[Cite as Gilles v. Donegan, 2024-Ohio-6023.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
DANIEL GILLES, :
Plaintiff-Appellant, : No. 113744 v. :
ANN MARIE DONEGAN, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 26, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-967968
Appearances:
The Ondrejech Law Firm, LLC, and Mark S. Ondrejech, for appellant.
Pilawa & Brennan Co., LPA and Kimberly A. Brennan, for appellee William Traine.
Lewis Brisbois Bisgaard & Smith LLP and Joseph Fiorello, for appellee City of Olmsted Falls.
Marshall Dennehey P.C. and Jillian L. Dinehart, for appellee Ann Marie Donegan. WILLIAM A. KLATT, J.:
Plaintiff-appellant Daniel Gilles (“Gilles”) appeals the trial court’s
order granting summary judgment on behalf of defendants-appellees Ann Marie
Donegan (“Donegan”), William Traine (“Traine”), and the City of Olmsted Falls
(“the City”) (collectively “the defendants”). For the following reasons, we affirm.
Factual and Procedural History
Donegan served as the mayor and safety director of the City from
2014 through 2017, and in that role Donegan attempted to reform the police
department, resulting in animosity between Donegan and members of the police
department. At the start of Donegan’s tenure, the City employed Gilles as the Chief
of Police and Lieutenant Carmen Battaglia (“Battaglia”) as a member of the police
force.
The lawsuit below arose from a wellness check that Battaglia and
Detective Alex Bakos (“Bakos”) completed on August 2, 2015, at Donegan’s home
concerning an alleged incident between Donegan and her teenage son. Gilles
instructed Battaglia and Bakos to present the potential domestic violence case
against Donegan to an outside special prosecutor to avoid any conflicts of interest.
Donegan was subsequently arrested, and a special prosecutor charged Donegan with
domestic violence, misdemeanor menacing, and aggravated menacing. On
September 9, 2015, those charges were dismissed due to lack of evidence. Gilles and
Battaglia claim that Donegan led a “campaign of harassment” against them following her arrest and prosecution and her actions led to both officers losing their
jobs.
In January 2016, Battaglia retired from his employment with the
Olmsted Falls Police Department, and a few days later he entered into a
“Confidential Separation Agreement and Full Release and Waiver of Claims” with
the City.
In February 2016, after the charges against Donegan were dismissed,
she threatened to file suit against the City, claiming retaliation, false arrest, and
malicious prosecution.
On March 8, 2016, Traine was appointed Assistant Deputy Chief of
Police with the Olmsted Falls Police Department. Traine had previously worked for
the department as a part-time volunteer officer, but he was not involved with
Donegan’s arrest or prosecution. Upon his hiring in 2016, Traine occupied
Battaglia’s former office space. On March 14, 2016, while cleaning out the office
desk, Traine discovered a USB drive that contained evidence relating to the domestic
violence case against Donegan. The Olmsted Falls law director and other counsel
representing the City asked Traine to conduct an internal investigation to assess the
merits of Donegan’s threatened claims against the City; the internal investigation
spanned over several months.
On June 7, 2016, Gilles was terminated as chief of police due to his
failure to complete tasks in his Last Chance Agreement. The termination was
affirmed by a five-to-one vote of the Olmsted Falls City Council, and Gilles entered an “Agreement and Full Release and Waiver of Claims” (“settlement agreement”)
that included a nondisparagement clause. Upon Gilles’s termination, Traine was
appointed to serve as interim police chief.
On June 14, 2016, while reviewing paperwork left unaddressed by
Gilles, Traine discovered a supplemental report and other items relating to the
domestic charges against Donegan. It was determined that the supplemental report
and recordings were not previously provided to the special prosecutor who handled
the domestic charges against Donegan. The City appointed Attorney James
McDonnell (“McDonnell”) to serve as an outside special prosecutor to review the
internal-affairs investigation. In February 2017, McDonnell determined there was
probable cause to believe Gilles and Battaglia committed the crime of tampering
with evidence related to Donegan’s domestic-violence case and Gilles’s management
of the Donegan case constituted dereliction of duty.
