You are on page 1of 32

IN THE COURT OF APPEALS

EIGHTH APPELLATE DISTRICT


CUYAHOGA COUNTY, OHIO
CASE NO. CA-13-100104

MICHAEL LOGRASSO,
Plaintiff-Appellant,
-vROBERT FREY, et al.,
Defendants-Appellees.

On Appeal from the Court of Common Pleas


Cuyahoga County, Ohio, Case No. CV-12-798334

BRIEF OF DEFENDANTS-APPELLEES
EMILIE DIFRANCO AND DAVID FURRY

THOMAS J. CABRAL (0033041)


MARKUS E. APELIS (0083884)
GALLAGHER SHARP
Bulkley Building Sixth Floor
1501 Euclid Avenue
Cleveland, Ohio 44115
Phone: (216) 241-5310
Fax: (216) 241-1608
Email: tcabral@gallaghersharp.com
mapelis@gallaghersharp.com
Attorneys for the Defendants-Appellees
Emilie DiFranco and David Furry

Joseph L. Medici, Esq.


Jay A. Milano, Esq.
James M. Pasch, Esq.
MILANO PASCH MEDICI
2639 Wooster Road
Rocky River, Ohio 44116
Attorneys for Plaintiff-Appellant
Michael Lograsso

Christopher P. Finney, Esq.


FINNEY, STAGNARO, SABA & PATTERSON CO., LPA
7373 Beechmont Avenue
Cincinnati, Ohio 45230
Attorney for the Defendants-Appellees
Emilie DiFranco and David Furry

Robert J. Foulds, Esq.


DYSON, SCHMIDLIN & FOULDS CO., LPA
5843 Mayfield Road
Cleveland, Ohio 44124
Attorney for the Defendant-Appellee
Robert Frey

Curt C. Hartman, Esq.


LAW FIRM OF CURT C. HARTMAN
3749 Fox Point Court
Amelia, Ohio 45102
Attorney for the Defendants-Appellees
Emilie DiFranco and David Furry

Collin P. Moeller, Esq.


ANKUDA, STADLER, MOELLER & TYMINSKI
815 East Superior Avenue, Suite 1615
Cleveland, Ohio 44114
Attorney for the Defendant-Appellee
Robert Frey

David L. Lester, Esq.


ULMER & BERNE, LLP
1660 West Second Street, Suite 1100
Cleveland, Ohio 44113
Attorney for the Proposed Intervenor
Allstate Indemnity Co.

TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................. i
TABLE OF AUTHORITIES ....................................................................................................... ii
PLAINTIFF-APPELLANTS ASSIGNMENT OF ERROR .................................................... 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................................... 2
STATEMENT OF THE CASE .................................................................................................... 3
STATEMENT OF FACTS ........................................................................................................... 6
LAW AND ARGUMENT............................................................................................................. 8
I.

STANDARD OF REVIEW: Ohio Civ. R. 12(C) ............................................................... 8

II.

The Court Should Affirm the Trial Courts Decision to Enter Judgment on the
Pleadings Against Mr. Lograsso and in Favor of Ms. DiFranco and Mr. Furry. .............. 10
A.

III.

Mr. Lograsso Failed to Plead a Legally Sufficient Claim for Defamation


Against Ms. DiFranco and Mr. Furry. .................................................................. 10
1.

Constitutional Protections Bar Mr. Lograsso From Pursuing a


Defamation Action Against Ms. DiFranco and Mr. Furry........................ 10

2.

Statutory and Common Law Protections Bar Mr. Lograsso From


Pursuing a Defamation Action Against Ms. DiFranco and Mr.
Furry. ......................................................................................................... 17

B.

Mr. Lograsso Failed to Plead a Legally Sufficient Claim for False Light
Invasion of Privacy Against Ms. DiFranco and Mr. Furry. .................................. 20

C.

Mr. Lograsso Failed to Plead a Legally Sufficient Claim for Punitive


Damages. ............................................................................................................... 21

D.

A Trial Court Does Not Err in Granting a Motion for Judgment on the
Pleadings Under Ohio Civ. R. 12(C) Without Opinion. ....................................... 23

CONCLUSION ................................................................................................................. 24

CERTIFICATE OF SERVICE ................................................................................................. 26

TABLE OF AUTHORITIES
Cases
A&B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr., 73 Ohio St. 3d 1, 651 N.E.2d
1283 (1995) ................................................................................................................................... 20
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 9
Barile v. Univ. of Virginia, 30 Ohio App. 3d 190, 507 N.E.2d 448 (8th Dist. 1986) ................... 24
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................... 9
Bigelow v. Brumley, 138 Ohio St. 574, 784 (1941) ...................................................................... 12
Bishop v. Grdina, 20 Ohio St. 3d 26, 485 N.E.2d 704 (1985) ...................................................... 22
Branzburg v. Hayes, 408 U.S. 665, 704 (1972) ............................................................................ 12
Campbell v. Castle Stone Homes, Inc., D. Utah Case No. 2:09-CV-00250, 2011 U.S. Dist.
LEXIS 27266 (D. Utah 2011) ....................................................................................................... 21
Celebreeze v. Netzley, 1988 Ohio App. LEXIS 3153, *25 (8th Dist. 1988)................................. 18
Chicago v. Tribune Co., 307 Ill. 595, 139 N.E. 86 (1923) ........................................................... 15
City of Lakewood v. Blue Cross & Blue Shield Mut. of N. Ohio, 8th Dist. Nos. 50266, 50389,
50482, 1986 Ohio App. LEXIS 7525 (July 10, 1986) .................................................................. 15
Conley v. Gibson, 355 U.S. 41, 45-46 (1957) ................................................................................. 9
Correllas v. Viveiros, 410 Mass. 314, 324, 572 N.E.2d 7 (Mass. 1991) ...................................... 21
DiGiorgio v. City of Cleveland, 8th Dist. No. 95945, 2011-Ohio-5878 ......................................... 9
Fellows v. Natl Enquirer, Inc., 42 Cal. 3d 234, 721 P.2d 97 (Cal. 1986) ................................... 21
Hitchings v. Weese, 77 Ohio St. 3d 390, 391, 674 N.E.2d 688 (1997) ......................................... 22
James v. Brown, 637 S.W.2d 914 (Tex. 1982) ............................................................................. 21
Lovell v. Griffin, 303 U.S. 444 (1938) .......................................................................................... 12
McIntyre v. Ohio Elections Commn, 514 U.S. 334, 341 (1995) .................................................. 11
McLean v. Intl Harvester Co., 817 F.2d 1214 (5th Cir. 1987) .................................................... 20
Monitor Patriot Co. v. Roy, 401 U.S. 263, 272 (1971)................................................................. 10

