Court of Appeals of Ohio, Twelfth District, Butler
CLARKWESTERN DIETRICH BUILDING SYSTEMS, LLC d.b.a. CLARKDIETRICH, Plaintiff-Appellee,
CERTIFIED STEEL STUD ASSOCIATION, INC., et al, Defendants-Appellants.
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
Brown Todd LLC, Matthew C. Blickensderfer, Stephen R.
Hernick, and Cohen & Grigsby, P.C., Anthony Cillo,
Barbara Scheib, Fridrikh V. Shrayber, for plaintiff-appellee
Ireland & Cox PLL, D. Jeffrey Ireland, Stephen A.
Weigand, Jason W. Palmer, for defendant-appellant, Certified
Steel Stud Association, Inc.
1} Defendant-appellant, Certified Steel Stud
Association, Inc., ("the Association") appeals a
decision of the Butler County Court of Common Pleas denying
its motion for summary judgment and denying its request for
judgment notwithstanding a verdict, which was rendered in
favor of plaintiff-appellee, Clarkwestern Dietrich Building
Systems LLC, DBA ClarkDietrich.
2} The Association was formed in 2012 by
manufacturers in the business of nonstructural steel framing.
These products provide framing for nonstructural walls, those
that do not support the weight of the building, and must
comply with the standards set forth by the International
Building Code ("IBC"). One such compliance standard
requires builders to use noncombustible products in
multi-story applications. To make the steel products
noncombustible and to prevent corrosion, manufacturers use a
method of coating the steel in a zinc-based coating called
3} ClarkDietrich, which is headquartered in West
Chester, Ohio, is in the business of selling steel framing
products, accessories, and related services, and also
manufactures coatings. ClarkDietrich began producing an
"equivalent" coating to G40, called EQ or G40EQ.
ClarkDietrich's development and use of G40EQ allowed it
to manufacture its products at a lower cost, and some
competitors reduced prices on the traditional G40-coated
products to compete with ClarkDietrich's new G40EQ
product. The G40EQ coating is not listed in the IBC's
table of coatings.
4} The Association released a publication entitled
"CSSA Opinion: EQ Coatings Are Not Recognized By The
Code, " which included a byline of "Substituting
G40e Presents Potential Liability for Contractors On
Jobs." Within this publication, the Association
made statements that (1) ClarkDietrich's G40EQ product
did not comply with IBC standards, (2) the only acceptable
coatings are those listed in the IBC tables, (3)
ClarkDietrich is in the habit of substituting its products on
projects that specify use of G40 coatings without informing
the customer, (4) most project specifications require the use
of G40 coatings, (5) contractors who use G40EQ are
unknowingly subjecting themselves to liability, (6) the G40EQ
coating is "paint, " (7) the G40EQ-coated products
are inferior to G40-coated products, (8) testing of G40EQ
products is less rigorous than for G40 products, and (9)
G40EQ products cannot withstand intensive corrosive
environments, such as buildings along the coastline.
5} This publication was disseminated by the
Association to 9, 560 customers and others involved in the
nonstructural steel framing industry. After the publication
was distributed, ClarkDietrich lost projects and millions of
dollars in revenue.
6} ClarkDietrich sued the Association, as well as
later-dismissed defendants, for violation of the Ohio
Deceptive Trade Practices Act and unfair competition,
defamation, disparagement, and civil conspiracy. The parties
moved for summary judgment, and the Association argued that
its publication was an opinion protected under the First
Amendment, rather than actionable factual statements. The
trial court denied the Association's motion for summary
judgment on most issues, except for a limited judgment that
the Association's statement that ClarkDietrich's
products were "inferior" was an unactionable
7} The trial court also granted summary judgment in
favor the Association in a separate action filed by
ClarkDietrich in which it alleged that the Association
engaged in activities that violated the Valentine Act,
Ohio's anti-trust statute. ClarkDietrich appealed that
decision to this court, and we affirmed. Clarkwestern
Dietrich Bldg. Sys., LLC v. Certified Steel Stud Assn.,
12th Dist. Butler No. CA2016-05-098, 2017-Ohio-1091.
8} The remaining matters proceeded to an extensive
trial that spanned nine weeks, after which the jury found in
favor of ClarkDietrich, and awarded it $49 million, $43
million of which was apportioned to the Association. The
trial court entered judgment based on the jury's verdict,
and the Association filed a motion for judgment
notwithstanding the verdict, or in the alternative, a motion
for a new trial. The trial court denied the motion. The
Association now appeals the trial court's decisions,
raising the following assignments of error.
9} Assignment of Error No. 1:
10} THE COURT ERRED IN DENYING CSSA'S MOTION FOR
11} The Association argues in its first assignment
of error that the trial court erred by not granting its
motion for summary judgment because the ...