In March 2017, Donegan and the City entered a settlement in regard
to Donegan’s claims of improper conduct by Battaglia and Gilles in their pursuit of
the charges against her. The City agreed to pay Donegan $450,000 in exchange for
a release of all her claims against the City.
Following Donegan’s settlement, the City received several public-
records requests to obtain all documents related to the arrest and prosecution of
Donegan as well as the internal-affairs investigation. On August 31, 2017, the City
released the requested records and Traine conducted a press conference. At the press conference, Traine detailed the basis for the charges
against Donegan; Donegan’s allegations against the City; and the conclusions of the
internal-affairs investigation that served as the basis for the City’s settlement with
Donegan. Traine stated that a special prosecutor reviewed the Olmsted Falls Police
Department’s investigation of Donegan and found probable cause to believe two
members of the police force committed some crimes in the investigation.
In addition to the press conference, Donegan issued a written
statement to the press that stated “rogue police leaders, who have since left the
department” attempted to convict her “of trumped up charges.”
On October 4, 2017, Gilles filed a complaint with the Cuyahoga
County Court of Common Pleas (“first complaint”) alleging defamation against
Donegan and Traine based upon statements made at the press conference, and
breach of contract against the City. See Cuyahoga C.P. No. CV-17-886932.1 Gilles
unsuccessfully attempted to amend his complaint to add claims for invasion of
privacy, false light, and civil liability for criminal acts and, on May 23, 2019, Gilles
dismissed the first complaint without prejudice.
On August 27, 2019, Gilles filed a complaint in the United States
District Court for the Northern District of Ohio (“federal complaint”), naming the
same three defendants and raising 42 U.S.C. 1983 (“Section 1983”) claims and State
causes of action including defamation, false light, breach of contract, and spoliation
1 On October 19, 2017, Battaglia filed a complaint raising the same causes of action
against the same defendants in Cuyahoga C.P. No. CV-17-887654. of evidence. See 1:19-cv-01968.2 Specifically, Gilles asserted that he suffered injury
to his personal and professional reputation and sought to recover for alleged
economic injuries, humiliation, and emotional distress. On August 6, 2022, the
federal court granted the defendants’ motions for summary judgment on the federal
claims and dismissed without prejudice the State claims that it determined were best
suited for resolution in the State court.
On August 26, 2022, Gilles refiled his complaint with the Cuyahoga
County Court of Common Pleas, naming Donegan, Traine, and the City as
defendants, and alleged defamation, false light, breach of contract, civil liability for
criminal acts pursuant to R.C. 2307.60, tortious interference with contract, breach
of fiduciary duty, fraudulent concealment, promissory estoppel, equitable estoppel,
conspiracy, and respondeat superior (“third complaint”). On January 8, 2024, the
three defendants individually moved for summary judgment arguing the claims
were barred by the statute of limitations or were otherwise unsupported by the
evidence. The trial court granted the defendants’ motions for summary judgment.
On March 20, 2024, Gilles filed a timely notice of appeal presenting
three assignments of error:3
I: The trial court erred by granting summary judgment on plaintiff Gilles’ defamation claim and false light claims on statute of limitations grounds.
2 The federal complaint was filed on behalf of both Gilles and Battaglia.
3 The instant appeal is a companion case to Battaglia’s appeal. See Battaglia v. Donegan, et al., 8th Dist. Cuyahoga No. 113743. II: The trial court erred in finding that the plaintiff could show no set of facts to prove that the August 31, 2017 statements about Gilles and Battaglia by Donegan and Traine (by extension, the City) were false.
III: The trial court erred in granting defendant-appellees’ motions for summary judgment on plaintiff’s breach of contract claim because the court’s finding that plaintiff can prove no set of facts that would prove the statements made in the press conference were disparaging.
Legal Analysis
A. Motion for Summary Judgment
1. Standard of Review
Before a trial court grants a motion for summary judgment, pursuant
to Civ.R. 56(C), the court must determine that
(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 (1977).
