Dudee v. Philpot

• Decision Date: 27 September 2019
• Docket Number: NO. C-180280,C-180280
• Citation: 2019 Ohio 3939,133 N.E.3d 590
• Parties: Jitander DUDEE, Plaintiff-Appellant, v. Timothy PHILPOT, Defendant-Appellee.
• Court: Ohio Court of Appeals

133 N.E.3d 590

2019 Ohio 3939

Jitander DUDEE, Plaintiff-Appellant,

v.Timothy PHILPOT, Defendant-Appellee.

NO. C-180280

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: September 27, 2019

Stephen E. Imm, for Plaintiff-Appellant,

John C. Greiner, Cincinnati, for Defendant-Appellee.

OPINION.

Crouse, Judge.

{¶1} During his time on the family court bench, defendant-appellee Judge Timothy Philpot wrote a fictional novel in which he details multiple family court cases in an attempt to persuade readers of the importance of traditional Christian values regarding family and marriage. One of the fictional cases described was the contentious divorce case of Dr. Gupta Patel, a character who plaintiff-appellant Dr. Jitander Dudee claims closely resembles him, a former litigant who appeared before Philpot. Philpot portrays Patel as a deceitful and unfaithful husband who is hated by his children and who repeatedly lies to the court. Dudee brought suit, claiming that he was defamed and portrayed in a false light by Philpot's statements about the fictional Patel.¹

{¶2} Dudee has now appealed from the trial court's grant of summary judgment in favor of Philpot on Dudee's claims of defamation and false-light invasion of privacy.

{¶3} Dudee argues in one assignment of error that the trial court erred in granting summary judgment in favor of Philpot. He presents five issues for review, (1) whether he presented evidence that Philpot's statements about him were false, (2) whether the trial court erroneously failed to consider a significant part of the defamatory material in the novel, (3) whether Philpot's statements that Dudee's children "hated him" could be determined by a reasonable fact-finder to be defamatory, (4) whether there was evidence in the record from which a reasonable fact-finder could conclude that Dudee was damaged by Philpot's defamatory statements about him, and (5) whether he presented evidence proving that Philpot's statements were false, and thus, cast Dudee in a false light.

Factual Background

{¶4} Philpot has since retired from his position as a family court judge in Lexington, Kentucky. Dudee is a medical doctor who practices in Lexington. The novel, entitled Judge Z: Irretrievably Broken, discusses the contentious Patel divorce case for two of its 257 pages. Dudee claims that Patel represents him, and that the following six statements made in the book are defamatory and violate his privacy by portraying him in a false light:

1. There was no longer any reason to tolerate his arrogance, affairs, and silence.

2. He had already been to jail twice for failing to pay. Then, after screaming under oath, "I have no money, I have no money," he always paid to get out.

3. He still owed money to his past two lawyers, and word gets around.

4. The next time he stayed in jail the full sixty days, growing a mangy beard and claiming various religious convictions no one had heard of to set up a discrimination suit against the jail and maybe even the judge. He found out from Google that the judge was a Methodist and therefore must be biased against Hindus. But his wife had testified that in decades of marriage she had never seen any evidence of a devout Hindu living in her home.

5. He could see his kids, but they hated him.

6. He was a typical workaholic doctor at the University Hospital.

{¶5} Philpot included the following disclaimer at the beginning of his novel—"All of the characters in this book are creations of the author's imagination. This is a work of fiction. Any resemblance to real individuals is purely coincidental."

{¶6} The trial court granted summary judgment for Philpot on all counts, finding that all six of the statements were either not well-pled, substantially true, subject to the innocent-construction rule, nonverifiable opinion, or nonverifiable hyperbole.

Standard of Review

{¶7} The standard of review for a grant of summary judgment is de novo. Esber Beverage Co. v. Labatt USA Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9. Under Civ.R. 56, summary judgment will be granted when the moving party shows

that no genuine issues as to any material fact remain; the moving party is entitled to judgment as a matter of law; and it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party.

Amankwah v. Liberty Mut. Ins. Co., 2016-Ohio-1321, 62 N.E.3d 814, ¶ 9 (1st Dist.).

Defamation

{¶8} "Defamation is the publication or communication of a false statement of fact that injures someone by adversely affecting the person's reputation, business, or position—by exposure to public hatred, contempt, ridicule, shame, or disgrace." Fuchs v. Scripps Howard Broadcasting. Co., 170 Ohio App.3d 679, 2006-Ohio-5349, 868 N.E.2d 1024, ¶ 28 (1st Dist.).

