IN THE COURT OF APPEALS EIGHTH APPELLATE DISTRICT CUYAHOGA COUNTY, O10 MICHAEL P. LOGRASSO, ) CASE NO. CA-13-100104 )) Plaintiff-Appellant, ) } On Appeal from the Cuyahoga vs. ) County Court of Common } Pleas, Case No. CV-12- ROBERT FREY ET. Al, ) 798334 Defendants-Appellees. ; BRIEF OF APPELLANT MICHAEL LOGRASSO Milano Pasch Medici Attomeys at Law ee iz :ph Medici (0086666) Jay Milano (0008204) James Pasch (0086809) 2639 Wooster Road Rocky River, Ohio 44116-2911 P-440-356-3126 F-216-539-5955 Email: jrm@milanolaw.com, jm@milanolaw.com jmp@milanolaw.com Attomeys for Michael LograssoTABLE OF CONTENTS TABLE OF AUTHORTI STATEMENT IN SUPPORT OF ORAL ARGUMENT. ASSIGNMENTS OF ERROR. STATEMENT OF ISSUE PRESENTED FOR REVIEW.. INTRODUCTION.. STATEMENT OF THE FACT! STATEMENT OF PROCEDURAL HISTORY. LAW AND ARGUMENT..ssssssesesssseeeese CONCLUSION. PROOF OF SERVICE.TABLE OF AUTHORITIES C&K Indus. Servs., Inc. v. McIntyre, Kahn & Kruse Co,, L.P.A., 2009 Ohio 2373, 3, Obio ct App., Cuyahoga County May 21, 2009). fo Calebresse Neeley 1988 Ohio App. LEXIS 3183, (Ohio Ct App, Cuyahoga County Ave. 4 Saeed 1988)... City of Lakewood v. Blue Cross and Blue Shield Mutual Of Northern Ohio, 1986 Ohio App. LEXIS 7525... Grafton v, American Broadcasting Co., 10 Ohio App. 24 205, 207 (Ohio Ct, App., Lorain County 1980) wee . 11,12 Hahn v. Kotten, 43 Ohio St. 2d 237, (Ohio 1975)... 9 Jackson v. City of Columbus, 117 Ohio St, 34 330 (2008) ...... eerie Rosenbrook v. Bd. of Lucas County Commissioners, 2012-Ohio-6247 (App. 6th Dist. 2012). Snowville Subdivision Joint Venture Phase Iv. Home Savings and Loan of Youngstown, 2012- Ohio-1342 (8th Dist. 2012) Vail v. The Plain Dealer Publishing Company (1995), 72 Ohio St. 34.279, 183 N.E.2d 182)...9 Watson Carpet & Floor Covering, Inc. v. Mohawk Industries 648 F.3d 452 (6th Cir. 2011)....7 Welling v. Weinfeld, 113 Ohio St.3d 464, 866 N.E.2d 1051 (2007)..... MISCELLANEOUS Ohio Rule of Civil Procedure 12 Restatement of Torts 2d, Section 611... iiSTATEMENT IN SUPPORT OF ORAL ARGUME! Appellant Michael Lograsso requests oral argument. This case involves complex legal issues. Oral argument will assist the Court in making its determination. iiiASSIGNMENTS OF ERROR RED IN GRANTING THE MOTIONS FOR JUDGEMENT FI 2 TRIAL COURT El BY THE DEFENDANTS/APPELLEES,STATEMENT OF ISSUE PRESENTED FOR REVIEW ‘Appellant asserts the Trial Court erred in granting Judgment on the Pleadings based on ‘motions filed by the Defendants/Appellees. In reviewing judgments made on the pleadings, Ohio appellate courts have used de novo review to determine if, construing all of the material allegations in the complaint and reasonable inferences in favor of the non-moving party, the plaintiff could not show any set of facts that would entitle hinv/her to relief. C&K Indus. Servs, Inc. v. Melntyre, Kahn & Kruse Co., [.P.A., 2009 Ohio 2373, P10, 2009 Ohio App. LEXIS 2007, 2009 WL 1423960 (Ohio Ct. App., Cuyahoga County May 21, 2009),INTRODUCTION ‘The dispute in this ease arose out of comments made publicly at local city council ‘meetings that were later republished on two separate websites. The Appellant filed a Complaint including counts for defamation, false light and seeking punitive damages against three separate defendants. The Appellant appeals the Trial Coutt’s ruling on the Motions for Judgment on the Pleadings filed by the Defendants. Appellant asserts thatthe final order issued by the Trial Court did not address any of the issues raised in the motions filed by the defendants and further submits that judgment should not have been granted as the Appellant provided a clear set of facts that entitled him to relief. STATEMENT OF FACTS ‘Appellant Michae! Lograsso is the current Law Director for the City of South Euclid and has been throughout the duration of the time frame for this lawsuit (PL’s Compl. $1). Appellees Robert Frey, Emilie DiFranco and David Furry (“Appellees”) are full time residents of Cuyahoga County (Id. at 43, 4). ‘On or about October 12, 2011, Ms. DiFranco filed a grievance packet with the Disciplinary Counsel of the Supreme Court