On a summary judgment motion, the moving party’s initial burden is
to identify specific facts in the record that demonstrate its entitlement to summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). If the moving party
does not satisfy this burden, summary judgment is not appropriate. If the moving
party meets the burden, the nonmoving party has a reciprocal burden to point to
evidence of specific facts in the record that demonstrate the existence of a genuine
issue of material fact for trial. Id. at 293. Where the nonmoving party fails to meet
this burden, summary judgment is appropriate. Id. An appellate court applies a de novo standard when reviewing a trial
court’s decision that granted summary judgment. Bayview Loan Servicing, L.L.C.
v. St. Cyr, 2017-Ohio-2758, ¶ 11 (8th Dist.).
2. Statute of Limitations
In his first assignment of error, Gilles argues the trial court
erroneously determined his defamation and false light claims were filed outside the
statute of limitations and granted the defendants’ summary judgment motions on
those claims.
There can be only one recovery for defamation and false light claims
that arise from the same set of facts. Stainbrook v. Ohio Secy. of State, 2017-Ohio-
1526, ¶ 25 (10th Dist.), citing Welling v. Weinfeld, 2007-Ohio-2451, ¶ 57.
Defamation and false light claims are both subject to a one-year statute of
limitations. Id. at ¶ 27; R.C. 2305.11(A). Further, a defamation claim accrues on the
date of publication of the alleged defamatory statement. Foster v. Wells Fargo Fin.
Ohio, Inc., 2011-Ohio-4632, 960, ¶ 15 (8th Dist.), citing Lewis v. Delaware Cty.
JVSD, 2005-Ohio-2550 (5th Dist.), and Altier v. Valentic, 2004-Ohio-5641 (11th
Dist.). It is undisputed that Gilles’s defamation and false light claims accrued on the
date of the press conference — August 31, 2017 — and a complaint had to be filed
within one year of that date.
(a) False Light Claims and Defamation Claim Against the City
On October 4, 2017, Gilles filed his first complaint asserting
defamation by Donegan and Traine and breach of contract by the City. The one-year statute of limitations for defamation and false light claims expired on August 31,
2018. After the expiration of the statute of limitations, Gilles dismissed the first
complaint without prejudice. On August 27, 2019, almost one year after the statute
of limitations expired, Gilles filed his federal complaint and alleged for the first time
defamation by the City and false light by all three defendants. Because Gilles raised
these claims more than one year after the claims accrued, the defamation claim
against the City and the false light claims against the defendants were barred by the
statute of limitations. The trial court did not err when it granted summary judgment
on those grounds.
(b) Defamation Claims Against Donegan and Traine
As stated previously, on October 4, 2017, Gilles timely filed his first
complaint alleging defamation claims against Donegan and Traine. On May 23,
2019, Gilles voluntarily dismissed the first complaint without prejudice. Even
though the defamation claim’s one-year statute of limitations had expired when
Gilles voluntarily dismissed his first complaint, he could file the complaint within
one year of the dismissal under R.C. 2305.19, the Ohio saving statute. On August
27, 2019, Gillis filed his complaint in federal court, alleging numerous causes of
action including defamation against Donegan and Traine.4 Only the defamation
claims are relevant to this appeal.
4 The federal complaint also alleged Section 1983 and false light claims against all
three defendants, breach of contract by the City, and spoliation of evidence by Donegan and Traine. On August 8, 2022, the federal court dismissed the defamation claims
without prejudice. Gilles then filed his third complaint on August 26, 2022, with the
Cuyahoga County Common Pleas Court alleging defamation by Donegan, Traine,
and the City. Gilles contends his third complaint was timely filed relying on the
application of three legal theories: (1) the federal complaint related back to the filing
date of his first complaint pursuant to Frysinger v. Leech, 32 Ohio St.3d 38 (1987),
(2) the exclusion of the one-use rule of the saving statute as decided by the Ohio
Supreme Court in McCullough v. Bennett, 2024-Ohio-2783, and (3) the
supplemental jurisdiction of the federal court under 28 U.S.C. 1367(d) that tolled
the statute of limitations while the case was pending in federal court.