{¶9} Defamation includes both libel and slander. Gilson v. Am. Inst. of Alternative Medicine, 2016-Ohio-1324, 62 N.E.3d 754, ¶ 37 (10th Dist.). Libel refers to written or printed defamatory words, while slander refers to spoken defamatory words. Id.

{¶10} In Thomas v. Cohr, Inc., 197 Ohio App.3d 145, 2011-Ohio-5916, 966 N.E.2d 915, ¶ 24 (1st Dist.), this court discussed the five essential elements of a claim of defamation.

A private person who brings a defamation claim must plead and prove: (1) a false and defamatory statement, (2) about the plaintiff, (3) published without privilege to a third party, (4) with fault or at least negligence on the part of the defendant, and (5) that was either defamatory per se or caused special harm to the plaintiff.

Id.

{¶11} Substantial truth is a complete defense to defamation. Fuchs at ¶ 48. For purposes of summary judgment in a defamation case, the court must view the truthfulness of the statements in favor of the nonmoving party—i.e., assume the statements are false until shown to be true by the moving party. Brown v. Lawson , 169 Ohio App.3d 430, 2006-Ohio-5897, 863 N.E.2d 215, ¶ 22 (1st Dist.).

Does Patel Represent Dudee?

{¶12} Philpot claims that Patel is a "composite character," representative of multiple real-life litigants. In his motion for summary judgment, Philpot argued that Patel did not represent Dudee, and so the trial court should grant summary judgment because the statements were not about Dudee.

{¶13} In order to be defamatory, words must refer to some ascertained or ascertainable person, who then has standing to sue. Smith v. Huntington Pub. Co. , 410 F.Supp. 1270, 1273 (S.D.Ohio 1975), aff'd , 535 F.2d 1255 (6th Cir.1976) (applying Ohio law).

{¶14} In works of fiction, the test for identification is whether a reasonable person could reasonably believe that the article referred to the plaintiff after comparing the characteristics of the plaintiff with those of the fictional character. Id. Neither the intent of the author, nor the recognition by the plaintiff that the article might be about him, are relevant to identification. Id.

{¶15} The author in Smith wrote an article describing drug dependency, and tried to conceal the identity of the drug-addicted subject of the article by using the generic name "Randy Smith" to describe the subject. Id. at 1272. A real person named Randy Smith who lived in the area sued the author for defamation after the article was published in the local newspaper. Id. at 1272.

{¶16} There were many similarities between the plaintiff and the fictional Randy Smith in the article. Both lived in the same small town, were 18-year-old males, and had mothers involved in the drug-dependency program from which the author drew his inspiration. Id. at 1273. The court found the similarities sufficient that a person who "only knew the plaintiff casually, or who had not seen him in some time might reasonably believe that the article concerned the plaintiff * * *." Id.

{¶17} Ultimately, the court in Smith granted summary judgment for the defendant due to the innocent-construction rule, and because the article contained a clear disclaimer that all names in the article were fictitious. Id. at 1274.

{¶18} Philpot admits that the novel is a thinly-veiled autobiography. Also, Charlene Dudee, Dudee's ex-wife, said in an affidavit, "It was immediately obvious to me upon reading this section of the book that Gupta and Connie Patel represent Jitander and myself."

{¶19} Here are some of the most striking similarities between the fictional Patel character and Dudee: (1) both Patel and Dudee were litigants in contentious divorce cases in front of Judge Philpot, (2) both are medical doctors, (3) both are from India, (4) both married American women they met during residency (Charlene is Dudee's ex-wife, Connie is Patel's ex-wife), (5) Dudee's annual income at the time of the divorce was nearly identical to Patel's, (6) both were ordered to give up "million dollar" houses, (7) Patel was jailed twice for contempt of court for failing to pay maintenance, Dudee was jailed three times for the same reason, (8) Patel claims that the fictional Judge Z is biased against Hindus, Dudee complained to the Kentucky Judicial Conduct Commission that Philpot was biased against nonChristians, (9) Patel owed money to two different lawyers, Dudee owed money to four different law firms, (10) Judge Z accused Patel of hiding money from the court, Philpot held in multiple rulings that Dudee had hidden funds from the court, and (11) Judge Z says Patel came to court with a beard and a dot on his forehead, Dudee had a beard and a dot on his forehead during at least one hearing before Philpot.

{¶20} There are also some differences. (1) Patel has three teenage children, Dudee has four young children, (2) Patel purchased a house during the divorce and paid cash, Dudee remained in the marital home, (3) Patel completed his residency in 1979, Dudee was 12 years old in 1979, (4) Patel worked at a university hospital and then a small hospital in...