Being unable to concur in the conclusions reached by the majority in certain respects, I must respectfully dissent.
This case was before the trial court on summary judgment and, accordingly, that court was required, pursuant to Civ.R. 56(C), to construe the evidence most strongly in favor of the nonmoving party (appellant) and grant judgment for appellees only if, when so construed, there are no genuine issues of material fact and, based upon the evidence so construed, reasonable minds could only conclude that appellees are entitled to judgment as a matter of law upon all issues.
Appellant's arrest upon serious criminal sex charges involving a person with whom appellant had had a romantic relationship but who was employed by appellee Ruscilli was obviously a matter for concern and a matter for discussion, even though those charges were later dismissed. A meeting was held among most of the appellees, apparently initiated by Ameriflora, appellant's employer.
The majority opinion sets forth the general principles concerning claims for defamation, tortious interference with contract, and infliction of emotional distress, whether intentional or negligent.2 However, this matter was before the trial court upon motion for summary judgment, and both parties presented extensive evidence. There was no failure of appellant, the nonmoving party, to produce evidence upon any issue for which appellant would bear the burden of production at trial, such as is contemplated in the third paragraph of the syllabus of Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095. The only matter to which appellant did not produce direct evidence was what occurred at the meeting between some of the appellees, personal knowledge of which appellant would not have, since he was neither at the meeting nor knowledgeable as to what was said between the parties. *Page 191
As noted in the opinion of Fyffe v. Jeno's, Inc. (1991),59 Ohio St.3d 115, 120, 570 N.E.2d 1108 (decided the same day asWing):
"This court observes that upon a motion for summary judgment pursuant to Civ.R. 56, the burden of establishing that the material facts are not in dispute and that no genuine issue of fact exists is on the party moving for the summary judgment.Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46."
The same conclusion is reached in Welco Industries, Inc. v.Applied Cos. (1993), 67 Ohio St.3d 344, 617 N.E.2d 1129, where it is stated at 346, 617 N.E.2d at 1132:
"Under Civ.R. 56, summary judgment is proper when `(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.' Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317,327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274."
Here, there is no issue upon which no evidence has been adduced upon summary judgment and, accordingly, all of the evidence must be construed most strongly in favor of appellant, the nonmoving party, in order to determine whether a genuine issue of material fact exists and whether appellees, the moving parties, are entitled to judgment as a matter of law because reasonable minds can reach but one conclusion upon the evidence adduced when construed in favor of the nonmoving party.
As to the issue of malice, reasonable minds could reach different conclusions upon the evidence. There are two different types of malice involved here. With respect to the defamation action, it is arguable that actual malice must be proved and that an inference of a qualified privilege could be reached from the evidence.3 With respect to the tortious-interference-with-contract contention, however, actual malice is not required, but constructive malice is sufficient to combat the claim of "privilege" arising from a business relationship.4 See 4 Restatement of the Law 2d, Torts (1979), Section 766. The majority confuses the elements of *Page 192 tortious interference with contract with those for defamation.5 Motive is not an element of defamation, and truth is a complete defense, although motive is relevant evidence upon the question of actual malice in the case of a qualified privilege.
In Developers Three v. Nationwide Ins. Co. (1990), 64 Ohio App.3d 794, 582 N.E.2d 1130, this court expressly adopted present Section 766 of the Restatement, which states:
"`One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.' * * *" Id. at 798, 582 N.E.2d at 1133.
