Katz v. Enzer

• Decision Date: 01 May 1985
• Docket Number: No. C-840289,C-840289
• Citation: 504 N.E.2d 427,29 Ohio App.3d 118,29 OBR 133
• Parties: , 29 O.B.R. 133 KATZ, Appellant, v. ENZER, Appellee. *
• Court: Ohio Court of Appeals

Page 118

29 Ohio App.3d 118

504 N.E.2d 427, 29 O.B.R. 133

KATZ, Appellant, v. ENZER, Appellee. ^*

No. C-840289.

Court of Appeals of Ohio, First District, Hamilton County.

May 1, 1985.

Syllabus by the Court

1. In a defamation action, evidence of the statements or acts of defendant occurring subsequent to the allegedly defamatory statements are admissible as long as the evidence can be linked reasonably to the defamatory statements at issue as part of a continuing course of conduct.

2. When testimony on a material issue is first presented during defendant's case-in-chief, R.C. 2315.01(D) requires that plaintiff be afforded the opportunity to rebut or explain the evidence.

Gene I. Mesh and Mark Huller, Cincinnati, for appellant.

Stephen A. Bailey, Cincinnati, for appellee.

PER CURIAM.

This cause came on to be heard upon an appeal from the Court of Common Pleas of Hamilton County.

The appeal in the case sub judice brings into question the jury's resolution of a defamation action in favor of the defendant-appellee, Charles Enzer, following a trial in the court of common pleas. In reviewing the six assignments of error presented by the plaintiff-appellant, Ida Katz, we must examine, inter alia, the validity of a series of evidentiary rulings made by the trial judge, the denial of a motion for a partial directed verdict at the conclusion of the plaintiff's case, and the judge's refusal to give a jury instruction on one of the matters allegedly in dispute at trial.

A recitation of the factual background of the controversy between the parties is essential to an understanding of the questions now before us on appeal. In the most general of terms, the dispute may be viewed as one inherent in the sometimes indistinct lines that mark the separate but related professional disciplines of social work, clinical psychology and psychiatry. On the one side, there is appellee Enzer, a licensed doctor of medicine who has specialized in the board-certified practice of psychiatry since 1972; and on the other side is appellant Katz, a certified social worker with a master's degree in that field who has maintained a private counseling practice in Cincinnati for a number of years.

Enzer and Katz met for the first time in 1973 when each participated in a seminar on human sexuality sponsored by the college of medicine at the University of Cincinnati. In the course of the seminar, it became evidence that the parties disagreed sharply on the methodology for discussing the subject at hand with the medical students then in attendance. Of particular concern to Enzer was the way in which Katz seemed to draw repeatedly on her own sexual experiences when making a point to the students. His objections to this approach, which he considered to be professionally repugnant, grew so vehement that he later expressed his views on the unacceptability of Katz's methods to various members of the medical school faculty.

The episode that prompted the filing of the defamation action in the court below came about somewhat coincidentally several years after the initial encounter at the seminar, in an entirely different setting. In the spring of 1977, Enzer happened to come across one of the newsletters periodically distributed to members of the Jewish congregation in which he worshipped. As he read the letter, his attention was drawn especially to an item announcing that Ida Katz would be speaking before a women's group within the congregation on the subject of biofeedback. In connection with the announcement, there appeared a statement describing Katz as one engaged in the treatment of "individuals, groups, families and marital peers with emotional problems."

According to Enzer, the newsletter served to foster what had been a lingering suspicion theretofore grounded only in his negative impressions of the seminar encounter and in various rumors circulating through the community, viz., that Katz had overstepped the bounds of a practice devoted to social work and had begun to encroach on a field reserved exclusively for those trained and licensed in psychology. In an effort to learn more about her educational background and qualifications, he contacted an investigator on the staff of the state agency responsible for the licensing of psychologists and was given certain information that led to the composition of the following letter:

"I am writing to thank you for sharing with me that Ms. Katz is not a licensed psychologist in our community and that on January 10, 1977, she did plead no contest to the charge by the State Medical Board that she was practicing and advertising as a psychotherapist without any such qualifications; and that the court did indeed find her guilty as charged. ¹ Additionally, I appreciate your letting me know that her 'diploma' [a doctoral degree in psychology issued by an institution known as Heed University] is bogus in that it comes from a so-called 'diploma mill' where one obtains such through correspondence courses and is not an accredited institution.

