James v. Bob Ross Buick, Inc.

• Decision Date: 19 May 2006
• Docket Number: No. 21305.,21305.
• Citation: 855 N.E.2d 119,167 Ohio App.3d 338,2006 Ohio 2638
• Parties: JAMES, Appellant, v. BOB ROSS BUICK, INC. et al., Appellees.
• Court: Ohio Court of Appeals

Page 119

855 N.E.2d 119

167 Ohio App.3d 338

2006-Ohio-2638

JAMES, Appellant, v. BOB ROSS BUICK, INC. et al., Appellees.

No. 21305.

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

Decided May 19, 2006.

Dwight D. Brannon and Andrea G. Ostrowski, Dayton, for appellant.

Dale A. Stalf, Cincinnati, for appellees.

WOLFF, Judge.

{¶ 1} Doug James appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment in favor of Norma Ross, Jenell Ross, Robert Ross Jr., and Bob Ross Buick, Inc. ("BRBI"), on his claims of reverse race discrimination, invasion of privacy, and civil conspiracy, among others.

{¶ 2} Construed in the light most favorable to James, the record reveals the following facts.

{¶ 3} On March 1, 1989, James, a Caucasian, was hired by BRBI as a car salesman at its Mercedes-Benz dealership.¹ At that time, BRBI was owned by Robert Ross Sr. Following the death of Robert Ross Sr., in July 1998, supervisory control and decision-making power was assumed by his widow, Norma Ross, and Jenell Ross, their daughter. Norma Ross became president and CEO of BRBI, Jenell Ross became vice-president and principal dealer, and Robert Ross Jr. was assigned various duties. The Rosses are African-Americans.

{¶ 4} In 2002, James was named the sales representative of the year. In October 2002, James submitted a resume for the position of sales manager. James was not promoted to that position. Instead, BRBI hired Glen Lane, an African-American. Effective October 1, 2003, BRBI instituted mandatory performance criteria for salespeople. None of the Mercedes-Benz salespeople met the criteria during the last quarter of 2003.

{¶ 5} On January 9, 2004, James's employment with BRBI was terminated by Jenell and Norma Ross, based on the recommendation of Tom Downs, BRBI's general manager.

{¶ 6} Between January 13, 2004, and March 2, 2004, 33 form letters were automatically generated by a "customer relationship management" ("CRM") software program that had been used by BRBI in its business operations for many years. These form letters were addressed to BRBI customers who, prior to James's termination, had been assigned to him during the term of his employment. According to Ben Swinger, business development manager for BRBI, BRBI's policy was to delete a terminated employee's data file on the day of his termination so that no further letters were be generated in that employee's name. However, these customers were not reassigned to George Radel, the salesperson who was hired to replace James, until March 2, 2004. Swinger stated that this delay, and the resultant generation of letters in James's name, was unintentional.

{¶ 7} Talia Ogle, an administrative assistance for BRBI, signed the letters generated in James's name subsequent to his termination. Ogle stated in her affidavit that she had signed James's name, with his knowledge and approval, on several occasions during his employment. After the letters were sent, James became aware that some of his former clients — including Richard Mount, Jim Goubeaux, and Roy Huff — had received letters from BRBI that purported to be signed by James.

{¶ 8} On January 20, 2005, James filed suit against BRBI and the Rosses (collectively, "BRBI"), setting forth claims of (1) reverse race discrimination, (2) reverse race discrimination in violation of R.C. 4112.99, (3) wrongful discharge in violation of public policy, (4) invasion of privacy (misappropriation of name), (5) forgery in violation of R.C. 2913.31, (6) identity fraud in violation of R.C. 2913.49, (7) civil recovery for criminal acts under R.C. 2307.60, (8) respondeat superior liability, and (9) civil conspiracy. On July 13, 2005, James sought summary judgment on his civil conspiracy and misappropriation-of-name claims. On the same day, BRBI filed a motion for summary judgment on all of James's claims. James subsequently voluntarily dismissed his claims of forgery, identity fraud, and civil recovery for criminal acts. On September 8, 2005, James filed the deposition of Terry Lowry, a former sales manager for BRBI, and a motion to compel his deposition testimony regarding a settlement between him and BRBI. Later that day, the trial court granted BRBI's motion for summary judgment.