Although the majority refers to "privilege," the only "privilege" referred to is that to speak truthfully. There is no reference in the majority opinion to any basis for appellees Ruscilli and Smoot to demand that Ameriflora fire appellant under a threat that would breach their contracts if he was not fired. Even assuming that Ruscilli and Smoot had a "privilege" to speak as to appellant's job performance because they were requested to attend the second meeting, it is not such speaking that is the gravamen of the claim of tortious interference with contract. Rather, such claim is founded upon the Ruscilli and Smoot demand that appellant be fired under threat that they would otherwise leave the job and refuse to perform their contract. This furnishes evidence of the motive element of tortious interference with contract. Only if Ruscilli and Smoot had a right to demand that appellant be fired as a condition of continued performance of their contract could a claim of "privilege"6 arise with respect to tortious interference with contract. There is no evidence of a privilege to demand appellant be fired, nor even a contention it exists. In this regard, the majority opinion is inconsistent with our opinion inA B-Abell Elevator Co. v. Columbus/Central Ohio Bldg. Constr. Trades Council (Sept. 30, 1993), Franklin App. No. 92AP-1540, unreported at 31-32, 1993 WL 387179, appeal pending, case No. 93-2415: *Page 193
"In order to conclude that a person is liable for tortious interference with a prospective business relationship, a finder of fact must find that the person's conduct interfered with the business rights of another and, taking into consideration the situation and relationship of the parties, the person's conduct in interfering was improper. Factors for determining whether a person's interference is improper are set forth in 4 Restatement of the Law 2d, Torts (1979) 26, Section 767 * * *[.]
"* * *
"The issue in each case is whether the interference is improper or not under the circumstances and whether, upon considering the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. * * * In determining whether the interference is improper, it may become important to determine whether the actor was motivated, in whole or in part, by a desire to interfere with the other's contractual relations. * * *"
Furthermore, it has been held that summary judgment should not be granted "where motive and intent play leading roles" in determining liability of a defendant. White Motor Co. v. UnitedStates (1963), 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738. Similarly, questions involving credibility cannot be resolved on summary judgment. Killilea v. Sears, Roebuck Co. (1985),27 Ohio App.3d 163, 27 OBR 196, 499 N.E.2d 1291.
Clearly, the conclusions reached by the trial court are permissible conclusions from the evidence only if the evidence is weighed by the trier of fact. Here, on the other hand, the evidence is to be construed most strongly in favor of appellant, the nonmoving party. When so construed, a reasonable trier of fact could reasonably make a finding that either actual malice or constructive malice, or both, was involved in the conduct of appellees Ruscilli and Smoot.
First, there was evidence that, prior to appellant's arrest and prior to any request by the employer Ameriflora, Ruscilli complained that appellant was not able to perform his job and, in addition, the project manager for Ruscilli/Smoot made comments to the same effect, and Ruscilli further stated that appellant was inept at the technical aspects of the job. These comments were made at a meeting requested by Ruscilli/Smoot's project manager, not by appellant's employer, Ameriflora. At the later meeting requested by the employer, Smoot stated categorically that appellant could not do the job under the present circumstances, without explanation of the circumstances. There was also an indication that appellant at one time was a subcontractor for Smoot and that some difficulty between them occurred. Smoot then suggested that Ameriflora determine a settlement with appellant and get him out of the picture and that he should be terminated. *Page 194
In addition, defendant Ruscilli Construction Company threatened to quit the project if appellant were not fired by Ameriflora. Although obviously not conclusive, it is axiomatic that a threat to breach a contract and not finish a job if a particular employee of the other contracting party is not fired gives rise to a reasonable inference of actual malice as to such employee. That is the situation we have here. There is evidence from which actual malice can reasonably be inferred. Although such inference is not required to be made by a trier of fact, it is required to be made when the evidence is construed most strongly in favor of the nonmoving party, appellant. Under the apparent test set forth by the majority, actual malice could never be proved by circumstantial evidence and presumably could be proved only by an express admission of ill-will rising to the level of malice.
