Anzevinov.DePasquale

Court of Appeals of Ohio, Seventh District, Mahoning County.Mar 4, 2016
60 N.E.3d 777 (Ohio Ct. App. 2016)
60 N.E.3d 7772016 Ohio 883

No. 13 MA 0181.

03-04-2016

Randal E. ANZEVINO, Plaintiff–Appellant v. Raymond DePASQUALE, et al., Defendants–Appellees.

A. Clifford Thornton, Jr., Beachwood, OH, for plaintiff-appellant, Randal E. Anzevino. Neil D. Schor, Harrington, Hoppe & Mitchell, Ltd., Youngstown, OH, for defendant-appellee, Christopher Colello. Samuel G. Amendolara, Youngstown, OH, for defendant-appellee, Raymond DePasquale.


A. Clifford Thornton, Jr., Beachwood, OH, for plaintiff-appellant, Randal E. Anzevino.

Neil D. Schor, Harrington, Hoppe & Mitchell, Ltd., Youngstown, OH, for defendant-appellee, Christopher Colello.

Samuel G. Amendolara, Youngstown, OH, for defendant-appellee, Raymond DePasquale.

GENE DONOFRIO, P.J., CHERYL L. WAITE, J., CAROL ANN ROBB, J.

OPINION

WAITE, J.

{¶ 1} Appellant Randal E. Anzevino appeals a decision of the Mahoning County Common Pleas Court entered on November 1, 2013. In the entry, the trial court adopts a June 14, 2013 magistrate's decision in favor of Appellees Raymond DePasquale and Christopher P. Colello (collectively referred to as “Appellees”) in a defamation action. Appellant argues that Appellees sent his employer a package of documents that were intended to cause, and did cause, the employer to terminate Appellant. Appellant claims that each of these documents contain false information. He bases this claim, however, on an argument that the documents are somehow incomplete. Appellant also urges that the magistrate abused its discretion in finding that Appellant lacked credibility. The trial court held, however, that Appellant failed to prove a necessary element of his case. For the reasons provided, Appellant's arguments are without merit and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶ 2} Appellant is a truck driver and was a member of the International Brotherhood of Teamsters (“Teamsters”) and its local affiliate, Local 377. During the relevant time period, Appellee DePasquale served as the business agent for Local 377 and Appellee Colello was the president. Appellant claims that he and Appellees had a poor relationship because he supported Appellees' opponents during the union's election of officers.{¶ 3} Appellant had previously worked for a company called Allega, Co. (“Allega”) as a truck driver. Before beginning work at Allega, he read and signed the company's driving policy which explained that any accident would affect the employee's driver's record as it pertained to employment with Allega because it would impact the company's insurance coverage. Prior to his hiring, Appellant had two points on his driver's license due to an accident where he backed out of his driveway and hit another car. While employed with Allega, Appellant incurred two construction zone accidents that did not result in points on his driver's license, but negatively impacted his Allega driver's record. After the second accident, Allega's insurance agent, Todd Associates, Inc. (“Todd”), sent a letter to Allega stating that Appellant was uninsurable pursuant to the terms of Allega's insurance policy. Allega fired Appellant shortly after receiving this letter from Todd.

{¶ 4} Despite their poor relationship, Appellee DePasquale represented Appellant at a grievance hearing against Allega. DePasquale was able to convince Allega to change Appellant's status from termination to a lay off. However, Allega never recalled Appellant and he filed another grievance. This time Appellee Colello represented Appellant at the grievance hearing. At the hearing, Allega agreed to recall Appellant, but only after the points came off of his driver's license.

{¶ 5} Shortly thereafter, Appellant found work at Yochman Excavating (“Yochman”) as a truck driver. When Appellant began working, he noticed that only one other Teamster, Jim Frantz, was employed at the site. Appellant also noticed that Frantz was driving two different trucks. Appellant believed that this second truck should have been driven by another Teamster. Believing that Frantz was keeping a job from a fellow Teamster, Appellant confronted him. He walked up to the truck that Frantz was driving and stood on a step attached to the driver's side door. When Appellant accused Frantz of stealing another Teamster's job, Frantz allegedly responded by mocking Appellant and using profane language.

