Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-771804
ATTORNEYS FOR APPELLANT Joshua R. Cohen Peter G. Pattakos Cohen, Rosenthal & Kramer.
ATTORNEYS FOR APPELLEES WUAB AND WOIO, L.L.C. Michael K. Farrell Melissa A. Degaetano Baker & Hostetler L.L.P. PNC Center.
ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY CRIME STOPPERS George S. Crisci Jonathan D. Decker Zashin & Rich Co., L.P.A.
ATTORNEY FOR APPELLEE PINPOINT MEDIA, INC. Daniel Thiel.
BEFORE: Rocco, J., Boyle, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINIO
KENNETH A. ROCCO, JUDGE.
(¶1} In this defamation action, plaintiff-appellant Lavelle Sullins appeals from the decision of the Cuyahoga County Court of Common Pleas granting summary judgment in favor of defendants-appellees Pinpoint Media, Inc. ("Pinpoint Media"), Cuyahoga County Crime Stoppers ("Crime Stoppers"), and WUAB and WOIO, L.L.C. ("WOIO") (collectively, "appellees"). Appellees, respectively, are a production company that produced a local television crime show, Warrant Unit, an organization that offers rewards to the public for information regarding unsolved crimes, and two Cleveland television stations that broadcast the Warrant Unit television program. Sullins alleged that appellees defamed him when they depicted him on the Warrant Unit television program as a fugitive for the crime of passing bad checks, when, in fact, he had satisfied his sentence five months earlier, after pleading guilty to one count of the offense. Based on our review of the record, we find that genuine issues of material fact exist as to the viability of Sullins's defamation claim. Accordingly, we reverse the trial court's entry of summary judgment on that claim.
Factual and Procedural Background
(¶2} Sullins was featured on episode 17 of the Warrant Unit television program in a segment of the program called "Fugitive File, " which identifies "Cleveland's 25 Most Wanted Fugitives." For approximately seven or eight seconds, Sullins's photograph was shown, along with his name, age, height, weight, and address above the charge, "PASSING BAD CHECKS." Sullins's information and photograph were accompanied by the narrative, "Lavelle Sullins. Wanted for passing bad checks." A reward was offered for information leading to Sullins's arrest. The narrator cautioned viewers against trying to apprehend Sullins or the other fugitives featured on the program themselves, warning: "Do not attempt to apprehend these people. You leave that to the professionals." The episode featuring Sullins aired on March 27, 2010. The program averages 56, 000 viewers a week.
(¶3} Although a capias had been issued for Sullins's arrest on a charge of passing a bad check in March 2009, more than a year earlier, there is no dispute that Sullins was not, in fact, a "fugitive" for "passing bad checks" at the time the program aired. The capias issued in March 2009 related to charges filed against Sullins after he bounced a check for $1, 536 in connection with his purchase of a used vehicle several years earlier. Four days after it was issued, the capias was recalled. On April 30, 2009, Sullins pled guilty to one count of passing a bad check. He was sentenced to one year of community control sanctions and required to make restitution. Sullins made full restitution, and his community control sanctions were terminated early. As of October 16, 2009, more than five months before episode 17 of the Warrant Unit program aired, Sullins was deemed to have satisfied his sentence.
(¶4} The "Fugitive File" segment was prepared using information obtained from the Cuyahoga County Sheriff's Department. Erin Acklin, a dispatcher for the sheriff's department, was charged with running reports on valid warrants and providing information on suspects to Crime Stoppers for use on the Warrant Unit television program. Approximately once a month, Acklin would compile excerpts of approximately 70 files from the department's Incarceration Management and Cost Recovery System ("IMACS"). The IMACS system is a non-public system used by the sheriff's department, which contains information regarding outstanding warrants. Acklin testified that there were no specific parameters she followed in selecting suspect files for use on the Warrant Unit program, other than to avoid warrants for drug charges and probation violations — "they wanted fresh warrants" — and to ensure that the group of suspects was diverse, i.e., to avoid sending "a lot of black males, " as requested by Pinpoint Media. At the time she pulled the files, Acklin verified whether a warrant was outstanding based on the information in the IMACS system. Acklin then compiled a package of information on each suspect, consisting of the jacket front from the file of each suspect, a photograph, and a "booking sheet" printed from the IMACS system from the time the suspect was last booked. Once she prepared a stack of files, she would contact Christopher Rech, president and executive producer of Pinpoint Media, and advise him that the files were available for pickup. Because the status of a warrant could change at any time, Acklin testified that she and her sergeant, Sergeant David Synkowski, told Pinpoint Media "all the time" to update the information after Acklin gave it to them by "double checking" the status on the public docket for the Cuyahoga County Court of Common Pleas. Acklin did not know how long it took before the sheriffs department received notice that a warrant had been withdrawn.