ii

Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 635 N.E.2d 331 (1994) ........................... 22
Motzkin v. Trustees of Boston Univ., 938 F. Supp. 983 (D. Mass. 1996) ..................................... 21
NAACP v. Button, 371 U.S. 415 (1963)........................................................................................ 12
New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) ............................................. 11, 12, 13
Perrysburg Twp. v. City of Rossford, 103 Ohio St. 3d 79, 81, 2004-Ohio-4362, 814 N.E.2d 44 .. 8
Pestrak v. Ohio Elections Commn, 926 F.2d 573, 579 (6th Cir. 1991) ....................................... 12
Peterson v. Teodosio, 34 Ohio St. 2d 161, 297 N.E.2d 113 (1973) ............................................... 8
Rayess v. Educ. Commn for Foreign Med. Graduates, 134 Ohio St. 3d 509, 512-13, 2012-Ohio5676, 983 N.E.2d 1267 ................................................................................................................... 8
Rodic v. Celebrezze, 8th Dist. App. 56037, 1989 Ohio App. LEXIS 4968 (Oct. 19, 1989)... 23, 24
Snowville Subdivision Joint Venture Phase I v. Home Savings & Loan of Youngstown, 8th Dist.
No. 96675, 2012-Ohio-1342 ........................................................................................................... 9
Snyder v. Phelps, ___ U.S. ___, 131 S. Ct. 1207, 1215 (2011) .................................................... 13
St. Amant v. Thompson, 390 U.S. 727, 732 (1968) ................................................................. 10, 12
State Midwest Pride IV, Inc. v. Pontious, 75 Ohio St. 3d 565, 569-70, 664 N.E.2d 931 (1996).... 8
Susan B. Anthony List v. Driehaus, S.D. Ohio Case No. 1:10-CV-000720, 2013 U.S. Dist.
LEXIS 10261 (S.D. Ohio 2013) ................................................................................................... 14
Sweeney v. Patterson, 128 F.2d 457 (D.C. Cir. 1942) .................................................................. 13
Tate v. City of Garfield Heights, 8th Dist. No. 99099, 2013-Ohio-2204 ....................................... 8
Thomas v. Page, 361 Ill. App. 3d 484, 837 N.E.2d 483 (Ill. Ct. App. 2005) ............................... 21
Tomsu v. Ohio Civil Rights Commn, 116 Ohio Misc. 2d 24, 764 N.E.2d 516 (Ct. Cl. 2001) ..... 20
United States v. Alvarez, ___ U.S. ___, 132 S. Ct. 2537 (2012) .................................................. 14
Vail v. The Plain Dealer Publg Co., 72 Ohio St. 3d 279, 649 N.E.2d 182 (1995) ..................... 20
Village of Grafton v. Amer. Broad. Co., 70 Ohio App. 2d 205, 208, 435 N.E.2d 1131 (9th Dist.
1980) ................................................................................................................................. 15, 16, 17
Virginia v. Black, 538 U.S. 343, 358 (2003)................................................................................. 10
Whitney v. California, 274 U.S. 357, 375 (1927) ......................................................................... 11
iii

Statutes
OHIO CONST., Art. 1, 11 ............................................................................................................. 10
U.S. CONST., Am. 1 ....................................................................................................................... 10
Rules
Ohio Civ. R. 12(C) ........................................................................................................... i, 8, 23, 24

iv

PLAINTIFF-APPELLANTS ASSIGNMENT OF ERROR


1.

The Trial Court erred in granting the motions for judgment filed by the

Defendants-Appellees.

STATEMENT OF ISSUES PRESENTED FOR REVIEW


1.

Whether the trial court properly granted the motion for judgment on the pleadings

of Defendants-Appellees Emilie DiFranco and David Furry because federal and state
constitutional protections of free speech and free press allow Ms. DiFranco and Mr. Furry to
openly criticize a government official and thus protect Ms. DiFranco and Mr. Furry from liability
to Plaintiff-Appellant Michael Lograsso for defamation.
2.

Whether the trial court properly granted the motion for judgment on the pleadings

of Ms. DiFranco and Mr. Furry because statutory and common law privileges allow Ms.
DiFranco and Mr. Furry to rebroadcast videotapes that contain the fair and neutral report of
occurrences at public meetings and thus portect Ms. DiFranco and Mr. Furry from liability to Mr.
Lograsso for defamation.
3.

Whether the trial court properly granted the motion for judgment on the pleadings

of Ms. DiFranco and Mr. Furry because the same constitutional, statutory and common law
privileges that insulate Ms. DiFranco and Mr. Furry from liability for defamation also protect
them from liability for false light invasion of privacy.
4.

Whether the trial court properly granted the motion for judgment on the pleadings

of Ms. DiFranco and Mr. Furry because Ohio law does not allow Mr. Lograsso to pursue a
separate claim for punitive damages.
5.

Whether the trial court properly granted Ms. DiFrancos and Mr. Furrys motion

for judgment on the pleadings without opinion.

STATEMENT OF THE CASE


Plaintiff-Appellant Michael Lograsso, an attorney and Law Director of the City of South
Euclid, instituted this lawsuit as a direct attack upon the efforts of Defendants-Appellees Robert
Frey, Emilie DiFranco and David Furry, to exercise their fundamental First Amendment rights.
This lawsuit is nothing more than an ill-conceived attempt to silence public criticism of Mr.
Lograsso in his capacity as a public official. This matter specifically arises out of public
questioning concerning Mr. Lograssos qualifications to serve as the law director of the City of
South Euclid.
Mr. Lograsso filed his complaint against Mr. Frey, Ms. DiFranco and Mr. Furry on
December 28, 2012. (T.r. 1: Pl.s Compl.)1 As against Ms. DiFranco, Mr. Lograsso apparently
contended that Ms.DiFranco should be held legally liable for corresponding with the Supreme
Court of Ohio Office of Disciplinary Counsel concerning what Ms. DiFranco perceived as Mr.
Lograssos potential violations of the Ohio Rules of Professional Conduct. (T.r. 1: Pl.s Compl.
6-10.) As against both Ms. DiFranco and Mr. Furry, the plaintiff seeks to hold them legally
liable for videotaping and broadcasting a public meeting in which other members of the South
Euclid community (specifically, Mr. Frey) questioned the South Euclid City Council regarding
the plaintiffs fitness to serve as the citys law director. (T.r. 1: Pl.s Compl. 19-22, 28-29.)
Based upon nothing more than the foregoing, Count I of the complaint alleged that Mr.
Frey, Ms. DiFranco and Mr. Furry defamed Mr. Lograsso. (T.r. 1: Pl.s Compl. 30-34.)
Count II of the complaint claims that Mr. Frey, Ms. DiFranco and Mr. Furry committed false
light invasion of privacy against Mr. Lograsso. (T.r 1: Pl.s Compl. 35-37.) Count III of the
complaint attempts to set forth a separate claim for punitive damages. (T.r. 1: Pl.s Compl.
Although Mr. Lograsso makes several references to his complaint, Mr. Lograssos appellants brief
contains no citations to the actual record on appeal. Ms. DiFrancos and Mr. Furrys appellee brief sets
forth citations to the record itself.
1

38-41.) Ms. DiFranco and Mr. Furry answered the complaint on March 6, 2013. (T.r. 13:
DiFrancos and Furrys Jt. Ans. to Pl.s Compl.) That same day, Ms. DiFranco and Mr. Furry
filed a motion for judgment on the pleadings because Mr. Lograsso failed to state a legally
sufficient claim for relief against them. (T.r. 12: DiFrancos and Furrys Jt. Mot. for J. on the
Pleadings.)
As to Count I, Ms. DiFranco and Mr. Furry sought judgment in their favor because
neither could be held liable to Mr. Lograsso for defamation relating to the rebroadcast of a video
of public meetings or the dissemination of information to state disciplinary authorities. Federal
and state constitutional protections guaranteeing the right to freedom of speech and freedom of
the press insulate Ms. DiFranco and Mr. Furry from liability to Mr. Lograsso, particularly when
the speech complained of involves matters of public concern and criticism of public officials.
Additionally, Ms. DiFranco and Mr. Furry invoked common law and statutory privileges for the
fair and neutral reporting of factually true events. Because Ms. DiFranco and Mr. Furry simply
rebroadcasted the events of a public meeting, fairly, neutrally and without comment, such
rebroadcast could not serve as the basis of Mr. Lograssos defamation claim.

