Niotti-Soltesz v. Piotrowski

• Decision Date: 27 February 2017
• Docket Number: NO. 2016–T–0072,2016–T–0072
• Citation: 2017 Ohio 711,86 N.E.3d 1
• Parties: Holly NIOTTI–SOLTESZ, Plaintiff–Appellant, v. Michael W. PIOTROWSKI, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

86 N.E.3d 1

2017 Ohio 711

Holly NIOTTI–SOLTESZ, Plaintiff–Appellant,

v.Michael W. PIOTROWSKI, et al., Defendants–Appellees.

NO. 2016–T–0072

Court of Appeals of Ohio, Eleventh District, Trumbull County.

February 27, 2017

Frank R. Bodor, 157 Porter Street, N.E., Warren, OH 44483 (For Plaintiff–Appellant).

Dennis M. Pilawa and Kimberly A. Brennan, Rawlin Gravens & Pilawa Co., LPA, The Hanna Building, Suite 500, 1422 Euclid Avenue, Cleveland, OH 44115 (For Defendants–Appellees).

TIMOTHY P. CANNON, J.

{¶ 1} Appellant, Holly Niotti–Soltesz, appeals from a judgment entry of the Trumbull County Court of Common Pleas granting summary judgment in favor of appellees, Attorney Michael W. Piotrowski and his employer, the Fraternal Order of Police Ohio Labor Council Inc. ("FOP/OLC"). For the following reasons, the trial court's judgment is affirmed.

{¶ 2} In July 2013, Attorney Piotrowski was representing Mr. Robert Wolford, a member of the Ashtabula Police Department, in an ongoing labor dispute with the city of Ashtabula. Mr. Wolford was being investigated for an incident that occurred in 2010. Ms. Niotti–Soltesz was contracted by the city of Ashtabula to administer a polygraph examination to Mr. Wolford.

{¶ 3} On July 3, 2013, Attorney Piotrowski informed Ms. Niotti–Soltesz that he had filed an unfair labor practice complaint against her and the city of Ashtabula.

{¶ 4} On July 9, 2013, Mr. Wolford arrived at Ms. Niotti–Soltesz's place of business to sit for his polygraph examination. Attorney Piotrowski was also present, as were Lori Lamer, Ashtabula's Assistant City Solicitor, and Lieutenant Parkomaki, on behalf of Ashtabula's Chief of Police. Before the examination commenced, words were exchanged between Ms. Niotti–Soltesz and Attorney Piotrowski; they disagreed over a form Mr. Wolford was asked to sign and whether Attorney Piotrowski could be present in the room while his client was being examined. Appellees do not deny that Attorney Piotrowski said the following to Ms. Niotti–Soltesz during this exchange: "You just don't seem to be bright enough to understand what I'm saying"; "I will not show you any respect. You are a polygraph operator. You are simply a con artist. Why should I show you respect?" This exchange was also audio recorded.

{¶ 5} Appellant filed a complaint against appellees, alleging causes of action for slander per se and slander per quod. She specifically complained that the statement, "you are simply a con artist," was false, slanderous, defamatory, and uttered without privilege. She stated, "[i]t impugned [her] good character and reputation in the community and demeaned her reputation as an accredited polygraph examiner."

{¶ 6} Appellees answered and subsequently filed a motion for summary judgment. Appellant filed a partial motion for summary judgment, in which she requested the trial court declare the statements to be slanderous as a matter of law and have a jury determine damages. The trial court granted summary judgment in favor of appellees.

{¶ 7} Appellant filed a timely appeal and raises four assignments of error:

[1.] The trial court erred and abused its discretion in finding the statement "you are simply a con artist" as being an opinion of the profession in general and appellant's position in that profession and not a fact stated as the truth.

[2.] The trial court erred and abused its discretion in finding that there were no verifiable facts on which to interpret the veracity of Appellee Piotrowski's statement.

[3.] The trial court erred and abused its discretion in determining that the general context and of the discussion and a prior disagreement involving a purported ULP filing on behalf of Officer Wolford required it to classify Piotrowski's statement to be opinion rather than fact.

[4.] The trial court erred and abused its discretion in failing to consider in the general and broader context in which the statement appeared that the Appellee Attorney (Piotrowski) was bound by professional rules of conduct that prohibit derogatory remarks to third persons; knowingly make a false statement of material fact or law to a third person; and his failure to retract the statement.

{¶ 8} Summary judgment is proper when

(1) [n]o 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., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C).

