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Thrifty Propane, Inc. v. the National Propane Gas Court of Common Pleas

December 26, 2012

THRIFTY PROPANE, INC. APPELLANT
v.
THE NATIONAL PROPANE GAS COURT OF COMMON PLEAS ASSOCIATION, ET AL. APPELLEES



APPEAL FROM JUDGMENT ENTERED IN THE COUNTY OF MEDINA, OHIO CASE No. 10CIV0806

The opinion of the court was delivered by: Dickinson, Judge.

Cite as Thrifty Propane, Inc. v. National Propane Gas Assn.,

DECISION AND JOURNAL ENTRY

INTRODUCTION

{¶1} Thrifty Propane sued the National Propane Gas Association for defamation and malicious civil prosecution, arguing that the Association had improperly complained to the Ohio Attorney General about its advertising practices. The Association counterclaimed, arguing that Thrifty's claims were frivolous and seeking attorney fees. Thrifty also sued the Attorney General, seeking to prohibit him from requiring Thrifty to enter into an assured voluntary compliance agreement. The trial court dismissed Thrifty's claims against the Attorney General because it determined that it could not enjoin the Attorney General from performing his statutory duties. It awarded judgment on the pleadings to the Association because it determined that Thrifty's claims were barred under the statute of limitations and that any statements that the Association made to the Attorney General were privileged. It also entered judgment for the Association on its counterclaim. Thrifty has appealed, arguing that the trial court incorrectly awarded judgment on the pleadings to the Association and incorrectly ordered it to pay the Association's attorney fees. We affirm because the Association's statements to the Attorney General are protected by absolute privilege and the court correctly found Thrifty liable for the Association's attorney fees.

BACKGROUND

{¶2} According to Thrifty, it supplies a better grade of propane to users than its competitors. In 2006, it created an advertisement explaining the difference in which it referred to its competitors' product as "slop." The Association complained to the Attorney General about the advertisement, but Thrifty was able to resolve the issue in its favor because the term "slop" has a recognized technical meaning. In 2008, the Association complained to the Attorney General about another Thrifty advertisement. According to Thrifty, although the complaint is baseless, the Attorney General has refused to resolve the issue informally because of the prior investigation. Thrifty does not want to engage in a formal proceeding because its competitors could then characterize it as engaging in allegedly deceptive practices. It, therefore, filed an action seeking to enjoin the Attorney General from requiring it to go through the formal resolution process. It also sued the Association for initiating the allegedly unwarranted investigations.

{¶3} The trial court dismissed Thrifty's claim against the Attorney General because it determined that the Attorney General has a statutory duty to investigate deceptive advertisements. It awarded judgment on the pleadings to the Association because Thrifty did not file its action until 2010, which was outside the one-year statute of limitations. It also determined that anything that the Association reported to the Attorney General could not provide the basis for a cause of action because such statements are protected by absolute privilege. It further determined that Thrifty had failed to allege all of the elements of a malicious civil prosecution claim. Following a hearing on the Association's counterclaim, it found that Thrifty's claims were frivolous and ordered Thrifty to pay the Association's attorney fees.

JUDGMENT ON THE PLEADINGS

{¶4} Thrifty's first assignment of error is that the trial court incorrectly awarded judgment on the pleadings to the Association. It has argued that the court incorrectly determined that its claims were barred by the statute of limitations and that the Association's statements to the Attorney General were privileged.

{¶5} Although motions under Rule 12(B)(6) and (C) of the Ohio Rules of Civil Procedure are similar, Rule 12(C) motions "are specifically for resolving questions of law . . . ."

State ex rel. Midwest Pride IV Inc. v. Pontious, 75 Ohio St. 3d 565, 570 (1996). Civil Rule 12(C), "requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law." Id. We review the trial court's decision de novo. Pinkerton v. Thompson, 174 Ohio App. 3d 229, 2007-Ohio-6546, ¶ 18.

{¶6} Regarding the statute of limitations, Thrifty has argued that, although the Association complained to the Attorney General about its advertisements in 2006 and 2008, the Association's communications with the Attorney General were confidential. According to Thrifty, it did not learn that it was the Association that triggered the Attorney General's investigations until early 2010. It, therefore, has argued that its claims are timely. See R.C. 2305.11(A) (providing one-year limitations period for libel and malicious prosecution actions). Regarding privilege, Thrifty does not dispute that a complaint to the Attorney General raising a claim of deceptive advertising is generally entitled to an absolute privilege against civil liability. See M.J. DiCorpo Inc. v. Sweeney, 69 Ohio St. 3d 497, paragraph one of the syllabus (1994)

(holding that a statement to a prosecuting attorney regarding the possible commission of a crime is privileged if it bears some reasonable relation to the activity reported). Rather, it has argued that the fact that it eventually learned that it was the Association that made the complaints demonstrates that the Association must ...


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