Third, Ms.

DiFranco could not be held liable to Mr. Lograsso for defamation relating to her communications
with the Supreme Court Office of Disciplinary Counsel. Although Mr. Lograsso later disclaimed
these allegations, Ohio law affords absolute privilege to Ms. DiFrancos communications with
the Supreme Court Office of Disciplinary Counsel.
As to Count II, the same privileges that protect Ms. DiFranco and Mr. Furry from liability
for defamation apply with equal weight to Mr. Lograssos claim for false light invasion of
privacy. As Ms. DiFranco and Mr. Furry pointed out in the Trial Court, these privileges would
be meaningless of they insulated Ms. DiFranco and Mr. Furry from liability for defamation, but

permitted Mr. Lograsso to pursue a different theory of recovery for the same alleged
wrongdoing.
As to Count III, Mr. Lograsso could not attempt to pursue punitive damages because
Ohio law does not recognize an independent cause of action for punitive damages. Even so, the
protections against liability to Mr. Lograsso that Ms. DiFranco and Mr. Furry enjoy preclude Mr.
Lograsso from pursuing any claim for punitive damages.
Mr. Lograsso opposed Ms. DiFrancos and Mr. Furrys motion for judgment on the
pleadings. (T.r. 19: Pl.s Resp. to DiFranco and Furry Mot.) Ms. DiFranco and Mr. Furry filed
a reply in support of their motion as a rebuke to the spurious arguments Mr. Lograsso had made
in opposition. (T.r. 20: DiFranco and Furry Reply Br.) Mr. Lograsso sought to file additional
briefing and hold an oral hearing on Ms. DiFrancos and Mr. Furrys motion. (T.r. 22: Pl.s Mot.
for Leave.) The Court, having before it all of the materials and legal arguments necessary to
make a decision, denied Mr. Lograssos motion. (T.r. 23: J. Entry, May 7, 2013.) After
considering the arguments, the Court rejected Mr. Lograssos claims in their entirety and entered
judgment on the pleadings in favor of Ms. DiFranco and Mr. Furry. (T.r. 35: J. Entry, June 12,
2013.)2 Mr. Lograsso appeals from this decision.3

Mr. Frey also filed a motion for judgment on the pleadings. (T.r. 24: Frey Mot. for J. on the Pleadings.)
Mr. Lograsso opposed Mr. Freys motion as well. (T.r. 31: Pl.s Resp. to Frey Mot.) Mr. Frey filed a
reply in support of his motion. (T.r. 36: Frey Reply Br.) The Court granted Mr. Freys motion. (T.r. 40:
J. Entry, July 1, 2013.) The Court thus also denied as moot Mr. Lograssos additional motion to continue
briefing the issues raised in Mr. Freys motion. (T.r. 42: J. Entry, July 2, 2013.)
Mr. Lograsso also appeals the Trial Courts entry of judgment on the pleadings in favor of Mr. Frey.
(T.r. 43: Pl.s Not. of Appeal.)
3

STATEMENT OF FACTS
Mr. Lograsso is an attorney and the law director of the City of South Euclid. (T.r. 1: Pl.s
Compl. 2.) Mr. Lograsso alleges that on October 22, 2012, Robert Frey, a South Euclid
resident, attended a public meeting of the South Euclid City Council. (T.r. 1: Pl.s Compl. 11.)
The plaintiff was also present at this meeting in his capacity as the city law director. (T.r. 1: Pl.s
Compl. 12.) During the public meeting, Mr. Frey addressed the South Euclid City Council,
including commentary regarding a proposed charter amendment that would require city council
members to approve the mayors appointment of a law director. (T.r. 1: Pl.s Compl. 14.)
During these remarks, Mr. Frey referenced certain instances of what he perceived to be financial
irregularities involving or concerning the plaintiff. (T.r. 1: Pl.s Compl. 16.) Mr. Frey also
questioned the plaintiffs qualifications to continue service as the city law director. (T.r. 1: Pl.s
Compl. 15.) The plaintiff alleges that Mr. Freys statements were false. (T.r. 1: Pl.s Compl.
31, 36.)4
On November 12, 2012, Mr. Frey again attended a public meeting of the South Euclid
City Council. (T.r. 1: Pl.s Compl. 22.) The plaintiff was also present at the meeting. Mr.
Frey again addressed the South Euclid City Council and suggested that it adopt laws prohibiting
the city from employing persons with questionable financial histories. (T.r. 1: Pl.s Compl.
24.)
Emilie DiFranco and David Furry were both present at the public meetings of the South
Euclid City Council on October 22, 2012 and November 12, 2012. (T.r. 1: Pl.s Compl. 19,
22.)

Ms. DiFranco and Mr. Furry videotaped both public meetings, including Mr. Freys

Mr. Lograsso does not specifically identify what statement or statements that Mr. Frey made were
actually false. Despite this lack of specificity, whether the statements that Mr. Frey made were actually
false is immaterial to the resolution of the claims against Ms. DiFrance and Mr. Furry. For purposes of
this appeal only, as in the Trial Court below, Ms. DiFranco and Mr. Furry do not contest Mr. Lograssos
allegation that Mr. Freys statements were false, even though the public record demonstrates otherwise.
6

remarks at both meetings. (T.r. 1: Pl.s Compl. 19, 28.) Ms. DiFranco and Mr. Furry also
videotaped the plaintiffs response to Mr. Freys remarks. (T.r. 13: DiFranco and Furry Jt. Ans.
19, 28.)

After videotaping the exchanges between Mr. Frey and the plaintiff at these

meetings, Ms. DiFranco and Mr. Furry posted the videos to the South Euclid Oversight blog, an
internet site that Ms. DiFranco and Mr. Furry operate. (T.r. 13: DiFranco and Furry Jt. Ans.
20-21, 29.) Ms. DiFranco and Mr. Furry also uploaded the videos to the YouTube video
website. (Id.)
In light of questions raised regarding the plaintiffs qualifications and business dealings,
Ms. DiFranco completed an attorney grievance form and sent it to the Supreme Court of Ohio
Office of Disciplinary Counsel. (T.r. 13: DiFranco and Furry Jt. Ans. 6, Ex. A.) Ms. DiFranco
requested that the Office of Disciplinary Counsel investigate the plaintiffs potential violation of
the Ohio Rules of Professional Conduct in connection with his performance as city law director.
(T.r. 1: Pl.s Compl. 6-10; T.r. 13: DiFranco and Furry Jt. Ans., Ex. A.) The plaintiff again
alleges that the accusations in Ms. DiFrancos grievance were false. (T.r. 1: Pl.s Compl. 710.)
Despite Mr. Freys criticism, the South Euclid City Council reappointed the plaintiff as
the city law director.

