Civil Appeal from the Portage County Court of Common Pleas. Case No. 2009 CV 00378.
Thomas N. Ganiaris, (For Plaintiff-Appellee).
Edward G. Kramer, Fair Housing Law Clinic, (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
(¶1} Appellant, Phyllix Stovall, appeals the judgments of the Portage County Court of Common Pleas denying her motion for summary judgment, denying her motions for directed verdict, and granting plaintiff, Jean Utz's, motion for a new trial. The underlying action is a cause for breach of contract and defamation per se arising out of letters Stovall sent to Utz's employer, the superintendent of Streetsboro schools. The correspondence basically alleged that Utz made a derogatory racial comment, harassed her children, and was a threat to other school children. Upon close of Utz's case, the trial court determined the statements were not made in good faith and/or were made with actual malice and, as a result, did not give an instruction regarding the defense of qualified privilege. The jury returned a verdict in favor of Utz, awarding $191, 000 in punitive damages, though no compensatory damages.
(¶2} We conclude the following: the trial court's ruling on summary judgment is moot by virtue of the subsequent trial on the same issues demonstrating that there were, in fact, genuine issues of material fact supporting a judgment in favor of Utz, the nonmoving party; the trial court did not err in determining a qualified privilege did not apply; the trial court did not err in denying Stovall's motions for directed verdict because there was a sufficient evidentiary basis on which to conclude all elements of defamation per se had been met; and the trial court did not abuse its discretion in ordering a new trial because of confusing instructions requiring the jury to consider both the compensatory and punitive damages, and because punitive damages may not be awarded when a jury fails to award compensatory damages. As we affirm the order for a new trial, the issue of whether the punitive damages are excessive is moot. We affirm the judgments of the trial court.
(¶3} Stovall and Utz are neighbors and have abutting properties in Streetsboro, Ohio. Since 2000, the pair have quarreled over property and zoning issues, most notably Stovall's decision to erect a privacy wall on the property line which Utz previously characterized as a "monstrosity." The long-standing property dispute culminated in Stovall and her husband, Ray Stovall, filing a complaint in federal court against numerous defendants, including Utz. Relevant to this appeal, the Stovalls alleged Utz's various complaints concerning their property were racially motivated. The factual allegations of the complaint filed in federal court set forth that Utz "took on a campaign to continually harass and intimidate the Stovall family because of their race and color." The complaint noted that Utz works at the school district the Stovall children attend, and that one of the Stovall children witnessed Utz "declining to assist a black child." The complaint charged that Utz has harassed, intimidated, humiliated, and embarrassed every member of the Stovall family and noted that the Stovalls "fear for the safety of their two young children."
(¶4} On August 20, 2008, the Stovalls entered into a settlement agreement with certain defendants, including Utz. The agreement provided, in relevant part:
The Stovalls expressly agree that they will not use as a basis for any future claim they might pursue against * * * Utz, any fact or circumstance that occurred prior to the execution of this Agreement asserting that such fact or circumstance is a basis of a continuing violation for the purposes of establishing timeliness relating to a statute of limitations.
(¶5} On January 22, 2009, Stovall attended a spelling bee at Streetsboro Middle School in which her son was a participant. Utz attended the same spelling bee; her daughter was also a participant and, ultimately, the victor. The following day, Stovall wrote a letter to Utz's boss, Streetsboro Superintendent Linda Keller, wherein she alleged that Utz made a racially-motivated, derogatory, and "vexatious" comment during the spelling bee. Stovall alleged that Utz made a comment to her daughter purposefully within earshot of Stovall's son, remarking: "Kaley what's wrong? Do you smell an odor?" Stovall explained that this comment was directed at her son and concluded, in part:
I don't believe my child is being protected by the school district if Mrs. Utz is allowed to verbally attack my son's character. She works for the school district and has been questioned about previous demeaning behavior. * * * Her intentional infliction of emotional distress on my children is dangerous; due to her willful and wanton misconduct, her loss of regard for morality is a threat to the safety and wellbeing among their peers.
(¶6} As a result, a formal school inquiry was initiated, and Stovall wrote numerous follow-up letters as the investigation into the harassment allegations unfolded. On February 9, 2009, Stovall wrote to Superintendent Keller, attaching an article from the Indian Reservation that reminded her "of the many abuses my children faced living in Streetsboro and dealing with the City's school employee." The parties had a meeting together, after which Stovall wrote she was not satisfied with Utz's responses. Stovall attached two articles on racially-divided communities, explaining that the articles would provide insight into "why the remark was made, the reason it was made at that time and place, and why it is allowed to continue."
(¶7} On February 17, 2009, Dr. Richard F. Vrable, Director of Special Services for Streetsboro Schools, sent a letter to the Stovalls informing them that he would be initiating a further, full investigation. Stovall responded to the letter on February 22, 2009, explaining, in part:
Mrs. Utz's offensive behavior deprives all of our children of an environment that is conducive to learning. There have been many attempts to solve other problems created by Mrs. Utz. We have been unsuccessful instilling ideals and behavioral patterns which are consistent with mutual understanding, cooperation and respect.
(¶8} The letter went on to explain that Utz's "harassing and humiliating behavior has had a negative effect" on the educational development of the Stovall children.
(¶9} On March 12, 2009, Utz filed a complaint against Stovall alleging that Stovall had published false statements to the school and had repeated references to alleged past discriminatory conduct. Thus, the complaint alleged defamation, libel, and slander per se (Count One); intentional infliction of emotional distress (Count Two); intentional interference with business relationship (Count Three); and breach of contract, arising out of the settlement agreement (Count Four). Count Two and Count Three are not at issue in this appeal.
(¶10} The trial court denied competing motions for summary judgment, and the matter proceeded to a jury trial. Upon close of Utz's evidence, Stovall requested the trial court find a qualified privilege. The trial court explained it found actual malice, which negated the element of good faith required for a qualified privilege.
(¶11} Upon the close of all evidence, the parties agreed the claim for compensatory damages and the claim for punitive damages would not be bifurcated pursuant to R.C. 2315.21(B)(1). As such, the jury instructions set forth the issue of both categories of damage. The jury returned a verdict for Utz, awarding $191, 000 in punitive damages, though awarding no compensatory damages.
(¶12} Following trial, Stovall filed a motion for judgment notwithstanding the verdict, claiming the punitive damages award could not stand without compensatory damages and was excessive. Specifically, Stovall contended that Utz failed to prove actual damages, and thus, the punitive damages award should be stricken. Utz also filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial. Utz argued that she did, in fact, prove compensatory damages, imploring the court to respect the $191, 000 damages award, but restate the award as $31, 000 to $96, 000 for compensatory damages and the remainder as punitive damages. Alternatively, Utz argued a new trial should be granted, asserting that the jury found she should prevail, but apparently did not follow the instructions concerning damages.
(¶13} The trial court granted Utz's motion for a new trial, noting:
The jointly prepared jury instructions included instructions for nominal damages, compensatory damages and punitive damages. It is clear that the jury instructions were deficient and lacked proper guidance to assist the trier of fact in reaching a reasonable verdict. The instructions, lack of interrogatories and general verdict forms confused the jury in their analysis and findings.
(¶14} Stovall now appeals and asserts five assignments of error for review by this court which, for ease of discussion, will be addressed out of numerical order.
(¶15} Stovall's first and second assignments of error state:
[1.] The trial court erred in not granting Appellant Stovall's motion for summary judgment since there was no clear and convincing evidence that Stovall's ...