Smith v. Ameriflora 1992, Inc.

• Decision Date: 19 July 1994
• Docket Number: No. 93AP-970,93AP-970
• Citation: 96 Ohio App.3d 179,644 N.E.2d 1038
• Parties: SMITH, Appellant, v. AMERIFLORA 1992, INC.; Sherman R. Smoot Company et al., Appellees. *
• Court: Ohio Court of Appeals

Page 179

96 Ohio App.3d 179

644 N.E.2d 1038

SMITH, Appellant, v. AMERIFLORA 1992, INC.; Sherman R. Smoot Company et al., Appellees. ^*

No. 93AP-970.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided July 19, 1994.

Larry R. Zingarelli and William J. O'Malley, Columbus, for appellant.

Buckingham, Doolittle & Burroughs, John W. Ferron and Donald B. Leach, Columbus, for appellees Sherman R. Smoot Company, Lewis R. Smoot, Sr., Ruscilli Const. Co., Inc., L. Jack Ruscilli, and Pat Reid.

JOHN C. YOUNG, Judge.

This matter is before this court upon the appeal of Delbert Smith, appellant, from the June 1, 1993 decision and June 15, 1993 judgment entry of the Franklin County Court of Common Pleas which granted summary judgment in favor of appellees. On appeal, appellant sets forth the following assignments of error:

"1. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against L. Jack Ruscilli and Ruscilli Construction Company, Inc., for defamation.

"2. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against L. Jack Ruscilli and Ruscilli Construction Company, Inc., for tortious interference with a contractual relationship.

"3. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against L. Jack Ruscilli and Ruscilli Construction Company, Inc., for intentional infliction of serious emotional distress.

"4. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against the Sherman R. Smoot Company and Lewis Smoot, Sr., for defamation.

"5. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against the Sherman R. Smoot Company and Lewis Smoot, Sr., for tortious interference with a contractual relationship.

"6. The trial court committed reversible error when it granted summary judgment on Plaintiff-Appellant's claim against the Sherman R. Smoot Company and Lewis Smoot, Sr., for intentional infliction of serious emotional distress."

The history of this case is as follows: appellant filed his initial complaint on November 4, 1991 and later amended his complaint. A number of the initial parties were dismissed either by the trial court or by appellant. The remaining parties involved in this appeal are: the Sherman R. Smoot Company, Lewis R. Smoot, Sr., Ruscilli Construction Company, Inc., L. Jack Ruscilli and Pat Reid. This court notes that Pat Reid was an employee of the Ruscilli Construction Company, however, none of the assignments of error pertains directly to any statements allegedly made by Pat Reid. Furthermore, the amended complaint raised three causes of action against E.J. Edminister, who was the President of Ruscilli Construction Company, Inc. However, it appears that E.J. Edminister was never served with a complaint or an amended complaint. When appellees moved for summary judgment in the trial court, they moved for summary judgment on the claims pertaining to E.J. Edminister and Pat Reid insofar as the amended complaint alleged that Ruscilli Construction Company was vicariously liable for the actions of Edminister and Pat Reid.

The trial court granted summary judgment in favor of Ruscilli Construction Company, Inc., L. Jack Ruscilli, Pat Reid, Lewis Smoot, Sr., and the Sherman R. Smoot Company of Ohio. Appellant then appealed to this court.

Ameriflora 1992, Inc. was a not-for-profit Ohio corporation organized to implement a floral exposition in Columbus. On March 16, 1989, appellant was hired by Ameriflora to serve, initially, as a construction coordinator for the exposition. One of appellant's many initial duties was to arrange hiring interviews for architects and engineers. In the fall of 1989, Ameriflora interviewed three construction companies, including a joint venture that was comprised of the Ruscilli Construction Company and the Sherman R. Smoot Company ("Ruscilli/Smoot"). Appellant recommended that Ruscilli/Smoot be selected as the construction management firm. The joint venture's responsibilities on the project were divided such that Ruscilli Construction handled the administrative aspects of the construction while the Smoot Company focused on the field work. Appellant acted as a liaison between the architects, landscape architects, engineers and the Ruscilli/Smoot personnel.