(i) Frysinger’s Relation-Back Theory
Gilles argues that pursuant to the Frysinger Court’s interpretation of
the saving statute, his federal complaint related back to the filing date of the first
complaint — October 4, 2017 — which preceded the expiration of the statute of
limitations and, therefore, his third complaint was timely filed.
Gilles’s proposed argument ignores the Ohio Supreme Court’s
decision in Wilson v. Durrani, 2020-Ohio-6827. The Wilson Court reasoned that
the relation-back language in Frysinger was dicta that the court was not obligated
to give binding effect to, and the Court rejected the application of the relation-back
argument:
Moreover, our statement in Frysinger about a refiled action relating back was dicta. See Vogel v. Northeast Ohio Media Grp. LLC, 9th Dist. Medina No. 19CA0003-M, 2020-Ohio-854, ¶ 13, 152 N.E.3d 981. The questions presented in Frysinger were when a cause of action for medical malpractice accrues and whether a voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes a failure otherwise than on the merits. The statement about relation back was of no consequence to our determination of those issues, and we are not obligated to give it binding effect. See Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc., 70 Ohio St.3d 281, 284, 1994-Ohio-295, 638 N.E.2d 991 (1994) (plurality).
Wilson at ¶ 27.
According to Wilson, the saving statute results in the commencement
of a new action, rather than a reactivation of a prior action, and the plain language
of the statute does not state the new action relates back to the filing of the prior
action. Wilson at ¶ 28. The Wilson Court further stated that
because the saving statute specifically permits the refiling of an action beyond the expiration of the statute of limitations, so long as the refiling occurs within one year of a failure of the prior action otherwise than on the merits, there is no need for the refiled complaint to relate back.
Id.; see Vogel v. Northeast Ohio Media Group LLC, 2020-Ohio-854, ¶ 13 (9th Dist.).
In light of the holding in Wilson, Gilles’s federal complaint did not
relate back to October 4, 2017 — the filing of the first complaint — but constituted a
new action pursuant to the saving statute. Thus, the Frysinger relation-back theory
does not apply to the filing of Gilles’s federal complaint.
(ii) McCullough v. Bennett and 28 U.S.C. 1367(d)
Gilles now asserts his third complaint was timely filed on August 26,
2022, in accordance with the McCullough Court’s rejection of the one-use restriction of the saving statute and the federal court’s supplemental jurisdiction that tolled the
statute of limitations. McCullough, 2024-Ohio-2783.
Citing to McCullough, Gilles contends that the trial court erroneously
relied on Thomas v. Freeman, 79 Ohio St.3d 221 (1997), and Vogel, 2020-Ohio-854
(9th Dist.), when it determined Gilles’s use of the R.C. 2305.19(A) saving statute to
file in federal court prevented him from using the saving statute a second time to file
his third complaint. Gilles argues McCullough eliminated the “one-use restriction”
of the saving statute and he could, therefore, implement the saving statute more
than once. Gilles reasoned his third complaint was filed within one year after the
federal court dismissal without prejudice and, thus, was timely filed pursuant to the
saving statute. Further, Gilles argues the statute of limitations was tolled by 28
U.S.C. 1367(d) during the pendency of his federal case so that the third complaint
was filed within the applicable one-year statute of limitations.
McCullough stems from an automobile accident. A two-year statute
of limitations applied to McCullough’s claim, with the claim expiring on April 27,
2019. McCullough filed a complaint on January 15, 2018, and after service was
returned unclaimed, the trial court dismissed the case without prejudice on
February 28, 2018. McCullough filed a second complaint on June 27, 2018, and the
second complaint was dismissed without prejudice on November 27, 2018, for
failure to prosecute. The first two complaints were filed prior to expiration of the
statute of limitations. After the statute of limitations expired and pursuant to the
saving statute, McCullough filed a third lawsuit on September 12, 2019. Bennett filed a motion to dismiss McCullough’s third complaint on
the premise that it was time-barred because the statute of limitations had expired.
