Wilson v. Harvey

• Court: Ohio Court of Appeals
• Writing for the Court: Colleen Conway Cooney
• Citation: Wilson v. Harvey, 164 Ohio App.3d 278, 842 N.E.2d 83, 2005 Ohio 5722 (Ohio App. 2005)
• Decision Date: 27 October 2005
• Docket Number: No. 85829.,85829.
• Parties: WILSON, Appellant, v. HARVEY et al., Appellees.

842 N.E.2d 83

164 Ohio App.3d 278

2005-Ohio-5722

WILSON, Appellant, v. HARVEY et al., Appellees.

No. 85829.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided October 27, 2005.

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Robert D. Wilson, Cleveland, for appellant.

James R. Protasio, for appellees.

COLLEEN CONWAY COONEY, Judge.

{¶ 1} Plaintiff-appellant, Jeffrey R. Wilson, appeals the trial court's decision directing a verdict in favor of defendants-appellees, Alexander Harvey, Yixing Chen, and Michael Marcello. Finding no merit to the appeal, we affirm.

{¶ 2} In April 2004, Wilson filed an action against appellees for defamation, invasion of privacy, and civil conspiracy. The matter proceeded before a jury, where the following evidence was presented.

{¶ 3} In March 2004, the parties were students at Case Western Reserve University ("Case") and resided on the same floor of a campus dormitory. On a weekend when Wilson was away, appellees created computer-generated flyers depicting Wilson as a homosexual. The flyers were entitled "[I]n Search of Male Companion" and included a picture of Wilson that appellees had downloaded from Case's website. The flyer also provided Wilson's name, university e-mail address, and campus phone number. The text of the flyer included the following statements: "Looking for non-smoking GWM¹ who enjoys dominating" and "Interests include: Biology, kissing, crying at movies, picking flowers and dreaming of that special someguy * * *" After appellees created the flyers, they displayed approximately 20 to 25 of them on the north side of the Case campus.

{¶ 4} Wilson testified that he was not a homosexual and that he received numerous phone calls and e-mails inquiring about the flyers. He also testified that he was embarrassed, humiliated, and ridiculed because of the creation and publication of the flyers. According to Wilson, he suffered a loss of reputation, a loss of time, and a lower grade point average ("GPA") and also incurred additional expenses due to his commuting from home during a nine-day period in April 2004.

{¶ 5} Harvey and Marcello testified that they created the flyers as a joke to get even with Wilson for incidents that occurred in the dorm. They also testified that they did not like Wilson. Chen testified that although he was aware of the flyers, he did not participate in creating or posting them.

{¶ 6} At the close of Wilson's case, appellees moved for a directed verdict. The trial court granted the motion and dismissed the case. Wilson appeals this decision, raising two assignments of error, which will be addressed together.

{¶ 7} In his first assignment of error, Wilson argues that the trial court erred in granting a directed verdict in favor of the appellees. In his second assignment of error, Wilson claims that the trial court erred in finding that the flyer was not libel per se in its July 2004 entry denying appellees' motion to dismiss.²

{¶ 8} The applicable standard of review for a directed verdict is set forth in Civ.R. 50(A)(4), which provides:

When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

{¶ 9} A motion for a directed verdict tests the legal sufficiency of the evidence presented; accordingly, neither the weight of the evidence nor the credibility of witnesses may be considered. Cater v. Cleveland (1998), 83 Ohio St.3d 24, 33, 697 N.E.2d 610, citing Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467. In addition, all reasonable inferences that may be drawn from the evidence must be made in favor of the nonmoving party. Rinehart v. Toledo Blade Co. (1985), 21 Ohio App.3d 274, 21 OBR 345, 487 N.E.2d 920. If substantial, competent evidence has been presented from which reasonable minds could draw different conclusions, then the motion must be denied. Wagner v. Roche Laboratories, (1996), 77 Ohio St.3d 116, 119, 671 N.E.2d 252.

{¶ 10} Because a directed verdict presents a question of law, we review the trial court's judgment de novo. Hardy v. Gen. Motors Corp. (1998), 126 Ohio App.3d 455, 462, 710 N.E.2d 764, citing Howell v. Dayton Power & Light Co. (1995), 102 Ohio App.3d 6, 13, 656 N.E.2d 957.

{¶ 11} Before addressing the merits of the appeal, we address the effect of the stipulations to which the parties agreed prior to trial.

{¶ 12} A stipulation is a voluntary agreement entered into between opposing parties concerning the disposition of some relevant point in order to avoid the necessity for proof on an issue. In re All Kelley & Ferraro Asbestos Cases, Cuyahoga App. Nos. 83348 and 83628, 2005-Ohio-2608, 2005 WL 1245639, citing Rice v. Rice (Nov. 8, 2001), Cuyahoga App. No. 78682, 2001 WL 1400012. A stipulation may also be defined as a voluntary agreement, admission, or concession made by the parties or their attorneys concerning disposition of some relevant point in order to eliminate the need for proof or to narrow the range of issues to be litigated. State v. Small, 162 Ohio App.3d 375, 2005-Ohio-3813, 833 N.E.2d 774; Baum v. Baum (Nov. 26, 1997), Wayne App. No. 97CA0022, 1997 WL 775770.