{¶ 6} Appellant threatened to bring union charges against Frantz. Frantz allegedly grabbed Appellant by the throat and began to choke him. Frantz did not let go of Appellant until he punched Frantz several times in the face. Once freed, Appellant stood up, opened the door of Frantz's truck, pulled him out of the truck, and shoved him. Robert Cracion, a fellow Yochman employee, observed the entire incident and broke up the fight. The police arrived and took a statement from Frantz; however, they did not take a statement from Cracion. Tom Barlett, the supervisor at the site, accused Appellant of starting the fight and fired him. Appellant pursued charges against Frantz as a result of the incident. No criminal charges followed; however, Frantz and Appellant reached a settlement in a civil action filed in the matter.

{¶ 7} In September of 2007, Appellant found new employment with Roth Brothers (“Roth”) as a truck driver. Shortly after he was hired, Appellee DePasquale phoned Roth asking if Appellant was employed by the company. A few days later, Roth received a certified package with Appellee DePasquale's address as the return address. There is conflicting evidence as to whether anyone at Roth opened this package, but it is undisputed that Roth terminated Appellant within 24 hours of its receipt.

{¶ 8} Roth told Appellant that he was being released because of a shortage of work and was not let go due to any information contained in the package. Roth required Appellant to sign a release relieving it of all legal responsibility before releasing the package to Appellant. The package contained the following documents: the insurability letter from Todd to Allega, Appellant's motor vehicle report, an internal Allega email where an Allega employee requested to have Appellant removed from a project due to his hazardous driving, several photographs of Appellant's last work-related accident at Allega, a letter of termination from Allega, a letter from an attorney to a Yochman representative opining that its decision to fire Appellant was justified, and several photographs of injuries sustained by Frantz during the fight at Yochman.

{¶ 9} Appellant obtained a surveillance video that showed both Appellees enter the Local 377 office and copy Appellant's file. Both Appellees admitted they copied Appellant's file. Appellee DePasquale admitted that he sent the package to Roth to protect the Teamster's relationship with Roth. Appellant complained to the Teamsters General Executive Board, who found merit to Appellant's complaint, suspending Appellees and removing them from their elected union positions.

{¶ 10} In September of 2008, Appellant filed an action against both Appellees, claiming tortious interference with a business relationship, intentional defamation and negligent defamation. The complaint also was directed at Local 377 for vicarious liability and negligent supervision. On motion by Appellees the matter was removed to federal court. The federal court held that the negligent supervision claim was barred by the statute of limitations. It remanded the remaining counts back to state court. Appellees filed a motion for summary judgment that was initially denied but, after the filing of a motion for reconsideration, was granted. The court determined that Appellant's claims were preempted by the National Labor Relations Act.

{¶ 11} Appellant appealed to this Court. After review, we affirmed the dismissal of Appellant's negligent defamation case, but reversed as to the intentional defamation and tortious interference claim to the extent that it was based on intentional defamation, and remanded the matter. Following a bench trial, a magistrate determined that Appellant had not proven that the documents were false, thus failed to prove his intentional defamation claim. Appellant filed objections to the magistrate's decision. After review, the trial court affirmed and adopted the magistrate's decision. This timely appeal followed.

ASSIGNMENT OF ERROR

Issues Presented for Review

IS THE MAGISTRATE'S FINDING THAT APPELLANT IS NOT CREDIBLE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

DID THE MAGISTRATE ABUSE HIS DISCRETION BY EXERCISING THE DISCRETION GIVEN TO A COURT TO AN END OR PURPOSE NOT JUSTIFIED BY, AND CLEARLY AGAINST, REASON AND EVIDENCE.

{¶ 12} Appellant raises two issues within the same assignment of error. Appellant first contends that the evidence presented at trial demonstrates that the documents were false. Appellant also argues that the magistrate abused its discretion by basing the judgment on its finding that Appellant lacked credibility.

