Weaver v. Deevers

[Cite as Weaver v. Deevers, 2021-Ohio-3791.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY

GRETCHEN A. WEAVER, et al., CASE NO. 2020-P-0087

Plaintiffs-Appellants,
Civil Appeal from the
-v- Court of Common Pleas

MATTHEW DEEVERS, et al.,
Trial Court No. 2019 CV 00718
Defendants-Appellees.

OPINION

Decided: October 25, 2021
Judgment: Affirmed

John C. Fickes, Roderick Linton Belfance, LLP, 50 S. Main Street, 10th Floor, Akron,
OH 44308, and Emery J. Leuchtag, 526 S. Main Street, Suite 407, Akron, OH 44311
(For Plaintiffs-Appellants).

Thomas H. Cabral and Joseph Monroe, II, Gallagher Sharp, LLP, 1215 Superior Avenue,
7th Floor, Cleveland, OH 44114 (For Defendants-Appellees Matthew Deevers and
Shannon L. Deevers).

Terrence J. Kenneally and Sean M. Kenneally, Terrence J. Kenneally & Associates,
19111 Detroit Road, Suite 200, Rocky River, OH 44116 (For Defendants-Appellees
Ginger E. Maines and Jeffrey K. Maines).

James A. Climer, Frank H. Scialdone, and John D. Pinzone, Mazanec, Raskin & Ryder
Co., LPA, 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For
Defendants-Appellees Streetsboro City Schools Board of Education, Aireane Curtis,
Brian Violi, John Kelly, and R. Michael Daulbaugh).

THOMAS R. WRIGHT, J.

{¶1} Plaintiffs—Gretchen A. & Thomas J. Weaver and Shane L. & Scott

Ellsworth—appeal the trial court’s order granting summary judgment in favor of all
defendants—Matthew and Shannon L. Deevers (“the Deevers”); Ginger E. and Jeffrey K.

Maines (“the Maines”); Streetsboro City Schools Board of Education (“the Board”); and

R. Michael Daulbaugh, Aireane Curtis, Brian Violi, and John Kelly (collectively “the School

Defendants”).

{¶2} Mrs. Gretchen A. Weaver (“Weaver”) was a music teacher and the band

director at Streetsboro High School from 2005 through September 2016. Mrs. Shane L.

Ellsworth (“Ellsworth”) was a music teacher and the assistant band director at Streetsboro

High School from 2001 through September 2016. R. Michael Daulbaugh and Aireane

Curtis are Superintendent and Assistant Superintendent, respectively, of Streetsboro City

Schools. In 2016, John Kelly was the President of the Board; in 2017, that role was filled

by Brian Violi.

{¶3} Each summer for the past 25 years, the high school band directors have

conducted a marching band camp at Camp Muskingham in Carroll County. In 2016, the

Deevers’ daughter M.D. was an incoming senior member of the band, and the Maines’

daughter S.M. was an incoming freshman member of the band. Both students attended

the 2016 band camp, which was held from Friday, July 29, through Monday, August 1.

{¶4} On August 1, 2016, a few hours after band camp had concluded, the

Deevers sent an e-mail to Superintendent Daulbaugh; James Hogue, the high school

principal; and Jeffrey Keruski, the intermediate school principal and a harassment

compliance officer. The Deevers complained that hazing and harassment of students

had occurred during band camp and requested a formal investigation of specific alleged

violations of the Board’s anti-hazing and anti-harassment policies.

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 {¶5} The following day, Mrs. Maines called Superintendent Daulbaugh with a

complaint about band camp. He requested she send her concerns in writing. Mrs. Maines

then sent an e-mail to Superintendent Daulbaugh with a statement prepared by S.M. and

edited by Mrs. Maines, describing various activities S.M. said had taken place at band

camp and attributing various statements to Weaver and Ellsworth. Mrs. Maines

additionally accused student leaders of bullying their classmates.

{¶6} Board Policy 5517 prohibits “harassment,” which includes bullying; sexual

harassment; harassment based on race, color, religious, creed, national origin, ancestry,

or disability; and various other forms of conduct, communication, threats, insults, or

dehumanizing gestures. Board Policy 5516 prohibits “hazing,” which is defined as

“performing any act or coercing another, including the victim, to perform any act of

initiation into any class, team, or organization that causes or creates a substantial risk of

causing mental or physical harm. Permission, consent, or assumption of risk by an

individual subjected to hazing shall not lessen the prohibitions contained in this policy.”