Bennett also argued the saving statute could not rescue the third complaint because
McCullough had already dismissed and refiled the case, implying the saving statute
could be used only once.
The Ohio Supreme Court in McCullough declined to adopt and follow
the judicially created one-use limitation of the saving statute, finding the plain
language of the statute did not prohibit using the saving statute more than once. The
McCullough Court declined to adopt dicta in Thomas, 79 Ohio St.3d 221 (1997) —
“the savings statute can be used only once to refile a case” — that several district
courts of appeal had relied on to justify the one-use limitation. Thomas at 227.
The facts in the instant case are distinguishable from McCullough.
McCullough filed his first two complaints before the applicable statute of limitations
expired, and his third complaint was the first and only filing after the expiration of
the statute of limitations. McCullough appears to be limited to a single refiling of a
complaint after the expiration of the statute of limitations and does not encompass
situations where the statute of limitations could be indefinitely extended:
Further, the concern that motivated the Thomas dicta — the danger that a plaintiff could indefinitely extend the expiration of the statute of limitations by convincing a trial court to order serial dismissals without prejudice under Civ.R. 41(A)(2)—does not exist in this case. McCullough filed his second complaint before the expiration of the statute of limitations, and his third complaint was filed within a year of the dismissal of the second complaint. This is not a case that involves an attempt to indefinitely extend the statute of limitations, but rather, one that presents a single refiling after the expiration of the limitations period.
McCullough, 2024-Ohio-2783 at ¶ 20. In contrast, Gilles filed his federal complaint
after the defamation statute of limitations expired. Gilles’s filing of his third
complaint was the second refiling after the expiration of the applicable statute of
limitations and an attempt to evade or extend the statute of limitations. This court
recently found that “the saving statute cannot permit the refiling of claims into
perpetuity because to do so would defeat the statute of limitations. We must,
therefore, consider the saving statute in the context of the statute of limitations.”
Battaglia v. Donegan, No. 113743, ¶ 39 (8th Dist.). Application of the Ohio Supreme
Court’s decision in McCullough did not determine if Gilles timely filed his third
complaint.
Gilles also argues the statute of limitations was tolled and, therefore,
not expired when he filed the third complaint. 28 U.S.C. 1367(d) provides that the
statute of limitations applicable to any State-law claims over which the federal
courts have supplemental jurisdiction “shall be tolled while the claim is pending and
for a period of 30 days after it is dismissed unless State law provides for a longer
tolling period.” 28 U.S.C. 1367(d). Gilles contends that under the supplemental
jurisdiction statute, 28 U.S.C. 1367(d), the one-year statute of limitations was tolled
while the case was pending in federal court, and an additional 30 days were added
to the statute of limitations when the federal court dismissed the State-law claims
without prejudice. Specifically, Gilles reasons that under the tolling statute, when the
federal court dismissed Gilles’s complaint on August 6, 2022, he had 361 days to
refile his claims in State court and, therefore, his third complaint was timely filed
just a few days later on August 26, 2022.5 However, when Gilles filed his federal
complaint, the defamation claim’s statute of limitation had already expired and the
tolling provision of 28 U.S.C. 1367(d) was inapplicable because there was no time
left on the statute of limitations to toll. Vogel, 2020-Ohio-854, ¶ 10 (9th Dist.)
(“Because the one-year limitations on Mr. Vogel’s libel, defamation, and false-light
claims had already expired by the time he filed his federal action, there was nothing
left for Section 1367(d) to toll during that action.”). Similar reasoning was presented
in Artis v. Dist. of Columbia, 583 U.S. 71 (2018), where the court found it would be
“an absurdity” to interpret 28 U.S.C. 1367(d) to “permit[ ] a plaintiff to refile in state
court even if the limitations period on her claim had expired before she filed in
federal court.” Artis at 72.