{¶ 9} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court [e.g., pleadings, depositions, answers to interrogatories, etc.] which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996), citing Civ.R. 56(C) and Celotex Corp. v. Catrett, 477 U.S. 317, 323–324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party satisfies this burden, the nonmoving party has the burden to provide evidence demonstrating a genuine issue of material fact, pursuant to Civ.R. 56(E). Id. at 293, 662 N.E.2d 264.

When considering a motion for summary judgment, the trial court may not weigh the evidence or select among reasonable inferences. Rather, all doubts and questions must be resolved in the non-moving party's favor. Hence, a trial court is required to overrule a motion for summary judgment where conflicting evidence exists and alternative reasonable inferences can be drawn.

McCarthy v. Lordstown, 11th Dist. Trumbull No. 2014-T-0050, 2015-Ohio-955, 2015 WL 1142953, ¶ 7, citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121, 413 N.E.2d 1187 (1980) ; Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359, 604 N.E.2d 138 (1992) ; and Pierson v. Norfork S. Corp., 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-6682, 2003 WL 22931361, ¶ 36.

{¶ 10} On appeal, we review a trial court's entry of summary judgment de novo, i.e., "independently and without deference to the trial court's determination." Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993) (citation omitted); see also Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996) (citation omitted).

{¶ 11} Appellant's assignments of error all relate to the summary judgment granted in favor of appellees on appellant's cause of action for defamation.

{¶ 12} Defamation is a false publication of fact, made with some degree of fault, that causes injury to a person's reputation; exposes that person to public hatred, contempt, ridicule, or shame; or adversely affects that person in his or her trade or business. See Straus v. Doe, 11th Dist. Lake No. 2003-L-082, 2004-Ohio-5316, 2004 WL 2803254, ¶ 26 and Jacobs v. Budak, 156 Ohio App.3d 160, 2004-Ohio-522, 805 N.E.2d 111, ¶ 20 (11th Dist.) (citations omitted). Oral defamation is referred to as slander. Straus, su pra, at ¶ 26 (citation omitted).

{¶ 13} Slander per quod refers to a statement with a facially innocent meaning that becomes defamatory via interpretation or innuendo. Id. at ¶ 27 (citation omitted); see also Becker v. Toulmin, 165 Ohio St. 549, 556, 138 N.E.2d 391 (1956). A plaintiff must prove special damages to succeed on a claim for slander per quod. See Schoedler v. Motometer Gauge & Equip. Corp., 134 Ohio St. 78, 84, 15 N.E.2d 958 (1938).

{¶ 14} Slander per se, on the other hand, is unambiguously defamatory on its face. Becker, supra, at 553, 138 N.E.2d 391. To be actionable as slander per se, the oral statement " ‘must consist of words which import an indictable criminal offense involving moral turpitude or infamous punishment, imputes some loathsome or contagious disease which excludes one from society[,] or tends to injure one in his trade or occupation.’ " Straus, supra, at ¶ 28, quoting Hughes v. Fordeley, 11th Dist. Trumbull No. 99–T–0115, 2000 WL 895593, *2 (June 30, 2000), citing Schoedler, supra, at 84, 15 N.E.2d 958. "Where facts demonstrate that the slanderous statements meet these criteria, general damages and malice are presumed as a matter of law." Id. (citation omitted).

{¶ 15} Our initial inquiry is whether the statement at issue is one of fact or opinion. Jacobs, supra, at ¶ 21 ; see also Wampler v. Higgins, 93 Ohio St.3d 111, 117, 752 N.E.2d 962 (2001), citing Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279, 281–282, 649 N.E.2d 182 (1995).

{¶ 16} " ‘ "(S)ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation." ’ " Mehta v. Ohio Univ., 194 Ohio App.3d 844, 2011-Ohio-3484, 958 N.E.2d 598, ¶ 27 (10th Dist.), quoting Feldman v. Bahn, 12 F.3d 730, 733 (7th Cir.1993), quoting Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). Nevertheless, statements of opinion are generally protected under Article I, Section 11, of the Ohio Constitution, which provides: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press." See Wampler, supra, at 113–114, 752 N.E.2d 962, citing Vail, supra, at 280, 649 N.E.2d 182, and Scott v. News–Herald, 25 Ohio St.3d 243, 245, 496 N.E.2d 699 (1986) ; see also Jacobs, supra, at ¶ 21–22. "Therefore, what is required is a delicate balance between the constitutional protections afforded to the free expression of ideas and the protections afforded to an individual's reputation under defamation laws." Mehta, supra, at ¶ 27 (citations omitted).

{¶ 17} "[T]he determination as to whether an alleged defamatory statement is an opinion or fact is a question of law for this court to...