Ferreri v. Plain Dealer Publishing Co.

• Decision Date: 14 May 2001
• Docket Number: No. 77407.,77407.
• Parties: FERRERI et al., Appellants, v. PLAIN DEALER PUBLISHING COMPANY et al., Appellees.
• Court: Ohio Court of Appeals

142 Ohio App.3d 629

756 NE 2d 712

FERRERI et al., Appellants, v. PLAIN DEALER PUBLISHING COMPANY et al., Appellees.^*

No. 77407.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided May 14, 2001.

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Brent L. English, for appellants.

Baker & Hostetler, L.L.P., Louis A. Colombo and Marcia E. Marsteller, for appellees.

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TIMOTHY E. McMONAGLE, Presiding Judge.

This appeal arises out of media coverage and commentary by The Plain Dealer regarding Robert A. Ferreri, a Cuyahoga County Juvenile Court judge.

A. FACTS AND PROCEDURAL HISTORY

On August 13, 1999, Ferreri and his wife, Diane, filed a defamation complaint against The Plain Dealer Publishing Company, the owner and publisher of The Plain Dealer newspaper; Plain Dealer reporter James Ewinger; Plain Dealer editorial writer Jean DuBail; Brent Larkin, the director of The Plain Dealer's editorial page; David Hall, former editor of The Plain Dealer; and Plain Dealer cartoonist Jeff Darcy.

In his complaint, appellant¹ alleged that seven publications in The Plain Dealer newspaper (four editorials, a political cartoon, and two articles) were defamatory, cast him in a false light, caused him to suffer emotional distress, and caused his wife to suffer a loss of consortium. Copies of the editorials, cartoon, and articles were attached as exhibits to appellant's complaint and are reproduced as an Appendix to this opinion.

The first of the editorials—"Judging the judge"—was published on the editorial page of The Plain Dealer on August 18, 1998. In that editorial, The Plain Dealer commented on disciplinary proceedings involving appellant, opined that Ferreri's actions were an affront to the honor of the justice system, and concluded that "the proper punishment, then, is to remove Ferreri from the bench, permanently." In his complaint, appellant alleged that the editorial falsely accused him of being "a reckless, arrogant, publicity-hungry bully" and defamed him by stating:

"He has not and never will have the self-control, the evenness of temperament, the strict sense of fairness, the willingness to listen, the innate sense of dignity— indeed, any of the qualities that make a mere lawyer into a good jurist.

"* * *

"The judge has forgotten beyond hope of recall that the honor paid when he enters or leaves the courtroom is not just for him, but for the law, too. It is an honor he is no longer due."

The second editorial, entitled "A close call at Juvenile Court," was published in The Plain Dealer on November 22, 1998. In this editorial, The Plain Dealer commented on the selection of the new administrative judge of the Juvenile Court, and applauded the selection of Judge John Gallagher over two other judges, one of whom was appellant. Appellant's complaint alleged that the characterization in the editorial of his conduct of "late" as "scandalous" was false and defamatory.

The third editorial at issue was published on December 14, 1998. In that editorial, entitled "Bickering jurists," The Plain Dealer opined that it was good that appellant had not been selected as administrative judge for the juvenile court. The editorial stated, "Ferreri, however, still hopes to claim the prize, insisting that Gallagher's selection was illegal and the job should be his by right of seniority." It continued, "Ferreri appears to be beyond the call of reason at this point, so we will waste no effort appealing to his better nature" to stop maneuvering to obtain the position of administrative judge. In his complaint, appellant alleged that the accusation that he was "beyond the call of reason" was false and defamatory.

The final editorial at issue, entitled "Poor judges of judicial conduct," was published on December 20, 1998. The editorial was sharply critical of what it perceived as a lenient sentence for appellant from the disciplinary board. The editorial stated:

"In reviewing the evidence against Ferreri, the board allowed itself to be swayed by the judge's claims that he always had the best interest of children at heart. We, too, believe that Ferreri cares about children, but the evidence is clear that he cares a good deal more about himself and his image, and that his good intentions are regularly overwhelmed by his foul temper and massive ego."

Appellant's complaint alleged that the statement that "he cares more about himself and his image, and that his good intentions are regularly overwhelmed by his foul temper and massive ego" was false and defamatory.