Gilles, relying on Harris v. O’Brien, 2006-Ohio-109 (8th Dist.), also
asserts that the supplemental jurisdiction statute, 28 U.S.C. 1367(d), provides him
an additional 30 days to refile his third complaint, regardless of the statute of
limitations. This argument is not consistent with the Artis decision that was decided
5 Gilles’s calculations took into consideration (1) the one-year statute of limitations
— or 365 days — (2) less 34 days that elapsed before Gilles filed his first complaint on October 4, 2017, (3) plus the additional 30 days permitted under 28 U.S.C. 1367(d) after a federal court’s dismissal. See Artis v. Dist. of Columbia, 583 U.S. 71, 83 (2018) (Section 1367(d) is a tolling provision that “suspends the statute of limitations for two adjacent time periods: while the claim is pending in federal court and for 30 days postdismissal.”). after Harris. The Artis Court “rejected the concept that 28 U.S.C. 1367(d) provides
a 30-day grace period for refiling after a federal-court dismissal. . . .” Rebel
Underwood v. Mercy Health Physicians N., LLC, 2022-Ohio-4313, ¶ 50 (6th Dist.),
citing Artis at 74-76. When a statute of limitations expires prior to a filing in federal
court, there is no statute of limitations to toll and, therefore, no 30-day grace period
under 28 U.S.C. 1367(d) applies. Id.
The one-year statute of limitations applicable to Gilles’s defamation
claims expired before he filed his federal complaint. Although Gilles’s federal
complaint was permissible under the saving statute, there was no statute of
limitations to toll and no 30-day grace period to extend the statute of limitations
after the federal court’s dismissal. Thus, the trial court did not err when it found
Gilles’s defamation claims were barred by the statute of limitations. Gilles’s first
assignment of error is without merit and is overruled.
3. Defamation Claim
In his second assignment of error, Gilles argues the trial court erred
when it found there was no set of facts to prove the August 31, 2017 statements about
Gilles and Battaglia were false. However, our finding that the trial court correctly
determined Gilles’s defamation and false light claims were barred when they were
filed outside the statute of limitations renders this assigned error moot. See App.R.
12(A)(1)(c). Gilles’s second assignment of error is overruled as moot. 4. Breach-of-Contract Claim
In his third assignment of error, Gilles argues that the trial court erred
when it found there was no set of facts to prove the statements made on August 31,
2017, breached the nondisparagement clause contained in the settlement agreement
between the City and Gilles. Specifically, Gilles argues Donegan and Traine
breached the settlement agreement with statements made during the August 31,
2017 press release.
On July 27, 2016, Gilles and the City executed a settlement agreement
that reads, in pertinent part:
Non-Disparagement. Gilles agrees not to make any false, derogatory, negative or disparaging comments concerning the City or his employment with the City, its operations, or any of the Released Parties, whether orally or in writing, including on social media networking sites, to any third party. The City also agrees to instruct its Mayor and Council Members not to make any false or disparaging comments, whether orally or in writing, including on social media networking sites, concerning Gilles during their tenure with the City. All prospective employment reference inquiries shall be directed to the Finance Director and prospective employers will be provided with a neutral reference, containing only Gilles’ last position held and dates of employment. Nothing in this provision will prevent the City, however, from responding to properly directed public records requests.
Settlement agreement, paragraph I (emphasis added).
To prevail on a breach-of-contract claim, a plaintiff must present
evidence to establish “the existence of a contract, performance by the plaintiff,
breach by the defendant, and damage or loss to the plaintiff.” Corsaro v. ARC
Westlake Village, Inc., 2005-Ohio-1982, ¶ 20 (8th Dist.). A contract that utilizes
clear and unambiguous language requires no real interpretation or construction, and courts will give effect to the plain language of the contract. Abrams v. Grenny
Properties, L.L.C., 2016-Ohio-8303, ¶ 9 (8th Dist.), citing Aultman Hosp. Assn. v.
Community Mut. Ins. Co., 46 Ohio St.3d 51, 55 (1989).
Here, Gilles entered the settlement agreement with the City, and
Gilles conceded in his complaint that the nondisparagement clause is unambiguous.
The nondisparagement clause obligated the City to instruct Donegan and city
council members not to make any false or disparaging comments about Gilles.