(T.r. 12: DiFranco and Furry Jt. Mot. for J. on the Pleadings.)

Nevertheless, in retaliation for Mr. Freys public remarks, the broadcast of the plaintiffs reaction
to these remarks, and following Ms. DiFrancos communications with the Office of Disciplinary
Counsel, the plaintiff chose to file this lawsuit against Mr. Frey, Ms. DiFranco and Mr. Furry.
(See T.r. 1: Pl.s Compl.)

LAW AND ARGUMENT


I.

STANDARD OF REVIEW: Ohio Civ. R. 12(C)


In his sole assignment of error, Mr. Lograsso contends that the Trial Court erred in

granting Mr. Freys, Ms. DiFrancos and Mr. Furrys motions for judgment on the pleadings.
The Supreme Court of Ohio holds that [b]ecause the review of a decision to dismiss a complaint
pursuant to Ohio Civ. R. 12(C) presents only questions of law, our review is de novo. Rayess v.
Educ. Commn for Foreign Med. Graduates, 134 Ohio St. 3d 509, 512-13, 2012-Ohio-5676, 983
N.E.2d 1267 (citing Perrysburg Twp. v. City of Rossford, 103 Ohio St. 3d 79, 2004-Ohio-4362,
814 N.E.2d 44). This Court applies the same de novo standard of review. See Tate v. City of
Garfield Heights, 8th Dist. No. 99099, 2013-Ohio-2204.
The Ohio Rules of Civil Procedure permit a party to a civil action to defend against that
action on the basis that the complaint fails to state a legally cognizable claim. Specifically, the
Ohio civil rules state:
After the pleadings are closed but within such time as not to delay the trial, any
party may move for judgment on the pleadings.
Ohio Civ. R. 12(C).
A trial court analyzes a motion for judgment on the pleadings under the same standard
that applies to a Rule 12(B)(6) motion to dismiss. See State Midwest Pride IV, Inc. v. Pontious,
75 Ohio St. 3d 565, 569-70, 664 N.E.2d 931 (1996). Such motions are designed specifically for
resolving questions of law. Under Ohio Civ. R. 12(C), dismissal is appropriate where a court (1)
construes the material allegations in the complaint, with all reasonable inferences to be drawn
therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff
could prove no set of facts in support of his claim that would entitle him to relief. Id. (citing
Peterson v. Teodosio, 34 Ohio St. 2d 161, 297 N.E.2d 113 (1973)).

The second requirement that the Court expressly determine that the plaintiff could
prove no set of facts in support of his claim is based upon the federal pleading standard set
forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Supreme Court of the United States,
however, has recently abandoned this requirement. See Ashcroft v. Iqbal, 556 U.S. 662 (2009);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (Conleys no set of facts language has
been questioned, criticized, and explained away long enough. [T]his famous observation has
earned its retirement.). Instead, it is a plaintiffs obligation to provide the grounds of his
entitlement to relief. Twombly, 550 U.S. at 555. A plaintiffs allegations must be enough to
raise a right to relief above the speculative level. Id. The complaint must contain something
more than a statement of facts that merely creates a suspicion of a legally cognizable right of
action, on the assumption that all the allegations in the complaint are true[.] Id. The law
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Iqbal,
556 U.S. at 678. A plaintiff cannot offer labels and conclusions or a formulaic recitation of the
elements of a cause of action[.] Id.
The Supreme Court of Ohio has not formally addressed the impact of the heightened
pleading standard set forth in Twombly and Iqbal. This Court, however, has recognized the
heightened standard. See Snowville Subdivision Joint Venture Phase I v. Home Savings & Loan
of Youngstown, 8th Dist. No. 96675, 2012-Ohio-1342; DiGiorgio v. City of Cleveland, 8th Dist.
No. 95945, 2011-Ohio-5878. Because Mr. Lograssos complaint contains no factual allegations
beyond speculation, and because Mr. Lograssos complaint merely creates a suspicion of a
legally cognizable claim, with nothing more than labels, conclusions and a formulaic recitation
of the elements, Mr. Lograssos claims cannot survive judgment as a matter of law. As such, the

Trial Court did not err in entering judgment on the pleadings in favor of Ms. DiFranco and Mr.
Furry and against Mr. Lograsso.
II.

The Court Should Affirm the Trial Courts Decision to Enter Judgment on the
Pleadings Against Mr. Lograsso and in Favor of Ms. DiFranco and Mr. Furry.
A.

Mr. Lograsso Failed to Plead a Legally Sufficient Claim for


Defamation Against Ms. DiFranco and Mr. Furry.

The Court should affirm the trial courts decision to grant Ms. DiFranco and Mr. Furrys
judgment on the pleadings because constitutional, statutory and common law privileges apply to
shield Ms. DiFranco and Mr. Furry from liability to Mr. Lograsso for defamation. Because these
privileges are absolute in nature, Mr. Lograssos complaint, no matter how factually inadequate
it may be, is simply insufficient to state a claim for relief against Ms. DiFranco and Mr. Furry.
1.

Constitutional Protections Bar Mr. Lograsso From


Pursuing a Defamation Action Against Ms. DiFranco
and Mr. Furry.

The First Amendment to the United States Constitution enshrines an individuals


fundamental right to freedom of speech. See U.S. CONST., Am. 1. The Fourteenth Amendment
makes this freedom applicable to the states. See Virginia v. Black, 538 U.S. 343, 358 (2003).
The Ohio Constitution contains a similar expression of an individuals freedom of expression:
Every citizen may freely speak, write, and publish his sentiments on all subjects,
being responsible for the abuse of the right; and no law shall be passed to restrain
or abridge the liberty of speech, or of the press.
OHIO CONST., Art. 1, 11. The Supreme Court of the United States has long held that the
protection of these freedoms is designed to insure the ascertainment and publication of the truth
about public affairs[.] St. Amant v. Thompson, 390 U.S. 727, 732 (1968). These principles are
especially critical in debate over candidates and occupants of public office, where the First
Amendment has its fullest and most urgent application, Monitor Patriot Co. v. Roy, 401 U.S.
263, 272 (1971). As Justice Brandeis wrote:
10

Those who won our independence believed that the final end of the State was to
make men free to develop their faculties. * * * They believed that freedom to
think as you will and to speak as you think are means indispensible to the
discovery and spread of political truth; that without free speech and assembly
discussion would be futilethat the greatest menace to freedom is an inert
people; that public discussion is a political duty; and that this should be a
fundamental principle of the American government.
Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). Justice Brandeis
recognized that the founders eschewed silence coerced by law, what he called the argument
of force in its worst form. Id. at 375-76. He understood, as did the authors of the Constitution,
that it is hazardous to discourage thought, hope and imagination and that the path of safety
lies in the opportunity to discuss freely supposed grievances and proposed remedies[.] Id. at
376.
Mr. Lograsso has invoked that worst argument of force. His lawsuit seeks to coerce
the silence of Ms. DiFranco and Mr. Furry by force of law a blatant and dangerous effort to
stifle open debate and curtail the basic constitutional freedoms guaranteed to all citizens. His
defamation action threatens that profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). To impose liability upon
Ms. DiFranco for allegedly defamatory remarks through the rebroadcast of a public meeting
would denigrate the fundamental purpose of the First Amendment and undermine the foundation
of one of the nations greatest, most cherished freedoms.
Debate over issues of political and public importance must occur in the marketplace of
ideas, not in courtrooms. See McIntyre v. Ohio Elections Commn, 514 U.S. 334, 341 (1995).

