Harvey v. Sys. Effect, LLC

• Decision Date: 24 April 2020
• Docket Number: No. 28497,28497
• Citation: 154 N.E.3d 293,2020 Ohio 1642
• Parties: Anne C. HARVEY, Plaintiff-Appellant v. SYSTEMS EFFECT, LLC, et al., Defendants-Appellees
• Court: Ohio Court of Appeals

154 N.E.3d 293

2020 Ohio 1642

Anne C. HARVEY, Plaintiff-Appellant

v.SYSTEMS EFFECT, LLC, et al., Defendants-Appellees

No. 28497

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered April 24, 2020

OPINION

WELBAUM, J.

{¶ 1} Plaintiff-Appellant, Anne Harvey, appeals from a summary judgment granted in favor of Defendants-Appellees, Systems Effect, LLC dba Training Cove ("Training Cove"), Claudia Jordan, and Steve Jordan (collectively, "Appellees"). According to Harvey, the trial court erred by conflating the torts of false light and defamation for purposes of applying the statute of limitations. Harvey further contends that genuine issues of material fact existed regarding her false light claim. In addition, Harvey argues that the trial court erred in granting summary judgment on her statutory claims under R.C. 2741.02 for name appropriation. Finally, Harvey contends that the trial court erred in concluding that qualifying privilege could protect Appellees' conduct.

{¶ 2} As a preliminary point, we note that Harvey has raised a number of issues in her brief that relate to the magistrate's decision. In fact, most of Harvey's argument relates to dicta and other matters discussed in that decision. However, the trial judge, who adopted the magistrate's report with modifications, based his decision on two points only: (1) that Harvey's false light claim was barred by the one-year statute of limitations applicable to defamation claims; and (2) that, because Harvey's claim under R.C. 2741.02 was not within the claims intended to be protected under that statute, Appellees did not violate the statute by publishing the three slides that were at issue in this litigation. The trial court found no genuine issues of material fact regarding either issue, granted Appellees' summary judgment motion, and dismissed Harvey's case.

{¶ 3} In view of the above facts, we will consider only the issues decided by the trial court judge. After considering the record and the applicable law, we agree with the trial judge that no genuine issues of material fact existed and that Appellees were entitled to summary judgment on Harvey's claims.

{¶ 4} Specifically, the trial court did not err in rendering summary judgment in favor of Appellees on Harvey's false light invasion of privacy claim. A false light invasion of privacy claim involving allegations that would also support a defamation claim has the same statute of limitations applied to it as the defamation claim. That is the case here, and since Harvey's claim was not filed within the one-year statute of limitations for defamation claims, it is barred.

{¶ 5} The trial court also did not err in granting summary judgment to Appellees on Harvey's statutory claim under R.C. 2741.02 for use of her persona. Appellees were exempt under R.C. 2741.09(A)(1)(b) and (A)(3), as the material in question was newsworthy, and Harvey's persona was also used "in connection with the * * * reporting of an event or topic of general or public interest." Furthermore, R.C. 2741.02 did not apply to the case under an exception to the statute found in R.C. 2741.02(D)(1). Under this exception, Appellees did not have to obtain Harvey's consent to use her persona because they used it "in connection with any news, public affairs, * * * or account * * *."

{¶ 6} Finally, given the disposition of the first two issues, Harvey's assignment of error concerning qualified privilege under R.C. 2317.05 is moot. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 7} This case arose as an offshoot of prior litigation involving Harvey's 2011 sale of a residence in Kettering, Ohio, to Andrew and Sarah Seitz. See Seitz v. Harvey , 2d Dist. Montgomery No. 25867, 2015-Ohio-122, 2015 WL 223856. In that action, the Seitzes sued Harvey and her mother, Billie Harvey, for fraudulent misrepresentation, fraudulent concealment, and fraudulent non-disclosure with regard to sewer/plumbing and termites. After a four-day jury trial in March 2013, "[t]he jury found in favor of the Harveys with regard to the sewer/plumbing issues, but found for the Seitzes on all three claims for fraud regarding termites. The jury awarded compensatory damages of $68,276 to the Seitzes." Id. at ¶ 18.

{¶ 8} The Harveys initially purchased the home in 2003 and were alerted at that time by the seller, through an Ohio Residential Property Disclosure Form, of prior treatment for wood-boring inspects. In addition, the Harveys learned through their own " ‘wood destroying insect infestation inspection report,’ which was requested and signed by both Harveys on September 26, 2003, * * * that there was ‘visible evidence of a wood destroying insect infestation.’ " Id. at ¶ 7. "The report further noted that there was evidence of prior treatment, and that the infestation was inactive; no treatment was recommended." Id.

