Gilbert v. WNIR 100 FM

• Decision Date: 09 May 2001
• Docket Number: No. 20299.,20299.
• Citation: 142 Ohio App.3d 725,756 NE 2d 1263
• Parties: GILBERT et al., Appellant and Cross-Appellee; Gilbert, Cross-Appellee, v. WNIR 100 FM et al., Appellees and Cross-Appellants; WTOU Touch 1350 et al., Appellees.
• Court: Ohio Court of Appeals

142 Ohio App.3d 725

756 NE 2d 1263

GILBERT et al., Appellant and Cross-Appellee; Gilbert, Cross-Appellee, v. WNIR 100 FM et al., Appellees and Cross-Appellants; WTOU Touch 1350 et al., Appellees.^*

No. 20299.

Court of Appeals of Ohio, Ninth District, Summit County.

Decided May 9, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert Meeker and Jason A. Butterworth, for appellant and cross-appellees.

Richard Goehler and Jill Meyer Vollman, for appellees and cross-appellants.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

BATCHELDER, Presiding Judge.

Appellant, Edward L. Gilbert, appeals the entry of summary judgment against him in the Summit County Court of Common Pleas. Appellees, WNIR 100 FM, Bill Hall, Tom Nagel (a.k.a. Thomas E. Erickson), Howard Chizek, and Joe Finan (collectively, "the WNIR defendants"), cross-appeal the trial court's denial of their motion to dismiss and denial of their motion for summary judgment on the claims of Delphinia Gilbert, cross-appellee. We reverse.

I

On the morning of November 26, 1997, Dr. Margo Prade's body was discovered. She had been murdered. In the weeks following the discovery of Dr. Prade's body, speculation proliferated about who the killer might be. Between January and March 1998, Mr. Gilbert and his wife, Delphinia Gilbert, claim, various allegations were made regarding their involvement in the murder during radio broadcasts on WNIR 100 FM. In February 1998, Mr. Prade, Dr. Prade's ex-husband, was arrested and charged with aggravated murder in connection with Dr. Prade's death.

On March 9, 1998, the Gilberts filed suit against various radio stations including WNIR 100 FM and employees of those radio stations. The various other radio stations and their employees were dismissed, leaving the cross-appellants herein. On April 14, 2000, the WNIR defendants filed a motion for summary judgment. The Gilberts filed a brief in opposition on May 18, 2000. The WNIR defendants filed a reply memorandum on May 31, 2000. On June 8, 2000, the trial court ordered the WNIR defendants to reduce their voluminous motion for summary judgment to thirty pages by June 16, 2000. The WNIR defendants complied, filing a complying motion for summary judgment on June 15, 2000. The Gilberts responded to the WNIR defendants' reply memorandum on June 27, 2000. On September 5, 2000, the trial court entered summary judgment in favor of the WNIR defendants on Mr. Gilbert's claims, finding Mr. Gilbert to be a public figure. The trial court also found material issues of fact to remain regarding Mrs. Gilbert's claims. The trial court denied the WNIR defendants' motion to dismiss based on destruction of evidence on September 14, 2000. Mrs. Gilbert dismissed her remaining claims without prejudice on October 2, 2000. This appeal of the trial court's entry of summary judgment in favor of the WNIR defendants on Mr. Gilbert's claims followed.

II

Appellant, Mr. Gilbert, asserts one assignment of error. Cross-appellants, the WNIR defendants, assert two assignments of error. We will address each in turn, first addressing appellant's assignment of error.

A. APPELLANT'S ASSIGNMENT OF ERROR

"The trial court erred in finding that Edward Gilbert is a public figure for the purpose of Gertz v. Robert Welch, Inc."

Mr. Gilbert avers that the trial court erred as a matter of law in finding him to be a public figure based on the facts adduced herein. We agree.

Pursuant to Civ.R. 56(C), summary judgment is proper if:

"(1) No genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) 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, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 471-472, 364 N.E.2d 267, 274.