of Ohio regarding Mr. Lograsso (Jd. at 6). In this packet, Defendant DiFranco falsely stated that Mr. Lograsso had ‘possible violations of the Ohio Rules of Professional Conduct’ and that the Disciplinary Counsel should review Mr. Lograsso’s fitness to continue practicing law in the State of Ohio (/d. at §6, 7). ‘The packet filed by Defendant DiFranco falsely stated that Mr. Lograsso engaged in, “illegal conduct (that) reflected adversely on fitness to practice law, such offenses involving fraud and the offense of willful failure to file an income tax return.” (Jd. at { 8). The packet continued to falsely accuse Mr. Lograsso of “failing to file necessary corporate franchise taxreports or pay any such tax within the time described by the law.” (Ud. at $9). Defendant was very specific in the packet and named several corporations that had delinquent taxes and then falsely claimed Mr. Lograsso had an ownership interest in those companies (Jd. at 9). Mr. Lograsso never had any ownership interest in any of the companies listed in the packet (Jd. at] 10.) On two separate occasions, October 22, 2012 and November 12, 2012, Appellees attended City of South Euclid City Council meetings (/d. at { 11, 19, 22). Mr. Lograsso was present at these meetings in his capacity as Law Director for the City of South Euclid (id. at § 12), At the October 22, 2012 meeting Mr. Frey addressed Council, the Mayor, department heads and members of the general public (/d, at { 13). Defendant Frey questioned Councilman Ed Ieove about why he did not address issues regarding Mr. Lograsso’s position as law director (id. at 1 15). Defendant Frey went on to address a proposed amendment to the City’s Charter that would allow City Council members to approve the Mayor's appointment of the Director of Law and stated that Mr, Lograsso’s resume was not adequate for the position of Law Director (Id. at 14, 15), Mr. Frey then went on to produce several documents that he repeatedly referenced which allegedly stated that Mr. Lograsso was an ineorporator and investor in several Ohio corporations that were delinquent in paying taxes (Id. at § 16). Defendant Frey publically inferred that it was Mr. Lograsso’s responsibility to pay the delinquent taxes and that it was Mr. Lograsso’s fault that the taxes had not been paid (Id. at { 17). The companies listed were the same companies that Defendant DiFranco included in her packet to the Disciplinary Counsel (/d. at § 16). To be clear,at no point did Mr. Lograsso ever have any ownership interest in any of the companies (Id. at 18), Mr. Furry videotaped the Couneil Meeting highlighting Defendant Frey's comments (Id. at $19), The videotape was then published on YouTube and “South Euclid Oversight”, a website ‘owned and operated by Defendants DiFranco and Furry (Id, at { 20, 21). At the November 12, 2012 meeting, Mr. Frey once again addressed the Council and members of the general public in order to publically make false and harmful comments toward Mr. Lograsso (Jd. at 23). At this meeting Mr. Frey specifically stated that the City Council needed to adopt laws that would prohibit the City from employing people with “questionable financial histories” (Jd. at §24.). Mr. Frey then listed Mr. Lograsso as the example (id. at 124), Inaddition Mr. Frey insinuated that Mr. Lograsso only became the Law Director because of political cronyism (Jd. at § 25). Defendant Frey also referenced the Charter Amendment a second time and added that the City Council needs to review financial issues and fraud when reviewing someone in that position (Jd. at 26). This was a direct attack on Mr. Lograsso’s professional and personal character by falsely inferring that Mr. Lograsso had committed fraud. (ld. at 26). Mr, Frey then waived a packet of documents in the air, proclaiming that he had proof in the form of documentation for all of the accusations he made against Mr. Lograsso at the October 2012 City Council meeting (Id. at $27). Mr, Furry once again videotaped Mr. Frey’s performance and again both Mr. Funy and Ms. DiFranco published the video on YouTube and