[Cite as Buck v. Reminderville,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

JEFFREY BUCK C.A. No. 27002

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE VILLAGE OF REMINDERVILLE, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellants CASE No. CV 2009-11-8465

DECISION AND JOURNAL ENTRY

Dated: March 31, 2014

HENSAL, Judge.

{¶1} Appellant, Michael Varga, appeals a judgment of the Summit County Court of

Common Pleas that denied his motion for summary judgment. For the following reasons, this

Court affirms.

I.

{¶2} According to Jeffrey Buck, chief of police for the Village of Reminderville, Mr.

Varga sent an email to a Village councilman that contained false and defamatory statements

about him. Mr. Buck also alleges that Mr. Varga made false and defamatory statements about

him during a Village human resources committee meeting. The subject email was read aloud

during the meeting and disseminated to the other committee members. The meeting was tape-

recorded and the tape was later transcribed. Both the email and the transcript were made

available as a public record to anyone who requested it. 2

{¶3} Mr. Buck sued the Village and Mr. Varga for defamation. Mr. Varga moved for

summary judgment, which was denied by the trial court. He filed an interlocutory appeal and

raises one assignment of error for this Court’s review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR SUMMARY JUDGMENT.

{¶4} Mr. Varga argues that the trial court erred in denying his motion for summary

judgment as he is immune from liability for any statements he made in either the email or at the

human resources committee under the absolute privilege doctrine. This Court disagrees.

{¶5} The denial of a motion for summary judgment is not ordinarily a final, appealable

order. Sheperd v. Akron, 9th Dist. Summit No. 26266,

. Under the Ohio

Constitution, Article IV, Section 3(B)(2), this Court only has jurisdiction to hear an appeal of a

judgment or final order. However, Revised Code Section 2744.02(C) provides that “[a]n order

that denies * * * an employee of a political subdivision the benefit of an alleged immunity from

liability as provided in this chapter or any other provision of the law is a final order.” (Emphasis

added.) The Ohio Supreme Court has recognized that this section applies to render the denial of

immunity under any state or federal law a final, appealable order. Summerville v. Forest Park,

,

. This is because Section 2744.02(C) is to be

interpreted broadly in favor of an early appeal when there is a question about the availability of

an immunity as a defense. Riscatti v. Prime Properties Ltd. Partnership,

,

. “Failure to give effect to the language of R.C. 2744.02(C) by barring

immediate appeal of denials of * * * immunity * * * would defeat the purpose for which the

immunity exists.”

. Because the “determination of immunity could be made 3

prior to investing the time, effort, and expense of the courts, attorneys, parties and witnesses,” a

plain reading of Section 2744.02(C) serves to further judicial economy. Id. at ¶ 39, quoting

Hubbell v. Xenia,

,

, ¶ 26.

{¶6} There is no dispute that Mr. Varga was employed as a Village police officer at the

time he made the allegedly defamatory statements. Further, Ohio courts have characterized the

doctrine of absolute privilege as an “immunity” from liability on a defamation claim. See M.J.

DiCorpo, Inc. v. Sweeney,

(1994). Accordingly, this Court concludes

that it has jurisdiction to consider his appeal as it is a final order as defined by Section

2744.02(C). See Marcum v. Rice, 10th Dist. Franklin Nos. 98AP-717, 98AP-718, 98AP-719,

and 98AP-721,

, * 5 (Nov. 3, 1998) (holding that an order denying a motion to

dismiss based on the doctrine of absolute privilege was a final order under Section 2744.02(C)).

{¶7} An appellate court reviews an award of summary judgment de novo. Grafton v.

Ohio Edison Co.,

(1996). “We apply the same standard as the trial court,

viewing the facts in the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427,

. Pursuant to Civ.R. 56(C), summary judgment is proper if:

(1) No 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.,

(1977). The movant must specifically

identify the portions of the record that demonstrate an absence of a genuine issue of material

fact. Dresher v. Burt,

(1996). If the movant satisfies this initial burden,

the nonmoving party has a reciprocal burden to point to specific facts that show a genuine issue 4

of material fact for trial.

The nonmoving party must identify some evidence that establishes

a genuine issue of material fact, and may not rely upon the allegations and denials in the

pleadings.

.

{¶8} “[D]efamation occurs when a publication contains a false statement ‘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 or her

trade, business or profession.’” Morgan v. Community Health Partners, 9th Dist. Lorain No.

12CA010242,

, quoting Sturdevant v. Likley, 9th Dist. Medina No.

12CA0024-M,

. Ohio law recognizes that certain communications that may

be defamatory are shielded from liability for defamation under the privilege doctrine. Costanzo

v. Gaul,

(1980). “A privileged communication is one which, except for

the occasion on which or the circumstances under which it is made, would be defamatory, and

actionable.”