Appellate review of a lower court's entry of summary judgment is de novo, applying the same standard used by the trial court. McKay v. Cutlip (1992), 80 Ohio App.3d 487, 491, 609 N.E.2d 1272, 1274-1275. "Questions of law are reviewed de novo." Long Beach Assn., Inc. v. Jones (1998), 82 Ohio St.3d 574, 576, 697 N.E.2d 208, 209.

The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in support of his motion. Id. Once this burden is satisfied, the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that shows a genuine dispute over the material facts exists. Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735, 600 N.E.2d 791, 793-794. In ruling on a motion for summary judgment in a defamation action, the court must apply the standard of clear and convincing evidence as to the element of fault. See Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-2514, 91 L.Ed.2d 202, 216; Lansdowne v. Beacon Journal Pub. Co. (1987), 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979, 983-984. However, the standard of proof for all of the other elements of a private plaintiffs defamation claim is preponderance of the evidence. Davis v. Jacobs (1998), 126 Ohio App.3d 580, 582-584, 710 N.E.2d 1185, 1186.

This court has previously held that a defamation claim is composed of five elements: "(1) a false and defamatory statement, (2) about plaintiff, (3) published without privilege to a third party, (4) with fault of at least negligence on the part of the defendant, and (5) that was either defamatory per se within the limits imposed by the United States Supreme Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985), 472 U.S. 749, 762-763, 105 S.Ct. 2939, 2946-2948, 86 L.Ed.2d 593, 604-605 (where the one defamed is not a public figure and `the defamatory statements do not involve matters of public concern,' `presumed and punitive damages in defamation cases absent a showing of "actual malice" do not violate the First Amendment') or caused special harm to the plaintiff." Gosden v. Louis (1996), 116 Ohio App.3d 195, 206, 687 N.E.2d 481, 487.

We will first address Mr. Gilbert's assignment of error and then address the issues presented in the WNIR defendants' brief as independent grounds for the affirmance of the trial court's entry of summary judgment. See App.R. 3(C)(2); R.C. 2505.22; Morgan v. Cincinnati (1986), 25 Ohio St.3d 285, 290, 25 OBR 337, 341, 496 N.E.2d 468, 473 ("appellee preserved possible error for review by the court of appeals to prevent a reversal by separately arguing same within its brief").

APPELLANT'S ARGUMENT FOR REVERSAL

Mr. Gilbert's Status under Defamation Law

Mr. Gilbert asserts that the trial court erred in finding him to be a public figure and therefore erred in requiring him to present clear and convincing evidence of actual malice. We agree.

"As is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a `public official.'" Rosenblatt v. Baer (1966), 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597, 606, fn. 15 ("Such a course will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the record and findings required for review of constitutional decisions"). Hence, whether one is a public figure is necessarily a question of law for the trial judge to determine. Young v. Morning Journal (1998), 129 Ohio App.3d 99, 102, 717 N.E.2d 356, 358-359.

If the party defamed is either a public official or public figure, the plaintiff must prove actual malice to recover on a defamation claim. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 334-336, 94 S.Ct. 2997, 3004-3005, 41 L.Ed.2d 789, 802-803. One may be designated a public figure for the purposes of defamation law "on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." Id. at 351, 94 S.Ct. at 3013, 41 L.Ed.2d at 812. Further, "hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare." Id. at 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808. If the defamed party is a private individual, Ohio may define the appropriate standard for liability so long as liability is not imposed without fault. See id. at 347, 94 S.Ct. at 3010-3011, 41 L.Ed.2d at 809. In terms of defamation of a private individual, Ohio requires a showing of at least negligence. Dale v. Ohio Civ. Serv. Emp. Assn. (1991), 57 Ohio St.3d 112, 114, 567 N.E.2d 253, 255-256.

Hence, the first issue is whether Mr. Gilbert is a public official, public figure or a private person, and accordingly, whether Mr. Gilbert must show actual malice or negligence to prevail on his defamation claims. The WNIR defendants aver that Mr. Gilbert is a public...