the South Euclid Oversight website (/d. at 28, 29).STATEMENT OF PROCEDURAL HISTORY On December 28, 2012, Mr. Lograsso filed a complaint alleging defamation, false light and seeking punitive damages regarding Mr. Frey’s public comments at the City Council meetings and Ms. DiFranco and Mr. Furry’s subsequent republishing of those comments. On March 6, 2013 Ms. DiFranco-and Mr. Furry filed a joint Motion for Judgment on the Pleadings. Ms, DiFranco and Mr, Furry argued their broadcasts were privileged. Mr. Lograsso filed a response to the Motion for Judgment on March 29, 2013 after filing a stipulated leave to plead with counsel for Ms. DiFranco and Mr, Furry, On April 26, 2013 Ms. DiFranco and Mr. Furry filed and the Trial Court granted a Motion for Leave to file an instanter reply brief, On May 6, 2013 Mr. Lograsso filed a Motion for Leave and a reply brief instanter to correct misstatements of law and fact in Ms. Difranco and Mr. Furry’s final brief. The Court denied Mr. Logras Motion for Leave and therefore did not accept the final reply brief, On June 12, 2013 the ‘Trial Court granted Ms. DiFranco and Mr. Furry’s Motion for Judgment on the Pleadings. On May 20, 2013 Mr. Frey filed a Motion for Judgment on the Pleadings stating that he was little more than an average citizen questioning his government and that he was also privileged. Mr. Lograsso filed a response to the Motion for Judgment on June 10, 2013 after filing a stipulated leave to plead with counsel for Mr. Frey. On Sune 20, 2013, Mr. Frey filed and the Court granted a Motion for Leave to file an instanter reply brief. On July 1, 2013 Mr. Lograsso filed a Motion for Leave and a reply brief instanter to correct misstatements of law and fact in Mr. Frey's final brief. The Court denied Mr. Lograsso’s Motion for Leave and therefore did not accept the final reply brief, On July 1, 2013 the Trial Court granted Mr. Frey's Motion for Judgment on the Pleadings.Neither of the Orders granting the Motions for Judgment on the Pleadings provided any analysis or any basis for the decision, LAW AND ARGUMENT STANDARD OF REVIEW Inreviewing judgments made on the pleadings, Ohio appellate courts use de novo review to determine if, construing all of the material allegations in the complaint and reasonable inferences in favor of the non-moving patty, the plaintiff could not show any set of facts that ‘would entitle himvher to relief. C&&K Indus. Servs., Inc. v. Melntyre, Kahn & Kruse Co, L.P-A., 2009 Ohio 2373, P10, 2009 Ohio App. LEXIS 2007, 2009 WL 1423960 (Ohio Ct. App., Cuyahoga County May 21, 2009) ANALYSIS the rules laid out in the Mr. Lograsso maintains the Complaint filed in this case sati Ohio Rules of Civil Procedure and Ohio case law. While the Trial Court's Orders did not specify how the Court came to find in favor of the Defendants, Mr. Lograsso maintains that he should prevail despite any of the defenses espoused by the Appellees and therefore any judgment made on the pleadings was in error. ‘A motion for judgment on the pleadings, Ohio Rule of Civil Procedure 12(C), is analyzed under the same standard as a motion to dismiss 12(6)(6). Rosenbrook v, Bd. of Lucas County ‘Commissioner's, 2012-Ohio-6247 (App. 6th Dist. 2012). In order to prevail, “plaintiffs must only show some set of facts that would entitle them to relief.” Snowville Subdivision Joint Venture Phase I'v. Home Savings and Loan of Youngstown, 2012-Ohio-1342 (8th Dist. 2012) at 9 citing O’Brien v. University Community Tenants Union, Inc., 42 Ohio St. 2d 242 (Ohio 1975) and Stare ex rel, Hickman v. Capots, 45 Ohio St. 3d 324 (Ohio 1989),‘The complaint itself must contain factual allegations, whieh must raise a right to relief and state a claim to relief that is plausible on its face, Watson Carpet & Floor Covering, Inc. v. Mohawk Industries, 648 ¥.3d 452 (6th Cir. 2011) citing Bell Allantic Corp. v. Twombly, 550 U.S. 544, 127 8.Ct. 1955, 167 L.Bd.2d 929 (2007) and the facts in the complaint must rise above the level of mere speculation. Snowville Subdivision Joint Venture Phase Iv. Home Savings and Loan of Youngstown, 