{¶9} There are two classes of privileged communications: (1) absolutely privileged

and (2) qualified or conditionally privileged.

“The basic difference between the two as

generally stated is that complete protection is afforded by absolute privilege, whereas a qualified

or conditional privilege affords protection only in the absence of ill motive or malice in fact.”

at 108–109. Thus, if the statement is subject to an absolute privilege, the speaker is not held

liable for defamation regardless of his motives for making the statement.

, citing

M.J. DiCorpo, Inc.,

.

{¶10} “The application of an absolute privilege is to be found in only very limited areas

of activity in our society. It has been generally limited to legislative and judicial proceedings,

and other acts of state[.]”

. The Ohio Supreme Court has recognized that 5

statements made by members of local governmental bodies relating to a matter under

consideration, discussion or debate during official proceedings are absolutely privileged.

.

{¶11} In support of his motion for summary judgment, Mr. Varga submitted his

deposition along with the depositions of Mr. Buck, former Village councilman Steve Milano, and

Councilman Edward Walter. Mr. Walter, who served on the human resources committee,

testified that the committee was created by a council resolution as “an authorized extension of

council to receive information about complaints or concerns of [V]illage employees.” The

committee was comprised of three councilmembers and two Village citizens who were appointed

by the mayor. The committee discussed such topics as liability and medical insurance, vacation

and leave policy, employee manuals and policy and procedure manuals. According to Mr.

Walter, the committee was “just an information agency * * * not an investigative agency.” He

further testified that the purpose of forming the committee was “to create an open door so

employees could bring [forth] rumors and concerns * * *.”

{¶12} Mr. Milano testified that he was both council president and chairman of the

human resources committee. According to Mr. Milano, it was not the committee’s job “to do

anything [with a complaint] * * * except[ ] * * * hand it off to the appropriate authority to look

at and validate or invalidate.”

{¶13} How Mr. Varga’s contact with the committee was initiated is a matter of dispute.

Mr. Varga testified that, in September or October of 2009, Mr. Milano called him to inquire

whether he had any knowledge of alleged wrongdoing by either Mr. Buck or the Village’s

mayor. Mr. Varga had testified before Village council one month earlier in the disciplinary

appeal hearing of another police officer and he believed the committee wanted him to “give [his] 6

knowledge of what [he] knew about what was going on in the police department” after hearing

his testimony. Mr. Varga further testified that, after his first telephone conversation with Mr.

Milano, he began to compile a list of what he perceived to be Mr. Buck’s alleged misconduct

both from his personal knowledge and from what other police officers had reported to him.

According to Mr. Varga, the night before he was scheduled to attend the committee’s November

16, 2009, meeting, he sent an email to Mr. Milano that listed all the alleged instances of Mr.

Buck’s misconduct, which he intended to discuss at the next day’s committee meeting.

{¶14} Mr. Milano testified that Mr. Varga contacted him numerous times leading up to

the committee’s November 16, 2009, meeting. According to him, the substance of the

conversations was Mr. Varga’s complaints about the police department and, in particular, Mr.

Buck. Mr. Milano testified that he asked Mr. Varga to put his complaints in writing so that he

had something official on which to take action. He informed Mr. Varga that he could attend

either a Village council meeting or a meeting of the human resources committee. Mr. Milano

testified that he believed Mr. Varga intended to attend a Village council meeting to talk about his

complaints, but had to postpone doing so due to a death in his family. According to Mr. Milano,

he had no advance notice that Mr. Varga was going to send his November 15th email.

{¶15} Mr. Varga testified that he sent the email and attended the meeting at the

committee’s request. He maintains that he did not know what the committee intended to do with

the information he presented. According to Mr. Milano, Mr. Varga chose to send the email and

attend the meeting. He maintains that Mr. Varga was offered the opportunity to attend the

meeting because it was “a neutral place for him to come and lodge a complaint and * * * that the

* * * committee [would] * * * hear the complaint [and] try to figure out the most appropriate

venue to establish the validity or invalidity of those complaints and have [the] person [assigned 7

to the complaints] do the investigation.” Mr. Milano further testified that he told Mr. Varga that

“this was his opportunity to come forward and be heard and we would look at it responsibly and

seriously and to the extent that we were allowed to per our resolution.”

{¶16} Mr. Milano testified that the November 16, 2009, meeting was a regularly

scheduled meeting of the committee, and that Mr. Varga’s matter was added to the agenda.

