Civ.R. 60(B) and 59 motions were overruled by the trial court on October 23, 1991.

The material facts underlying this action are summarized as follows. Plaintiff, as a member of the church, approached Calloway with the idea of forming a "witnessing committee" to stimulate church membership. The committee was eventually created, and it formulated a three-part program. The second part included a "male chorus festival" to be held at the church in May 1987. In conjunction with this function, plaintiff claimed that he had personally expended roughly $375 for publicity.

A collection was taken during the festival and at least three congregation members first counted the proceeds, $381, that evening. This money was placed in a sealed envelope and given to plaintiff's spouse. On the following Sunday, plaintiff was asked to bring the money to the church on the next day and to account for his expenditures. The envelope was subsequently opened, and the contents recounted to a total of $370. The trial testimony indicated that the envelope did not appear to have been opened until the recount, and that the collection money must have been originally miscounted.

Plaintiff presented his expense receipts, which exceeded the $370 collected. The collection fund was then turned over to plaintiff as reimbursement. Shortly after this incident, the "witnessing committee" was disbanded.

Some time thereafter, the plaintiff attempted to obtain copies from the church of its bylaws, regulations and/or constitution, but without success. He then contacted the Ohio Attorney General's Office, Charitable Foundations Section, for assistance in obtaining these documents. When his January 6, 1989 letter to the defendants went unanswered, Assistant Attorney General James R. McClain telephoned Reverend Calloway. According to Calloway's deposition, during the course of this telephone conversation in mid-January 1989, Calloway stated to McClain that:

" * * * 'Instead of Mr. Cooper coming down to your office and making all of these complaints, the church--' and this is, as I recall, what I said to him, 'What the church could do is to charge him and take him to court with misappropriation of church funds.' * * *"

It is this remark by Calloway to McClain which forms the basis for plaintiff's lawsuit.

From the trial court's grant of directed verdicts in favor of each defendant, the plaintiff raises five assignments of error:

"1. It was error for the trial court to allow defendants to argue the affirmative defense of privilege since they had not raised the defense in their answer or by motion and raised it for the first time in their motion for a directed verdict at trial.

"2. It was error for the trial court to direct a verdict based on the defense of privilege. No privilege attaches to a statement made to an Assistant Ohio Attorney General when the respondent interjects a slanderous remark about a person that is not related to the subject matter of the telephone call.

"3. It was error for the trial court to sustain defendant's objection to plaintiff's question to defendant Calloway on cross-examination. When a lay witness uses a legal term in his answer, he is competent to answer a follow-up question asking what he meant by his previous answer.

"4. It was error for the trial court to direct a verdict based on that there was no publication and that as a matter of law, plaintiff suffered no damages. A publication to one person is sufficient to state a claim for slander and the amount of damages is for the jury to determine.

"5. It was error for the trial court to direct a verdict in favor of defendant Grace Baptist Church of Columbus, Ohio, Inc., based on defendant Ernest Calloway not being an employee of Grace Baptist Church of Columbus, Ohio, Inc."

Several of the plaintiff's assignments of error relate to the propriety of the trial court's decision to grant directed verdicts to the separate defendants at the close of plaintiff's case-in-chief. A directed verdict at that juncture of the proceedings is clearly permitted under Civ.R. 50(A)(1).

Civ.R. 50(A)(4) provides that:

"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."

Thus, it is the trial court's duty to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue, and, conversely, to withhold an essential issue from a jury when there is not sufficient evidence on that issue to permit reasonable minds to reach different conclusions. O'Day v. Webb (1972), 29 Ohio St.2d 215, 220, 58 O.O.2d 424, 427, 280 N.E.2d 896, 899; Reder v. Antenucci (1989), 62 Ohio App.3d 139, 574 N.E.2d 1137; Johnson v. Hammond (1990), 68 Ohio App.3d 491, 493, 589 N.E.2d 65, 66. A directed verdict is appropriate only where the party opposing it has failed to adduce any evidence on the essential elements of his claim. Hubner v. Sigall (1988), 47 Ohio App.3d 15, 16-17, 546 N.E.2d 1337, 1338-1339. The question to be determined involves a testing of the legal sufficiency of the evidence to take the case to the jury, and it is a question of law and not of fact. Hargrove v. Tanner (1990), 66 Ohio App.3d 693, 695, 586 N.E.2d 141, 142. For this process, the trial court must assume the truth of the evidence essential to the claim, including all reasonable inferences from that evidence; it may not weigh that evidence or try the credibility of the witnesses. Jenkins v. Morgan (1988), 57 Ohio App.3d 40, 43-44, 566 N.E.2d 1244, 1247-1248; TLT-Babcock, Inc. v. Serv. Bolt & Nut Co. (1984), 16 Ohio App.3d 142, 143, 474 N.E.2d 1223, 1224.

These general principles will guide our examination of the assignments of error relating to the trial court's application of Civ.R. 50(A).

In the first assignment of error, plaintiff contends that the defendants had not asserted the defense of qualified privilege in their respective answers to his complaint and, therefore, that the trial court erred when it permitted the defendants to argue that issue, for the first time, at trial in support of their directed verdict motions. Civ.R. 8(C), in part, provides that:

"In pleading to a preceding pleading, a party shall set forth affirmatively * * * any other matter constituting an avoidance or affirmative defense."

The list of affirmative defenses in Civ.R. 8(C) is not exhaustive, and the failure to raise such defenses in a responsive pleading or by motion constitutes a waiver of those defenses. Mitchel v. Borton (1990), 70 Ohio App.3d 141, 144-145, 590 N.E.2d 832, 834-835. A Civ.R. 12(B)(6) defense contained in an answer is insufficient to raise an affirmative defense required to be separately pleaded. Mitchel, supra, headnote three.

A qualified privilege is an affirmative defense to defamation that must be pleaded separately from a general denial. Douglas Elec. Corp. v. Grace (1990), 70 Ohio App.3d 7, 12, 590 N.E.2d 363, 366. In the case sub judice, neither of the defendants asserted any Civ.R. 8(C) affirmative defenses in their answers, which contained only general denials, and the church's Civ.R. 12(B)(6) defense is insufficient to create the affirmative defense of privilege. By failing to raise the defense of privilege in their pleadings, the defendants waived it.

We are mindful that although Civ.R. 15(B) permits the liberal amendment of pleadings, that rule applies only when an amendment would "conform to the evidence" and when an issue has been tried by either the "express or implied consent of the parties." State ex rel. Evans v. Bainbridge Twp. Trustees (1983), 5 Ohio St.3d 41, 44, 5 OBR 99, 101, 448 N.E.2d 1159, 1161-1162. An implied amendment of...