2012-Ohio-1342 (8th Dist. 2012) at 10 citing Bell Atlantic Corp. v. Twombly, 550 US, 544, 127 8.Ct. 1955, 167 L.Ed.2d 929 (2007) at 555. In hs original Complaint, Mr. Lograsso provided clear factual allegations to show the actions of the Appellees warranted relief, Mr. Lograsso clearly indicated that between the two couneil meetings Mr. Frey accused him of not paying his taxes (PI.’s Compl. { 16, 17, 23-27), of having a questionable financial history that should restrict him from publie service (Jd. at 23-24), of only receiving his position as law director due to political eronyism (Id. at 25), of previously committing fraud (fd, at 26), of not having the requisite experience and resume to be a law director (ld. at 14-15) and of having documented proof to back up any and all of his elaims and factual assertions (Jd. at 27). Ms, DiFranco and Mr. Furry then chose to publish all of those statements on their website and on youtube.com without any disclaimers about the validity of the information or whether they in fact new any parts of it to be false (Id. at 19-21). Mr, Lograsso was able to further illustrate through his complaint that all of the defendants in his case had reason to know the information was fraudulent. Mr. Lograsso clearly illustrated that Mr. Frey used the exact same documents to attack Mr. Lograsso that Ms. DiFranco had attempted to use a year earlier with the Disciplinary Board (Jd. at 6-10, 16-18, 28- 29), Mr. Lograsso further alleged that Mr. Frey waived a packet of information claiming he hadproof of all of his various claims, however, the packet only contained the information Ms. DiFranco originally sent to the Disciplinary Counsel and did not deal with any of his additional claims (Id at 16, 27). These allegations are not speculation — they are factual assertions based on real-world actions. Mr, Frey initially argued in his Motion for Judgment on the Pleadings that he was simply extolling his opinion and that Mr. Lograsso has attempted to silence a person’s First Amendment Rights, Mr. Frey defended his actions stating he, “had the courage to stand up and question the direction and oversight of his government and the choice of its leaders,” (Def. Frey's Motion for Judgment on Pleadings, p. 6). Mr, Lograsso, however, clearly outlined in his complaint that these allegations went well beyond the scope of opinions when Mr. Frey specifically accused Mr. Lograsso of fraud, political cronyism and of having a questionable financial background without any evidence to back up his claims. Further, Mr. Frey specifically claimed to have evidence to back up any ‘opinions’ he offered. Ohio Courts have clearly defined what constitutes an opinion and Mr. Frey’s words do not meet that definition. The issue is whether an ordinary reader would believe the phrases uttered by a defendant to be opinions or statements of fact Vail v. The Plain Dealer Publishing Company (1995), 72 Ohio St. 34 279, 183 N.E.2d 182). Mr. Frey’s public phrases are clearly intended to be statements of fact and clearly would have been heard that way. For listeners who may have been on the fence for the issue of opinion vs. fact, however, Mr. Frey’s declaration that he had evidence to support all of his claims clearly establishes that his audience would have perceived his phrases to be statements of fact. Mr, Frey further claims that his actions were privileged citing to Hahn v. Kotten, 43 Ohio St, 2 237, Ohio 1975) (Def. Frey Motion for Judgement on Pleadings p. 10). The Hahn Court does provide some protection to those speaking at public events where they have a vestedinterest, however, it does not provide any form of blanket immunity, Rather it, “makes a showing of falsity and actual malice essential to the right of recovery.” Id. at 244. Ohio Courts describe actual malice in terms of a qualified privilege case as “acting with knowledge that the statements are false or acting with reckless disregard to their truth or falsity.” Jackson v. City of Columbus, 117 Ohio St. 34 330 (2008). quoting Jacobs v. Frank (1991), 60 Ohio St, 3d 111, 573 N.E.2d 