In February 1990, appellant entered into a romantic relationship with Pat Reid, who was a scheduler employed by the Ruscilli Construction Company. On November 5, 1990, appellant was arrested at the Ameriflora job site on charges of gross sexual imposition, rape and kidnapping. Appellant's arrest was precipitated by a series of events that had occurred during the previous weekend and which involved appellant and Pat Reid. These facts are in dispute and, in fact, the charges were later dismissed. However, as a result of his arrest, appellant was suspended with pay from his job at Ameriflora on November 6, 1990. At that time, Thomas E. Fontana, Ameriflora's general manager, instituted an investigation into appellant's job performance and the circumstances of his arrest. Fontana requested a meeting with E.J. Edminister and L. Jack Ruscilli and on November 13, 1990, conducted this meeting to discuss appellant's job performance and his recent arrest. Fontana asked Edminister and Ruscilli for their opinions as to appellant's involvement with Reid and his performance on the job. At the conclusion of the meeting, Fontana prepared a memorandum containing the comments of Edminister and Ruscilli.

On November 15, 1990, Terrie TerMeer, Ameriflora's director of affirmative action and equal employment opportunity, conducted a telephone conversation with Lewis Smoot, Sr. She asked Smoot for his opinion as to whether or not appellant would be effective in functioning on the Ameriflora project after his arrest. (Smoot Affidavit, paragraph 4.) The substance of this discussion was also summarized in a memorandum dated November 19, 1990. Subsequently, on December 3, 1990, Fontana terminated appellant from his position with Ameriflora.

In all six of his assignments of error, appellant argues that the trial court committed reversible error by granting summary judgment. Summary judgment is proper when 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, such party being entitled to have the evidence or stipulation construed most strongly in its favor. Civ.R. 56(C). See, also, Lytle v. Columbus (1990), 70 Ohio App.3d 99, 103, 590 N.E.2d 421, 424. Subsequent to the Lytle decision, the Ohio Supreme Court held that "[a] motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. (Celotex v. Catrett [1986], 477 U.S. 317 [106 S.Ct. 2548, 91 L.Ed.2d 265], approved and followed.)" Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. This court has adopted the rationale in Wing and held that the duty of a party resisting a motion for summary judgment is more than resisting the allegations in the motion. Baughn v. Reynoldsburg (1992), 78 Ohio App.3d 561, 563, 605 N.E.2d 478, 480. Therefore, appellant must affirmatively demonstrate the facts which would entitle him to relief. Id.

Appellant's first and fourth assignments of error argue that the trial court erred when it granted summary judgment in favor of L. Jack Ruscilli, Ruscilli Construction Company, Inc., Lewis Smoot, Sr., and the Sherman R. Smoot Company on appellant's defamation claims. In an action for defamation, a plaintiff must show that a publication to a third person was made for which the defendant is responsible, that the recipient understood the defamatory meaning, and that the defamatory statement is actionable. See Hahn v. Kotten (1975), 43 Ohio St.2d 237, 243, 72 O.O.2d 134, 138, 331 N.E.2d 713, 718. In Hahn, the Supreme Court of Ohio also noted that a qualified privilege is often recognized as a defense to a defamation action. The court explained that the essential elements of qualified privilege are good faith, an interest to be upheld, a statement that is limited in its scope for that purpose, a proper occasion, and publication in a proper manner and to the proper parties only. The Hahn court also noted that it is generally held that if a defendant publishes defamatory words to an interested party at that party's request or solicitation, there is such a relationship between the parties to justify the communication. Id. at 246, 72 O.O.2d at 140, 331 N.E.2d at 720. See, also, Jacobs v. Frank (1991), 60 Ohio St.3d 111, 114, 573 N.E.2d 609, 612-613.

In the instant action, Fontana initiated the meeting with Edminister and Jack Ruscilli, and, in that meeting, asked them to discuss the situation as they saw it surrounding appellant's involvement with Reid and his performance on the job. (Fontana Depo. at 38.) Ruscilli's affidavit states that Fontana approached Ruscilli and asked him for his opinion as to appellant's job performance, technical competence, and how the arrest might affect appellant's ability to function. A review of the record indicates that Ruscilli and Ruscilli Construction Company had a common interest with Fontana as the general manager of Ameriflora, in seeing that the project was handled in a professional and efficient manner. Thus, Ruscilli's and Edminister's comments clearly came within the scope of their common interest. As stated by the court in Hahn:

"A qualified privilege is recognized in many cases where the publisher and the recipient have a common interest, and the communication is of a kind reasonably calculated to protect or further it. Frequently, in such cases, there is a legal, as well as a moral, obligation to speak....