On June 11, 1999, The Plain Dealer published a political cartoon on the editorial page. The cartoon depicted appellant sitting behind bars in "Juvenile Detention" with a child in an adjacent cell saying, "Yeah... I know, we're all innocent in here, pal! Got any bubble gum?" In his complaint, appellant alleged that the cartoon placed him in a false light because it "conveyed the false and defamatory idea that he had been sent to jail for alleged misconduct when, in fact, he was only suspended by the Supreme Court of Ohio from acting as a judge and from practicing law ."

The first of the two allegedly defamatory articles was published in the Metro section of The Plain Dealer on August 13, 1998. The article, captioned "Hearing begins on outspoken judge," reported on appellant's disciplinary proceeding before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court. The article reported generally about the nature of the hearing and the various witnesses at the hearing. The article contrasted appellant's "restrained" demeanor at the hearing with his less-restrained conduct in a prior proceeding before the administrative judge of the Cuyahoga County Court of Common Pleas in which, the article reported, appellant was "generally combative, telling a court official to shut up and asking another judge if he knew how to read." Appellant's complaint alleged that the statement in the article that appellant appeared before the administrative judge to "argue about why he should hold onto several high-profile cases that belonged on another judge's docket" was false and defamatory.

The second allegedly defamatory article regarding appellant was published in The Plain Dealer on November 4, 1998. This article, entitled "8 incumbents keep Common Pleas seats" reported on the judges in the Cuyahoga County Court of Common Pleas who were re-elected in November 1998. After reporting the election results for the juvenile division judges, the article stated:

"The election was considered crucial because the county's six Juvenile Court judges have been locked into a pattern of internal strife and bickering that many believe interferes with the administration of justice.

"Those remaining and the new judges will have to deal with controversial Judge Robert A. Ferreri, who is widely viewed as the center of many of the disputes. Ferreri was not up for re-election this year.

"A branch of the Ohio Supreme Court has recommended that he be suspended as a judge because of numerous false statements he is accused of making about other judges and court officials.

"In spite of his problems, many expect Ferreri to ask his fellow judges to install him as the court's next administrative judge. That would give him control of that division and all of the patronage there.

"The election gives the Democrats four judgeships, while Ferreri and Gallagher are the only Republicans."

Appellant's complaint alleged that the "accusation" that he was at the "center of many" disputes which had locked the Juvenile Court of Cuyahoga County "into a pattern of internal strife and bickering that many believe interferes with the administration of justice" was false and defamatory.

On November 1, 1999, appellees moved to dismiss appellant's claims pursuant to Civ.R. 12(B)(6), or, in the alternative, to strike certain paragraphs of the complaint. Appellant failed to respond to appellees' motion within the time permitted by Civ.R. 6(E) and Cuyahoga County Common Pleas Local R. 11(C) (i.e., ten days later, or by November 11, 1999). On November 17, 1999, the parties entered into a stipulation providing that appellant could have until December 17, 1999 to respond to appellees' motion to dismiss. The stipulation was filed the same day.

On November 18, 1999, the trial court granted appellees' motion and dismissed appellant's claims "in their entirety, for failure to state a claim upon which relief may be granted."

Eight days later, on November 26, 1999, appellant sought relief from judgment from the trial court. Appellees opposed appellant's motion. On December 17, 1999, the trial court granted appellant's motion to file a reply brief instanter. Before the trial court ruled on appellant's motion for relief from judgment, however, appellant filed his notice of appeal, asserting two assignments of error for our review.

B. FIRST ASSIGNMENT OF ERROR

Appellant's first assignment of error states:

"I. The trial court failed to give plaintiffs sufficient time to respond to defendants' prolix motion to dismiss and thereby deprived them of due process of law."

In his first assignment of error, appellant contends that the trial court failed to give him sufficient time to respond to appellees' motion to dismiss and thereby deprived him of due process of law. Appellant contends that he filed a stipulation on November 17, 1999, giving him until December 17, 1999, in which to respond to appellees' motion. Accordingly, appellant asserts, by granting appellees' motion on November 18, 1999, without the benefit of his arguments in opposition and notwithstanding the stipulation, the trial court denied him due process of law. Appellant's argument is unpersuasive.

Appellees filed their motion to dismiss on November 1, 1999, and served it by mail. Pursuant to Loc.R. 11(C) of the Court of Common Pleas of Cuyahoga County, a party...