{¶ 13} In his brief, Appellant contends that each document within the package is somehow false. At oral argument, however, he clarified that the focus of this appeal involves the “Yochman documents.” These center on the fight with Frantz and include photographs of Frantz's injuries and Yochman's letter from its attorney. Appellant argues that these documents mischaracterize the facts and portray him as a violent person. Appellant concedes that the incident occurred, but urges that the documents are incomplete as they tell only part of the story. As the package contained no information showing that he was not the initial aggressor, Appellant argues that these documents are misleading and false.

{¶ 14} Appellees respond that Appellant failed to produce any evidence showing that any information in the package was false. As Appellant failed to meet his burden to prove that the documents were somehow false, Appellees argue that the judgment is not against the manifest weight of the evidence.

{¶ 15} “In civil cases, a judgment that is supported by some competent, credible evidence will not be reversed by a reviewing court as being against the manifest weight of the evidence.” Kiko v. King Mountain, LLC, 7th Dist. No. 14 MO 9, 2015-Ohio-2688, 2015 WL 4005855, ¶ 20, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. A reviewing court must presume that a trial judge's findings of facts are correct as the trial judge had an opportunity “to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Gilham v. Stasiulewicz, 7th Dist. No. 09 JE 25, 2010-Ohio-6407, 2010 WL 5545391, ¶ 47, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Thus, when evidence can be interpreted multiple ways, a reviewing court must construe the evidence in favor with the trial court's determination. Id., citing Cent. Motors Corp. v. Pepper Pike, 73 Ohio St.3d 581, 584, 653 N.E.2d 639 (1995).

{¶ 16} Defamation consists of five elements: “(1) a false and defamatory statement, (2) about plaintiff, (3) published without privilege to a third party, (4) with fault of at least negligence on the part of the defendant, and (5) that was either defamatory per se or caused special harm to the plaintiff.” Woods v. Summertime Sweet Treats, Inc., 7th Dist. No. 08–MA–169, 2009-Ohio-6030, 2009 WL 3806179, ¶ 29, citing Gosden v. Louis, 116 Ohio App.3d 195, 206, 687 N.E.2d 481 (9th Dist.1996). “Truth is an absolute defense against a claim of defamation.” McPeek v. Leetonia Italian–Am. Club, 7th Dist., 174 Ohio App.3d 380, 384, 2007-Ohio-7218, 882 N.E.2d 450, ¶ 9, citing Shifflet v. Thomson Newspapers (Ohio), Inc., 69 Ohio St.2d 179, 183, 431 N.E.2d 1014 (1982) ; R.C. 2739.02.

{¶ 17} Although Appellant contends that the Yochman documents are false because they portray him as the initial aggressor, his contentions are irrelevant. In a defamation action, the relevant question is: are the documents false. The record clearly establishes that they are not. The first documents in dispute are photographs of Frantz's injuries. Appellant contends that, without more, these photographs inaccurately depict him as a violent person. Appellant concedes, though, that these are authentic photographs that were taken after the fight and accurately depict Frantz's injuries. There is nothing false about the photographs: they depict injuries that truly existed.

{¶ 18} The next disputed document is a letter from an attorney to Yochman. Based on her investigation, Yochman's attorney expresses her opinion that the termination of Appellant was justified. Appellant argues that the attorney did not conduct a complete and thorough investigation, thus her opinion is inaccurate. Again, Appellant misplaces the focus of the falsity element. First, we must note that this letter merely contains an opinion designed for the sole purpose of advising a client. Even so, the only relevant question is whether the letter contains false information. It is apparent on its face that this letter accurately expresses the opinion of the writer.

{¶ 19} Appellant has cited to Restatement of the Law 3d, Torts, Section 529, Comment a (1965), which, in summation, states that a half-truth may be as misleading as a wholly false statement. However, under Ohio law, “ ‘[i]t is sufficient [in defending against a defamation action] to show that the imputation is substantially true, or as it is often put, to justify the “gist,” the “sting,” or the substantial truth of the defamation.’ ” Bruss v. Vindicator Printing Co., 109 Ohio App.3d 396, 400, 672 N.E.2d 238, 240 (7th Dist.1996), citing Natl. Medic Serv. Corp. v. E.W. Scripps Co., 61 Ohio App.3d 752, 755, 573 N.E.2d 1148 (1st Dist.1989). Thus, even a statement that is substantially true is enough to defeat a defamation action.