11

To subject free speech5 to the scrutiny of the judges and the vagaries of juries is at odds with the
basic notion of a neutral judicial system. It will force judges and juries to pick sides in intensely
partisan debates. Rather than face this choice, it is essential that the First Amendment protect
some erroneous publications as well as true ones. St. Amant, 390 U.S. at 732. As the Supreme
Court of the United States has recognized, erroneous statement is inevitable in free debate [and]
must be protected if the freedoms of expression are to have the breathing space that they
needto survive. New York Times, 378 U.S. at 271-72 (quoting NAACP v. Button, 371 U.S.
415 (1963)).
The fundamental principle of the marketplace of ideas reflects the tenet that the usual
cure for false speech is more speech[.] Pestrak v. Ohio Elections Commn, 926 F.2d 573, 579
(6th Cir. 1991). The remedy for occasionally erroneous speech is not a defamation action in
which the judiciary usurps the role of the citizenry informed by dueling sides in a robust political
debate. As the Ohio Supreme Court warned in adopting an absolute privilege for individuals
who publish official arguments for or against voter referendum initiatives, a libel suit based
upon such statements may be used as a political weapon in a heated campaign. Bigelow v.
Brumley, 138 Ohio St. 574, 784 (1941). Rather than have the truth or falsity of political
argument decided in the remote forum of the courts, the contest for or against any such
proposal should be fought at the polls, and not be blurred by collateral attacks in courts of law.
Id. at 585.

Concerning the rebroadcast of a public meeting of the South Euclid City Council on a website and
YouTube, Mr. Lograssos claims not only run afoul of freedom of speech, but also freedom of the press.
In operating their website and rebroadcasting the public meeting of a legislative body, Ms. DiFranco and
Mr. Furry enjoy the First Amendment protections afforded to members of the press. See Branzburg v.
Hayes, 408 U.S. 665, 704 (1972) ([f]reedom of the press is a fundamental personal right which is not
confined to newspapers and periodicals. It necessary embraces pamphlets and leaflets. The press in its
historic connotation comprehends every sort of publication which affords a vehicle of information and
opinion) (citing Lovell v. Griffin, 303 U.S. 444 (1938)).
12

Criticism of a public official is essential to ensuring open and robust debate in the
marketplace of ideas. To allow that public official to stifle debate by virtue of a defamation
lawsuit undermines political rights and constitutional guarantees. As the Supreme Court of the
United States recognized:
Cases which impose liability for erroneous reports of the political conduct of
officials reflect the obsolete doctrine that the governed must not criticize their
governors.
*

The interest of the public here outweighs the interest of [the public official] or any
other individual. The protection of the public requires not merely discussion, but
information. Political conduct and views which some respectable people approve,
and others condemn, are constantly imputed to [public officials]. Errors of fact,
particularly in regard to a mans mental states and processes, are inevitable.
*

Whatever is added to the field of libel is taken from the field of free debate.
New York Times, 376 U.S. at 272 (quoting Sweeney v. Patterson, 128 F.2d 457 (D.C. Cir. 1942)).
Admittedly, the nation and its citizens have changed dramatically in the decades since the
Supreme Court decided New York Times. Yet the strength of the First Amendment and its
protections endures, and the plaintiff cannot now seek to dismiss these pronouncements as the
products of a bygone era. The Supreme Court recently reaffirmed its commitment to the
protection of public debate, holding that [s]eech on matters of public concernis at the heart of
the First Amendments protection. Snyder v. Phelps, ___ U.S. ___, 131 S. Ct. 1207, 1215
(2011). As the Snyder Court recognized, speech concerning public affairs is more than selfexpression; it is the essence of self-government. Accordingly, speech on public issues occupies
the highest rung of the hierarchy of First Amendment values, and is entitled to special
protection. Id. The marketplace of ideas has likewise not lost its standing in the landscape of

13

First Amendment jurisprudence. In United States v. Alvarez, ___ U.S. ___, 132 S. Ct. 2537
(2012), the Supreme Court reaffirmed that [t]he remedy for speech that is false is speech that is
true. This is the ordinary course in a free society. The response to the unreasoned is the rational;
to the uninformed, the enlightened; to the straightout lie, the simple truth. The theory of our
Constitution is that the best test of truth is the power of the thought to get itself accepted in the
competition of the market. Id. at 2550.
Nor are these ideas relegated to the halls of Washington courtrooms or the pages of
constitutional law textbooks. State and federal courts in Ohio have a storied history in upholding
the protections of the First Amendment against the assault of a defamation action when the
freedom to public debate is at stake. The United States District Court for the Southern District of
Ohio just recently recognized that [t]he concomitant principles of free speech and truth collide
most violently in the arena of political speech. Susan B. Anthony List v. Driehaus, S.D. Ohio
Case No. 1:10-CV-000720, 2013 U.S. Dist. LEXIS 10261 (S.D. Ohio 2013). In rejecting the
defamation action of a public official, Judge Black recognized that in a free society, the truth of
political back and forth must be adjudicated in the marketplace of ideas, in the context of the
uninhibited, robust, and wide-open debate on public issues that the First Amendment protects. It
is [a] fundamental principle of a free society[.] Id. Judge Black recognized the serious
dangers to democracy and the political process that would result from turning the courts into
truth squads with respect to core political speech on matters of public concern. Id. Instead,
the law steers far clear of requiring judicial determination of political truth[.] Id.
Based upon these principles, Ohio law recognizes the special constitutional protections
and privileges afforded to political speech. As one Ohio court has held, [w]hen the people
became sovereign, as they did when our government was established under our constitutionthe

14

right to discuss government followed as a natural sequence. Village of Grafton v. Amer. Broad.
Co., 70 Ohio App. 2d 205, 208, 435 N.E.2d 1131 (9th Dist. 1980) (citing Chicago v. Tribune
Co., 307 Ill. 595, 139 N.E. 86 (1923)). The Grafton court recognized that, as a concomitant
aspect of sovereignty, the people have a fundamental right to criticize [public officials] and to
expose their inefficiency and corruption so that they may be displaced.

