Isaac Wampler v. Wallace W. Higgins, 00-LW-2537

• Decision Date: 31 May 2000
• Docket Number: 00-LW-2537,2000 CA 5
• Parties: ISAAC WAMPLER, Plaintiff-Appellant v. WALLACE W. HIGGINS, Defendant-Appellee Case
• Court: Ohio Court of Appeals

ISAAC WAMPLER, Plaintiff-Appellant v. WALLACE W. HIGGINS, Defendant-Appellee

No. 2000 CA 5.

00-LW-2537 (4th)

Court of Appeals of Ohio, Fourth District Pickaway

May 31, 2000

COUNSEL FOR APPELLANT: Charles H. Cooper, Jr., 17 South High Street Suite 1000, Columbus, Ohio 43215.

COUNSEL FOR APPELLEE: Thomas R. McGrath, 140 East Town Street, Suite 1070, Columbus, Ohio 43215-5125 and James K. Hill, 408 East Main Street, Circleville, Ohio 43113.

DECISION

ABELE J.

This is an appeal from a Pickaway County Common Pleas Court summary judgment entered in favor of Wallace W. Higgins defendant below and appellee herein.

Issac Wampler, plaintiff below and appellant herein, raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN APPLYING THE STANDARDS SET FORTH IN VAIL V. PLAIN DEALER PUBLISHING CO. (1995) 72 OHIO ST.3D 279 AND SCOTT V. NEWS-HERALD (1986), 25 OHIO ST.3D 243 BECAUSE THOSE STANDARDS APPLY ONLY TO STATEMENTS MADE BY MEDIA DEFENDANTS."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN CONCLUDING THAT STATEMENTS CONTAINED IN DEFENDANT'S DEFAMATORY LETTER, SUCH AS `LINDA'S CARDINAL MARKET, AT THE CORNER OF SCIOTO AND WEST MAIN STREETS, IS BEING FORCED OUT OF BUSINESS BY THE EXORBITANT RENT NOW BEING DEMANDED BY THE PRESENT OWNER OF THE BUILDING,' WERE STATEMENTS OF OPINION."

Our review of the record reveals the following facts pertinent to the instant appeal. On September 25, 1998, the Circleville Herald published an article concerning the closing of Linda's Cardinal Market. The article indicated that the owner decided to close the market due to "a gradual decline in the volume of business at the store and an increase in lease fee for the building, which was sold earlier this year."

On September 28, 1998, appellee's "Letter to the Editor" was published in the Circleville Herald. The letter addressed the closing of Linda's Cardinal Market and reads as follows:

"Dear editor:

Downtown Circleville is about to suffer a serious loss. Linda's Cardinal Market, at the corner of Scioto and West Main streets, is being forced out of business by the exorbitant rent now being demanded by the present owner of the building. Most of us who live in the downtown area have depended on Linda and her predecessors, who have been in the grocery business on that site for the past 50 years.

Ward Skinner and Linda have run a friendly and accommodating store. They knew, understood, and sympathize with their customers. Now, because of one man's self-centered greed, all of that is going to end.

Too many downtown properties belong to people who care nothing for Circleville and who have no vision for the future. Circleville is a unique place, and everyone could profit from that uniqueness. Instead, some are trying to make it conform to the world for their own profit. They are willing to sell out to some faceless national corporation with no motive but profit and no interest in our history, our architecture, or our tradition. They cheerfully take the money and run and `let the public be damned!'

The owner of the Cardinal Market building sold his own Watt Street property, for an astronomical figure, to a mindless corporation. Once he had a taste of the blood of easy money, he has apparently become a ruthless speculator. He would, I'm sure, sell the whole town to heartless corporations so that they might turn it into one, great, ugly, sprawling shopping mall. It is pathetic that the whole town must suffer because of the greed of a few uncaring people."

On January 20, 1999, appellant filed a complaint alleging that appellee, through his September 28, 1998 letter to the editor, defamed appellant. Appellant specifically alleged:

On or about September 28, 1998, defendant caused to be published in the Circleville Herald a letter in which he falsely stated that plaintiff had forced Ms. McKee out of business by charging her an exorbitant rent. Defendant further impugned plaintiff's personal and professional integrity and reputation by, among other things, characterizing plaintiff as a `ruthless speculator.'"

On November 1, 1999, appellee filed a motion for summary judgment. Appellee asserted that his letter to the editor contained his opinions regarding the closing of the market. Appellee argued that pursuant to Ohio law, expressions of opinion cannot constitute defamatory statements and are nonactionable.

On December 17, 1999, the trial court-granted appellee's motion for summary judgment. The trial court agreed with appellee that his letter to the editor represented appellee's opinion on the matter. The trial court stated that under the totality of the circumstances, the language appellee used in his letter constituted opinion because: (1) an ordinary reader would understand the language appellee used in his letter "for just what it is--one person's frustration with the perceived plight of many small downtown areas due to small business closures and large corporate takeovers"; (2) "[t]he letter conjures a vast array of highly emotional responses that will vary from reader to reader"; (3) the "general tenor of the column is sarcastic, more typical of persuasive speech than factual reporting."

Thus, the trial court, finding that the alleged defamatory statements constituted opinion and were nonactionable, granted appellee's motion for summary judgment. Appellant filed a timely notice of appeal.

Appellant's two assignments of error are interrelated, both addressing the propriety of the trial court's decision granting appellee's motion for summary judgment, and we will address the two assignments of error together.

In his first assignment of error, appellant contends that the trial court erred by granting appellee's motion for summary judgment. In particular, appellant asserts that the trial court, when determining that appellee's statements were non-defamatory, erroneously applied the opinion privilege set forth in Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279, 649 N.E.2d 182, and Scott v. News-Herald (1986), 25 Ohio St.3d 243, 496 N.E.2d 699. Appellant argues that the opinion privilege applies only to statements made by the media. We do not agree with appellee that the opinion privilege is so limited.

In his second assignment of error, appellant asserts that the trial court erred by determining that appellee's letter to the editor contained statements of protected opinion. We again disagree with appellant.

Initially, we note that when reviewing a trial court's decision regarding a motion for summary judgment, an appellate court conducts a de novo review. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241, 245. Accordingly, an appellate court must independently review the record to determine if summary judgment was appropriate and need not defer to the trial court's decision. See Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1157; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411-12, 599 N.E.2d 786, 788. In determining whether a trial court properly granted a motion for summary judgment, an appellate court must review the standard for granting a motion for summary judgment as set forth in Civ.R. 56, as well as the applicable law.

Civ.R. 56(C) provides, in relevant part, as follows:

* * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

Thus, a trial court may not grant a motion for summary judgment unless the evidence before the court demonstrates that: (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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. See, e.g., Vahila v. Hall (1997), 77 Ohio St.3d 421, 429-30, 674 N.E.2d 1164, 1171.

Pursuant to Civ.R. 56, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a material fact. Vahila, supra: Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 273. The moving party cannot discharge its initial burden under the rule with a conclusory assertion that the nonmoving party has no evidence to prove its case. Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 147, 677 N.E.2d 308, 318; Dresher, supra. Rather, the moving party must specifically refer to the "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any," which affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C); Dresher, supra.

"[U]nless a movant meets its initial burden of establishing that the nonmovant

...