609. The Courts further define reckless disregard to situations with “high degree of awareness of their probable falsity” or “when the publisher ‘in fact entertained serious doubts as to the truth of his publication’” Jackson v. City of Columbus, 117 Ohio St, 3d 330 (2008) quoting Garrison v. Louisiana (1964), 379 U.S. 64, 75, 13 L. Ed, 2d 125, 85 S. Ct. 209, and St. Amant v. Thompson (1968), 390 U.S, 727, 731, 88 8. Ct, 1323, 20 L.Ed.2d 262, Mr. Lograsso provided clear factual allegations to show that Mr. Frey had reason to know there was a high probability to the falseness of his allegations. Mr, Lograsso showed that Mr. Frey did not have any evidence to show he owned any of the properties that owed back taxes, Mr. Frey had no evidence to support his claims that Mr. Lograsso committed fraud, had a questionable financial history, had inadequate job experience or only received his job through political cronyism, Mr. Frey additionally then went on to claim that he did have evidence to back up those claims, despite not having any documentation to prove any of his claims. Without any such evidence, Mr. Frey had reason to know there was a high probability his allegations were false, Lastly, Mr. Frey claimed that the false light count filed against him should have been adjudicated in his favor essentially because the defamation case should have been as well (Def. Frey Motion for Judgment on the Pleadings p. 12). Citing to Welling v. Weinfeld, 113 Ohio St34 464, 866 N.E.2d 1051 (2007), Mr. Frey claimed that false light claims require a showing that the person acted in reckless disregard regarding the falsity of the publicized matter and that based on 10the defamation claim, judgment should have been rendered in his favor. Mr. Lograsso, however, clearly indicated in his Complaint that Mr. Frey certainly acted with reckless disregard regarding the falsity of his claims. Similar to the analysis regarding Mr. Frey’s claim for a privilege, the absolute lack of any supportive evidence to back or buttress his claims shows just how reckless Mr. Frey was regarding the veracity of falsity of his declarations. Ms. DiFranco and Mr. Furry relied on a separate series of defenses apart from Mr. Frey. Their first defense claimed a First Amendment Privilege, citing to Grafton v. American Broadcasting Co., 70 Ohio App. 24 205, 207 (Ohio Ct. App., Lorain County 1980) and City of Lakewood v. Blue Cross and Blue Shield Mut. Of N. Ohio, 1986 Ohio App. LEXIS 7525 (Def. Furry and DiFranco Motion for Judgment on the Pleadings p. 6-12). The privileges found in these cases, however, only extend to individuals who have been sued by an actual city or municipal corporation. The Grafton Couct specifically looked beyond the claimed privilege and further examined whether it could even, “be said that 2 municipal comporation is a "person," and, hence, possesses a reputation which may be defamed?” Graffon v, American Broadcasting Co at 211. While Mr. Lograsso admittedly is the Law Director for the City of South Euclid, he does not represent the city in any way in this lawsuit and this suit is not based on accusations made against the city. The accusations made in this case were squarely made at Mr. Lograsso and they criticized him both professionally and personally. These cases and this privilege are therefore irrelevant to the current case and therefore do not afford any protection to any of the Appellees. Ms. DiFranco and Mr. Furry asserted a second privilege, essentially claiming that their actions in the case should have been considered neutral reporting and therefore their actions should be protected (Def. Furry and DiFranco Motion for Judgment on the Pleadings p. 12-15). Ms, DiFranco and Mr. Furry cited to Restatement of Torts 2d, Section 611 and Celebrezze v. 1Netzley, 1988 Ohio App. LEXIS 3153, (Ohio Ct, App., Cuyahoga County Aug. 4, 1988), arguing ‘that even if the underlying statements were defamatory, their reproduction of those statements on youtube.com and South Euclid Oversight was protected. The Restatement and the Celebrezze Court did acknowledge what it