It is one of the

fundamental principles, therefore, of the American system of government, that the people have
the right to discuss their government without fear of being called to account in the courts for
their expressions of opinion. Id. The Grafton court faced a defamation claim brought against a
media outlet for criticism of public works projects. The Grafton court squarely rejected this
claim, holding that all criticism of the government by the people in the exercise of their
sovereignty, short of sedition, is absolutely privileged. Id. To permit an action at law that
attempts to impose civil liability for doing so is out of tune with the American spirit and has no
place in American jurisprudence. Id.; see also City of Lakewood v. Blue Cross & Blue Shield
Mut. of N. Ohio, 8th Dist. Nos. 50266, 50389, 50482, 1986 Ohio App. LEXIS 7525 (July 10,
1986) (criticism of a governmental entity is absolutely privileged, regardless of whether the
statement is true or false).
Mr. Lograsso attempts to thwart Ms. DiFrancos and Mr. Furrys First Amendment
freedoms by claiming that these cases apply only in the contexts of suits against individuals
brought by municipalities. See Grafton, 70 Ohio App. 2d 205; Lakewood, 1986 Ohio App.
LEXIS 7525. (Lograsso Br. 11.) This is an extraordinarily narrow and misguided interpretation
of these decisions.

Although Grafton and Lakewood both involved suits brought by

municipalities, nothing in either decision supports Mr. Lograssos claim that [t]he privileges
found in these casesonly extend to individuals who have been sued by an actual city or

15

municipal corporation. (Lograsso Br. 11.) In fact, such a narrow application would eviscerate
the privilege at stake. As the Grafton court held, the privilege is sound and that it is broad
enough to encompass, not just criticism of government in the sense of political discussion, but
any statements about government or governmental entities. Grafton, 70 Ohio App. 2d at 211.
Otherwise, every report of corruption, graft and thievery, most of which cannot be based on
hard evidence, sufficient to convict, would be smothered by the threat of an expensive suit. Id.
at 209-10. The Grafton court could not imagine anything more destructive of democratic
government and was satisfied that this is not the law under which we live, and trust that it will
never be the law. Id. There is no material distinction between government itself and its elected
and appointed officials that would limit the privilege as Mr. Lograsso suggests. Imposing that
distinction here would give carte blanche to government officials to stifle public criticism by
acting in their own name, rather in the name of their government. This Court should adhere to
the pronouncement in Grafton that this is not, and never will be, the law.
Any statements attributable to Ms. DiFranco and Mr. Furry are fair commentary on
matters of public concern. Whether they are reports of events that transpire during public
meetings or complaints concerning the fitness of an officer of the court, Ms. DiFranco and Mr.
Furry have an absolute right to criticize members of their government, as well as to report on the
business of the public. They have the right to do so without fear of reprisal by means of a
defamation lawsuit. To permit Mr. Lograsso to pursue this action against Ms. DiFranco and Mr.
Furry would be to shutter the marketplace of ideas and to turn the Court into a political truth
squad, undermining the neutrality of the judiciary and eviscerating the fundamental protections
of the state and federal constitutions. The Court ought not entertain Mr. Lograssos subversive
and dangerous attempts to silence free speech.

16

2.

Statutory and Common Law Protections Bar Mr.


Lograsso From Pursuing a Defamation Action Against
Ms. DiFranco and Mr. Furry.

In addition to constitutional protections, Ohio law also recognizes common law and
statutory privileges that insulate Ms. DiFranco and Mr. Furry from liability to the plaintiff for
defamation for broadcasting videotaped recordings of public meetings. These common law and
statutory privileges afford citizens the right to report on matters of public concern without fear of
retribution in a civil action.
Ohio recognizes a common law privilege to report governmental proceedings which
may contain defamatory matter[.] Grafton, 70 Ohio App. 2d at 213. The rationale for this
privilege is the public interest in the free flow of information necessary for self-government; it
thus protects interests similar to those underlying the First Amendment. Id. The Ohio General
Assembly has codified the privilege to report on matters of public concern by statute:
The publication of a fair and impartial report of the proceedings before state or
municipal legislative bodies, or before state or municipal executive bodies,
boards, or officers, or the whole or a fair synopsis of any bill, ordinance, report,
resolution, bulletin, notice, petition, or other document presented, filed, or issued
in any proceeding before such legislative or executive body, board, or officer,
shall be privileged, unless it is proved that such publication was made
maliciously.
Ohio Rev. Code 2317.04. The Grafton court recognized the importance of the common law
and statutory fair reporting privilege, holding that the privilege is present with no less force
when a statement is republished than when it is originally uttered. If freedom of public debate is
to be meaningful, the dissemination of such debate must also be privileged to insure that it is
heard by all.

Thus, as New York Times and other cases have seemingly recognized, the

republisher is entitled to at least the same protections as the original speaker. Grafton, 70
Ohio App. 2d at 215 (emphasis added).

17

This Court has previously rejected defamation actions when public commentary about
government officials is rebroadcast to others, even when the public commentary itself is
defamatory. See Celebreeze v. Netzley, 1988 Ohio App. LEXIS 3153, *25 (8th Dist. 1988),
revd on other grounds, 51 Ohio St. 3d 89, 554 N.E.2d 1292. In Celebreeze, a candidate for the
Supreme Court of Ohio created a campaign brochure accusing the then-sitting Chief Justice of
the Supreme Court of Ohio of running the Court like a mob operation. After the brochure
became public, The Plain Dealer reported on the accusations. The news articles restated the
arguably defamatory content of the brochure. The Chief Justice sued the newspaper and its
reporter for defamation. The Eighth District Court of Appeals affirmed the trial courts rejection
of the defamation action, holding that [t]he privilege of neutral reportage permits the accurate
and disinterested reporting of newsworthy accusations without regard to the republishers views
toward their validity. Id. at *25.
Mr. Lograsso now complains precisely about this protected conduct, and asks this Court
to depart from its prior holdings and disregard the common law and statutory protections of the
fair reporting privilege. As Mr. Lograsso notes in his brief, Ms. DiFranco and Mr. Furry then
chose to publish all of those statements [made by Mr. Frey] on their website and on youtube.com
without any disclaimers about the validity of the information or whether they in fact new [sic]
any parts of it to be false. (Lograsso Br. 8 (citing T.r. 1: Pl.s Compl. 19-21).) The videos
constitute fair and impartial report[s] of the proceedings beforemunicipal legislative bodies.
Ohio Rev. Code 2317.04. As such, they qualify for statutory protection from liability for
defamation. Moreover, the Celebrezze court specifically permits the republication of these
accusations without regard to Ms. DiFrancos or Mr. Furrys views. That Ms. DiFranco and Mr.
Furry did not add any disclaimers, or whether they knew Mr. Freys statements to be false is of

18

no consequence. Ms. DiFranco and Mr. Furry have fairly and accurately portrayed the events
that took place at the South Euclid City Council meetings.