{¶ 13} In the instant case, Wilson filed undisputed fact stipulations. When trial commenced, defense counsel agreed with these stipulations. However, the trial court did not accept stipulations 29, 30, 32, and 33 because they were conclusions of law. The court stated that it did not allow parties to reach and stipulate to conclusions of law.

{¶ 14} We find that two stipulations that were accepted by the court also involve legal conclusions. Stipulations 23 and 24 provide:

23. The Posters contained false and defamatory statements about Plaintiff reflecting his character by bringing him into ridicule, embarrassment[,] and humiliation.

24. The creation and publication of the Posters was malicious and intended to injure Plaintiff's reputation and cause damage.

{¶ 15} "Although litigants may stipulate to facts, they may not stipulate as to what the law requires." Crow v. Nationwide Mut. Ins. Co., 159 Ohio App.3d 417, 2004-Ohio-7117, 824 N.E.2d 127, citing Diversified Capping Equip., Inc. v. Clinton Pattern Works Inc. (Apr. 12, 2002), Wood App. No. WD-01-035, 2002 WL 537998. Therefore, stipulations of law or as to legal conclusions are not binding on the court. Id. at 421, 2004-Ohio-7117, 824 N.E.2d 127, citing Diversified, supra. "`[S]tipulations involving legal conclusions do not relieve a trial court of its duty to determine matters "upon its own analysis of the pertinent facts and legal theories."'" Id. at 421, 2004-Ohio-7117, 824 N.E.2d 127, quoting Burdge v. Franklin Cty. Bd. of Commrs. (1982), 7 Ohio App.3d 356, 357-358, 7 OBR 454, 455 N.E.2d 1055.

{¶ 16} Therefore, we find that stipulations 23 and 24 involve legal conclusions and thus were not binding on the court. These stipulations had no effect on the trial and have no effect on the merits of this appeal.

Defamation

{¶ 17} "Defamation is the unprivileged publication of a false and defamatory matter about another." McCartney v. Oblates of St. Francis deSales (1992), 80 Ohio App.3d 345, 353, 609 N.E.2d 216. A defamatory statement is one that tends to cause injury to a person's reputation or exposes him to public hatred, contempt, ridicule, shame, or disgrace or affects him in his trade or business. Id., citing Matalka v. Lagemann (1985), 21 Ohio App.3d 134, 136, 21 OBR 143, 486 N.E.2d 1220. A defamatory statement expressed in a writing, a picture, a sign, or an electronic broadcast is considered libel. Garner, Black's Law Dictionary (7th Ed.1999) 927. Therefore, Ohio generally defines "libel" as a "`false written publication, made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame[,] or disgrace or affecting a person adversely in his trade, business or profession.'" Stokes v. Meimaris (1996), 111 Ohio App.3d 176, 184, 675 N.E.2d 1289, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council (1995), 73 Ohio St.3d 1, 7, 651 N.E.2d 1283.

{¶ 18} Ohio recognizes two actionable types of libel: libel per se and libel per quod. Stokes, supra, quoting Thomas H. Maloney & Sons, Inc., v. E.W. Scripps Co. (1974), 43 Ohio App.2d 105, 108, 72 O.O.2d 313, 334 N.E.2d 494. Determining whether a statement is libel per se or per quod is a question of law for the trial court. Id., citing Fish v. Heatherdowns Country Club Assoc. (June 7, 1991), Lucas App. No. L-90-072, 1991 WL 97324.

Libel per se

{¶ 19} "Libel per se" is defined as something actionable in itself, i.e., it is libel by the very meaning of the words used. Stokes, supra, 111 Ohio App.3d 176, 675 N.E.2d 1289; Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App.3d 183, 191, 2002-Ohio-6803, 783 N.E.2d 920. Actual malice and damages are presumed in an action for libel per se and thus need not be proven. McCartney, supra, 80 Ohio App.3d at 354, 609 N.E.2d 216.

{¶ 20} In order to be considered libel per se, the words used in the publication must fall into one of three categories: "(1) the imputation of a charge of an indictable offense involving moral turpitude or infamous punishment, (2) the imputation of some offensive or contagious diseases calculated to deprive the person of society, or (3) having the tendency to injure the plaintiff in his trade or occupation." Williams v. Gannett Satellite Information Network, Inc., 162 Ohio App.3d 596, 2005-Ohio-4141, 834 N.E.2d 397, at ¶ 8, citing Schoedler v. Motometer Gauge & Equip. Corp. (1938), 134 Ohio St. 78, 84, 11 O.O. 487, 15 N.E.2d 958.

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