Carter v. Pristine Senior Living & Post-Acute Care

2021 Ohio 1211, 170 N.E.3d 544

• Court: Ohio Court of Appeals
• Decided: April 9, 2021
• Docket: 28877
• Status: Published

Opinion

[Cite as Carter v. Pristine Senior Living & Post-Acute Care, 2021-Ohio-1211.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

LEWIS Q. CARTER, et al. : : Plaintiffs-Appellants : Appellate Case No. 28877 : v. : Trial Court Case No. 2018-CV-2214 : PRISTINE SENIOR LIVING AND : (Civil Appeal from POST-ACUTE CARE, et al. : Common Pleas Court) : Defendants-Appellees :

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OPINION

Rendered on the 9th day of April, 2021.

JULIUS L. CARTER, Atty. Reg. No. 0084170, 10 West Second Street, Suite 2229, Dayton, Ohio 45402 Attorney for Plaintiffs-Appellants

STEVEN J. HUPP, Atty. Reg. No. 0040639 and KATHLEEN A. STAMM, Atty. Reg. No. 0095160, 1300 East Ninth Street, Suite 1950, Cleveland, Ohio 44114 Attorneys for Defendants-Appellees

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HALL, J. -2-

{¶ 1} Plaintiffs-appellants Julius Carter and Lewis Carter appeal from the trial

court’s entry of summary judgment for Pristine Senior Living and Post-Acute Care and its

administrator, Scott Fehr, on the Carters’ claim for defamation. The trial court granted

summary judgment on the merits to the defendants, concluding that the allegedly

defamatory statements were privileged; it also granted them summary judgment based

on the Carters’ failure to properly serve Fehr. We affirm.

I. Factual and Procedural Background

{¶ 2} Lewis Carter was a resident at Pristine Senior Living and Post-Acute Care

(“Pristine”), a long-term care and rehabilitation facility in Englewood, Ohio. While visiting

his father on the evening of May 16, 2017, Julius Carter complained to a nurse about the

care that his father was receiving. According to the nurse, Julius yelled at her and said, “I

want to hit you right now.” The nurse reported the incident, and Fehr was notified. An

employee-safety policy required Fehr to report any threat of violence against an employee

to the police. As such, Fehr contacted the Englewood Police Department and reported

what had happened, including Julius’s alleged threat to the nurse. Fehr stopped working

for Pristine in June 2017 and moved to Columbus, Ohio.

{¶ 3} On May 18, 2018, the Carters filed an action against Pristine and Fehr, jointly

and severally, claiming medical negligence regarding the care of Lewis Carter and

defamation for filing a false police report against Julius. The negligence claim was

dismissed for failure to file an affidavit of merit, and that judgment is not a subject of this

appeal. Pristine and Fehr filed a motion for summary judgment on the claim for

defamation, contending that Fehr’s statements were privileged. The trial court sustained -3-

the motion, but on December 6, 2019, we reversed, finding that the trial court had not

allowed Carter an appropriate opportunity to oppose summary judgment. See Carter v.

Pristine Senior Living and Post-Acute Care, Inc., 2d Dist. Montgomery No. 28381, 2019-

Ohio-5010.

{¶ 4} After remand, on January 6, 2020, Pristine and Fehr filed a renewed motion

for summary judgment, again based on privilege. A couple of weeks later, they filed a

motion to dismiss for failure to perfect service on Fehr. The trial court converted the

motion to dismiss into a motion for summary judgment, and on July 28, 2020, the court

sustained both motions. The court concluded that Fehr’s statements to police were

entitled to an absolute as well as a qualified privilege. The court also concluded that

service had not been perfected on Fehr, because a year had passed since the Carters

filed their complaint and he had not been properly served.

{¶ 5} The Carters appeal.

II. Analysis

{¶ 6} The Carters assign three errors to the trial court. We will address them out of

order.

A. Summary judgment based on privilege

{¶ 7} The third assignment of error alleges: “The trial court erred by granting

Appellees’ Motion for Summary Judgment on the issue of qualified and absolute

privilege.”