Mr. Lograsso has not alleged

otherwise, and as such, the fair reporting privilege applies to bar his defamation action.
Mr. Lograsso further misconstrues the nature and scope of the fair reporting privilege by
shifting the focus away from Ms. DiFrancos and Mr. Furrys publication of videos back to Mr.
Freys allegedly defamatory statements themselves. Ms. DiFranco and Mr. Furry videotaped the
two South Euclid City Council meetings at issue. Mr. Lograsso alleges as much. (T.r. 1: Pl.s
Compl. 19, 28.) What Mr. Lograsso does not allege, however, is that Ms. DiFranco and Mr.
Furry altered the videotapes of these meetings so as to distort the contents of what was said. Ms.
DiFrancos and Mr. Furrys videotapes are fair and accurate reports of what took place at the
meetings. The events depicted in the videos (including Mr. Lograssos hot-tempered rebuke to
Mr. Freys commentary) actually happened. Mr. Lograsso does not indeed, cannot allege
otherwise. The videotapes are posted to websites without commentary from Ms. DiFranco or
Mr. Frey. (Lograsso Br. 8.) There is no legal obligation for Ms. DiFranco or Mr. Furry to
publish any connection to, interest in or prior knowledge of Mr. Freys statements, as Mr.
Lograsso suggests.

(Id. at 12.)

Indeed, Mr. Lograssos complaint is devoid of any such

allegations. (See T.r. 1: Pl.s Compl.)


Mr. Lograsso simply cannot overcome the statutory and common law protections that
insulate Ms. DiFranco and Mr. Furry from liability to Mr. Lograsso for defamation. As such,
this Court should affirm the trial courts decision to grant Ms. DiFranco and Mr. Furry judgment
on the pleadings as to Mr. Lograssos defamation claim.

19

B.

Mr. Lograsso Failed to Plead a Legally Sufficient Claim for False


Light Invasion of Privacy Against Ms. DiFranco and Mr. Furry.

The same privileges that prohibit Mr. Lograsso from pursuing Ms. DiFranco and Mr.
Furry for defamation also act as a bar to any other theory of recovery he may assert arising from
the same alleged conduct. The Supreme Court of Ohio has repeatedly held that when privilege
defeats a defamation action, another tort claim based on the same privileged speech must
likewise fail. See A&B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr., 73 Ohio St.
3d 1, 651 N.E.2d 1283 (1995) (where claimsare based on statements that are qualifiedly
privileged under defamation law, the protection afforded those statementsmust also apply in
the derivative claims); Vail v. The Plain Dealer Publg Co., 72 Ohio St. 3d 279, 649 N.E.2d 182
(1995) (because the statements at issue are constitutionally protected speech, the claims for
intentional infliction of emotional distress must also fail).
Other Ohio courts have followed suit. See Tomsu v. Ohio Civil Rights Commn, 116
Ohio Misc. 2d 24, 764 N.E.2d 516 (Ct. Cl. 2001). In Tomsu, the plaintiff exactly like Mr.
Lograsso asserted claims of defamation and false light invasion of privacy against the Ohio
Civil Rights Commission. The Tomsu court first held that the judicial proceedings privilege
insulated the defendant from liability in a defamation action. The Tomsu court went on to hold
that [t]he same privilege protects defendant from liability for invasion of privacy. Tomsu, 116
Ohio Misc. 2d at 520.
State and federal courts across the country have likewise extended privileges to bar not
only defamation actions, but also claims of false light invasion of privacy. See McLean v. Intl
Harvester Co., 817 F.2d 1214 (5th Cir. 1987) (affirming dismissal of false light claims because
communications made during a courts proceedings are absolutely privileged and are immune
from an action alleging defamation or invasion of privacy); Motzkin v. Trustees of Boston Univ.,

20

938 F. Supp. 983 (D. Mass. 1996) (the tort of invasion of privacy by casting someone in a false
light would no doubt be subject to the absolute privilege applicable to statements made in the
course of judicial proceedings that pertain to that proceeding); Campbell v. Castle Stone Homes,
Inc., D. Utah Case No. 2:09-CV-00250, 2011 U.S. Dist. LEXIS 27266 (D. Utah 2011) (motion to
dismiss defamation and false light claims granted because privilege bars such claims); Thomas v.
Page, 361 Ill. App. 3d 484, 837 N.E.2d 483 (Ill. Ct. App. 2005); Fellows v. Natl Enquirer, Inc.,
42 Cal. 3d 234, 721 P.2d 97 (Cal. 1986) (applying defenses to defamation action equally to
claims of false light invasion of privacy); James v. Brown, 637 S.W.2d 914 (Tex. 1982).
As these courts have recognized, [a] privilege which protected an individual from
liability for defamation would be of little value if the individual were subject to liability under a
different theory of tort. Correllas v. Viveiros, 410 Mass. 314, 324, 572 N.E.2d 7 (Mass. 1991).
The privileges that protect Ms. DiFranco and Mr. Furry from liability for defemation would be
of little value if they did not enjoy the same protection simply because Mr. Lograsso
undertakes creative pleading and styles his causes of action differently. Because the protections
discussed above shield Ms. DiFranco and Mr. Furry from liability to Mr. Lograsso for
defamation, so too do the same privilege likewise protects them from liability for claims of false
light invasion of privacy. Consequently, the Court should affirm the trial courts decision to
grant Ms. DiFranco and Mr. Furry judgment on the pleadings as to Mr. Lograssos false light
invasion of privacy claim.
C.

Mr. Lograsso Failed to Plead a Legally Sufficient Claim for Punitive


Damages.

The disposition of Mr. Lograssos defamation and false light invasion of privacy claims
also requires that judgment in favor of Ms. DiFranco and Mr. Furry be affirmed with respect to
Mr. Lograssos claim for punitive damages.

21

As an initial matter, Ohio law does not allow Mr. Lograsso to assert a separate claim for
punitive damages. The Supreme Court of Ohio has long recognized that [n]o civil cause of
action in this state may be maintained simply for punitive damages. Bishop v. Grdina, 20 Ohio
St. 3d 26, 485 N.E.2d 704 (1985). As the Supreme Court has clearly explained, [a] prayer for
punitive damages is not a separate claim in itself but rather an issue in the overall claim for
damages. Hitchings v. Weese, 77 Ohio St. 3d 390, 391, 674 N.E.2d 688 (1997). Instead,
[p]unitive damages are awarded as a mere incident of the cause of action in which they are
sought. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 635 N.E.2d 331 (1994). In this
instance, Mr. Lograssos complaint contains a separate claim for punitive damages in violation
of well settled Ohio law.
Even if Mr. Lograsso could plead a separate claim for punitive damages, it is equally well
settled that he may not recover punitive damages in the absence of compensatory damages.
Indeed, the Ohio Revised Code makes this rule explicitly clear.

See Ohio Rev. Code

2315.21(C) (punitive or exemplary damages are not recoverable from a defendant in question in
a tort action unlessthe trier of fact has returned a verdict or has made a determinationof the
total compensatory damages recoverable by the plaintiff from that defendant).
Ohio law is clear that recovery of punitive damages is contingent upon the recovery of
compensatory damages. As discussed at length above, however, neither Ms. DiFranco nor Mr.
Furry are liable to Mr. Lograsso for defamation or false light invasion of privacy. For this
reason, Mr. Lograsso will never recover compensatory damages from Ms. DiFranco or Mr.
Furry.