"Because she appears to be continuing to present herself to our community as one qualified to 'treat' those who have emotional problems, I am enclosing a most recent announcement to this effect [the congregational newsletter] for your further investigation."

Although the letter was directed specifically to the investigator for the State Board of Psychology, Enzer made sure that copies were distributed to those members of his congregation who had already heard him discuss the various points addressed in it. In addition to his dissemination of the contents of the letter, Enzer took it upon himself to call the owner of the home where Katz was scheduled to speak, and in the course of their conversation, he stated that Katz was not licensed in the field of psychology, and that she did not possess the qualifications necessary for the kind of practice in which she was engaged.

The denouement of Enzer's revelations about Katz to the members of his congregation came in two parts. The first in point of occurrence was the congregation's cancellation of Katz's speaking engagement, but the more significant of the two from our standpoint was the commencement of the defamation action against Enzer. Casting her complaint in two counts, Katz alleged that the various statements concerning her professional life were made falsely and maliciously, that Enzer had intended to bring about "scandal, hatred, ridicule and disgrace," as well as a loss of professional reputation and esteem, and that his defamatory remarks provided the basis for an award of compensatory and punitive damages totalling $1,000,000.

In the opening stages of the proceedings in the court below, there arose some question as to whether the dispute between the parties would ever reach the point of trial. As discovery progressed, counsel for Enzer at least temporarily forestalled the litigation by moving successfully for summary judgment pursuant to Civ.R. 56. In Katz v. Enzer (Mar. 25, 1981), Hamilton App. No. C-800105, unreported, however, we reversed the order dismissing Katz's complaint, holding that there remained a genuine issue of material fact as to whether Enzer's statements came within one of the qualified privileges recognized in the law of defamation. It was only as a result of our mandate on appeal that the case was ultimately tried before a jury on remand and resolved by the general verdict in favor of Enzer. Judgment was entered in accordance with the jury's finding on March 13, 1984, and this second appeal followed on April 10, 1984.

In the first of the six assignments of error given to us for review, Katz challenges the trial judge's refusal to admit into evidence testimony and exhibits relating to incidents that occurred at times subsequent to Enzer's allegedly defamatory remarks. The proffered evidence should have been submitted for the jury's consideration, she reasons, because it tended to prove the sort of harassment, ill will or spite necessary to establish the material element of actual malice.

In a defamation action such as this where the defense relies, at least in part, on the qualified privilege that is said to rise from communications made in good faith concerning a matter in which individuals share a common interest or duty, proof of actual malice is essential to the plaintiff's success on the merits. Evely v. Carlon Co. (1983), 4 Ohio St.3d 163, 447 N.E.2d 1290; Hahn v. Kotten (1975), 43 Ohio St.2d 237, 331 N.E.2d 713 [72 O.O.2d 134]; West v. Peoples Banking & Trust Co. (1967), 14 Ohio App.2d 69, 236 N.E.2d 679 [43 O.O.2d 197]. To establish actual malice, it must be shown that the defendant acted either with knowledge that his statements were false or with reckless disregard as to whether they were true. Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 348 N.E.2d 144 [75 O.O.2d 291]; Creps v. Waltz (1982), 5 Ohio App.3d 213, 450 N.E.2d 716; Hinton v. Liberal Markets, Inc. (May 6, 1981), Hamilton App. No. C-800284, unreported.

One of the accepted methods for demonstrating knowledge of falsity or reckless disregard of truth is, to some extent, inferential. If the plaintiff can adduce competent evidence at trial tending to show that the defendant was motivated by ill will, spite, grudge or some ulterior motive, the trier of fact may then reasonably conclude that the standard of actual malice has been satisfied. Hahn v. Kotten, supra, 43 Ohio St.2d at 248, 331 N.E.2d 713 (quoting from DeAngelo v. W.T. Grant Co. [App.1952], 64 Ohio Law Abs. 366, 370, 111 N.E.2d 773).

In the case sub judice, the theory of actual malice advanced by Katz at trial was precisely the one articulated in Hahn. To substantiate the theory, she attempted to document for the jury a course of conduct on Enzer's part, beginning with the seminar encounter at the medical school and extending over a period of years, that cast a shadow of ill will and spite over the remarks she alleged to be defamatory. Enzer would...