Also, although the parents did not accuse the teachers of committing a crime, “hazing”

could be prosecuted as a fourth-degree misdemeanor under former R.C. 2903.31, in

effect at that time.

{¶7} Superintendent Daulbaugh directed Assistant Superintendent Curtis to

conduct the investigation under his supervision and with the assistance of retained

counsel. Assistant Superintendent Curtis delivered a letter to Weaver and Ellsworth on

August 4, 2016, informing them of a complaint against them regarding activities at band

camp, to wit:

The nature of the allegations are that the band camp has a
culture of harassment, intimidation, teasing, and public
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 humiliation occurred [sic] during the 2016 band camp. Of
specific concern are the senior skit night, the throwing of
students into a lake by seniors, the ‘great swami’ skit
performed by school staff members, the percussion section
‘stitch-n-bitch’ skit, and the band camp salon skit.

The letter provided that Weaver and Ellsworth could submit a written response within five

business days and that they would be interviewed during an investigation regarding the

complaint.

{¶8} On August 9, 2016, notices of administrative suspension were sent to

Weaver and Ellsworth relieving them of their duties, with pay, pending the outcome of an

investigation into allegations that they had engaged in professional misconduct by

participating in and condoning hazing and harassment activities. The letter directed

Weaver and Ellsworth to turn in their school keys and instructed them not to speak of the

matter with anyone associated with the school, excepting their union representatives.

{¶9} News of the suspension began circulating on social media. On August 15,

2016, Superintendent Daulbaugh issued a “robo-call” to parents of all students in the

school district and posted a message to the school district website regarding the

allegations and investigation, and also informing them that the district was finalizing the

hiring of an interim band director. News reports began to appear on television and in

newspapers and online publications. A formal and public meeting of the Board took place

on August 17, 2016, during which Board President Kelly read a statement regarding the

allegations and investigation.

{¶10} Assistant Superintendent Curtis conducted various interviews over the next

two months, and counsel for the school district conducted investigatory interviews of

Weaver and Ellsworth in October 2016 with their union representatives present. None of

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these interviews were transcribed or recorded. The Board subsequently retained Norman

J. Pollard, Ed.D., to provide them with a report and opinion. He interviewed M.D. and

S.M. by telephone; he did not interview Weaver or Ellsworth. Dr. Pollard’s professional

opinion was that many of the activities constituted hazing in violation of Board policy and

Ohio law, and that Weaver, Ellsworth, and other adults should be held accountable.

{¶11} On December 15, 2016, Weaver and Ellsworth were provided written notice

of the specific allegations against them. Through their union representative, they denied

all allegations during an informal meeting with Superintendent Daulbaugh. Finally, in

January 2017, the Board voted to suspend Weaver and Ellsworth from their duties without

pay or benefits and to consider terminating their contracts.

{¶12} Weaver and Ellsworth appealed the Board’s decision, pursuant to R.C.

3319.16, and a hearing was held before an appointed referee over the course of 14 days.

In the referee’s report of December 11, 2017, the referee found that although many of the

complained of activities had occurred at the 2016 band camp, they did not rise to the level

of hazing in violation of Board policy. The referee recommended restoring Weaver and

Ellsworth to their positions and issuing lesser discipline for what he characterized as

multiple instances of “fairly serious” misconduct in violation of other Board policies.

{¶13} The Board held a special meeting on December 28, 2017. The Board

reviewed the referee’s report and accepted some of the findings but ultimately voted to

uphold its prior decision based on the referee’s conclusion that the teachers had engaged

in multiple instances of “fairly serious” misconduct.

{¶14} Weaver and Ellsworth filed original actions in the Portage County Court of

Common Pleas, pursuant to R.C. 3319.16, challenging the Board’s decision. The

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common pleas court summarily dismissed the actions, followed by findings of fact and

conclusions of law, and this court affirmed. Ellsworth v. Streetsboro City School Dist. Bd.

of Edn., 2019-Ohio-4731, 136 N.E.3d 549 (11th Dist.).

{¶15} Neither Weaver nor Ellsworth has since found employment as a school

teacher or school band leader.

{¶16} On September 10, 2019, Weaver and Ellsworth, joined by their spouses,

filed a complaint for money damages against the Deevers, the Maines, the Board, and

the School Defendants. They alleged defamation, intentional infliction of serious

emotional distress, civil conspiracy, and loss of consortium. During the course of

discovery, depositions were taken of Weaver and Ellsworth, Superintendent Daulbaugh,

Assistant Superintendent Curtis, and the Deevers’ daughter M.D.