{¶ 8} There is immunity from civil liability for defamatory statements made in

certain situations. M.J. DiCorpo Inc. v. Sweeney, 69 Ohio St.3d 497, 505, 634 N.E.2d

203 (1994). These situations are divided into two categories: absolute privilege and -4-

qualified privilege. Id.

{¶ 9} One situation in which absolute privilege applies is in a judicial proceeding.

Id. See also Malone v. Lowry, 2d Dist. Greene No. 06-CA-101, 2007-Ohio-5665, ¶ 24.

Some Ohio courts hold that statements to police officers are part of a judicial proceeding

and are also entitled to absolute privilege. E.g., Lasater v. Vidahl, 2012-Ohio-4918, 979

N.E.2d 828 (9th Dist.). Other Ohio courts disagree, holding that statements to police

officers are not part of a judicial proceeding and are entitled only to a qualified privilege.

E.g., Thomas v. Murry, 8th Dist. Cuyahoga No. 109287, 2021-Ohio-206, ¶ 57. In this

case, in finding that absolute privilege applied, the trial court relied on our decision in

Malone, in which we reiterated the principle that statements made in a judicial proceeding

are entitled to absolute privilege. But the statements in Malone were made in an affidavit

submitted with a petition for a protection order. In the present case, the statements were

in the context of a report to police of criminal activity. This court has not decided whether

such statements to police officers are part of a judicial proceeding and entitled to absolute

privilege.

{¶ 10} We need not decide, however, whether absolute privilege applied here,

because we agree that Fehr’s statements were entitled to qualified privilege. “ ‘Any

communications made by private citizens to law enforcement personnel for the prevention

or detection of crime are qualifiedly privileged and may not serve as the basis for a

defamation action unless it is shown that the speaker was motivated by actual malice.’ ”

(Emphasis added.) Allen v. Pirozzoli, 8th Dist. Cuyahoga No. 103632, 2016-Ohio-2645,

¶ 14, quoting Lewandowski v. Penske Auto Group, 8th Dist. Cuyahoga No. 94377, 2010-

Ohio-6160, ¶ 26. “In other words, a qualified privilege may be defeated if a claimant -5-

proves with convincing clarity that the speaker acted with actual malice.” Thomas at ¶ 57,

citing Jacobs v. Frank, 60 Ohio St.3d 111, 573 N.E.2d 609 (1991), paragraph two of the

syllabus. “In the context of a qualified privilege, ‘actual malice’ is defined as ‘acting with

knowledge that the statements are false or acting with reckless disregard as to their truth

or falsity.’ ” Id., quoting Lewandowski at ¶ 26. Here, there was simply no evidence that

could have been construed to show that Fehr acted with actual malice in making the

statements to the police. As the trial court found, the evidence showed that Fehr made

the statements in good faith, with an interest to be upheld, for a limited purpose, and on

a proper occasion, in a proper manner, to a proper person.

{¶ 11} If Fehr was not liable, then neither was Pristine. “Under the doctrine of

respondeat superior, without an underlying tort claim against an employee, a plaintiff has

no claim against the employee’s employer.” Krause v. Case W. Res. Univ., 8th Dist.

Cuyahoga No. 70712, 1996 WL 732537, *6 (Dec. 19, 1996), citing Strock v. Pressnell, 38

Ohio St. 3d 207, 217, 527 N.E.2d 1235 (1988). If summary judgment is properly granted

to an employee on a defamation claim, the employer cannot be liable under the doctrine

of respondeat superior. See Spingola v. Stonewall Columbus, Inc., 10th Dist. Franklin No.

06AP-403, 2007-Ohio-381, ¶ 26. So, if there were no liability for Fehr because of

qualified privilege, there could be no respondeat superior liability for Pristine. Therefore,

both Pristine and Fehr were entitled to summary judgment on the Carters’ claim for

defamation.

{¶ 12} The third assignment of error is overruled.

B. Summary judgment based on failure of service

{¶ 13} The first assignment of error alleges: “The trial court erred by deciding the -6-

Motion for Summary Judgment, on the issue of privilege, on the merits after deciding the

Motion for Summary Judgment, on the issue of service pursuant to Civ.R. 3(A) and Civ.R.

12(B)(5), with prejudice, in favor of both Defendants.”