According to Mr. Milano, after the public portion of the meeting, the committee went into

executive session, which Mr. Varga attended. There was no evidence that Mr. Varga was sworn

under oath prior to speaking to the committee. A copy of Mr. Varga’s email to Mr. Milano was

provided to the committee members at the beginning of the executive session and collected at the

end of the session. Mr. Milano further testified that he tape-recorded the executive session due

to the severity of Mr. Varga’s complaints. According to Mr. Varga, he believed that the

information would not be disseminated outside of the committee, and that he did not intend his

allegations to trigger an investigation. Rather, his “intent was [to] come * * * and testify [to]

what [the committee] wanted to know.” He further testified that he “could care less what they

did with [the information]” as he was planning on leaving the department and was only there at

the committee’s request. Mr. Buck sued the Village and Mr. Varga for defamation four days

after the November 16, 2009, meeting when the email and transcript of the executive session was

made available as a public record. Mr. Walter testified that, as a result of the pending litigation,

the committee did not take any action on Mr. Varga’s allegations.

{¶17} In ruling on Mr. Varga’s motion for summary judgment, the trial court declined to

extend the Ohio Supreme Court’s holding in Costanzo to find that his alleged statements were

absolutely privileged. The trial court found that, since Mr. Varga was not a member of the

human resources committee, his alleged statements were not immune from liability for 8

defamation under the absolute privilege doctrine. Mr. Varga argues that the trial court erred in

denying his motion for summary judgment as other districts have concluded that the absolute

privilege doctrine is available to shield from liability individuals who were not members of the

governmental body before which he or she appeared. He maintains that the privilege was created

to further “unfettered discussion and debate on matters of public concern,” and that to refuse to

allow nonmembers the privilege runs counter to the goals of the privilege in the first instance.

{¶18} Viewing the evidence in a light most favorable to Mr. Buck, this Court concludes

that the trial court did not err in finding that Mr. Varga’s statements were not absolutely

privileged. The Ohio Supreme Court was clear that the absolute privilege doctrine is applicable

in only very limited circumstances, specifically, legislative and judicial proceedings. Costanzo,

. Black’s Law Dictionary defines “legislative” as “[o]f or relating to

lawmaking or to the power to enact laws.” Black’s Law Dictionary 919 (8th Ed. 2004). There is

no evidence that the human resources committee had either a legislative or a judicial function.

The deposition testimony of Mr. Milano and Mr. Walter established that its function was in part

to field concerns from Village employees and relay the information to the appropriate individual

or department for further investigation. Mr. Walter testified that the committee could vote to

recommend an issue before it to council, but could not make a binding decision. Accordingly,

the testimony revealed that the committee acted in an advisory or policy-making role to Village

council. This Court has previously refused to extend the absolute privilege doctrine to

statements made at a meeting of a policy-making board as it was not considered a “legislative

body of a sovereign state.” Long v. Brumbaugh, 9th Dist. Summit No. 19755,

,

*3 (May 3, 2000). See also Curry v. Blanchester, 12th Dist. Clinton Nos. CA2009-08-010 and

CA2009-08-012,

, ¶ 27-28 (holding that comment made by member of city 9

council during executive session of village council meeting about how an employee dressed was

not entitled to absolute immunity because council was acting in administrative, rather than

legislative, role at the time).

{¶19} Mr. Varga cites to several cases from different districts, including the case of N.

Coast Cable L.P. v. Hanneman,

(8th Dist. 1994), in support of his argument

that other courts have found that statements made by nonmembers of a governmental committee

are absolutely privileged. In Hanneman, the plaintiff’s former business partner and employee

testified before a meeting of a municipal public utilities committee that the plaintiff’s original

minority investors were a “sham.”

. The plaintiff sued him for, inter alia, defamation.

The Eighth District found that the statements Hanneman made at the committee meeting were

absolutely privileged because the committee sent him a letter requesting that he testify at the

meeting.

. The court opined that Hanneman’s decision to testify was not entirely

voluntary since it came as a result of the committee’s letter.

.

{¶20} In the instant case, the trial court explicitly declined to follow the Eighth District’s

holding in Hanneman. This Court agrees that the holding in Hanneman is inapplicable under the

facts of this case. We note that there is a genuine issue of material fact as to whether Mr. Varga

appeared at the meeting at the request of the committee or by his own volition as a means to

voice his concerns about Mr. Buck and the police department. As the holding in Hanneman

turns on the fact that the defendant appeared before the committee at its request, this Court

cannot say that the same circumstances are present in this case due to the conflicting deposition

testimony on the issue. 10

{¶21} Given the fact that the doctrine of absolute privilege is only applied to limited

circumstances, this Court does not conclude that the trial court erred in denying Mr. Varga’s

motion for summary judgment. Mr. Varga’s assignment of error is overruled.