{¶17} Motions for summary judgment were filed by all defendants, which the trial

court summarily granted. The court additionally held the Board was entitled to R.C.

Chapter 2744 immunity on all claims. From this decision, appellants advance three

assignments of error, arguing none of the defendants are entitled to judgment as a matter

of law because genuine issues of material fact exist:

[1.] The trial court erred in granting the School District’s motion
for summary judgment.

[2.] The trial court erred in granting the Deevers’ motion for
summary judgment.

[3.] The trial court erred in granting the Maineses’ motion for
summary judgment.

{¶18} We review decisions awarding summary judgment de novo, i.e.,

independently and without deference to the trial court’s decision. Grafton v. Ohio Edison

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Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Peer v. Sayers, 11th Dist. Trumbull

No. 2011-T-0014, 2011-Ohio-5439, ¶ 27.

{¶19} Summary judgment is appropriate only 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., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R.

56(C). The initial burden is on the moving party to set forth specific facts demonstrating

that no issue of material fact exists and that the moving party is entitled to judgment as a

matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If

the movant meets this burden, the burden shifts to the nonmoving party to establish that

a genuine issue of material fact exists for trial. Id. at 293.

{¶20} Initially, “a claim for loss of consortium is derivative in that the claim is

dependent upon the defendant’s having committed a legally cognizable tort upon the

spouse who suffers bodily injury.” Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 92-93, 585

N.E.2d 384 (1992). “Bodily injury” does not include non-physical harms such as

emotional distress. Morgan v. Ent. Rent-A-Car, 11th Dist. Trumbull No. 98-T-0103, 2000

WL 523085, *6 (Mar. 31, 2000), and Blatnik v. Avery Dennison Corp., 148 Ohio App.3d

494, 2002-Ohio-1682, 774 N.E.2d 282, ¶ 95 (11th Dist.), citing Tomlinson v. Skolnik, 44

Ohio St.3d 11, 14, 540 N.E.2d 716 (1989), overruled on other grounds, Bowman v.

Holcomb, 83 Ohio App.3d 216, 218-219, 614 N.E.2d 838 (12th Dist.1992), and Vance v.

Sang Chong, Inc., 11th Dist. Lake No. 88-L-13-188, 1990 WL 174121, *3 (Nov. 9, 1990).

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Thus, because appellants did not allege bodily injury, or physical harm, to either Weaver

or Ellsworth, defendants were entitled to summary judgment in their favor on the loss of

consortium claims.

{¶21} We next consider R.C. Chapter 2744, the Political Subdivision Tort Liability

Act, applicable to political subdivisions and their employees. Appellants focus on the

applicability of R.C. 2744.09(B), which provides that the immunity generally granted to

political subdivisions does not apply to “[c]ivil actions by an employee * * * against his

political subdivision relative to any matter that arises out of the employment relationship

between the employee and the political subdivision[.]” This latter provision “‘is designed

to protect employees by allowing them to recover against their employers, who would

otherwise be entitled to immunity under R.C. Chapter 2744.’” Piazza v. Cuyahoga Cty.,

157 Ohio St.3d 497, 2019-Ohio-2499, 138 N.E.3d 1108, ¶ 12, quoting Sampson v.

Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 418, 2012-Ohio-570, 966 N.E.2d 247, ¶

13. It is undisputed that Weaver’s and Ellsworth’s intentional tort claims are relative to a

matter that arose out of their employment relationship with the Board. We therefore

conclude that immunity does not extend to the Board. Although the trial court erred in

holding otherwise, it is not dispositive to the appeal.

{¶22} As employees of a political subdivision, the School Defendants are immune

from liability unless “(a) [t]he employee’s acts or omissions were manifestly outside the

scope of the employee’s employment or official responsibilities; (b) [t]he employee’s acts

or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;

or (c) [c]ivil liability is expressly imposed upon the employee by a section of the Revised

Code.” R.C. 2744.03(A)(6); Kravetz v. Streetsboro Bd. of Edn., 11th Dist. Portage No.

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2011-P-0025, 2012-Ohio-1455, ¶ 17. Although appellants have not specifically argued

against application of these immunity exceptions to the School Defendants, appellants do

contend that they acted with malice and, at times, in contravention of Board policies and

procedures. Accordingly, a conclusion that the School Defendants are entitled to

immunity necessarily depends upon whether appellants demonstrated a genuine issue of

material fact as to the requisite level of culpability for their claims of defamation, intentional

infliction of emotional distress, and civil conspiracy.