The majority states that no inference of malice can be drawn from Smoot's insistence that appellant be terminated. That conclusion, however, is based upon an incomplete and erroneous analysis of the evidence. First, it is stated that, during the conversation with Smoot, TerMeer "asked Smoot his opinion" on the matter. Her testimony suggests that she sought facts, not opinions, from Smoot, but he volunteered the opinions.7 In addition, Smoot expressly indicated ill-will toward appellant, TerMeer's notes indicating that:
"* * * About a month ago, Lewis [Smoot] stated that he had personally talked to Del [plaintiff] about the `facts of life' and warned him either `get it all together' or he (Smoot) would deal with him (Del) [plaintiff]. * * *"
Clearly, both an inference of motive and an inference of malice can reasonably be made from this admission of Smoot that he would "deal" with appellant if he did not do what Smoot wanted.8
As to the claim for defamation, there also was conflicting evidence. There was evidence that many statements by both appellees Ruscilli and Smoot or by their employees that appellant was either unqualified or did not perform his job well were unsolicited and made prior to the meeting following appellant's arrest of the criminal charges, which were later dismissed. Appellant contends that these statements were untrue, and this is supported by job evaluations and pay raises given by the employer, as recent as one month before the incident. From these, it may reasonably be inferred that false, defamatory statements were made by appellees Ruscilli and Smoot, which were not protected by any type of privilege, and which also support the inference of actual malice, referred to above. See the *Page 195 second paragraph of the syllabus of Jacobs v. Frank (1991),60 Ohio St.3d 111, 573 N.E.2d 609.
The findings made by the trial court would be appropriate by a trier of fact weighing the evidence but are not appropriate when the evidence is construed most strongly in favor of appellant, the nonmoving party. The conclusions reached by the trial court as to the facts can be reached only by weighing the evidence and cannot be reached by construing the evidence most strongly in favor of appellant, the nonmoving party. Reasonable minds could differ as to the result on each of these issues, when the evidence is construed most strongly in favor of appellant, the nonmoving party. For that reason, I must dissent and would reverse the judgment and remand the cause to the trial court for further proceedings on the claims for tortious interference with contract and for defamation.
However, as to the claim for intentional or negligent infliction of emotional distress, I concur in the judgment affirming the trial court's decision. I do so not upon the basis of the nature of the conduct of appellees but, rather, upon the effect upon appellant. In his deposition testimony, appellant indicated that he felt a lack of self-esteem and did not sleep well. However, he sought no medical or psychological treatment and received none. Thus, as the majority opinion states, the distress appellant contends he suffered does not constitute severe emotional distress of the nature required for a claim for negligent or intentional infliction of emotional distress. For that reason, I concur in the judgment to the extent that the judgment of the trial court granting summary judgment with respect to the claim for intentional or negligent infliction of emotional distress is affirmed.
2 However, the majority miscites Hahn v. Kotten (1975),43 Ohio St.2d 237, 72 O.O.2d 134, 331 N.E.2d 713, to hold that a mere request for information by an interested person is sufficient to create a qualified privilege in the person responding. Neither the syllabus rule nor the majority opinion in Hahn so hold. Rather, the majority opinion in Hahn states that the person communicating must have a duty to speak or such an interest as to necessitate his speaking.
3 The syllabus in Hahn does refer to actual malice. However, the three-justice dissent was specifically directed to the malice issue and would have held malice, not actual malice, sufficient to overcome a qualified privilege with respect to defamation. See, however, the second paragraph of the syllabus of Jacobs v. Frank (1991), 60 Ohio St.3d 111, 573 N.E.2d 609.
4 The majority refers to "privilege" in reference to tortious interference with contract. However, as stated in the second edition of the Restatement, the proper test is whether the interference is "improper." This determination involves,inter alia, consideration of motive, that is, purpose to interfere in the contractual relationship. See Walter v. Murphy (1988), 61 Ohio App.3d 553, 573 N.E.2d 678, which modified the case cited by the majority, Juhasz v. Quik Shops, Inc. (1977),55 Ohio App.2d 51, 9 O.O.3d 216, 379 N.E.2d 235, so as to adopt the "improper" standard of the Restatement instead of the "privilege" standard of Juhasz.
5 Even if "actual" malice be required for a tortious-interference-with-contract case, "actual malice" is of the nature defined by the syllabus of Preston v. Murtz (1987),32 Ohio St.3d 334, 512 N.E.2d 1174, rather than the Jacobs standard, applicable to defamation cases.
6 Even the Ninth District Court of Appeals, which interjected "privilege" in Juhasz, supra, abandoned that doctrine, modified Juhasz and adopted the Restatement inWalter, supra.
7 The majority relies upon the self-serving affidavit of Smoot which, at most, creates only an issue of fact, not establishes the fact.
8 This also is contradicted by Smoot's self-serving affidavit.