(¶5} Approximately once a week, David Rutt, coordinator for Crime Stoppers, picked up the information Acklin had compiled for the fugitives to be featured on the Warrant Unit program. Rutt would then deliver this information, without reviewing it, to Pinpoint Media for use in preparing the "Fugitive File" segment. With respect to Sullins, appellees received three pages of documents from the sheriffs department. The documents included a chart printed from the IMACS system that listed Sullins's name, the "record type" — "warrant" — the warrant/order number, and a brief description of the charge for which the warrant had been issued, i.e., four counts of "passing bad checks." Appellees also received a copies of Sullins's mug shots and a printout of a "booking sheet" that contained Sullins's personal information and physical description. The "booking sheet" identified Sullins's "inmate status" as "convicted" and also indicated that "holds" that had been previously placed by three suburban communities had been "removed." Although the sheriffs department represented, based on its records, that there was an outstanding warrant for Sullins's arrest as of the time Acklin compiled Sullins's information for the Warrant Unit program, there was nothing in the documentation appellees received from the sheriffs department that indicated the status of the warrant or when it had been issued.
(¶6} Pinpoint Media claims to have received Sullins's information from the sheriff's department "shortly before" the episode featuring Sullins aired on March 27, 2010; however, there is nothing in the record that indicates exactly when appellees received Sullins's information from the sheriff's department or how long after appellees received this information that Sullins was featured on the Warrant Unit program. Sullins claims that had appellees checked the Cuyahoga County public docket prior to airing the episode, as instructed by the sheriffs department, they would have discovered that the warrant for his arrest for passing a bad check had been withdrawn more than a year earlier. Sullins further claims that the inaccurate reporting of Sullins's "fugitive" status was not an aberration. Of the 27 "fugitives" featured on Episode 17 of the Warrant Unit program, he contends 11 were not, in fact, "fugitives" at the time the program aired.
(¶7} Although there was no outstanding warrant for Sullins's arrest for passing bad checks at the time episode 17 aired, at least five warrants for his arrest were outstanding at that time related to misdemeanor traffic offenses pending in the city of Cleveland. Appellees, however, were not aware of the existence of these other warrants at the time the program aired.
(¶8} After the program aired, Sullins filed suit against appellees, alleging that the broadcast was defamatory per se and depicted him in a false light. He further claimed that, as a result of the broadcast, he lost his job and access to his children and that his reputation in the community was damaged.
(¶9} In August 2012, appellees filed separate motions for summary judgment in which they argued, among other grounds, that the statements made regarding Sullins during the Warrant Unit program — i.e., that he was a "fugitive" wanted on an outstanding warrant for "passing bad checks" and one of "Cleveland's 25 Most Wanted Fugitives" — were protected by Ohio's statutory fair report privilege and common-law qualified privilege, that Sullins could not establish that appellees acted with the requisite degree of fault, and that the substantial truth and incremental harm doctrines barred Sullins's claims. On November 27, 2012, the trial court granted appellees' motions for summary judgment. The trial court held that appellees' depiction of Sullins as "evading arrest on a present charge of passing bad checks" was "arguably libelous per se." However, because the information appellees published was the same, albeit inaccurate, information contained in the sheriff's department's IMACS system, the trial court held that appellees' statements were protected by Ohio's statutory fair report privilege, R.C. 2317.05. Finding no factual basis to upon which conclude that appellees acted with "actual malice" — as required to defeat the privilege — and concluding that Sullins could not establish essential elements of a false-light invasion of privacy claim, the trial court entered summary judgment in favor of appellees on both Sullins's defamation and false-light invasion of privacy claims.
(¶10} Sullins appeals the trial court's entry of summary judgment in favor of appellees on his defamation claim, ...