{¶23} “The elements of the common-law action of defamation are (1) a false and

defamatory statement concerning another; (2) an unprivileged publication to a third party;

(3) fault amounting at least to negligence on the part of the publisher; and (4) either

actionability of the statement irrespective of special harm or the existence of special harm

caused by the publication.” (Citation omitted.) Weber v. Ferrellgas, Inc., 2016-Ohio-

4738, 68 N.E.3d 207, ¶ 42 (11th Dist.); also Hahn v. Kotten, 43 Ohio St.2d 237, 243, 331

N.E.2d 713 (1975).

{¶24} “Even in a case where a plaintiff has established a prima facie case of

defamation, a defendant may invoke the defense of conditional or qualified privilege.”

Lakota Loc. School Dist. Bd. of Edn. v. Brickner, 108 Ohio App.3d 637, 647, 671 N.E.2d

578 (6th Dist.1996), citing A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. &

Constr. Trades Council, 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995) and Hahn at 243.

“In a case where it is found that a conditional or qualified privilege does exist, the burden

is on the plaintiff to demonstrate, by clear and convincing evidence, that the defamatory

statements were made with ‘actual malice.’” Lakota at 647-648, citing Jacobs v. Frank,

60 Ohio St.3d 111, 573 N.E.2d 609 (1991), paragraph two of the syllabus. “Where the

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circumstances of the occasion for the alleged defamatory statement are not in dispute,

the determination of whether there is a qualified privilege is a question of law for the trial

court.” Lakota at 648, citing A & B-Abell Elevator at 7.

{¶25} “‘A publication is privileged when it is ‘fairly made by a person in the

discharge of some public or private duty, whether legal or moral, or in the conduct of his

own affairs, in matters where his interest is concerned.’” A & B-Abell Elevator at 8, quoting

Toogood v. Spyring, 149 Eng.Rep. 1044, 1049-1050, 1 C.M. & R. 181, 193 (1834).

“A publication is conditionally or qualifiedly privileged where
circumstances exist, or are reasonably believed by the
defendant to exist, which cast on him the duty of making a
communication to a certain other person to whom he makes
such communication in the performance of such duty, or
where the person is so situated that it becomes right in the
interests of society that he should tell third persons certain
facts, which he in good faith proceeds to do. This general idea
has been otherwise expressed as follows: A communication
made in good faith on any subject matter in which the person
communicating has an interest, or in reference to which he
has a duty, is privileged if made to a person having a
corresponding interest or duty, even though it contains matter
which, without this privilege, would be actionable, and
although the duty is not a legal one, but only a moral or social
duty of imperfect obligation.”

Hahn at 245-246, quoting 33 American Jurisprudence, at 124 (1941) (Libel and Slander,

Section 126).

{¶26} Here, there is no dispute as to the circumstances under which the alleged

defamatory statements were made or as to the exact content of those statements. On

August 15, 2016, Superintendent Daulbaugh issued the following “robo-call” to every

family in the school district:

The band program has been suspended until we finish our
investigation into claims that students may have been hazed,
demeaned and belittled during the recent band camp.
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 I am aware of many postings on social media that would
excuse the behavior as tradition or team building and group
acceptance. Pushing underclass students into a lake at night
in the dark without inquiring if they can swim, demeaning and
mocking underclassmen in band camp skits and wrapping
students in plastic wrap either to another student or to a tree
are unacceptable initiation traditions. While these kinds of
hazing rituals may have been the pattern and practices for
decades, they are in direct violation of the established School
Board policies.

The Streetsboro schools have zero tolerance for hazing,
bullying or conduct that is demeaning or belittling to students.
The fact that some excuse it as steeped in tradition is
irrelevant and frankly it’s disheartening.

We are in the process of finalizing the hiring of an interim band
director who can help get our students back on the field. I will
be able to share more about this development after our
upcoming School Board meeting. Band members are strongly
encouraged to continue to practice their instruments until
school resumes.

As a former band member myself, I understand how important
this program is to everyone in our District. We will do
everything possible to resume the marching band program at
Streetsboro High School as quickly as possible. I will continue
to keep you updated on this as information warrants.

{¶27} Two days later, Board President Kelly made the following statement at a

public board meeting:

After hearing an update from our Superintendent and legal
counsel regarding the status of the investigation into alleged
hazing at Band Camp, I want to make a couple of comments
before I open this up to the floor.