III.

{¶22} Mr. Varga’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT 11

MOORE, P. J. CONCURS.

BELFANCE, J. DISSENTING.

{¶23} I respectfully dissent from the judgment of the majority because I would conclude

that the entry denying Mr. Varga’s motion for summary judgment is not a final, appealable order.

{¶24} The denial of a motion for summary judgment is not ordinarily a final, appealable

order. Rootstown Excavating, Inc. v. Smith, 9th Dist. Summit No. 25457,

.

Thus, absent specific authority, the entry before us would not be appealable. The majority

asserts that the trial court’s ruling is appealable pursuant to R.C. 2744.02(C), reasoning that the

trial court’s determination concerning the applicability of absolute privilege in the context of a

defamation claim constitutes a denial of an immunity under “any other provision of the law[.]”

R.C. 2744.02(C) provides that “[a]n order that denies a political subdivision or an employee of a

political subdivision the benefit of an alleged immunity from liability as provided in this chapter

or any other provision of the law is a final order.” See also Summerville v. Forest Park,

,

. This appeal does not involve the statutory immunity

provisions within Chapter 2744 itself; instead, it involves interpretation of the phrase “any other

provision of the law” within R.C. 2744.02(C). R.C. 2744.01(D) provides that, as used in Chapter

2744, “‘Law’ means any provision of the constitution, statutes, or rules of the United States or of

this state; provisions of charters, ordinances, resolutions, and rules of political subdivisions; and

written policies adopted by boards of education. When used in connection with the ‘common

law,’ this definition does not apply.” (Emphasis added.). Thus, applying this definition to the

phrase “any other provision of the law[,]” “law” would include provisions of constitutions,

statutes and rules, but would not include “common law.” See, e.g.,

, 41 12

(applying the definition contained in R.C. 2744.01(D) to conclude that denial of immunity

afforded under a federal statute constituted a final order under R.C. 2744.02(C)). At a minimum,

it appears that the legislature has recognized that the phrase “common law” is a term of art.

“Common law” has been defined as “[t]he body of law derived from judicial decisions, rather

than from statutes or constitutions[.]” Black’s Law Dictionary 293 (8th Ed. 2004).

{¶25} The Tenth District has determined, in part, that, because the definition of “State”

in R.C. 2744.01(I) is defined as the State of Ohio including the Supreme Court and other

instrumentalities of the State of Ohio, the “rules” referred to in R.C. 2744.01(D) must also

include doctrines created via case law. See Marcum v. Rice, 10th Dist. Franklin Nos. 98AP-717,

98AP-718, 98AP-719, and 98AP-721,

, *2 (Nov. 3, 1998). However, I am not

persuaded by the Marcum Court’s reasoning. I cannot conclude that the word “rules” is intended

to include case law, particularly since R.C. 2744.01(D) itself acknowledges there is a distinction

between “common law”/case law and other forms of law. It would seem logical that using the

word “rules” would implicate the various bodies of law commonly known as rules, such as the

civil rules, rules of superintendence, rules of evidence, or criminal rules.

{¶26} While I do not dispute that R.C. 2744.02(C) includes the ability to appeal denials

of immunity other than those based in that chapter,1 see R.C. 2744.02(C); R.C. 2744.01(D), I

cannot conclude that the denial of the benefit of the absolute privilege pertaining to defamation is

1 For example, R.C. 2151.421(G)(1)(a) provides immunity to certain individuals and entities who report suspected child abuse in good faith and in compliance with the statute. See R.C. 2151.421(G)(1)(a) (“Except as provided in division (H)(3) of this section, anyone or any hospital, institution, school, health department, or agency participating in the making of reports under division (A) of this section, anyone or any hospital, institution, school, health department, or agency participating in good faith in the making of reports under division (B) of this section, and anyone participating in good faith in a judicial proceeding resulting from the reports, shall be immune from any civil or criminal liability for injury, death, or loss to person or property that otherwise might be incurred or imposed as a result of the making of the reports or the participation in the judicial proceeding.”). 13

appealable. The parties have not pointed to anything which would even suggest that the absolute

privilege as expressed in Ohio case law precedent constitutes any provision of the constitution,

any statute, any rule, or anything else that is included within the term “[l]aw” as defined by R.C.

2744.01(D). Accordingly, because I would conclude we are without jurisdiction to hear this

appeal, I respectfully dissent.

APPEARANCES:

KENNETH A. CALDERONE and JOHN R. CHLYSTA, Attorneys at Law, for Appellant.

KENNETH D. MYERS, Attorney at Law, for Appellee.