{¶ 9} Despite this knowledge, when the Harveys later attempted to sell the house in 2005, they "completed a residential property disclosure form on which they answered Section G regarding knowledge of woodboring insects in the negative." Id. After the house failed to sell, they took it off the market and completed substantial remodeling in 2006-2007. Id.

{¶ 10} In November 2009, the Harveys again placed the house on the market, and again answered Section G of the property disclosure form negatively. Id. at ¶ 8. Between then and December 2010, when the Seitzes viewed the house, it was vacant. Id. at ¶ 8 and 10. After making an offer on the house, an inspection was done, with Andrew Seitz present. At the time, a sofa that Harvey had left at the house covered "[t]wo large spots in the living room." Id. at ¶ 13.¹ "Likewise, in one bedroom closet, some floor damage was concealed by a pink curtain on the floor. A second bedroom closet had a large tile, leftover from the earlier remodeling, on the floor. It also covered some damage." Id. The part of the current inspection report which contained a " ‘Wood Destroying Insect Inspection Report’ " "indicated that there was no visible evidence of wood destroying insects, but that drill marks outside the home indicated ‘past treatment for termites.’ No treatment was recommended." Id.

{¶ 11} In early January 2011, the Seitzes moved into the house. "Approximately one month later, Mr. Seitz was moving a chair when his boot broke through a floorboard in the living room. He observed what he believed to be termites. On March 27, 2011, the Seitzes contacted a pest control company and the home was treated for termites. Eventually it was also determined that tree roots had grown into the clay sewer tiles, which had broken apart, causing drainage and water backup problems." Id . at ¶ 15. In September 2011, the Seitzes filed suit against the Harveys, which resulted in a $68,276 judgment in their favor.

{¶ 12} Due to the filing of post-judgment motions, the notice of appeal was not filed until August 14, 2013; the Seitzes then filed a notice of cross-appeal on September 10, 2013. The cross-appeal involved denials of the Seitzes' request for punitive damages and their motion to enforce an alleged post-judgment settlement agreement. Id. at ¶ 19-20.

{¶ 13} On January 16, 2015, we affirmed the trial court's judgment in part and reversed it in part. The Harveys had asserted two assignments of error on appeal. The first was that a directed verdict or judgment notwithstanding the verdict should have been granted with respect to fraud concerning patent (obvious) defects in the flooring and latent (hidden defects) found by the person the Seitzes had hired to assess the termite damage. Id. at ¶ 22-36. The second assignment of error concerned whether the jury verdict finding fraud on latent (hidden) defects was against the manifest weight of the evidence. Id. at ¶ 38-38.

{¶ 14} The patent and latent fraud claims had different bases. The patent fraud claim involved the termite damage to the wood floors. This involved the failure of the Harveys to disclose the damage to the hardwood floors. Concerning this claim, we commented that:

R.C. 5302.30(C) requires sellers to act in good faith and to disclose facts regarding "material matters relating to the physical condition of the property to be transferred." It is undisputed that the Harveys did not disclose the existence of termite damage to the hardwood floors, despite the fact that the 2003 Cordell disclosure form and their 2003 termite inspection report alerted them to such damage. There was no evidence that the Harveys remediated any existing damage to the floors. We thus conclude that this damage should have been disclosed.

Id. at ¶ 25.

{¶ 15} After reciting various evidence, we concluded that the damage would have been obvious to the purchasers and that they could not demonstrate fraud "because the evidence was insufficient to prove the required element of justifiable reliance. In other words, [the Seitzes] were on notice that there had been previous termite damage and that there was existing damage to the hardwood floors, despite the fact that three of those areas were underneath items that they or their inspector did not move." Id. at ¶ 31. This was not an exoneration of the Harveys; it was simply a finding that the purchasers should have been aware of an obvious defect. Based on the failure to prove justifiable reliance, we held that the trial court should have granted a directed verdict on this point. Id.

{¶ 16} The second part of the first assignment of error involved a claim of latent (hidden) termite damage uncovered when the Seitzes' damages assessor (Rob Fickert) removed flooring and drywall. The crux of this claim was that "the Harveys were aware of the damage, because the Harveys' 2003 termite inspection placed them on notice of such damage, and because they remodeled areas of the home that were adjacent to extensive latent damage." Id. at ¶ 32. In this context, we again stressed that "[i]t is undisputed that the Harveys made no disclosure...