called the ‘privilege of neutral reportage” and stated that could only be used to protect accurate and disinterested reporting Celebrezze v. Netzley at 25.Mr. Lograsso, however, clearly indicated in his Complaint that the reporting was neither accurate nor disinterested. Only a year earlier Ms. DiFranco had attempted to use the same documents Mr. Frey relied on (o harm Mr, Lograsso (PI.’s Compl. § 6-10, 16-18, 28-29). Ms. DiFranco clearly knew what the documents were and therefore what they did and did not say. It also clearly illustrates that Ms, DiFranco was not just an innocent observer in the proceedings and has an interest in Mr. Lograsso and his ability to be a lawyer and the Law Director for the City of South Euclid, Further, neither Ms, DiFranco or Mr. Furry made any attempt to actually investigate or report on the claims made by Mr. Frey in any way. The list of documents Mr. Frey provided at the Council meeting was not provided on either website and there was nothing written on either page to indicate Ms, DiFranco and Mr. Furry had prior interest and knowledge into Mr. Frey’s allegations. In examining the neutral reportage privilege, the Celebrezze court particularly noted the lengthy investigation into the published story that was done on behalf of the defendant in the ‘original case. That investigation became the backbone of the overall defense showing that the defendants fairly and accurately reported the events in question, Celebrezze v. Neteley at 27. In ‘examining the Restatement, the Grafion v, American Broadcast Company court also looked at the underlying investigation done by the defendant to determine if a privilege should be extended. Again, the court acknowledged that the defendant conducted a proper investigation, 12based their story on credible evidence and then specifically reported on and mentioned that evidence in their story. Mr. Lograsso’s Complaint clearly illustrates that no level of fait or accurate reporting was ever done in the current case and therefore Ms, DiFranco and Mr, Furry cannot enjoy the privileges that would have gone along with it, Mr. Furry and Ms, DiFranco also argued that the false light claims against them should be dismissed because the same privilege that protected them from defamation also protected them in a false light action (Def. Furry and DiFranco Motion for Judgment on the Pleadings p. 19-20), As Mr. Lograsso has displayed, however, neither Ms, DiFranco nor Mr. Furry are entitled to such protections and therefore any judgment on the false light claims was rendered in error, CONCLUSION Appellant Michael Lograsso’s Complaint provided clear evidence that went beyond mere speculation that Mr. Furry, Ms, DiFranco and Mr, Frey are liable for defamation, false light and punitive damages based on their intentional actions. Mr. Lograsso met the prerequisites laid out by Ohio case law and the Ohio Rules of Civil Procedure and therefore any judgment in favar of the Appellees was in error. Milano Pasch Medici Attorneys at Law — Joseph Medici (0086666) Jay Milano (0008204) James Pasch (0086809) 2639 Wooster Road Rocky River, Ohio 44116-2911 P-440-356-3126 F-216-539-5955 13PROOF OF SERVICE ‘The undersigned hereby certifies that a true and correct copy of the foregoing Appellant’s Brief in this action was served via email and traditional mail on the 9th day of August, 2013 to the following: ‘Thomas Cabral, Esq. Markus Apelis, Esq. Gallagher Sharp Bulkley Building 1501 Euelid Avenue Cleveland, Ohio 44115 Email: teabral@gallaghersharp.com mapelis@gallaghersharp.com Christopher R. Finney, Esq. Fimney, Stagnaro, Saba & Patterson Co. LPA 7373 Beechmont Avenue Cincinnati, Ohio 445230 Email: cfinney@fssp-law.com Curt Hartman, Esq. Law Firm of Curt C, Hartman 3749 Fox Point Court Amelia, Ohio 45102 Email: hartmanlawfirm@fuse.net Robert Foulds, Esq. Dyson, Schmidlin & Foulds Co., LPA 5843 Mayfield Road Cleveland, Ohio 44124 Email: rfoulds@dsf-law.com Collin Moeller, Esq. Ankuda, Stadler, Moeller & Tyminski 815 East Superior Avenue, Suite 1615 Cleveland, Ohio 44114 Email: cmoeller@asmtlaw.com