{¶ 9} James raises two assignments of error on appeal.

I. The trial court erred by denying appellant's motion for summary judgment and granting defendants' motion for summary judgment.

{¶ 10} In his first assignment of error, James claims that the trial court erred in granting summary judgment against him on his claims of invasion of privacy, civil conspiracy, and reverse race discrimination.

{¶ 11} Our review of the trial court's decision to grant summary judgment is de novo. See Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162, 703 N.E.2d 841. Civ.R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, 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. See State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183, 677 N.E.2d 343; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 65-66, 8 O.O.3d 73, 375 N.E.2d 46.

A. Invasion of Privacy

{¶ 12} The tort of invasion of privacy includes four separate torts: "`(1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness." Scroggins v. Bill Furst Florist & Greenhouse, Inc., Montgomery App. No. 19519, 2004-Ohio-79, 2004 WL 41716, ¶ 32-33, quoting Killilea v. Sears, Roebuck & Co. (1985), 27 Ohio App.3d 163, 166, 27 OBR 196, 499 N.E.2d 1291.

{¶ 13} "The forgery of the signature of another is a recognized variant of the tort known generally as invasion of privacy. See Illustration 5, Restatement of the Law 2d, Torts (1965), Section 652C. More specifically, forgery amounts to the appropriation of the name or likeness of another. Id. Ohio has adopted the tort of misappropriation of the name or likeness of another as propounded by the Restatement. Zacchini v. Scripps-Howard Broadcasting Co. (1976), 47 Ohio St.2d 224 [1 O.O.3d 129, 351 N.E.2d 454]."² Thomas v. Mitchell (Dec. 17, 1993), Huron App. No. H-93-17, 1993 WL 553599.

{¶ 14} In granting summary judgment to BRBI on James's misappropriation claim, the trial court noted that BRBI "readily admit[s] that subsequent to Plaintiff's termination, several letters went out to prospective clients of Bob Ross Buick, Inc. that were purportedly signed by Plaintiff, Doug James." The court found that the letters sent by Ogle "were unsanctioned and could have benefitted Bob Ross Buick, Inc." It further concluded that the evidence established that the letters were sent after James's termination and that James had not consented to the use of his name beyond his termination. Although the court found no genuine issue of material fact that BRBI had misappropriated James's name, the court granted summary judgment in BRBI's favor on the ground that James had not presented any proof of damages.

{¶ 15} On appeal, James claims that the trial court erred when it implicitly concluded that damages are an element of the tort of misappropriation of name or likeness. James argues that once the trial court concluded that no genuine issue of fact existed that BRBI had misappropriated his name, a jury should have determined what damages to award to him. James asserts that at a minimum, he should have been permitted to seek nominal damages, which would have subjected BRBI to punitive damages for their willful and wanton behavior.

{¶ 16} In response, BRBI asserts that its conduct did not rise to the level of an actionable intrusion on James's privacy. Citing Zacchini, BRBI notes that the Supreme Court has observed that the "mere mention" of an individual's name is insufficient to constitute an invasion of privacy. BRBI argues that the use of James's name was an innocent mistake which involved only the "mere mention" of his name.

{¶ 17} BRBI's argument is unpersuasive. As noted by BRBI, the Supreme Court has distinguished "the mere incidental use of a person's name and likeness, which is not actionable, from appropriation of the benefits associated with the person's identity, which is." Zacchini, 47 Ohio St.2d at 229, 1 O.O.3d 129, 351 N.E.2d 454. The Zacchini court cited with approval the Restatement of the Law 2d, Torts (1965), Section 652C, including the portion regarding the incidental use of name or likeness. That portion reads:

{¶ 18} "The value of the plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded."

{¶ 19} In our view, BRBI's conduct cannot reasonably be viewed as the incidental use of James's name. Ms. Ogle and Mr. Swinger both stated in their affidavits that, pursuant to BRBI policy, batches of these form...