The City argued in their motion for summary judgment that for Gilles
to prevail on his breach-of-contract claim, he needed to demonstrate that the City
failed to instruct Donegan not to make any such statements and Donegan made false
or disparaging statements about Gilles. According to the City, Donegan signed the
settlement agreement on behalf of the City, and the terms of the settlement
agreement instructed Donegan about the nondisparagement clause. Specifically,
the last sentence of the settlement agreement, located directly above Donegan’s
signature line, reads:
By signing this Agreement, each party acknowledges that they: (a) have authority and capacity to enter into this Agreement; (b) fully and completely understand and accept the terms of this Agreement; and (c) enter into it voluntarily and of their own free will.
Donegan testified that she read the above-cited language prior to her execution of
the agreement on behalf of the City.
Gilles countered in his brief in opposition to the City’s summary
judgment motion that [t]he City breached the contract by publishing false statements about Gilles and disparaging him in Traine’s press conference and in Donegan’s statement. The City attempts to weasel out of the obligation not to disparage Gilles by claiming that it had no obligation not to disparage him, but only the obligation to instruct its Mayor not to do so. The Court should not reward the City’s weaseling. After all, “[t]he paramount objective in construing any written instrument is to ascertain the parties’ intent. Contracts should generally be construed so as to give effect to that intention.” Law Office of Craig T. Weintraub v Bruner, 8th Dist. Cuyahoga Nos. 110854, 110859, 2022-Ohio-1939, ¶ 25, quoting Parkbrook Dev. Corp. v. N. Reflections, 1995 Ohio App. LEXIS 1715, at 8-9 (Apr. 27, 1995), citing Skivolocki v E. Ohio Gas Co., 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. Moreover, in addition to a contract’s express terms, every contract imposes an implied duty of good faith and fair dealing in its performance and enforcement. Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, 97 N.E.3d 458, ¶ 42.
To adopt the City’s interpretation of the contract would disregard its obligation of good faith and fair dealing to Gilles, as well as the intent that Gilles would not be disparaged.
Brief in opposition to the City’s summary judgment motion, p. 55-56.
While Gilles argues the nondisparagement provision (1) obligates the
mayor to be notified of the terms and (2) precludes the mayor from making
disparaging comments, we do not interpret the provision in that same manner. A
plain reading of the provision — to which Gilles agreed — simply requires the City
to instruct the mayor and city council not to make any false or disparaging
comments about Gilles and imposes no obligation by the mayor or council members
to refrain from making false or disparaging comments.
The mayor and the city council members are representatives of the
City. The very terms of the settlement agreement state the signatory fully and
completely understood and accepted the terms of the settlement agreement. Donegan’s signature on the settlement agreement, along with her deposition
testimony, establish that the City satisfied the terms of the provision when Donegan
self-informed herself about the nondisparagement provision. These are the terms
Gilles agreed to, and we do not find that they represent a lack of good faith or fair
dealing.
The trial court granted the defendants’ motions for summary
judgment on the breach-of-contract claim because there was “no set of facts that
would prove the statements made in the Press Conference were false or
disparaging.” March 4, 2024 journal entry, p. 10. We agree with the trial court’s
decision but for different reasons. We find summary judgment was appropriate on
the breach-of-contract claim where the City complied with its contractual duty to
instruct Donegan not to make false or disparaging statements about Gilles.
“Because review of summary judgment is de novo, a reviewing court may affirm a
trial court’s decision for different reasons.” Robinson v. Vehicle Acceptance Corp.,
2017-Ohio-6886, ¶ 16 (8th Dist.), citing Mosley v. Cuyahoga Cty. Bd. of Mental
Retardation, 2011-Ohio-3072, ¶ 52 (8th Dist.), citing Cordray v. Internatl.
Preparatory School, 2010-Ohio-6136, ¶ 31.
Thus, Gilles’s third assignment of error is without merit and is
overruled.
Judgment affirmed.
It is ordered that appellees recover the costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____________________ WILLIAM A. KLATT, JUDGE*
EILEEN T. GALLAGHER, P.J., and MICHAEL JOHN RYAN, J., CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of Appeals.)