{¶ 20} Appellant appears to be arguing that these documents place him in a bad light, and that since he did not instigate the fisticuffs at the Yochman facility the poor reflection on his character that might be gleaned from viewing the documents is false. Appellant severely misinterprets the law pertaining to defamation, however. The documents here speak for themselves. As the information contained within the documents is true or substantially true, Appellant has not satisfied the element of falsity for defamation purposes despite his arguments that the documents do not contain his version of the events and are, in his opinion, incomplete. Thus, the trial court's judgment is not against the manifest weight of the evidence as to these documents.

{¶ 21} Although Appellant chose to focus on the Yochman documents, he briefly raises similar arguments as to the Allega documents. The Allega documents consist of the letter from Allega's insurance agent stating that Appellant was uninsurable under the company policy, photographs of Appellant's last work-related accident, and an internal email from one of Appellant's coworkers requesting that he be taken off a project due to Appellant's allegedly hazardous driving.

{¶ 22} Appellant argues that the Todd letter is false, as he has never had a problem obtaining insurance. Again, Appellant misses the point. It is irrelevant that Appellant can privately obtain insurance. The letter reflects that Todd's determination of Appellant's insurability was based on Allega's driving policy used to obtain company insurance. Appellant read and signed this policy, that specifically stated that “[a]ccidents in construction zones * * * will be considered a moving violation equivalent to careless operation of a vehicle, and charges as a moving violation.” (Tr. Vol. III, p. 522.) Appellant admits he had two accidents in a construction zone in addition to a third incurred while backing out of his own driveway. While Appellant focuses his claims of falsity on the fact that he received no points on his driver's license for the accidents that occurred at construction sites, the issue addressed in the agent's letter is the fact that Appellant's violations of the company driving policy resulted in his being uninsurable under the company insurance. Appellant does not claim that this is false. Again, Appellant merely disputes an irrelevant issue. The letter does not state Appellant is wholly uninsurable. It does state that he is uninsurable under Allega's insurance. This fact is not in dispute and it appears that Appellant admits this is true. Hence, the document contains no false information for purposes of his defamation claim.

{¶ 23} The remaining Allega documents are photographs of his last work-related accident and an email from a coworker requesting to have him removed from a project due to his hazardous driving. Appellant argues that these documents are false because the accident was caused by faulty brakes, not due to hazardous driving. However, Appellant admits that the accident depicted in the photos did occur. He further admitted that he was “driving probably pretty fast in a closed construction site.” (Tr. Vol. I, p. 67.) As the photographs accurately show the accident scene, they contain no false information. As the email was written by a coworker in response to the accident, it also contains no false information. Neither document provides Appellant's side of the story, but, again, this is irrelevant to the determination regarding the truth of the information contained in the documents. Appellant has clearly failed to satisfy a necessary element of defamation.

{¶ 24} While Appellant additionally argues that the magistrate abused its discretion by basing its judgment on the finding that he lacked credibility, this argument is also irrelevant. Whether or not Appellant's testimony was seen as credible, it is clear from this record that the magistrate's decision was based on its legal determination that the documents contain no false statements. Hence, Appellant has failed to prove an element of his case and the defamation claim fails as a matter of law.

Conclusion

{¶ 25} Appellant argues that Appellees sent a package of false documents to his latest employer which resulted in his termination. He argues that the court's determination that these documents are not defamatory is against the manifest weight of the evidence. He additionally argues that the magistrate abused its discretion in basing the judgment on its finding that he lacked credibility. The record demonstrates that Appellant failed to prove there were any false statements or depictions in these documents. Hence, his defamation claim fails as a matter of law. Further, it is apparent from this record that the magistrate made a legal finding that Appellant failed to satisfy the element of falsity and did not base its decision on Appellant's credibility. Accordingly, Appellant's arguments are without merit and are overruled. The judgment of the trial court is affirmed in full.

DONOFRIO, P.J., and ROBB, J., concurs.