 To date almost a dozen interviews have taken place.

 The interviews credibly confirm that incidents that could be
characterized as hazing took place at the 2016 Band
Camp and likely occurred during previous band camps.
Any type of hazing violates our Board Policy.

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  Interviews have revealed that both this year and last year,
upper classmen who characterize the conduct as “good
fun” or “team building,” admit that some of the conduct got
“out of hand.”

 This investigation will continue and changes will be made
to ensure this type of conduct does not recur.

In closing, I want to say that your perspective as parents on
this investigation depends on where you stand. If your child
was part of the “in crowd” that relished in the behavior and
looked with fondness toward the day when, as seniors, they
would ascend to the position of “power,” as one social media
commentator noted, then you are probably prepared to rail
against our Superintendent’s actions in trying to get to the
bottom of this matter. You will try to dismiss this as “good
clean fun” and “rite of passage” stuff that builds character.
Before you start down that road, I will tell you your perspective
will stand in significant contrast to the parents of the children
who felt frightened and intimidated by this conduct and went
so far as to quit band because of it. Over the past two years
14 students have quit band. Although we don’t know why all
14 chose to quit we find the number concerning.

There has been much said in the media about students being
swim tested and wrist banded before participating in the lake
toss. Based upon our investigation thus far we feel confident
that at least two students without wristbands participated that
night and at least one could not swim. Additionally we feel
confident based upon interviews that some students were
picked up and thrown into the lake.

As adults we know that there are lots of different kids walking
through our hallways. Confident kids with strong self-esteem
and less confident kids struggling to find their place in our
halls. This Board of Education, our Superintendent,
Administrators, Teachers and staff are responsible for the
safety of all of these children and we take this responsibility
seriously.

So if you plan to dismiss our investigation because you think
the alleged “hazing” sounds not “that bad” or just “good clean
fun,” understand that your speech will not change our position
that every child in our care deserves to be educated in a safe
environment free from this type of activity.

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 “Team building” and developing “esprit de corps” can and
must be done without abusing power over the underclass
students who deserve to be treated with respect. To those
parents and former band members who insist that “this is the
way it’s always been” our message should be clear. This is
not the way it will be in the Streetsboro City Schools from now
on.

{¶28} There should be no dispute, and we conclude as a matter of law, that both

statements were issued under occasions of qualified privilege. The Board, Daulbaugh,

and Kelly have a duty to ensure the safety and welfare of the students in the school

district. In the performance of that duty, the statements were communicated to parents

in the school district to further their corresponding interest in the safety and welfare of

their children. We likewise conclude that the Deevers’ e-mail and Mrs. Maines’ e-mail are

protected under the inverse application of the same qualified privilege, as they have an

interest in the safety and welfare of their children and communicated statements of

concern to school officials with a duty to ensure the students’ safety and welfare. See,

e.g., Daubenmire v. Sommers, 156 Ohio App.3d 322, 2004-Ohio-914, 805 N.E.2d 571, ¶

122 (12th Dist.), quoting McCartney v. Oblates of St. Francis deSales, 80 Ohio App.3d

345, 356, 609 N.E.2d 216 (6th Dist.1992) (“‘[E]ducators and parents share a common

interest in the training, morality and well-being of the children in their care.’”).

{¶29} Moreover, appellants have not offered any evidence that the statements

were not made in “good faith” or were made with “actual malice.” Statements are made

with “actual malice” when they are made with knowledge that they are false or with

reckless disregard as to their truth or falsity. Jacobs, 60 Ohio St.3d at 116. Thus, there

must be a showing that the false statements were made with a high degree of awareness

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of their probable falsity. Id. at 118. Further, the alleged defamatory statements must be

viewed with regard to the subjective belief of the author. Id. at 119.

{¶30} Appellants characterize Superintendent Daulbaugh’s statement as

“accus[ing] the SHS Marching Band directors of hazing, bullying, and harassing their

students” and Board President Kelly’s statement as “‘credibly confirm[ing]’ that hazing

had occurred at band camp.” This is not, however, an accurate or fair characterization.

Daulbaugh did not accuse Weaver and Ellsworth of the hazing, demeaning, or belittling

that was the subject of the Board’s investigation, and Kelly expressly stated that the

incidents could be characterized as hazing and that the investigation would continue.

There is no indication in either statement that the speakers believed Weaver and

Ellsworth were the perpetrators of the behavior, as opposed to chaperones or student

band leaders.