As a result, Mr. Lograsso can never be entitled to recover punitive damages.

Consequently, the Court should affirm the trial courts decision to grant Ms. DiFranco and Mr.
Furry judgment on the pleadings as to Mr. Lograssos punitive damages claim.

22

D.

A Trial Court Does Not Err in Granting a Motion for Judgment on


the Pleadings Under Ohio Civ. R. 12(C) Without Opinion.

Throughout his brief, Mr. Lograsso implies that the trial courts decision granting Ms.
DiFrancos and Mr. Furrys motion for judgment on the pleadings is somehow improper because
the trial court did not state a basis for its decision. (See Lograsso Br. 3 (Appellant asserts that
the final order issued by the Trial Court did not address any of the issues raised in the motions
filed by the defendants); Lograsso Br. 7 (Neither of the Orders granting the Motions for
Judgment on the Pleadings provided any analysis or basis for the decision.).) What Mr.
Lograsso ignores in making these claims is that the Ohio Rules of Civil Procedure do not require
the trial court to provide a basis for its decision in these circumstances.
Ohio Civ. R. 52 specifically states that [f]indings of fact and conclusions of law required
by this rule and by Rule 41(B)(2) are unnecessary upon all other motions including those
pursuant to Rule 12, Rule 55 and Rule 56. Ohio Civ. R. 52 (emphasis added). Relying upon
this provision, this Court has repeatedly rejected the claim that a trial court must issue spell out
its decision on a Rule 12 motion for judgment on the pleadings. See Bradigan v. Strongsville
City Schs., 2007-Ohio-2773 (8th Dist.); Rodic v. Celebrezze, 8th Dist. App. 56037, 1989 Ohio
App. LEXIS 4968 (Oct. 19, 1989).
In Bradigan, plaintiffs sued various schools and individuals arising from the alleged
sexual abuse of a student. The defendants filed Ohio Civ. R. 12(B)(6) motions to dismiss and
Ohio Civ. R. 12(C) motions for judgment on the pleadings. The trial court granted each of these
motions without opinion. On appeal, this Court rejected the notion that the trial court was
required to explain its decision. As the Bradigan Court held, [i]nsofar as plaintiffs challenge
the trial courts failure to make findings of fact and conclusions of law, we note that a trial court
ruling on motions brought pursuant to Ohio Civ. R. 12(C) has no duty to make findings of fact

23

and conclusions of law. Bradigan, 2007-Ohio-2773, 30.


In Rodic, a trial court granted a motion to strike, a Rule 12 motion to dismiss and a Rule
56 motion for summary judgment against an appellant. On appeal, the appellant claimed that the
trial court erred in granting these motions without opinion. Citing Ohio Civ. R. 52, this Court
rejected that claim, holding that the trial court was not required to issue findings of fact and
conclusions of law. Id. at *17; see also Barile v. Univ. of Virginia, 30 Ohio App. 3d 190, 507
N.E.2d 448 (8th Dist. 1986) (affirming the grant of motion for judgment on the pleadings
without decision by the trial court).
In this instance, Ms. DiFranco and Mr. Furry filed a motion for judgment on the
pleadings pursuant to Ohio Civ. R. 12(C). (T.r. 12: DiFrancos and Furrys Jt. Mot. for J. on the
Pleadings.) The trial court granted this motion. (T.r 35: J. Entry, June 12, 2013.) Although the
trial court did not specify the basis for its decision, as this Court has repeatedly recognized,
nothing in the Ohio Rules of Civil Procedure required the trial court to do so. See Ohio Civ. R.
52. Consequently, any insinuation that the trial court erred in granting Ms. DiFrancos and Mr.
Furrys motion without opinion cannot constitute reversible error.
III.

CONCLUSION
Mr. Lograsso failed to plead a legally sufficient claim for relief against Ms. DiFranco and

Mr. Furry. As Ms. DiFranco and Mr. Furry pointed out to the trial court, constitutional, statutory
and common law privilege shields them from any liability to Mr. Lograsso for defamation. This
privilege further protects Ms. DiFranco and Mr. Furry from liability to Mr. Lograsso for false
light invasion of privacy. Mr. Lograssos complaint contains no facts beyond mere speculation
that would give rise to a plausible right to relief against Ms. DiFranco and Mr. Furry. As such,
the trial court properly granted their motion for judgment on the pleadings. For these reasons, as
set forth fully above, Ms. DiFranco and Mr. Furry respectfully request that the Court affirm the
24

trial courts entry of judgment against Mr. Lograsso and in favor of Ms. DiFranco and Mr. Furry
on each of Mr. Lograssos claims against them.
Respectfully submitted,

____________________________________
THOMAS J. CABRAL (0033041)
MARKUS E. APELIS (0083884)
GALLAGHER SHARP
Bulkley Building Sixth Floor
1501 Euclid Avenue
Cleveland, Ohio 44115
Phone: (216) 241-5310
Fax: (216) 241-1608
Email: tcabral@gallaghersharp.com
mapelis@gallaghersharp.com
CHRISTOPHER P. FINNEY (0038998)
FINNEY, STAGNARO, SABA & PATTERSON CO., LPA
7373 Beechmont Avenue
Cincinnati, Ohio 445230
Phone: (513) 533-2980
Fax: (513) 533-2990
Email: cfinney@fssp-law.com
CURT C. HARTMAN (0064242)
LAW FIRM OF CURT C. HARTMAN
3749 Fox Point Court
Amelia, Ohio 45102
Phone: (513) 752-2878
Email: hartmanlawfirm@fuse.net
Attorneys for the Defendant-Appellee
Safeguard Properties, LLC

25

CERTIFICATE OF SERVICE
A true copy of the foregoing Brief of Defendants-Appellees Emilie DiFranco and
David Furry was filed with the Court and served by regular U.S. Mail, postage prepaid, on this,
the ____ day of August, 2013, upon the following:
Joseph R. Medici, Esq.
Jay A. Milano, Esq.
James M. Pasch, Esq.
MILANO PASCH MEDICI
2639 Wooster Road
Rocky River, Ohio 44116
Attorney for the Plaintiff-Appellant
Robert J. Foulds, Esq.
DYSON, SCHMIDLIN & FOULDS CO., LPA
5843 Mayfield Road
Cleveland, Ohio 44124
Attorney for the Defendant-Appellee
Robert Frey
Collin P. Moeller, Esq.
ANKUDA, STADLER, MOELLER & TYMINSKI, LLC
815 East Superior Avenue, Suite 1615
Cleveland, Ohio 44114
Attorney for the Defendant-Appellee
Robert Frey
David L. Lester, Esq.
ULMER & BERNE, LLP
1660 West Second Street, Suite 1100
Cleveland, Ohio 44113
Attorney for the Proposed Intervenor
Allstate Indemnity Co.

____________________________________
THOMAS J. CABRAL (0033041)
MARKUS E. APELIS (0083884)
Attorneys for the Defendants
Emilie DiFranco and David Furry

26