{¶ 14} The Carters filed their complaint against Pristine and Fehr on May 18, 2018.

Fehr stated in an affidavit that he was never personally served with the complaint. When

service was attempted on him at Pristine, Fehr was no longer employed there. Fehr also

avers that he never authorized anyone else to accept service for him. The Carters

concede that Fehr may not have been properly served. But they argue that, even if Fehr

were properly dismissed, Pristine should not have been. We decline to decide this issue

because, as we have concluded, judgment for Pristine was proper on the merits.

{¶ 15} The Carters also argue that the trial court should not have decided the

summary-judgment motion on the merits of the defamation claim after granting summary

judgment on the issue of service. We are not convinced. We note that, in its decision, the

court actually ruled on the merits first and then on the service issue. But in effect, the

court decided both motions simultaneously.

{¶ 16} The first assignment of error is overruled.

C. Discovery

{¶ 17} The second assignment of error alleges: “The trial court erred by denying

Appellants the opportunity to engage in meaningful discovery on the issues of qualified

and absolute privilege.”

{¶ 18} On January 6, 2020, Pristine and Fehr filed their renewed motion for

summary judgment—which was substantively the same motion for summary judgment

that had been originally filed almost a year earlier. On February 10, the trial court gave -7-

the Carters a ten-day extension to respond to the issue of absolute privilege and gave

them until after they had the opportunity to conduct depositions to respond to the issue of

qualified privilege. It was not until February 20 that the Carters reasserted their written

discovery requests, and the only depositions requested were of Fehr and Officer Gary L.

Shewman. The Carters timely filed their response on the absolute-privilege issue. On

March 11, about a week after taking Fehr’s deposition, the Carters filed their response on

the issue of qualified privilege.

{¶ 19} The Carters contend that the trial court denied them a reasonable

opportunity to obtain discovery to oppose summary judgment by limiting the time for

discovery. They say that while they were able to conduct two depositions, they had to do

so without the benefit of relevant documents, because Pristine and Fehr did not provide

meaningful responses to interrogatories and did not provide any of the documents

requested. The Carters contend that this lack of discovery negatively affected their ability

to respond to Pristine and Fehr’s summary-judgment motion on the merits of their

defamation claim. Pristine and Fehr respond that many of the Carters’ interrogatories and

requests for documents were improper under Civ.R. 33 and 34, and they noted their

objections in their responses. They point out that the Carters could have asked Fehr at

his deposition about many of the matters in their written discovery requests, but they did

not.

{¶ 20} As a general matter, “[a] trial court * * * has discretion in the regulation of

discovery matters.” (Citation omitted.) Denham v. New Carlisle, 138 Ohio App.3d 439,

443, 741 N.E.2d 587 (2d Dist.2000). Pertinent here, “ ‘Civ.R. 56(F) requires the [party

opposing summary judgment] to submit affidavits with sufficient reasons stating why it -8-

cannot present by affidavit facts sufficient to justify its opposition.’ ” Id., quoting Gates

Mills Invest. Co. v. Pepper Pike, 59 Ohio App.2d 155, 169, 392 N.E.2d 1316 (8th

Dist.1978). “ ‘When a request for a continuance to respond to a motion for summary

judgment is not supported by affidavits, a trial court is free to consider the merits of the

motion without first ruling on the motion for continuance.’ ” Id., quoting Ramsey v.

Edgepark, Inc., 66 Ohio App.3d 99, 104, 583 N.E.2d 443 (10th Dist.1990).

{¶ 21} Here, the Carters did not mention Civ.R. 56(F) and did not support their

opposition to summary judgment with an affidavit. Furthermore, after reviewing the

Carters’ interrogatories and document requests, we do not believe that more time would

have changed the outcome, as the record before us contains not even a hint that Fehr

acted with actual malice in making the police report. We cannot say that the trial court

abused its discretion with respect to discovery.

{¶ 22} The second assignment of error is overruled.

III. Conclusion

{¶ 23} We have overruled each of the three assignments of error. The trial court’s

judgment is affirmed.

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Julius L. Carter Steven J. Hupp Kathleen A. Stamm Ronald Margolis Hon. Dale Crawford, Visiting Judge