{¶31} Appellants take issue with the Deevers and Mrs. Maines sending e-mail

accusations without first inquiring of others who were at the band camp, particularly the

adults, to corroborate the accounts of their daughters, who appellants describe as

“sources [that] may not be inherently reliable.” Appellants contend this was reckless

behavior, considering the gravity of the allegations. There is no evidence, however, that

the Deevers or Mrs. Maines subjectively believed or had a high degree of awareness that

any part of the information relayed by their daughters was probably false.

{¶32} Appellants have not demonstrated that a genuine issue of material fact

exists regarding lack of “good faith” or “actual malice” with respect to the Board,

Daulbaugh, Kelly, the Deevers, or Mrs. Maines. Additionally, there are no statements at

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issue made by Curtis, Violi, or Mr. Maines. Accordingly, summary judgment in favor of

the defendants on the claim of defamation was proper.

{¶33} “In a case for intentional infliction of emotional distress, a plaintiff must prove

(1) that the defendant intended to cause the plaintiff serious emotional distress, (2) that

the defendant’s conduct was extreme and outrageous, and (3) that the defendant’s

conduct was the proximate cause of plaintiff’s serious emotional distress.” (Citation

omitted.) Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408, 410-411, 644 N.E.2d 286 (1994);

Valentino v. Wickliffe City School Dist. Bd. of Edn., 11th Dist. Lake Nos. 2009-L-083 &

2009-L-089, 2010-Ohio-5515, ¶ 48. “‘Whether conduct rises to the level of “extreme and

outrageous” conduct constitutes a question of law.’” Krlich v. Clemente, 2017-Ohio-7945,

98 N.E.3d 752, ¶ 26 (11th Dist.), quoting Jones v. Wheelersburg Local School Dist., 4th

Dist. Scioto No. 12CA3513, 2013-Ohio-3685, ¶ 41; accord Morrow v. Reminger &

Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 48 (10th

Dist.) (“Whether conduct is ‘extreme and outrageous’ is initially a question of law for the

court.”).

{¶34} In response to the motions for summary judgment, appellants recite

examples of what they maintain are extreme and outrageous conduct, to wit: the Deevers

and the Maines sending e-mails to the school administrators relaying information received

from their daughters without further investigation; the School Defendants’ alleged

departure from the Board’s anti-harassment policy and subsequent “broadcasting” of the

alleged defamatory statements; and the “arbitrary management of the investigation,

prosecution and judgment of the band directors.” These accusations are not sufficient

operative facts to demonstrate that any of the defendants’ conduct, as a matter of law,

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was “so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency.” Yeager v. Local Union 20, 6 Ohio St.3d 369, 375, 453 N.E.2d 666

(1983). Additionally, “[w]hen a privilege, qualified or absolute, attaches to statements

made in a defamation action, those statements remain privileged for the purpose of

derivative claims such as intentional infliction of emotional distress[.]” (Parallel citations

omitted.) Gintert v. WCI Steel, Inc., 11th Dist. Trumbull No. 2002-T-0124, 2007-Ohio-

6737, ¶ 22, citing A & B-Abell Elevator, 73 Ohio St.3d at 15. Accordingly, summary

judgment in favor of the defendants was proper on this claim.

{¶35} Finally, “[a] civil conspiracy is a ‘“malicious combination of two or more

persons to injure another, in person or property, in a way not competent for one alone.’”

Wilk v. Discover Bank, 2019-Ohio-3842, 144 N.E.3d 1023, ¶ 53 (11th Dist.), quoting

Mangelluzzi v. Morley, 2015-Ohio-3143, 40 N.E.3d 588, ¶ 54 (8th Dist.). “‘Thus, the

elements that comprise a claim of civil conspiracy are (1) a malicious combination; (2)

two or more persons; (3) injury to person or property; and (4) existence of an unlawful act

independent from the actual conspiracy. [A]n action for civil conspiracy cannot be

maintained unless an underlying unlawful act is committed.’” (Internal citations omitted.)

Wilk at ¶ 53, quoting Mangelluzzi at ¶ 54. As outlined above, appellants have not

established that any of the defendants committed an underlying unlawful act.

Accordingly, summary judgment in favor of the defendants on this claim was also proper.

{¶36} Appellants’ assignments are without merit. The trial court did not err in

granting the defendants’ motions for summary judgment and dismissing all claims with

prejudice.

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 {¶37} The judgment of the Portage County Court of Common Pleas is affirmed.

MARY JANE TRAPP, P.J.,

MATT LYNCH, J.,

concur.

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